Summary: Mrs X complained about the Council’s handling of her daughter, S’s, Education, Health and Care Plan, school attendance and communication with her about it. We found the Council has already taken appropriate action for its poor communication with Mrs X between November 2023 and January 2024. We found no other fault.

The complaint

1. Mrs X complains about the Council’s actions in relation to her daughter’s, S, Education, Health and Care Plan, school attendance and communications about her complaint. She says that the Council failed to:
• ensure that her daughter S received the provision from section F of her Education, Health, and Care Plan it issued in September 2023;
• communicate with her effectively between November 20203 when she said S was not getting provision from section F of her EHC Plan and January 2024; and
• consider her engagement with the school and the Council to get S to attend school.
2. Mrs X said the lack of provision from section F of S’s EHC Plan meant that she could not access the school and therefore the provision from section F of her EHC Plan. The lack of effective communication meant that Mrs X was unsure of what was going to happen and what support S could get. Finally, the Council’s lack of consideration of her efforts to get S into school meant that it wrongly decided to issue her a Fixed Penalty Notice (FPN) warning due to S’s school absence. All of this caused her and S avoidable distress and efforts in chasing the Council for updates.
3. Mrs X would like the Council to apologise and make changes to ensure that this does not happen to another family.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs X and the Council now have had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Section 19 duty

11. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))

Section 7 duty

12. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
13. A council may take action against parents where it is not satisfied their child is receiving suitable education and it considers the child should be attending school. The council may prosecute the parents. Before doing so it must consider whether to apply to the courts for an Education Supervision Order instead. It is a defence to a prosecution that the child’s absence is due to sickness or ‘unavoidable cause’. (Education Act 1996, sections 437-447)
14. The Government introduced a fast track procedure for enforcing school attendance. In its leaflet ‘Prosecution – A Guide for Parents’ the Council explains the process as follows:

“Under the Fast Track procedure, you have up to 12 weeks to ensure your child is attending school regularly and punctually. You will receive a summons to appear at court. If attendance has sufficiently improved by the time of the court hearing then the prosecution against you will be withdrawn. If attendance has not improved to a satisfactory level then the prosecution against you will continue.”

15. The Council has an Integrated Prevention and Earliest Help team which considers what support to offer to families. The Council’s early help service provides support and intervention to children, young people, and families. Universal services offer essential support through education, healthcare, and community activities. Targeted early help focuses on children and families needing multiagency support through a team around the family approach to prevent issues from escalating to statutory intervention. Schools can refer to the Early Help Attendance Panel for children or young people who are severely absent due to complex issues affecting their access to education. The panel provides guidance, coordinated support for those who are severely absent.
16. All schools have an allocated an education welfare officer (EWO) who attends targeted support meetings with their allocated schools on a regular basis to talk about persistently or severely absent children. Attendance data is monitored through a system which allows the Council to track and monitor attendance allowing it to prioritise the pupils, cohorts and schools to support. It says this focuses its efforts, to unblock area wide barriers to attendance.
17. Schools, trusts and councils are expected to work together and make use of the full range of legal interventions including penalty notices and prosecution. The Council is responsible for issuing fixed penalty notices and its legal team decides if a case should proceed to prosecution.

What happened

18. In September 2023 the Council issued S’s first EHC Plan. The provision in section F of her EHC Plan was based on her attending a school.
19. As part of a separate complaint, the Council explained to Mrs X that it considered that S could attend school, therefore it did not have to arrange alternative provision for her away from school. The Council also explained it believed it was Mrs X’s role to ensure S was attending school, and it explained to her the difference between the Council’s section 19 duty and the parental section 7 duty.
20. In November 2023 Mrs X raised concerns with the Council and said that S could not attend school and because of this was missing special educational provision F set out in her EHC Plan.
21. In January Mrs X spoke to an educational welfare officer and discussed the difficulties she experienced in getting S to attend school. She also asked for information about obtaining an Education other than at school (EOTAS) package. EOTAS is agreed where a council or Tribunal has decided that education in any setting would be inappropriate for a child due to their SEN, and it is set out in their EHC Plan. The Council’s notes show the officer told her this would not be arranged via the education welfare team. The case notes show that the officer told Mrs X that S had a school place, and she was expected to attend, and suggested she organised a meeting with the school and Mrs X to come up with the plan on how to get S to attend her school.
22. In mid-January the Council sent a fixed penalty notice (FPN) warning letter to Mrs X. Mrs X said she did not get it until over a week later. The warning letter said that S missed more than 10 sessions without giving a justifiable reason to the headteacher, and this was why Mrs X received the warning that the Council may take action against Mrs X for not ensuring S attended school.
23. Two days after receipt of the warning letter Mrs X emailed the Council. She said that:
• she was disappointed to get this warning letter considering she had asked the Council for support in getting S into school in November 2023;
• in the past the family worked with early help setting but the support ended as the service could not help more and S was still not attending;
• the family worked with Emotionally Based School Avoidance Officer (EBSA) who attended Team Around Family (TAF) meetings and recommended strategies to ensure S attended school. There were approximately 16 strategies that were implemented but did not ultimately result in S attending school for consistent periods of time;
• the only successful intervention was a privately hired coach who would escort S into school, however the family could not afford this provision long term; and
• she was open and willing for any other suggestions how she could get her disabled child into school as she considered the family had done all they could to get S into school.
24. The Council’s Education Welfare Team did not initially respond to Mrs X’s message, and she had to chase the response. Four days later, a member of the Team told Mrs X she would look into it and get back to her.
25. In early February the Education Welfare Officer told Mrs X that because she met with the school and the Council and agreed a reintegration plan for S the Council would not pursue the FPN further.
26. Also in February, the Council amended S’s EHC Plan which said she would attend a mainstream school. This Plan gave Mrs X a right to appeal to the SEND Tribunal if she disagreed with it.
27. In early February Mrs X complained to the school and the Council. She said that S’s school was not putting all the provision named in section F od the EHC Plan in place. Specifically, she said, that the school failed to make sure that:
• S had a trusted person to meet at the start of each day to help her transition to learning environment;
• S was offered movement breaks;
• S had a trusted peer or buddy to who she can be linked with; and
• S’s learning programme incorporated S’s interests whenever possible.
28. Around this time the Council also issued a final EHC Plan for S’s transition into secondary school which gave Mrs X appeal right to the SEND Tribunal.
29. Mrs X also said that she had been raising concerns between November 2023 and January 2024 but heard nothing back from neither the school nor the Council. She said the guidance issued to the Council says prosecution should be used as a last resort when there is a lack of engagement from the parents, and she considered it was the Council and the school who did not engage with the family.
30. The Council responded to Mrs X’s complaint in early March 2024. It said that:
• S’s headteacher responded to her complaint and suitably addressed the issues around the lack of provision from section F of the EHC Plan; and
• the Council issued the FPN because of S’s poor attendance and because sometimes there was lack of engagement from Mrs X in the process.
31. Mrs X asked the Council to consider her complaint further, soon after she had received the response. She said that:
• she has always engaged with the school and the Council, but because there was no contact from either of the organisations between November 2023 and January 2024 there was nothing to engage with;
• the next communication from the Council was the FPN which included a monitoring period had already begun before Mrs X received the warning letter;
• the professionals were not prepared for the meeting that was held in early February about the support plan for S. They seemed to be unaware of the previously strategies taken to engage S with school and insisted that it was a parental responsibility to get S to attend, without considering S’s hidden disabilities; and
• a council officer suggested there was nothing in S’s paperwork to suggest that she could not attend school and the reason must have been at home. This was insulting as there are records from the early help team that S has school-based avoidance issues that are not related to Mrs X’s parenting.
32. The Council responded to Mrs X’s request in late April 2024. It said that:
• it acknowledged the school faced challenges in implementing S’s provision from section F between September 2023 and November 2023. However, the Council was satisfied with how the school planned on rectifying this once S was attending the school setting;
• it still considered it was up to the school to manage absences before getting the Council involved;
• the Council told the school it had sent the FPN warning letter to Mrs X;
• the Council considered Mrs X did not always engage with the process because S’s school told it that it offered a meeting to her and she did not accept; and
• there was no evidence in the professional report to suggest that S was demand avoidant and the Council followed procedures when it considered S’s case.
33. Mrs X was unhappy with the Council’s response and few days after this she asked the Council to consider her complaint further.
34. The Council issued its final response to Mrs X’s complaint in late June 2024 and said that:
• Mrs X did not raise the issue of missing section F provision until February 2024 when she made her complaint to school and the Council. The Council was not aware of the lack of special educational provision between September and November, and therefore could not take any action about this;
• as soon as Mrs X told the Council that the school did not provide some of provision from section F of S’s EHC Plan the Council requested tutoring to be put in place for S, and this began at the end of February 2024;
• it accepted the communications from the case officer were below the expected standard. Its records showed Mrs X was left without communications for nine working weeks. It apologised for this and offered to pay Mrs X £150 to recognise the avoidable distress this caused her;
• the Council sent the FPN to Mrs X in mid-January and this should have arrived with her three to four days later. It recognised that Mrs X must have been stressed to find out they were in the attendance monitoring process already, and apologised for the date not being adjusted to allow the letter to arrive before beginning to monitor attendance;
• the Council relied on the information from the school about S’s non-attendance and since it had no justifiable reason for absence, and no medical reason, it decided to issue the warning;
• the comment the Council’s worker made about S’s record not mentioning demand avoidance was made in light of the fact that the summary of her neurodevelopment assessment mentioned it but not as a diagnosis, but rather part of behaviour that Mrs X noticed in S.
35. Mrs X was unhappy about the Council’s response and in July 2024 she asked the Ombudsman to investigate her complaint.

Analysis

Provision from section F of S’s EHC Plan

36. Mrs X said that S did not receive the provision from section F of her EHC Plan between September 2023 and November 2023 when she stopped attending school. Mrs X provided evidence showing she told S’s case worker she was not attending school in November 2023.
37. The Council’s records show it contacted S’s school soon after Mrs X told it that S was not attending to check what action, if any, it needed to take. Based on the information it received from the school it decided that it did not owe a section 19 duty to S. Instead, the Council decided to issue an attendance warning letter to Mrs X reminding her of her Section 7 duty to ensure S attended school. I am satisfied the Council had previously explained the difference between the two duties to Mrs X. The attendance warning letter demonstrated the Council’s position that it considered it did not have a section 19 duty to provide S with alternative education.
38. This action meant the Council was entitled to reach the view, at that stage, that S had a suitable school to attend where S could receive the section F provision set out in her EHC Plan. Therefore, it was allowed to decide it had made suitable arrangements for S to receive the section F provision in her Plan and it was not at fault.
39. Following Mrs X’s further concerns she voiced in February 2024 about the school’s ability to put all the provisions from section F of S’s EHC Plan in place it agreed a 1-1 tutor for S for one hour a day. The Council told us this was to support S’s reintegration back into school, because the Council still considered S’s needs could be met at her school, and because it could see S’s attendance was not improving. This demonstrates the Council kept the non-attendance under review, as we would expect.
40. S was not attending school and the provision in section F was almost entirely based around her school attendance, As the Council was not aware of Mrs X’s concerns about the school’s ability to provide the section F provision in the EHC Plan before Mrs X complained to it in February, I will not criticise the Council for not taking action sooner.
41. The Council’s records show that it considered one hour a day of 1-1 tutoring, paired with S attending some activities at school, would suitably meet her needs and avoid overwhelming her and possibly negatively affect her attendance. As the Council considered the relevant evidence before reaching this decision on when to put section 19 education in place and how many hours it should provide, the Council was not at fault.
42. In the same month Mrs X appealed section B, F and I of the EHC Plan to the SEND Tribunal. Mrs X disagreed that provision in section F met S’s needs, considered she was unable to attend school and should get a Council funded educational program away from a school setting (EOTAS). As she appealed, I cannot investigate matters from when the final EHC Plan was amended in February 2024. Mrs X’s reasons for wanting alternative education are too closely linked to her reasons for appealing.

Communication standards

43. The Council accepted it was at fault when the communication between it and Mrs X fell below the expected standards between late November 2023 and late January 2024. This caused Mrs X avoidable distress and uncertainty. The Council apologised and offered to pay her £150 to recognise the avoidable distress its actions caused her.
44. The Council’s offer is in line with our published Guidance on Remedies and suitably addresses the avoidable distress Mrs X suffered because of the Council’s poor communication standards.

Fixed Penalty Notice for attendance

45. The Council’s records show it decided to issue a warning letter to Mrs X with regards to S’s attendance after it:
• contacted the school to check the reason for absences;
• considered if it had any medical evidence that would evidence S was unable to attend school because of health needs;
• checked with S’s school it could still meet her needs;
• the school told the Council Mrs X was not engaging with the school’s interventions to encourage S’s attendance; and
• S’s anxiety about learning. It noted it was not necessarily about attending schools as she was able to attend on days when specific activities were taking place.
46. The Council followed the correct process and considered relevant evidence before deciding to issue the warning letter. Therefore, there was no fault, although undoubtedly it was stressful for her to receive it.
47. The Council made a decision based on information it had available. I acknowledge Mrs X disputed the validity some of the information, in particular the information the school had given the Council about her cooperation with the interventions to get S back into school. If the Council had gone on to take court action, these were matter Mrs X could have raised with the court in her defence.
48. Once Mrs X made the Council aware of her objections and her continued cooperation the Council decided not to proceed with the FPN and instead decided to have a reintegration meeting with all the parties present. This shows the Council considered what Mrs X had said and adjusted its actions accordingly. This is what we would expect the Council to do as it kept the matter under review.

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Final decision

The Council has already accepted it was at fault for the poor communication with Mrs X between November 2023 and January 2024 and offered a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman