Summary: Mrs X complained that the Council failed to arrange alternative provision for her son (Y) when he could not attend his school and failed to complete an Annual Review of his Education Health and Care Plan. We found fault with the Council. This fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make symbolic payments. The Council has also agreed to carry out some service improvements of its Annual Review process.

The complaint

1. Mrs X complained about the Council’s failure to provide education to Y, when he could not attend his school and the delay with an Annual Review of his Education Health and Care (EHC) Plan.
2. Mrs X says the Council’s failings meant Y’s anxiety increased leading to him avoiding most things outside the home.

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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. 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.
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

7. I have investigated what happened from February 2024, when Y stopped attending school after his fixed-term exclusion, up to the end of December 2024, when the Council provided its final response to Mrs X’s complaint.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council 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

Legal and administrative framework

Alternative provision

10. 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.
11. 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)
12. 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)
13. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
14. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’)

Annual Review

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

17. At the end of February 2024 Y was excluded from his school and did not feel able to return.
18. Nearly eight weeks later a meeting to review Y’s EHC Plan took place. The Annual Review report stated Y’s school attendance prior to the exclusion had improved. Following his exclusion the school offered him a part-time timetable but Y refused to accept. Y found the school environment overwhelming. Since Y stopped attending school Mrs X had been trying to use workbooks with Y at home, she had also looked for tutoring for him to ensure he was not getting academically behind. Mrs X said she would expect the Council to put alternative provision for Y in place following its Section 19 duty as he was too unwell to attend the school.
19. In Y’s Annual Review report it was noted Y was unable to access mainstream setting due to his social emotional and mental health difficulties. Because of that alternative provision, such as special schools or Education Otherwise than at School (EOTAS) should be explored.
20. In October 2024 Mrs X complained to the Council about the lack of alternative provision for Y.
21. At the same time Y’s school offered him access to online provision. They provided Y with a laptop and password. The school also offered him some practical sessions to get specific skills but Y could not engage with them as they took place on the school site. Y struggled to engage with online provision, he would log in but would quickly give up. The school did not test his knowledge but would record his attendance based on him accessing the online hub.
22. In its response two weeks later the Council upheld Mrs X’s complaint. It said it had failed to consider other placements in view of the unsuitability of Y’s current school. The Council also failed to send to Mrs X’s proposed amendments to Y’s EHC Plan following its review. The Council said Mrs X could ask for a step two review, which would only be considered if there was new or extra evidence.
23. In mid-December 2024 the Council refused to carry out a step two review as Mrs X had not provided any new evidence.

Analysis

Alternative provision

24. In the spring term of 2024 the Council knew Y stopped attending his school following his fixed-term exclusion. Council started reviewing Y’s EHC Plan in April 2024 which means it must have been aware of Y’s circumstances.
25. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022,updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• 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;
• the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• retain oversight and control to ensure your duties are properly fulfilled. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
26. The Council failed to decide whether it should have arranged alternative provision for Y when he was not attending his school. This is fault, which caused injustice to Mrs X as she kept asking the Council to support Y and was frustrated by the Council’s failure to act.
27. The Council’s failure to make a decision on its Section 19 duty caused injustice to Y. If the Council had made such a decision, it would have been more likely than not to decide it owed Y this duty. This is because:
• during the Annual Review meeting in April 2024 the unsuitability of Y’s school was discussed and the Council communicated its intention to consult with other placements;
• in its complaint response the Council accepted it had failed to ensure Y received suitable education.
28. From October 2024 Y’s school offered Y some online provision and practical skills sessions. The Council failed to check whether this provision was suitable and accessible for Y. The Council remained responsible for Y’s education when he could not attend the school.
29. The impact on Y of the Council’s failure to ensure he was receiving suitable education must have been significant in view of his age, special educational needs and his cognitive abilities. The lack of education for many months must have contributed to his isolation and increased difficulties to engage with any offers.

Annual Review

30. The Council failed to complete an Annual Review process for Y, following the meeting at the end of April 2024. The Council failed to send Mrs X a decision letter with its position on whether any amendments were needed to Y’s EHC Plan. This is fault.
31. The Council’s fault caused injustice to Mrs X. She participated in the discussions about the unsuitability of Y’s school placement and was aware of the Council’s intention to consult with special schools or possibly consider EOTAS. The Council failed, however, to confirm this position through its decision to amend Y’s EHC Plan. Mrs X could not challenge the Council’s position as she did not have a decision or an amended EHC Plan to appeal.

Service improvements

32. Within the last year we have made several service improvement recommendations for the Council’s failure to consider its Section 19 duty. We have recommended the Council:
• provide written guidance to relevant staff members on when and how it should consider its section 19 duty to children who are not attending school. The guidance will include the importance of identifying those children through information provided on Education, Health and Care need assessment requests and communicating this to the relevant office or education welfare officers;
• share a copy of the Ombudsman's focus report "Out of school, out of sight?" with relevant officers, alongside the findings of the Ombudsman's investigation. This is to emphasise the Council's responsibility to decide whether it owes a child a duty under section 19 of the Education Act 1996, as well as the Ombudsman's expectations of good practice in adhering to this duty;
• share our decision with relevant staff to ensure that the Council keeps relevant contemporaneous notes about any decision it makes about its section 19 duty and remind relevant staff of the importance of issuing EHC Plans within the statutory timeframes, whether this is in time for phase transfer or following an annual review.
33. We recognise it will take some time for the Council to address its failings to comply with its Section 19 duty identified in this and in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

34. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. 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 I have recommended;
• pay Mrs X £3,400 to recognise Y’s loss of education during two terms;
• pay Mrs X £500 to recognise her distress caused to her by the Council’s failings.

The Council will pay Mrs X £3,900 in total.

The Council will provide the evidence that this has happened.

35. We also recommend the Council within three months of the final decision:
• review its Annual Review process to ensure the relevant team send the parents or the young person the Council’s decision within four weeks from an Annual Review meeting. If the Council intends to amend a child’s EHC Plan, within the same timescale it should also send proposed amendments;
• remind the SEN staff dealing with Annual Reviews of the mandatory stages of the process and the statutory timescales.

The Council will provide the evidence that this has happened.

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Decision

36. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman