Summary: Ms X complained that the Council failed to provide her child with suitable education and delayed issuing an Education, Health and Care Plan. There was an eight month delay in issuing the Plan, however we have not found fault in the Council’s decisions that Ms X’s child had access to suitable schooling and it was not necessary for it to provide alternative education. The Council has agreed to apologise and make a symbolic payment to acknowledge the impact of the delayed Plan.

The complaint

1. Ms X complains the Council has failed to provide suitable full-time education to her child since 2022.Ms X says:
• There was delay issuing a final Education, Health and Care (EHC) Plan.
• Despite a final EHC Plan being in place since mid-2024 fulltime suitable education has still not been secured.
• There has been poor communication and frequent staff changes, so she is not aware what is happening about securing more education.
• Her child missed out on free school meals during the period they were out of education.
2. As a result of the alleged fault Ms X says her child is now socially isolated and has fallen behind with education. The impact of them being at home has affected the rest of the family and put extra pressure on Ms X as a parent carer.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

10. I have investigated the period from April 2023 to May 2024 for the following reasons:
• I have exercised discretion to consider matters from Spring 2023. While this is more than twelve months before Ms X brought her complaint to the Ombudsman, it is within a year of her complaint to the Council. The Council became involved in Spring 2023 due to a request for an EHC needs assessment and because of concerns about attendance. This is a natural starting point for considering the complaint. The Council has included this period within its own consideration of the complaint.
• I have not investigated whether Ms X’s child received suitable education before Spring 2023. I consider Ms X could have raised a complaint about this period sooner.
• I have not investigated the Council’s decision to refuse an EHC needs assessment in 2022. This is too long ago, and Ms X had a right of appeal that we would have expected her to use if she disagreed with the decision.
• I have not investigated events after May 2024 when the final EHC Plan was issued and alternative provision put in place. Ms X has referred to problems with the tuition offered and the lack of a specialist school place. The Council has not yet had an opportunity to consider these issues under its own complaint process. They are therefore premature for us to consider. Ms X would need to put these matters to the Council in the first instance.
• Ms X had a right of appeal if she was dissatisfied with the content of the final EHC Plan that we would have expected her to use.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

EHC Plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 

Alternative education provision

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The courts have said the fact that parents have objections to a particular school does not necessarily mean the Council is obliged to make alternative arrangements. Whether it is reasonable for the child to attend is “a question to be answered objectively, not by reference to the parents’ view of the facts”. The “acid test” is whether educational provision a council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
21. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education.

What happened

22. There was a pattern of dwindling school attendance over 2022 and 2023.
23. In Spring 2023 the primary school made a request for an EHC needs assessment. The Council agreed to assess. Any final EHC Plan was due by August 2023, at which time Ms X’s child was due to transfer to secondary school.
24. Due to delays in obtaining advice from an Educational Psychologist the Council did not issue a final Plan until Spring 2024, eight months late. This named a type of school (mainstream). Ms X challenged this and a month later the Council issued an amended final Plan naming a type of school (specialist). The Council consulted several schools in Spring 2024, and subsequently, unsuccessfully.
25. Ms X asked for alternative provision during the period the EHC needs assessment was ongoing (Spring 2023 to Spring 2024). The Council refused support other than from its reintegration team. There is evidence the Council considered whether s.19 education was required at the relevant time, and decided it was not. The evidence I have seen shows it justified these decisions. The Council’s view was that Ms X’s child could attend mainstream school. Its reintegration team worked with Ms X, her child, and the school in Spring / Summer 2023 and attendance was improving. The Council satisfied itself the combination of school and reintegration support was providing a suitable education.
26. In Autumn 2023, the situation changed as Ms X did not receive a place at her preference of secondary school, but did have a school place allocated. The Council recorded Ms X was electively home educating in September 2023, because she did not want to send her child to the allocated school while she appealed for a different school. Due to previous reintegration team involvement the Council’s Child Missing Education team retained oversight of the situation. When Ms X advised she was not home educating the Council again considered if s.19 education was required. It decided it was not because places were available and offered at two suitable mainstream schools. The Council was willing to provide alternative provision to reintegrate into one of these schools, but did not agree Ms X’s child could not attend school.
27. The Ombudsman has no remit to challenge professional judgments by Councils where there is no evidence of fault in the way the decisions were made. The evidence I have seen shows this was a child who remained firmly on the Council’s radar throughout the period of non-attendance and whose needs were reviewed regularly with clear decisions made and recorded. Reintegration support into mainstream school was offered but declined by Ms X. A range of services were involved and communicated with each other. This is evidence of good practice.
28. I have found no fault in the way the Council decided not to offer alternative education other than reintegration support between Spring 2023 and 2024. This was a decision the Council was entitled to make, and the Ombudsman cannot question the judgment it made. (Local Government Act 1974, section 34(3), as amended)
29. The Council says it was only when the EHC needs assessment completed and it consulted schools with the final Plan that there was evidence a mainstream school could not meet needs.
30. That the Council decided specialist provision was required in Spring 2024 does not mean it would necessarily have reached the same view months earlier. It is not uncommon for anxiety or engagement with education to worsen the longer a child is not attending school.
31. Once the Council decided a specialist placement was required, and it was unable to find a place, it correctly put in place alternative s.19 education of 25 hours per week.
32. I have not investigated any difficulties or delays arising from this alternative provision or implementation of the EHC Plan. These were not included in Ms X’s original complaint and the Council has not yet had a chance to consider them. This means they are premature for the Ombudsman to consider. (Local Government Act 1974, section 26(5))
33. As there was no fault in the way the Council decided not to provide alternative education between Spring 2023 and Spring 2024 the issue of providing free school meals outside of school did not arise. The Council’s view was that Ms X’s child had school places available throughout this period and it would have supported attendance via its reintegration team.

Fault and injustice

34. I have found there was an eight-month delay in issuing the final EHC Plan. This caused frustration and distress as well as uncertainty whether extra support provided via an EHC Plan sooner may have altered the educational outcome.

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Agreed Action

Within four weeks of my final decision

35. The Council will apologise to Ms X for the EHC Plan delay.
36. The Council will pay Ms X £800 to acknowledge the impact of the delay on Ms X and her child.
37. The Council will provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman