Summary: Miss B complained the Council delayed finalising her son’s education, health, and care plan and failed to secure alternative educational provision when he was out of school. She also complained the Council threatened to take her to court because her son was not attending school. She said this put a strain on the family and caused distress. The Council failed to secure education and education, health and care provision for Miss B’s son. The Council has agreed to apologise to Miss B and her son and make a financial payment to remedy the injustice caused by its faults.

The complaint

1. The complainant, who I shall refer to as Miss B, complained the Council delayed finalising her son’s education, health, and care plan and failed to secure alternative educational provision when he was out of school. She also complained the Council threatened to take her to court because her son was not attending school. She said this put a strain on the family and caused distress.
2. I considered the period from May 2021 to February 2022.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

Back to top

How I considered this complaint

5. I considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and,
• the Ombudsman’s focus report, ‘Out of school…out of mind? How councils can do more to give children out of school a good education’.
6. Miss B and the Council commented on a draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and guidance: Education, health and care plans

7. A child with special educational needs (SEN) 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.
8. The EHC plan is set out in sections which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of school.
9. Councils must conduct a re-assessment of a child or young person’s EHC plan if their parent asks for one. The council must tell the child’s parent or the young person of its decision whether to undertake a re-assessment within 15 calendar days of receiving the request. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to issuing the final EHC plan.
10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42, Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Legislation and guidance: Alternative provision

12. 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 the section 19 duty or alternative education provision.
13. 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)

Legislation and guidance: Attendance

14. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence.
15. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.
16. Section 437(3) of the Act relates to whether the council considers it is expedient for a child to attend school. A council might take the view 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)

What happened

17. This chronology includes key events in this case and does not cover everything that happened.
18. Miss B has four children. C and D are twins. C was diagnosed with autism spectrum disorder (ASD) before he started school. C was first issued with an EHC plan in 2019. In September 2020, C and D started in reception at School 1.
19. The Council issued an amended final EHC plan for C in September 2020. It named School 1 in section I. Section F included input from the school, speech and language therapy, occupational therapy, and psychology. It said he should have a high-level of one-to-one adult support in school.
20. In May 2021, C refused to attend School 1. Miss B said this was because he was suffering with anxiety-based school avoidance. Miss B asked the Council’s SEN service to re-assess his EHC needs.
21. School 1 contacted the Council’s education and inclusion service in June 2021. It said C had not attended school for a week and Miss B had not responded to contact it had made. Miss B disputes this and said the school could have spoken to her when she attended to collect D. The Council spoke to Miss B. Miss B said C was diagnosed with ASD and was suffering with anxiety. She said she had asked for an EHC reassessment.
22. In June 2021, the SEN service wrote to Miss B and said it would reassess C, including occupational therapy and speech and language therapy.
23. School 1 contacted the education and inclusion service again in July 2021 because C had not attended since May 2021. School 1 asked if C was a child missing education (CME). The Council said he was not, because of the ongoing communication with Miss B and because it was undertaking an EHC reassessment. School 1 offered to support C to transition back to school.
24. C’s consultant paediatrician and an educational psychologist provided reports for his reassessment in July 2021. The educational psychologist confirmed C’s reluctance to attend school and the anxiety he experienced towards his education. The speech and language therapist said their report was going to be delayed because C had not engaged in their assessment.
25. In August 2021, C reached compulsory school age.
26. In September 2021, School 1 contacted the education and inclusion service because C had not returned to school after the school holidays. The education and inclusion service discussed C’s attendance at a school attendance meeting. School 1 agreed to write to Miss B and offer support to reintegrate C into school.
27. The SEN service told Miss B the speech and language and occupational therapy reports were delayed. It asked her if she was happy to continue with the reassessment without them. Miss B asked the Council to commission an independent occupational therapist to undertake the assessment. The SEN service chased the NHS for the speech and language and occupational therapy reports. The NHS said C was ‘considerably low’ on the waiting lists because of staffing.
28. The education and inclusion service visited C at home in October 2021. It issued Miss B and her partner with a school attendance warning notice. Miss B’s partner is not C’s father and does not have parental responsibility for him. The notice explained it was a parent’s legal responsibility to ensure their child attended school regularly and the Council was considering taking legal action. Miss B contacted the Council. The Council told Miss B it would not take legal action at this stage because it was reassessing C’s EHC needs, and she was in contact with the Council about his education.
29. Miss B told the SEN service the Council’s education and inclusion service had visited her and C. She said C was not receiving education or EHC provision because the Council had delayed C’s reassessment and not put anything in place while it was being undertaken. Miss B asked the Council to address this urgently.
30. The SEN service received a speech and language report in October 2021 and shared it with Miss B. Miss B told the Council the report was not current or relevant. She asked the Council to continue with the reassessment.
31. Miss B complained to the Council. The Council responded at stage one in November 2021. It acknowledged the SEN service had not completed her son’s reassessment within the statutory timescales. It unreservedly apologised. It did not uphold Miss B’s complaint it had not provided C with alternative education. It said she had not asked for a change of placement, and it was committed to supporting C to return to School 1. Neither did it uphold her complaint it had not provided C with meaningful and effective speech and language therapy. It said it had forwarded her concerns on to his speech and language therapist.
32. Miss B asked the Council to consider her complaint at stage two. She said the Council had not finished C’s assessment and was in breach of statutory timescales, complained the Council had not put in place alternative provision for C, and raised concerns about the speech and language report.
33. The education and inclusion service discussed C’s attendance at a school attendance meeting in November 2021 and January 2022. In January 2022, it visited C at home. Miss B said visits from the education and inclusion service were distressing for her and her children.
34. In January 2022, the Council responded to Miss B at stage two of its complaint procedure. It upheld her complaint that C’s EHC plan had not been finalised and said it would ask the SEN service to do so. It did not respond to her complaint it had not provided C with alternative education. It did not uphold her complaint about C’s speech and language report and suggested she contact the service direct.
35. The Council asked the occupational therapy service if it could assess C’s sensory needs. It told the Council it had a waiting list of over six months. In January 2022, over four months after Miss B’s request, the Council commissioned an independent occupational therapy service to carry out the sensory assessment.
36. The SEN service issued a draft EHC plan in January 2022 and consulted with School 1. School 1 responded in February 2022. It said it could not offer the provision in section F of C’s EHC plan and therefore could not meet his needs.
37. The SEN service held an educational planning meeting. The Council asked Miss B if there were any schools she would like it to consult. The Council said it would be useful to identify a school so C could be supported to transition back into a school environment. Miss B asked the Council what school could meet his needs. She asked it to provide alternative education for C because he was not ready for a school environment. The Council said it was happy to consider this if Miss B could outline what this would look like and who would manage it.
38. The SEN service issued a final amended EHC plan in February 2022. The EHC plan named School 1. Miss B told the Council C could not access the school. School 1 confirmed it could not meet C’s needs. Miss B appealed to the SEND tribunal against the naming of School 1 in C’s EHC plan.

Council’s enquiry response

39. The Council advised it was not required to secure provision for C when he was out of school, as it was his parents’ choice to keep him at home. It said there was no medical evidence or evidence from School 1 that suggested his needs could not be met in school. It said it continued to fund School 1 for C.

Analysis

40. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. In May 2021, Miss B told the Council C was suffering from anxiety and could not attend School 1. This was supported by the educational psychologist’s report which confirmed C’s reluctance to attend school and the anxiety he experienced towards his education. Miss B did not tell the Council she was home educating C and she asked it to put in place alternative provision.
41. The Council was aware from Miss B that C was finding it difficult to access education from May 2021. School 1 first raised concerns in June. Regardless of whether C remained on roll at School 1, once C had been out of education for 15 days and was of compulsory school age, the Council had a duty to provide C with alternative provision because he was unable to access education at School 1. Therefore, from September 2021 when C stopped attending School 1 and was also of compulsory school age, the Council had a duty to provide him with alternative provision. And it was the Council’s responsibility to identify and manage the provision, not Miss B’s. The Council did not secure alternative educational provision for C, and this was fault. As a result, C lost 4 four months of education provision.
42. From May 2021 to February 2022, the Council also had a duty to secure the provision in C’s September 2020 EHC plan. The Council did not do this, which was fault. As a result, C lost seven months of EHC provision.
43. The Council agreed to reassess C’s EHC needs in June 2021. The Council had 14 weeks from its decision to issue C’s final EHC plan. The Council did not issue the amended final EHC plan until February 2022, a delay of five months. This delay frustrated Miss B’s right of appeal to the SEN tribunal. I cannot determine whether this delay caused C to lose provision; this can only be considered once the SEN tribunal has made its decision.
44. The Council's education and inclusion service became involved when C stopped attending school. It issued a school attendance warning notice but said it would not take legal action because C’s EHC needs were being reassessed and Miss B was in contact with the Council about his education. Given the Council was reassessing C’s needs and an educational psychologist confirmed C’s reluctance to attend school and he experienced anxiety towards his education, the Council should have considered whether it was appropriate to issue a school attendance warning notice.
45. There was misinformation in the Council’s complaint responses. In the Council’s stage one response it said it did not have a duty to provide alternative education for C which was false. In its stage two response it did not address the matter. Providing incorrect information and failing to address each aspect of Miss B’s complaint was fault. This caused Miss B further frustration.

Back to top

Agreed action

46. Within one month of the final decision, the Council will:
• Apologise to Miss B and C for the faults identified in this investigation.
• Pay Miss B £600 for the two months of lost EHC provision between May 2021 and July 2021. This should be used to promote C’s education.
• Pay Miss B £2,400 for the four months of lost education and EHC provision between September 2021 and February 2022. This should be used to promote C’s education.
• Pay Miss B £300 for the time, trouble, and frustration she experienced having to chase the Council to fulfil its statutory duties.
47. Within two months of the final decision, the Council will:
• Remind relevant staff of the Council’s duty under Section 19 of the Education Act 1996 to provide alternative education when a child is absent from school regardless of whether the child remains on roll at a school.
• Remind relevant staff of the Council’s duty to issue an amended final EHC plan within 14 weeks of the request for a reassessment.
• Review when it considers it appropriate to issue a school attendance warning notice in cases where the child’s EHC needs are being reassessed.
48. When the SEND tribunal has made its final order, the Council should consider whether C lost any provision because of its delay finalising his EHC plan following its reassessment. If C lost provision, the Council should consider offering Miss B a remedy in line with our guidance on remedies.
49. The Council should provide the Ombudsman with evidence it has completed these actions.

Back to top

Final decision

50. I have completed my investigation and uphold Miss B’s complaint. Miss B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman