Summary: Mrs X complained the Council delayed providing Alternative Provision of education for her child. Mrs X also complained the Council delayed production of her child’s Education, Health and Care Plan. We found fault with the Council failing to provide suitable education for Mrs X’s child from 30 November 2023 to 26 February 2024. We also found fault with the Council delaying production of Mrs X’s child’s Education, Health and Care Plan by 10 weeks outside the statutory timescales. The Council agreed to apologise to Mrs X and pay her £150 for the frustration, inconvenience and lost opportunity and £1,100 for her child’s missed education caused by the fault of the Council.

The complaint

1. Mrs X complained the Council delayed providing Alternative Provision of education for her child resulting in missed education.
2. Mrs X complained the Council delayed production of her child’s Education, Health and Care Plan.
3. Mrs also complained the Council failed to communicate with them and were ignored repeatedly in their contacts.

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The Ombudsman’s role and powers

4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. 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).
6. 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)
7. 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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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 opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and regulations

EHC Plans

10. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
11. 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. 
• 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).  

12. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
13. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative provision of education

14. 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.
15. 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)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. 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)
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
21. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
22. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints procedure

23. The Council’s complaints procedures says it will provide a response within 28 calendar days of receipt of a complaint.
24. The Council says where a complaint response fails to resolve or conclude a complaint it will be reviewed by the Complaint Officer or an appropriate senior manager. The Council sets no timescale for this response in its complaints procedure.

What happened

25. In September 2023, Mrs X’s child, who I shall refer to as Y, was not regularly attending school. From the start of term until 12 October 2023, Y only attended 4 half-day sessions before stopping attendance entirely.
26. On 22 November 2023, Mrs X contacted the Council to request Alternative Provision of education for Y.
27. The Council referred Y to the Temporary Provision Panel on 5 December 2023. Mrs X also sought an EHC Plans Needs Assessment for Y on this date.
28. On 14 December 2023, the Temporary Provision Panel accepted Y for Alternative Provision of education. The Council contacted a tutoring company to find a suitable tutor for Y.
29. On 9 January 2024, a tutor confirmed they could provide 3 hours of tutoring for Y each week. The Council confirmed with Mrs X it had approved tuition for Y on 10 January 2024 and this could be up to 25 hours each week.
30. Y started to receive 3 hours tutoring from 16 January 2024 with two hours of homework.
31. On 19 January 2024, the Council agreed to assess Y for an EHC Plan.
32. On 6 February 2024, the Council held an education planning meeting for Y. The Council confirmed:
• Y had completed 100% of the 1:1 tuition offered so far.
• With the tutor that Y was coping with the work on offer without becoming exhausted and Y knew she needed to catch up on missed work.
• Y’s school would be providing Geography lessons on a 1:1 basis.
• Y’s tutor could increase their offer of provision to 4 hours each week and Y could supplement this with Academy 21 online learning.
33. From 26 February 2024, Y started to access Geography lessons in school once each week and Academy 21 online learning for 5 hours each week. Y’s tutoring also increased to 4 hours each week.
34. On 28 March 2024, Mrs X asked the Council to replace Academy 21 learning with extra tutor hours.
35. The Council held a further education planning meeting for Y on 23 April 2024. The Council confirmed:
• Y had continued to complete 100% of the tuition on offer.
• Y had accessed weekly Geography lessons in school each week lasting between one hour and one and a half-hours.
• Y had been accessing Academy 21 but the plan was to replace this with an extra hour of tutoring.
• Plans are still in place for Y to take GCSEs.
36. From 26 April 2024, the Council stopped Academy 21 and replaced this with an extra hour of tutoring.
37. The Council stopped providing Alternative Provision of education on 7 June 2024.
38. On 4 July 2024, the Council produced a Final EHC Plan for Y.
39. Mrs X lodged a formal complaint with the Council on 18 July 2024. Mrs X said:
• Y had been out of school since September 2023 but had only received limited Alternative Provision of education since February 2024.
• Because of Y’s lack of education they would only sit five GCSEs rather than ten.
40. The Council acknowledged Mrs X’s complaint and promised a response by 16 August 2024.
41. The Council provided a Stage 1 complaint response on 21 August 2024. The Council said:
• Its Temporary Provision Panel agreed to provide tuition for Y in December 2023 which started in January 2024. The Council said it put this in place until the year 11 leaving date.
• Y’s school also provided Geography lessons every week and it provided some provision through online learning with Academy 21.
• It produced a Final EHC Plan for Y on 4 July 2024 and was waiting on Mrs X’s input about Y’s choice of post-16 provision.
42. In August 2024, Y gained five GCSEs.
43. On 19 September 2024, Mrs X sought consideration of her complaint at Stage 2. Mrs X complained the Council delayed putting in place education for Y and when it did put in place education this was not a full-time equivalent. Mrs X said the tutor was good but Y did not have access to enough hours of education. Mrs X also complained the Council failed to meet the statutory timescales for producing Y’s EHC Plan.
44. The Council issued a Stage 2 complaint response on 20 October 2024 in which it advised it agreed with its Stage 1 complaint response.

Analysis

Provision of education

45. It is not the role of the Ombudsman to investigate the actions of a school. I could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
46. While Y stopped attending school in September 2023, neither Y’s school nor Mrs X told the Council about Y’s absence until 22 November 2023. I cannot find the Council at fault before this date.
47. On 22 November 2023, Mrs X told the Council she wanted Alternative Provision of education for Y because she continued to be out of education. At this time, Y had been out of education for more that 15 days meaning the Council needed to consider its Section 19 duty.
48. The Council had a duty to consider Y’s access to education and decide what course of action to take, with the view to providing Y with access to education, from the sixth day following notification that Y was absent from school. For Y, this would have been 30 November 2023.
49. The Council did not consider Y’s access to education until 14 December 2023. And, when it did consider it needed to provide Alternative Provision of education for Y on this date, it only put this in place on 16 January 2024. This meant the Council was at fault for failing to provide education for Y for five weeks.
50. When a council provides Alternative Provision of education for a child it should aim to provide a full-time equivalent. However, this would not mean full-time school hours if a child was receiving 1:1 tuition as this is a more condensed form of learning compared to in schools. Additionally, a council does not have to provide full-time hours if this is not in the best interests of a child and any Alternative Provision of education should be based on a child’s individual circumstances.
51. While the Council started to provide education for Y on 16 January 2024, it only provided three hours of 1:1 tutoring each week and two hours of homework. There is no evidence the Council considered Y’s individual circumstances and needs when deciding that three hours of tuition and two hours of homework was suitable education for Y. The decision about providing this amount of provision instead seems based on the tutor’s availability. This approach by the Council is fault.
52. From 16 January 2024 to 26 February 2024, the Council put in place some Alternative Provision of education for Y. However, the Council was at fault for failing to consider the suitability of this level of education for Y. When the Council held the review meeting in February 2024, this indicated the level of education on offer for Y was too low. This meeting confirmed Y was accessing all education on offer and needed more to help her catch-up on the education she missed. The Council’s fault has therefore caused Y not to access a suitable level of educational provision for five weeks.
53. The Council has shown that it kept Y’s access to education under review with education planning meetings for Y in February 2024 and April 2024. This was the correct action for the Council to take to ensure it kept Y’s part-time education under review. During both education planning meetings, the Council has shown that it has considered Y’s individual circumstances and needs. The Council increased Y’s access to education to twelve hours in February 2024, taking into consideration input from Y’s tutor when making this decision. The Council then reduced Y’s education to nine hours in April 2024 at the request of Mrs X to remove the online learning and replace this with extra tutor hours. At both meetings, the Council took appropriate action to consider Y’s circumstances and tailored education to meet Y’s needs.
54. I cannot find fault with the Council’s decision making about Y’s access to education in either meeting. Therefore, I cannot find fault with the level of education provided to Y from 26 February 2024 to 7 June 2024.
55. The statutory end point for a child’s education, before post-16 provision, ends on the final Friday of June in the year a child turns 16. For Y this was 28 June 2024. The Council ending Alternative Provision of education on 7 June 2024 was three weeks before this date; this was fault. While this was fault, this did not cause a significant personal injustice to Y. This is because 7 June 2024 was the end of term for Year 11 at Y’s school meaning her peers would also be receiving no education after 7 June 2024 either. After 28 June 2024, there was no statutory requirement for the Council to provide Alternative Provision of education for Y.
56. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
57. Having considered Y’s individual circumstances, I consider the Council should pay Mrs X a total of £1,100 for Y’s missed education. This covers a higher award for the five weeks in which Y received no education and a lower award for the five weeks in which Y received education which was insufficient to meet her needs. Mrs X may use this to go towards the cost of any education she sourced for Y while they were absent from school.

EHC Plan

58. Following Mrs X’s request for an EHC Plan needs assessment for Y on 5 December 2023, the Council had six weeks, until 16 January 2024, to decide whether to assess Y for an EHC Plan. The Council decided to assess Y on 10 January 2024. This was three days outside the statutory timescales and was fault.
59. The Council’s deadline for issuing a Final EHC Plan for Y, following assessment, was 23 April 2024. The Council issued a Final EHC Plan on 4 July 2024. The Council delayed producing the Final EHC Plan by ten weeks outside the statutory timescales; this was fault, inclusive of the three day delay in deciding to assess Y.
60. This fault will have caused Mrs X frustration and inconvenience and delayed Y opportunity to receive any EHC Plan provision. This has also delayed Mrs X’s appeal rights to the SEND Tribunal about the content of the EHC Plan.
61. Given the circumstances involved, I consider the Council should apologise to Mrs X for failing to meet the statutory timescales. The Council should also provide Mrs X a payment of £150 for any inconvenience and frustration caused to her and potential lost opportunity for Y.

Complaint handling

62. Mrs X lodged her complaint with the Council on 15 August 2024. The Council’s policy says it will provide a response in 28 calendar days. The Council only provided its response on 21 August 2024; this meant the Council’s response was six days outside its complaint timescales.
63. Mrs X requested consideration of her complaint at the next stage on 19 September 2024. The Council’s policy has no set timescales for this response. However, it is suitable to use the same 28 day timescale for responses previously detailed in the Council’s complaints procedure in the absence of a different timescale. The Council provided its response on 20 October 2024; this was 3 days outside the complaint timescales.
64. In total, the Council delayed handling Mrs X’s contacts by 10 calendar days; this was fault. The Council should apologise to Mrs X for avoidable frustration its delays in responding to her complaints outside its complaint timescales caused her.

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Action

65. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and a payment of £150 for her inconvenience and frustration and Y’s lost opportunity caused by the ten-week delay outside the statutory timescales in producing an EHC Plan.
• Provide Mrs X with a payment of £1,100 for Y’s missed educational provision from 30 November 2023 to 26 February 2024.
66. The Council should provide us with evidence it has complied with the above actions.

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Decision

67. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman