Summary: The Council was at fault in how it decided whether to arrange alternative education provision for Mrs X’s child, W. This caused Mrs X frustration, uncertainty and frustration and meant W missed out on two terms of provision. To remedy their injustice, the Council will pay Mrs X a total of £1350 and apologise to her. It will also issue a reminder and clarification to staff so the fault does not happen again.

The complaint

1. Mrs X complained the Council did not arrange for her child, W, to receive a suitable full-time education after W struggled to attend school and that it took too long to carry out W’s Education, Health and Care Plan assessment. Mrs X said this meant W became unsettled, found it hard to maintain friendships and fell behind on schoolwork. Mrs X also said the Council’s actions had a negative impact on her and W’s father.

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The Ombudsman’s role and powers

2. 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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)
5. 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 have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months from first having notice of something to complain to us about what a council has done. “First having notice” is the wording used in our legislation. It means the point in time when we decide the person should have known enough to complain. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Mrs X complained about matters dating back to June 2023. However, she did not complain to us until October 2024. That means the matters between June 2023 and October 2024 are late. I have chosen to consider events back to June 2023 because without doing so, it would be unlikely I can come to a sound decision.
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). The Council issued its stage two response to Mrs X’s complaint in July 2024 so I have investigated matters up to that date.

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How I considered this complaint

9. I have considered:
• all the information Mrs X’s professional representative provided and offered to discuss the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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.
12. 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; and
• 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).

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. 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 “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. Government guidance “Arranging education for children who cannot attend school because of health needs” says there is no absolute deadline by which councils must start to arrange education when a child is out of school on health grounds. It says councils should arrange alternative provision as soon as it becomes clear the child will be away from school for more than 15 days. The guidance explains “the 15 days may be consecutive or over the course of a school year”.
16. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
17. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says:
• Councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• Councils should work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• Councils should put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

18. In May 2023, W experienced an increase in sensory issues which caused them to struggle in school. Around June 2023, the school placed W on a part-time timetable of four mornings only and one full day in class.
19. A Council educational psychologist (EP) became involved with W in June 2023. The EP worked with W’s school to make three funding requests in July, September and November 2023. The September request came in the form of a SEND Support Provision Plan. (SSPP). SSPP’s are used to set out what support is already in place from a school and to ask the Council for further funding to meet the child’s special educational needs, where the child does not have an EHC Plan. The SSPP recorded what support the school would put in place itself and what further support it and the EP felt W needed. The SSPP noted W was on a reduced timetable.
20. The EP held a Team Around the Child (TAC) meeting with Mrs X and the school in early December 2023. TAC meetings are held by councils to bring together professionals involved with children with additional needs to share information and decide next steps. During the meeting, Mrs X said she thought W would struggle to do a full day of learning at present. Records of the meeting show the EP noted that despite high staffing levels, a bespoke education and targeted and specialist interventions as part of W’s SSPP, they were not making progress. The meeting agreed Mrs X should apply for an EHC assessment. Mrs X submitted the request in mid-January 2024.
21. The EP sent their advice as part of the EHC assessment in mid-April 2024. The advice noted W was a bright child who was able to engage with learning consistently over time. The EP said W was entitled to a full-time education and securing it must be a priority.

Mrs X complained to the Council in mid-May 2024. She said the Council had failed to provide a full-time education for W. The Council responded in mid-June 2024 to say:

• The school had not followed the correct process in dealing with W’s attendance issues. It said that because W’s absence was unauthorised, the school should have used a procedure which would refer them to a service which provided support for children with W’s health conditions; and
• It was satisfied the EP involvement and SSSP were an “appropriate response” to W’s attendance issues. It said the SSSP was suitable for W so there was no need for it to arrange alternative provision and it would need time for the SSSP to work.
1. The Council issued W’s EHC Plan in late-June 2024.
2. Mrs X asked the Council for a stage two response to her complaint. The Council responded at the end of July 2024. It said:
• It recognised W had been on a part-time timetable for longer than normal, but it felt it had still acted in line with the Ombudsman’s guidance; and
• The TAC meeting heard Mrs X did not think W could attend school for a full day so the Council had decided W needed part-time education.
3. I asked the Council how it had decided it would not arrange alternative provision for W. The Council told me:
• Section 19 of the Education Act 1996 is triggered if a pupil is absent for more than 15 days consecutively; and
• W’s attendance record did not show they missed more than 15 days in a row.
4. W’s attendance records show that almost all of their absences were authorised by the school.

Findings

EHC assessment

26. To comply with the statutory timescales, the Council had to complete W’s EHC assessment and issue their EHC Plan within 20 weeks of the date Mrs X asked for the assessment. This was by early June 2024. The Council issued W’s EHC Plan in late June 2024, three weeks late. This delay does not amount to fault.

Alternative provision

27. The Council was of the view that W’s school was available and accessible to them between June 2023 and July 2024 and therefore that it did not need to arrange alternative provision. The Council was at fault in how it came to that decision. This is because:
• In June 2024, the Council told Mrs X it was satisfied the EP involvement and SSPP were an appropriate response to W’s poor attendance. However, there is no evidence of that decision-making at the time the Council received the funding requests or SSPP. Furthermore, the December 2023 TAC meeting heard that despite the SSPP and EP’s support of the school, W’s situation had not improved. This indicated they were no longer an appropriate response;
• The Council said that based on what Mrs X said in the December 2023 TAC meeting, it decided W needed a part-time timetable so it did not need to arrange alternative provision. However, Mrs X’s view did not necessarily mean W did not need any alternative provision, to build them back up to full-time education. There is also no evidence of the Council’s decision-making at the time of the TAC meeting and by that time the Council had been aware W was on a part-time timetable since June 2023. It had not kept that timetable under review, in line with the Ombudsman’s focus report of the DfE guidance;
• There is no evidence of how the Council considered whether the advice from the EP in April 2024, which noted full-time education for W needed to be a priority, meant it needed to arrange alternative provision. The EP’s advice indicated the support from the school as part of the SSPP, part-time timetable and EP involvement had not succeeded in integrating W back into full-time education;
• The Council told Mrs X the SSPP needed time to work in June 2024. By that time, the SSPP had been in force for nine months and had not been successful. Again, the Council had failed to keep the part-time timetable under view to ensure it was only ever an emergency solution;
• In addition, the Council wrongly told me it had not needed to arrange alternative provision for W because they had not been out of school for 15 days consecutively. That is not what the government guidance says councils should do. The guidance says councils should arrange provision when it is clear a child will be out of school for 15 days, consecutively or cumulatively, over a school year.
28. The fault meant Mrs X experienced significant frustration, upset and uncertainty. On balance of probabilities, had the Council acted without fault it would have either arranged alternative provision for W after the December 2023 TAC meeting or agreed the additional funding the school had requested in July, September and November 2023. It is likely either approach would meant W would have received more education than they did. This meant W missed out on education between January and July 2024.
29. The Council also gave Mrs X inaccurate information, which caused her further frustration. It said the school had not followed the correct process to deal with W’s unauthorised absence from school. However, W’s absences were not unauthorised, as shown by their attendance reports.

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Action

30. Within one month of the date of my final decision, the Council will:
• Apologise to Mrs X for the upset, uncertainty and frustration she felt because of its failure to properly consider if it owed W the duty to arrange alternative provision and for giving her incorrect information. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Pay Mrs X £350 in recognition of her injustice.
• Pay Mrs X £1000 in recognition of W’s injustice. This takes into account W’s age, the amount of education they nonetheless received from their school and their likely ability to engage in any education the Council should have offered.
• Remind officers that they must consider whether the Council should arrange alternative provision for a child not in full-time education whenever they receive significant new information. They must keep a record of that consideration as without it, the Ombudsman may not be persuaded the Council properly considered its duty.
• Clarify to officers that the DfE guidance says councils should arrange provision when it is clear a child will be out of school on health grounds for 15 days, consecutively or cumulatively, over a school year.
31. The Council will provide us with evidence it has complied with the above actions.

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Decision

32. I have found fault causing injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman