Summary: We cannot investigate a complaint about the appropriateness of a school placement named in an education, health and care plan, because this carries a right of appeal. There was fault because the Council delayed responding to an annual review, but this did not cause an injustice. The Council is also at fault because it has not yet made a decision whether its duty under section of the Education Act 1996 has been triggered. It is speculative to say what difference this may have made, but this uncertainty causes an injustice and the Council has agreed to address this.

The complaint

1. I will refer to the complainant as Mr W.
2. Mr W’s son, B, has an education, health and care (EHC) plan, which includes a placement in a specialist school, but he has not regularly attended the school for a long time. Mr W complains the Council has not:

• named a different placement on B’s EHC plan, despite evidence his current placement is not suitable;
• carried out timely reviews of the EHC plan; or
• done anything to provide B with an education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.

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How I considered this complaint

7. I reviewed Mr W’s correspondence with the Council, comments provided to me by the Council, and selected items of correspondence between the Council and other relevant parties.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. The following chronology is intended to provide only a basic overview of the events relevant to this complaint. It will not detail everything which happened.
10. B is autistic and has learning difficulties. He attended a specialist primary school, before entering a specialist secondary school in September 2018. I will refer to this simply as ‘the school’ in the rest of this statement.
11. Within a few months B had regularly started refusing to go to school. His EHC plan was reviewed in early 2019, and it was agreed the school remained suitable for him. Working with Mr W and B’s mother, the school developed a plan to help B back into school, which was initially successful, but in September 2019 B’s attendance level began to drop again. In February 2020, B attended the school for the last time, and has not returned since.
12. In October 2020, the school arranged 1:1 online tuition for B, but cancelled this after one week because B did not engage with it. In January 2021, the school offered an alternative timetable for B, involving simple activities and on a different part of its site, away from the main building, but again reported this was unsuccessful.
13. In March 2021, the school made a referral to the Council’s inclusion support service (ISS) about B’s failure to attend school. It explained B’s mother’s circumstances made it difficult for her to get him to attend school, and that she did not consider sending a tutor to their home would work.
14. B’s EHC plan was reviewed again in February and November 2020, and October and November 2021. In doing so, the Council made some amendments to the plan to reflect changes in B’s needs, but maintained his placement at the school because it considered this remained suitable for him.
15. On 5 August 2021, Mr W made a formal complaint to the Council. He said there had been little to no progress made in resolving B’s situation, and that the lack of respite for his mother had left her on the verge of a breakdown. Mr W said he feared B would eventually be placed in a residential home because of the Council’s failure to arrange education for him.
16. The Council responded on 24 August. It noted B’s EHC plan had been reviewed in November 2020, with the Council receiving the review paperwork in January. It had made a decision to maintain the EHC plan and had written to Mr W in March to notify him of this, but accepted this was outside the four-week deadline it had to make this decision and apologised for the delay.
17. The Council said its decision letter explained what Mr W should do if he disagreed with the decision. It explained, because Mr W and B’s mother had requested a change of placement for B, it had consulted with other schools about this, but said its own view was that B’s school remained suitable for him.
18. The Council noted the school considered it could meet B’s needs and deliver the provision set out in his EHC plan, but that its efforts to support B to attend school had failed. It said it had engaged an autism consultant to continue exploring strategies to support B.
19. Mr W replied to express dissatisfaction with the response, and this was followed by an exchange of emails between him and the Council. Mr W said he had been urged to make his complaint by B’s social worker and others, and that “all professionals” agreed B’s placement at the school was not suitable for him. He noted a different specialist school had agreed to assess B for a possible placement, but said he was not confident this would proceed.
20. The Council sent a Mr W a second formal complaint response on 28 September. It explained that B’s school considered it was suitable for him and could deliver his EHC plan, and that the Council shared this view. The Council acknowledged B was not attending the school, and noted its attempts to support his attendance had been unsuccessful. However, it said that school had reported B was “happy and calm” when he did attend. The Council said it needed to explore further the reason for B’s unwillingness to attend school.
21. The Council said it had consulted with other schools because of Mr W’s request for a change of placement, but reiterated it had decided to maintain B’s EHC plan and placement as it was. It said its decision letter of March 2021 had explained how Mr W and B’s mother could appeal this decision, but noted they had not done so.
22. The Council disagreed that “all professionals” considered B’s placement to be unsuitable, and said it did not consider a change of placement would resolve B’s problems with attendance. It said, as B was on roll at a suitable school, it did not agree that provision for his education had not been made.
23. After further correspondence, Mr W made a complaint to the Ombudsman in May 2021.

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Legislative background

Education, health and care plans

24. A child with special educational needs may have an 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.
25. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
26. 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. Parents must consider mediation before deciding to appeal. 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.

Children out of school because of medical needs

27. Section 19 of the Education Act 1996 (‘s19’) says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
28. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
29. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.

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Analysis

30. There are several different aspects to Mr W’s complaint, which for clarity I will address separately and in turn.
31. First, I must explain that the law says a person should approach the Ombudsman within 12 months of becoming aware of the issue they wish to complain about. This is called ‘the permitted period’.
32. In his complaint to the Ombudsman, Mr W said B had “not been provided with education for over four years”. However, as he made his complaint to us in May 2022, anything which predates May 2021 falls outside the permitted period and so is late.
33. The law does allow us flexibility in this rule. We can disapply it if we believe there is a good reason for a person’s delay in approaching us, and if we consider we can still carry out a robust and meaningful investigation on the late events. But I have not seen evidence here there is a good reason for Mr W’s delay in approaching us, and nor do I consider I can practically look at events which are now two, three or four years in the past. I will therefore not disapply the 12-month rule here.
34. In the interests of practicality, I have decided to investigate the events here from January 2021 onwards, as I consider this provides a logical cut-off point. I will not make findings on anything which happened before then, although I will refer to them for context where necessary.

The Council has not named a different school placement for B

35. Mr W complains the Council has not changed B’s named school placement on his EHC plan, despite what he considers to be a professional consensus his current placement is not suitable for him.
36. I note the Council has refuted Mr W’s claim that “all professionals” agree B should move to a different placement, pointing out the Council itself does not share this view. It has also explained it does not consider that simply changing B’s placement will solve the problem of his attendance.
37. The Council is entitled to its opinion here and it is not for the Ombudsman to direct it to take a different view. More important, however, is that a dispute over the named placement in an EHC plan carries a right of appeal to the SEND Tribunal. This right of appeal is triggered at the point an EHC plan is originally issued, and then again each time a council makes a decision following an annual review.
38. The law says we should generally not investigate a complaint about a matter which carries a right of appeal to a court or tribunal; although we may disapply this rule if we consider it unreasonable to expect a person to use their appeal right.
39. In this case, Mr W says he did not receive the Council’s decision letter in March 2021, in which it explained it would not amend B’s EHC plan and that Mr W had the right to appeal against this. However, the Council has provided us with copies of this letter and its covering email to Mr W, and I can see it was properly addressed. I cannot say why Mr W may not have received it but I cannot find it was due to any fault by the Council.
40. Even putting this to one side, the Council’s records show it issued a new decision letter in February 2022. As this decision was to amend some of the provision in the EHC plan, it would not have triggered any appeal right at that point, but again, Mr W would have been able to appeal against the placement once the Council issued the new final EHC plan.
41. On this basis I am unable to say it was not reasonable to expect Mr W to use his right of appeal, and for this reason I cannot investigate his complaint about the appropriateness of B’s placement.
42. I have therefore discontinued my investigation of this element of Mr W’s complaint.

The Council has not carried out timely reviews of B’s EHC plan

43. EHC plans must be reviewed at least once every 12 months. An annual EHC plan review is typically led by the educational establishment. It will compile review paperwork, which may include contributions from parents and relevant professionals, and then submit this for consideration to the council. The council then has four weeks to issue a decision to either maintain, amend or cease the plan.
44. There have been two reviews in the period I am investigating. The first took place between January and March 2021, the second November 2021 and February 2022. These reviews were within 12 months of each other and so I cannot find they were not timely.
45. However, the Council received the paperwork for the first review on 14 January 2021, and then issued its decision on 16 March, approximately 8-9 weeks later. This, therefore, was late.
46. The Council has also acknowledged its decision letter on the second review was delayed, with the review meeting taking place on 23 November 2021, and its decision letter coming on 11 February 2022, more than 11 weeks later. However, the Council has explained this was because it did not receive the review paperwork until 24 January, which means it issued its decision within the four-week deadline.
47. Either way, the Council was at fault for the delay in issuing its decision letter on the 2021 review.
48. I am not, however, persuaded this represents a significant injustice. Where there has been a delay in issuing a decision letter, we might normally criticise the relevant council because this then means there is a consequent delay in triggering the right of appeal against its decision. But, given Mr W did not appeal the decision (and regardless whether this was because he did not receive the letter), I do not consider this a material consideration here.
49. I find fault, which did not cause injustice, in this element of Mr W’s complaint.

The Council has failed to provide B with an education

50. Where a child of compulsory age is not attending school, there are, broadly speaking, two ways the local authority can approach the matter. If there is a legitimate reason for the child not to attend school, such as serious health issues, then the authority has a duty to make alternative provision – such as tutoring – for them, and it must do so as soon as it becomes clear the absence will be for 15 days or longer. We refer to this as councils’ ‘s19 duty’.
51. The alternative provision may be a short-term arrangement, until the child’s health improves enough to allow them to return to normal schooling, or a longer-term arrangement, if the prospects of improvement are less encouraging.
52. Alternatively, if there does not appear to be a compelling, legitimate reason for the child not to be attending school, the authority should consider treating it as an attendance matter (‘truancy’), for which it has powers of enforcement. This can include prosecuting the child’s parents or legal guardians.
53. In any particular case, it is a matter of professional judgement for the relevant council to decide which approach is most appropriate.
54. In this case, I asked the Council to clarify whether it had made any arrangements for alternative provision for B under the s19 duty. In response, it said:

“The Council is seeking further clarity on this matter from [the school] and CAMHS [the Child and Adolescent Mental Health Service, part of the NHS] as a referral will be made to the Hampshire Inclusion Support Service if it comes to light that [B] is too unwell to attend school. As the school was following a reintegration plan in accordance with their attendance policy, the Council understood that the school was not of the view that Section 19 had been triggered.”

55. I am concerned about this response.
56. First, while I understand the Council would seek input from the school, and other relevant professionals, in determining whether B was out of school for health reasons, it is for the Council, not the school, to decide whether the s19 duty has been triggered. But the Council’s comment here implies the decision rests with the school. This is not correct.
57. More significant, however, is the simple fact the Council is still to make this decision. As I have explained, when its s19 duty is triggered, the Council has a duty to make arrangements for alternative provision by the child’s 15th day of absence from school. But B has not attended school at all since February 2020, approximately 2½ years ago.
58. I acknowledge, for a child in B’s circumstances, it may not be straightforward to define their absence as being ‘health’ related or otherwise. There is, as I understand it, no suggestion B is not physically well enough to attend school; but, given he has a developmental disorder, this is not something it would necessarily be appropriate to treat as an attendance issue.
59. Either way, given the length of time this has been ongoing, and its level of involvement, I am not convinced the Council should reasonably still be in doubt whether its s19 duty has been triggered by B’s absence from school. This is an important decision, and I would expect the Council to be able to clearly articulate its position on this by now, and certainly since the school’s referral to the ISS in March 2021. That it cannot is a significant fault.
60. I am conscious the school made several different attempts to arrange forms of alternative provision for B, each of which has failed because of B’s inability to engage with them. This included virtual tutoring, an alternative timetable on a different part of the school site, and in-person home tutoring, which B’s mother has explained he will not tolerate.
61. This being the case, even if the Council had made a timelier decision whether its s19 duty was engaged, it is not easy to see what material difference this may have made. There is no reason to believe the Council would have been successful in arranging alternative provision where the school’s efforts had failed.
62. On the other hand, the Council could have decided B’s absence was not health-related, and that it was appropriate to use its enforcement powers here. For the same reason though, given B’s difficulty with engaging with any attempt to educate him, it is speculative to say this would have made any difference either.
63. But, even accepting this, there is a significant element of doubt and uncertainty arising from the Council’s failure to make a decision, one way or the other, about its s19 duty. If the Council had made a timely decision, it would now have a clear position on where its duty lies here, and what action it should be taking to meet this duty. I consider this uncertainty, in itself, to be an injustice to Mr W and to B.
64. We recently published a focus report about children missing education called ‘Out of school, out of sight? Ensuring children out of school get a good education’. As part of the report, we made several general recommendations for local authorities to help improve performance in this critical area. These recommendations included:

• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
• 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.

65. As I have said, it is not possible to speculate what difference would have been made here if the Council had made a timelier decision; but I consider these general recommendations highlight the duty the Council has here, and what it should have been seeking to achieve.
66. To this end, I consider there are two things the Council should do to address the injustice here.
67. First, it should write a formal letter of apology to Mr W, acknowledging the uncertainty caused by its failure to make a decision.
68. Second, the Council should, as soon as possible, make a decision whether B’s absence from school triggers its s19 duty. In doing so, the Council should seek and consider input from all relevant professionals, including the school, officers from its SEN team and ISS, and CAMHS. And, whichever decision the Council makes, it should then create an action plan, giving consideration to what support it can provide to B and to his parents in either encouraging him to engage with alternative provision, or to begin the process of returning to school.
69. I make recommendations to this effect.
70. I find fault, causing injustice, in this element of Mr W’s complaint.

Complaints handling

71. Mr W has also complained the Council has “failed to provide a proper complaints process and have not responded accurately or responded to any of the points / issues raised”.
72. The Council’s website says its complaints process has three stages. At stage one, the matter will be addressed locally by the staff member immediately responsible. If a complainant does not wish to raise matters with this person, or is dissatisfied with their response, they can make a stage two complaint to the responsible department.
73. If the complainant remains dissatisfied after stage 2, they can then request a stage 3 complaint, to be investigated by the Council’s corporate complaints team. The Council also says it will aim to address each stage within 20 working days.
74. Mr W made his first formal complaint on 5 August, and the assistant manager of the Council’s SEN service responded on 24 August. Mr W replied to this with a series of emails, with the same assistant manager responding formally again on 28 September. Neither of the Council’s responses were labelled as being a particular stage, and they did not advice Mr W on how to escalate his complaint further.
75. In my draft decision on this complaint I found fault with the Council for this reason. But as I was satisfied the Council’s responses adequately addressed Mr W’s points of complaint, and did not delay him in referring his complaint to the Ombudsman, I decided this did not represent an injustice to him and made no recommendations.
76. In response to my draft decision, the Council has provided more information about its complaint handling. It says:

“[Mr W] initially raised a query with the Director of Children’s Services copying in the County Counsellor. In an effort to seek a swift and agreeable solution to the concerns raised, the Directors Office personally oversaw that a local response was provided. The reason the letters of 24 August 2021 and 28 September 2021 did not set out the stages of the complaints or the escalation process was that these were responses from the Directors Office. The letters were written by the same officer as a more detailed response had been requested [Mr W] and based on this response for more detail, a quick local resolution over seen by the Directors Office still seemed in everyone’s best interest.”

Having investigated the matter, whilst the Council would always look to resolve concerns prior to escalation, the Council acknowledges that upon [Mr W] requesting a more detailed response, the Council should have escalated the query to a formal complaint. The Council unreservedly apologises for this omission and would like to suggest a £300 time and trouble payment to [Mr W].”

77. Although I remain satisfied with my draft finding, it is positive the Council has reflected on this matter and considers it appropriate to offer Mr W a remedy.
78. I find fault, which did not cause injustice, in this element of Mr W’s complaint.

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Agreed actions

79. Within six weeks of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mr W for its failure to make a timely decision on whether its s19 duty has been triggered, and the uncertainty this has caused; and
• make a decision on whether its s19 duty has been triggered, and create a suitable action plan for its next steps according to the outcome of this decision.

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Final decision

80. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman