Summary: Ms X complains the Council failed to make alternative education provision for her son, Y when he stopped attending school and delayed issuing a final amended Education Health and Care Plan after an annual review in 2021 causing distress and uncertainty. We found fault as the Council failed to provide Y with alternative educational provision and delayed issuing the final amended Education Health and Care Plan. We have recommended a suitable remedy so have completed our investigation.

The complaint

1. The complainant, who I shall refer to here as Ms X complains that the Council:
• placed Y in an unsuitable setting in 2019 and the Education Health and Care Plan (EHC Plan) it produced was inadequate.
• failed to manage Y’s education and SEN provision. Ms X says Y has been out of school since December 2020 due to emotionally based school avoidance and the Council has failed to make alternative provision since this date.
• failed to send her notice it had finalised Y’s EHC Plan after the annual review in July 2020 denying her appeal rights; and
• delayed carrying out the annual review of Y’s EHC Plan in July 2021 so prolonging the period Y has been out of education.
2. Ms X considers the Council’s failure to make alternative provision and its delays have caused Y to miss a significant amount of education during this time. Ms X says this has impacted both her and Y’s mental and emotional well-being.
3. Ms X also says the Council’s failure has impacted on her and the family financially as it has been difficult for her to work.

Back to top

What I have and have not investigated

4. I have investigated Ms X’s complaint about the Council’s actions between December 2020 and January 2022 and the lack of alternative education for Y. I have not investigated matters dating back to 2019 or issues which could have or have been appealed. I have referred to events from 2019 onwards for background information. The final part of my statement explains my reasons for not investigating these matters.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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)

Back to top

How I considered this complaint

10. I considered the complaint and documents provided by Ms X and discussed the complaint with her. I asked the Council to comment on the complaint and provide information. I have also spoken to Council officers about the complaint.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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.

Back to top

What I found

Providing alternative education

13. Under section 19 of the Education Act 1996, councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
14. The Council must provide full-time education. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in their interests. (Education Act 1996, subsection 3AA)
15. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
16. The Government’s statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ states 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. Councils should also review the provision offered regularly to ensure that it continues to be appropriate for the child and that it is providing suitable education.
17. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
18. The Ombudsman issued a focus report in September 2011, amended in January 2016 and July 2022, “Out of school, out of sight?” This gives guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for councils, including they:
• 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 in coming to decisions;
• Choose, (based on all the evidence), whether to require attendance at school or provide the child with suitable alternative education;
• 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remans responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Powers to improve a child’s attendance: the Education Act 1996

19. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
20. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996, section 7)
21. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
22. Section 436 of the Act requires councils to identify children not receiving an education.
23. Section 437 (1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to show that the child is receiving a suitable education.
24. Section 437(3) of the Act relates to whether the council considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical, or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)
25. The Council’s Inclusion and Attendance service (IAA) works with educational settings to support the attendance and punctuality work the settings carry out. The officers give advice on protocols, guidance and will offer ideas and suggestions to help monitor and intervene when necessary. Some officers will lead on the legal aspect of working with attendance from advice to schools and families through to legal action.
26. The Council says it uses its legal powers to address non-attendance as a last resort and a decision to prosecute would only be made where the threshold of ‘public interest’ is met and supportive measures have been reasonably exhausted.
27. The Council’s IAA service carries out the role of Education Welfare officers.

Education, Health and Care Plan (EHC Plan)

28. A child with special educational needs may have an Education, Health, and Care (EHC) Plan. This 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 education or name a different school. Only the Tribunal can do this.
29. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHC Plan.

Annual Reviews

30. Councils must review EHC Plan’s at least every 12 months.
31. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened in this case

32. This section sets out the key events in this case and is not intended to be a detailed chronology.
33. Ms X’s son, Y has a diagnosis of autistic spectrum disorder (ASD). The Council issued Y with an EHC Plan in July 2019 when he attended a mainstream infant school. Y moved to a junior school with specialist provision in September 2019. Y did not start at the school until October 2019, had a phased transition and moved to a reduced timetable in early 2020 to help him attend school. The school closed in March 2020 for the first national lockdown due to the Covid 19 pandemic. Y attended a school hub with key worker and other vulnerable pupils. Council documents note the environment suited Y, and he attended every day. All pupils returned to junior school in September 2020.

Annual Review 2020

34. Y’s annual review in August 2020 noted he had demand avoidant behaviour, and 1:1 support most of the time but could attend a mainstream school. The Council issued amendments to Y’s EHC Plan in September 2020. Ms X commented and confirmed her preferred placement was for Y to attend a specialist setting. The Council issued an amended final EHC Plan on 5 October 2020 naming Y’s current school as his educational setting. The Council says it issued a letter and the final amended plan to Ms X on 5 October 2020. The Council provided a copy of its letter to Ms X which notes it sent a copy of the EHC Plan to Y’s school.
35. Y started back at school in September 2020 but found it difficult, his anxiety increased and led to disruptive behaviour. Y last attended school on 15 December 2020 and refused to return. The Council’s educational psychologist and autism team suggested measures to support Y’s return to school, but these were unsuccessful. Ms X sought medical advice about Y.

Events 2021

36. Schools closed between January and March 2021 due to the Covid-19 pandemic. The Council’s IAA service became aware of Y during an attendance meeting by an IAA specialist (specialist) with the school in April 2021. The school considered Y a school refuser.
37. The specialist told the school to hold an annual review and explore whether Y had a medical diagnosis linked to the school refusal. They also suggested a GP referral to see if he was medically able to attend school. The Council did not consider it appropriate to take legal action against Ms X for Y’s non-attendance. This was because of outstanding actions including exploring whether there were health grounds for Y’s non-attendance. The specialist encouraged the school to continue to engage with Y to access school.
38. The specialist contacted the school in May 2021 for an update. The school said Y had a clinical psychologist appointment and information from this would form part of the annual review arranged for July 2021.
39. The specialist contacted the school in June 2021. The school said it had no information from health professionals to say why Y could not attend. The specialist told the school to use a GP referral to gain a better understanding as it needed to come from health professionals. The Council did not consider it suitable to take legal action against Ms X for Y’s non-attendance. This was because the school was authorising Y’s absence and there were outstanding actions around Y’s health.

Annual review 2021

40. The annual review took place on 21 June 2021. It noted Y was an extremely anxious child with ASD with an extreme demand avoidant profile. It noted Y’s behaviour had deteriorated and the difficulties getting him to school in 2020. The document says Y’s behaviour ‘resulted in daily battles with Mum who did her best to bring him into school’. The school noted it had used demand avoidant strategies with Y, but these had not been ‘sufficient to meet his needs despite their very significant efforts’.
41. The review documents noted Y needed access to appropriate specialist provision and recommended Y remain at a mainstream school. This was because the clinical psychologist considered Y could attend school with a graded exposure plan. It proposed a reintegration plan as part of the EHC Plan beginning in September 2021 to try to get Y to re-engage with school. This included home visits, telephone calls and video sessions from school staff. It would step this up gradually over the first half term. Y would be engaging with key staff and sessions in school would follow supported by the Autism team where possible.
42. Ms X told the Council she (and the school) had not seen the final amended EHC Plan from September 2020 and asked for a copy. Ms X asked the Council to consider a specialist school setting for Y as part of her annual review comments.
43. In August 2021 the Council told Ms X it proposed to make changes to Y’s EHC Plan following the annual review. This was to reflect changes in Y’s circumstances and to look at amending the placement, in line with Ms X’s parental preference for a specialist setting. It was not because the school could not meet the needs of Y’s EHC Plan.
44. The Council issued amendments to Y’s EHC Plan in September 2021. The Council records note Ms X and an officer wrote about including updated professional reports on Y in the final amended plan.
45. The Council found the school had not invited the specialist to the annual review in 2021 as it had requested. The IAA specialist discussed Y with the school at a review meeting in October 2021. The specialist told the school to mark Y’s absence as unauthorised because there were no health reasons for not attending. The Council considered it was not suitable for it to take legal action against Ms X for Y’s non-attendance. This was because the school was looking at making some educational provision and the need to support Y to re-engage.
46. The Council told Ms X in November 2021 it was waiting for the updated educational psychology report on Y so could not send out the amended EHC Plan yet. Ms X asked the Council to finalise the plan so she could exercise her appeal rights. The Council issued the amended plan in December 2021 naming the junior school as Y’s setting.

Complaint

47. Ms X complained to the Council in September and October 2021 it had failed to provide Y with an education and support to the family. Ms X said Y had not attended the junior school full time and been out of school since December 2020. Ms X confirmed the clinical psychologist found Y’s non-attendance at school was ‘emotionally related non-attendance’. Ms X considered Y’s need could not be met at the junior school and the annual review had agreed. Ms X asked the Council for compensation.
48. Ms X also complained the Council delayed carrying out the annual review in 2021.
49. The Council responded to Ms X’s complaint. In summary the Council confirmed:
• The school had not asked the Council for additional support for Y since September 2019 which it would expect it to do if a child was struggling to access their education. The Council suggested Ms X discuss her request for alternative provision to help Y re-engage with the school.
• It had no medical information saying Y could not attend school for emotional and mental health reasons. Ms X would need to gain a referral from a medical consultant or professional. The Council considered it was offering Y an educational setting and was not denying him a right to education in any way.
• It had gathered the recent annual review documents from the school, completed a draft EHC Plan and issued her with an amendment notice at the beginning of October 2021. The Council confirmed the educational psychologist was carrying out an updated assessment on Y.

Events in 2022

50. Ms X appealed to the SEND tribunal in January 2022. The Council said it expected Y to attend school until the outcome of SEND Tribunal hearing was known. In July 2022 the Council and Ms X agreed for Y to attend a specialist school named by Ms X. The Tribunal considered the appeal resolved and issued a consent order in September 2022 naming the specialist school.

The Council’s comments on the complaint

51. In the Council’s initial response to our enquiries, it stated it considered all options. But did not believe it needed to make alternative offers of education for Y once it became aware of his absence from April 2021. This was because it considered there was a school place available and provision to meet his assessed needs in line with his EHC Plan. The Council said it told the school to hold an annual review in line with the SEND Code of Practice. This would bring together all information and evidence about Y to establish if there should be any changes of the educational offer in place.
52. The Council said attempts were made to establish the reasons for Y not attending due to no recorded clinical illness or exclusion from school. But there was no medical reason identified why he did not attend.
53. The Council says at each meeting with the school about Y’s non-attendance it assured itself the reason for absence was refusal to attend.
54. In later comments on the complaint the Council confirmed Y did not receive any education from the school once he refused to return to school when it reopened in March 2021. The Council now says it was due to Ms X choosing not to send Y to the school named in the EHC Plan then. The Council says it had arranged for the provision of education for Y as set out in the EHC Plan. The Council felt this was suitable, available and Y was reasonably able to attend had Ms X ensured his regular attendance at school. Under these circumstances the Council took the view the duty to arrange alternative education under S19 of the Education Act 1996 had not been triggered.
55. It says Y was not taking advantage of the existing provision as Ms X had made the decision not to send him to school. This was in breach of her duty under s7 of the Education Act 1996. If there had been a legitimate reason for Y not to attend the Council would have stepped in to make all arrangements. But this was not the case in this particular situation.
56. The Council says once it was established there were no medical reasons preventing Y attending, it considered the wording ‘otherwise than at school’. But there was no valid reason for Y’s absence. So, the school unauthorised the absence and considered Y a persistent absentee. The Council did not consider it was in the public interest to start attendance legal processes against Ms X as it would not bring around change and it had not exhausted all support while the phased return to school was being planned and implemented. The Council confirmed this was following its attendance guidelines to use a supportive approach to a return to school first before deciding to start legal action.
57. The Council says schools were closed from January to March 2021 due to a national lockdown because of the Covid-19 pandemic. The government also disapplied the ability of councils to take legal action for non-attendance until after 8 March 2021. So, it had no opportunity to discuss any pupil absences with schools until after that date. The Council then decided to exercise discretion on taking legal action and use empathy as it recognised the challenges families faced during the pandemic.
58. In Y’s case the Council says it was only told of his absence by the school in April 2021. So, it could not make any decisions on his attendance before that date. The Council says it took action to support Y to return to school through the annual review. And its Attendance and Inclusion service gave advice to the school to unauthorise Y’s absence due to the lack of medical evidence why he was not attending school.
59. In commenting on the draft decision Ms X disagrees she withdrew Y from school and says she tried extensively to get him support and to attend. Ms X says the Council did not talk to her about possibly prosecuting her for Y’s non-attendance. Ms X expressed concern her relationship with the Council regarding Y’s education has now broken down and she would like a way of rebuilding this with the Council to help Y in his current placement.

My assessment

60. The Education Act says parents have a duty to ensure their children of school age receive a suitable full-time education. A council may take action against parents where it is not satisfied their child is receiving a suitable education and the council considers it appropriate the child should be attending school.
61. The Council says it became aware Y was not attending school in April 2021 and its IAA service gave advice to the school. It considered whether to begin legal action against Ms X for Y’s non-attendance but decided it was not appropriate to do so. The Council says it uses legal action as a last resort if any supportive measures it has taken have failed. But the Council has not provided any evidence to support the decisions it made about Y’s attendance and the actions it says it has taken to support his return to school. This is fault by the Council as it is good administrative practice to ensure it records the reasons why it has made decisions and taken certain actions. In the absence of such evidence, we cannot say for certain the Council has carried out the action it refers to.
62. The Council has also failed to provide any evidence to support its comments that it considered whether to provide alternative provision for Y during the annual reviews or meetings to discuss Y’s attendance. The government’s guidance says that Councils are responsible for arranging suitable full- time education for children who are not attending school due to illness, exclusion or otherwise. The use of the wording ‘otherwise’ means those pupils such as Y who are not excluded or ill but are not attending school for other reasons. The guidance goes onto say the alternative provision should be in place ‘as quickly as possible’. So, the Council should have ensured Y was receiving alternative provision as soon as it became aware he was not attending school in April 2021. The Council did not do so which is fault as it has not followed government guidance.
63. The Council has not provided any evidence to support its later comments that Ms X was failing to send Y to school from 2020 onwards. Rather the annual review documents from 2021 say Ms X was ‘doing her best to get him (Y) to school’.
64. Our guidance says that a council needs to choose based on all the evidence whether to enforce attendance (through its attendance policies) or provide the child with suitable alternative education. The Council decided not to take any legal action against Ms X for Y’s non-attendance. So, the Council should have been ensuring alternative provision was in place for him. This was as soon as it was clear Y was not attending school and where suitable education was not being provided by the school. As the Council was fully aware Y was not attending school and the school was not providing him with any education it should have been providing alternative provision (as per the recommendations made in the Ombudsman’s focus report above and government guidance). The Council’s failure to do so is fault as it failed to provide Y with any alternative provision from April 2021 onwards.
65. In commenting on the draft decision, the Council maintains it only takes enforcement action as a last resort following supportive measures and a graduated response. But the Council has provided limited evidence of such an approach being taken and matters were allowed to drift.
66. If the Council considered there was a suitable place available for Y and it was Ms X’s decision not to send him to school, the Council should have revisited its decision not to prosecute or to get the Attendance and Inclusion service involved to support his attendance. The Council has not provided any evidence to show it reconsidered its decision not to pursue prosecution against Ms X if this was its position at the time.
67. The Council’s fault has caused an injustice to Y. This is because the Council’s failure to consider alternative provision for Y meant he did not receive suitable education from April 2021 when the Council became aware of Y’s absence from school to December 2021 (when Ms X appealed to the SEND Tribunal).
68. The failure to make alternative provision for Y has caused him significant distress. The failure also caused significant distress and avoidable time and trouble to Ms X. Ms X had to continually contact the Council asking for support and make complaints.
69. I consider the fault by the Council has caused Y to miss education since April 2021. The Council should make a payment of £1000 a term from April 2021 to December 2021 (two terms) to acknowledge Y did not receive any education during this time.
70. Ms X complained the Council delayed carrying out the annual review in 2021 which delayed her opportunity to appeal to the SEND Tribunal. The guidance says a council must decide within 4 weeks of the review meeting whether to maintain the EHC Plan in its current form, amend it or cease to maintain it. The Council should then issue the final EHC Plan or decide not to amend it as soon as practicable and within eight weeks of the date it sent the plan to the parents with proposed amendments.
71. The Council issued a proposal to amend Y’s EHC Plan in August 2021 which was more than four weeks after the review meeting held in June 2021. It did not issue amendments until September 2021 and only issued the final amended plan in December 2021. This is beyond the timescales set by the SEND Code of Practice and is fault by the Council. It has caused an injustice to Y and Ms X through the distress and uncertainty caused and they had to wait until the Council issued the final plan to appeal.
72. It is unfortunate Ms X considers her relationship with the Council has now broken down and has requested whether it can be built up again to support her and Y as he attends his new placement. I recommend that the Council and Ms X may wish to consider holding a meeting with key officers to focus on Y’s current situation and moving forward.

Back to top

Agreed action

73. The Council will take the following action to address the injustice caused to Ms X and Y from the faults I have found:
• Provide a written apology to Ms X for the failure to put in place alternative provision for Y from April 2021 to December 2021 and a payment of £1000 for the distress, avoidable time and trouble and impact on her ability to work caused by the Council’s failure to provide suitable alternative provision for Y.
• Make a payment of £2000 to Ms X on behalf of Y to acknowledge he has not received any educational provision for two school terms from April 2021 to December 2021.
• Provide a written apology to Ms X for the delay in carrying out the annual review in 2021, and a payment of £250 in recognition of the delays and frustration caused.
• To consider arranging a meeting between key officers and Ms X to look at re- building a relationship to help support Y moving forwards.
74. I recommend the Council makes the payments and apology to Ms X within a month of my final decision.
75. In relation to service improvements, I recommend the Council takes the following action within three months of my final decision:
• Reviews its guidance to staff on when its Section 19 duty is triggered to ensure the recommendations in the Ombudsman’s focus report above are reflected in this. The Council should consider including guidance on our recommendation that councils should choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• Ensure there is a clear audit trail to evidence decisions taken on non-attendance and alternative provision; and
• Shares this decision with relevant staff members.
76. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

77. I am completing my investigation. There is fault by the Council as it failed to provide Y with alternative provision after he stopped attending school and delayed in issuing a final amended EHC Plan after the annual review in 2021. The Council’s fault has caused distress and uncertainty to Ms X and Y, so we have recommended a suitable remedy for the injustice caused.

Back to top

Parts of the complaint I have not investigated

78. I cannot investigate matters in Ms X’s complaint once she appealed to the SEND Tribunal. The courts have established that if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
79. This means I cannot investigate matters linked to the SEND Tribunal appeal from the date the appeal right arises, which is the date the final amended EHC Plan was issued in December 2021, until the appeal was completed at the end of September 2022.
80. I have not investigated Ms X’s allegations the Council placed Y in an unsuitable setting in 2019 or the 2019 EHC Plan was inadequate. This is because Ms X had the right to appeal to the SEND Tribunal in 2019 and after the annual review if she unhappy with Y’s educational setting. I consider it was reasonable to expect her to do so. I also consider Ms X could have raised any concerns with us about Y’s provision before December 2020.
81. I have not investigated Ms X’s complaint the Council failed to issue her with the amended EHC Plan after the annual review in 2020. The Council says it issued the amended plan with a letter to Ms X and the school in October 2020. I would have expected Ms X to have pursued the matter before now if she did not receive a copy of the plan rather than wait a year to raise it in June 2021. This is especially if she was unhappy with the educational setting for Y and wanted him to move to a specialist setting.

Back to top

Investigator's decision on behalf of the Ombudsman