Summary: Mrs D said the Council failed to ensure that her son, X, had an up-to-date education, health and care plan since 2019 and also to ensure that he had a suitable education. The Council was at fault for delays in preparing an education health and care plan and also for failures in communication. These failures caused Mr and Mrs D and X injustice in the form of distress and time taken. The Council has agreed to pay the family a sum in recognition of this fault.

The complaint

1. Mrs D says the Council was at fault for:
1. A failure to provide her son, X, with an up-to-date education, health and care plan (‘EHCP’) since 2019, and
2. A failure to provide him with suitable education since 2019.
2. Mrs D says that, because of this fault, X’s mental health, as well as her own, has suffered. She says X has missed out on education and socialisation.

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The Ombudsman’s role and powers

3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. The Ombudsman cannot investigate a complaint about action a council took in response to something that happened in a school. (R (on the application of M v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin))
5. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

Limitations on Ombudsman investigations of SEND cases

9. The courts have established that if someone has lodged an appeal to a 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 EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged 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).
10. 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

11. I spoke to Mrs D. I wrote an enquiry letter to the Council. I considered any information I had and applied any relevant law, policy and guidance.
12. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Councils’ duty to provide education

13. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
15. 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))
16. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. 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. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
21. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, 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;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Part-time timetables

22. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
23. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind?, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Attendance

24. 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. 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.
25. The legislation states that, before prosecuting parents, a council must consider whether they should apply to the court for an Education Supervision Order (ESO). If the court issues an ESO for a child, it will appoint the council to supervise the child’s education, either at school or at home for a specified period.
26. Children must not be absent from school for long periods for the good of their education. Where a child is absent from school without authorisation for longer than fifteen days, councils must ensure that they receive alternative provision.
27. R (on the application of D (by his mother and litigation friend)) v A local authority [2020] EWHC 2916 (Admin) established how an education authority duty to offer alternative education is determined when a parent presents expert evidence that their child is unfit to attend school. This stated the education authority “is not obliged by law to defer to an expert’s opinion on the matter which [it] has to decide. [It] must take account of the decision, but it will not automatically err in law if it declines to accept the view of the expert, provided that there are rational grounds for doing so, and that the considerations that [it] has taken in account are legitimate ones.”
28. The duty to provide alternative provision does not apply simply because a parent refuses to send a child to school. The education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. And the duty does not automatically apply because there is an expert opinion that says the child is unfit to attend school. This is because the council may have a rational ground to disregard that opinion, having considered it.
29. Although there is a clear duty on councils to make alternative educational provision, they may decide a child cannot cope with full-time provision, especially where the reason is medical. In such circumstances, there should be a clear professional opinion to support this. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child.
30. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups, so a child might receive three hours per day of tuition instead of spending five hours per day at a Pupil Referral Unit (PRU), often with the remaining time made up of on-line programmes of virtual learning. But such on-line learning cannot be the sole form of provision.

• Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.

Coronavirus Act 2020

31. The Coronavirus Act 2020 introduced changes to special needs education provision and the law which governed it. Between May and August 2020, councils duties regarding EHCPs so that, during this period, they only had to use their ‘best endeavours’ to meet the requirements of any EHCP.

Education Welfare

32. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
33. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
34. 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 demonstrate that the child is receiving a suitable education. 
35. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Education health and care plans

36. 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 EHCP is set out in sections. We cannot direct changes to the sections about education (Section F) or name a different school (Section I). Only the tribunal can do this.

Responsibility for making arrangements

37. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Appeal rights

38. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.

Timescales and process for EHC assessment

39. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

Limitations on Ombudsman investigations

40. The courts have established that if someone has lodged an appeal to a 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 EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged 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).

Arrangements for reviewing an EHCP

41. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
42. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
43. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
44. 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.
45. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
46. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the School named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

What happened

47. Mrs D lives in the Council’s area with her husband, Mr D. They have a son, X, born in 2011, who has an autism spectrum disorder (ASD) and other educational needs. He also has other health problems which make him vulnerable to respiratory disease. He was made subject to an EHCP in 2015.
48. X began attending a mainstream primary school (‘the School’) in 2016. The evidence shows he was making progress through school despite his difficulties. Mrs D had a good relationship with the School which had made suitable arrangements to cater for X’s requirements included speech and language therapy (SALT), activities to hone his motor skills, 1-1 learning support and constant monitoring to assist with anxiety.
49. During the COVID-19 pandemic, most pupils switched to home-based learning. At that time, Mrs D says she discovered X had not made the progress he should have done. She says she helped X catch up during the lockdown. Relations between Mr and Mrs D and the School grew worse.
50. When the government issued guidance that children should return to school unless their health meant they could not in autumn 2020, the School tried to encourage X to return. Mrs D was concerned X would continue to be at risk. She had also come to believe the School could not cater for X.
51. Mrs D refused to return X to School. The School asked Mrs D for medical evidence which would allow him to stay away. Mrs D’s GP, it seems, initially refused to provide this evidence. The School, therefore, was unable to accept that X would be absent and had to insist on his return. It continued to provide X with a home-learning package. Mrs D continued to teach him at home.
52. Mrs D was angry with the School. She wrote to the headteacher in October 2020 and accused her of lying. She also accused Council officers of trying to ‘gaslight’ her. She told the headteacher that she would be looking for another school for X.
53. The Council sent a form to Mrs D in early October 2020 and asked her to prepare submissions in support of X moving to a different school at the review meeting.
54. The Council says it sent a final EHCP to Mr and Mrs D in October 2020 accompanied by a letter informing her of her right of appeal. Mrs D did not appeal. Mrs D says the EHCP was never finalised. She wrote to the Council in late 2020 saying the EHCP she had received was out-of-date and input from professionals and up-to-date information would be required.
55. In early 2021, the Council asked an educational psychologist, a SALT therapist and others to assess X. This was difficult because of COVID. Later in 2021, it received an autism assessment report and a further SALT report.
56. The School continued to provide X with remote education. This consisted of one weekly meeting with a teacher and tasks set for him to complete each week. Mrs D completed the work with X and uploaded it onto the School site. However, it is clear that the School was concerned that X should be in school.
57. At the same time, the School was concerned that it would not be able, in the longer term, to provide the education X required. The headteacher told the Council that, given X’s need for “very therapeutic, sensory led provision which is difficult to achieve in a busy mainstream school” he might be better off elsewhere.
58. Mrs D continued to be dissatisfied with the School. It is clear that the relationship was a difficult one. She said the School had failed to provide X with links to online learning that other students had and to meet X’s needs.
59. In October 2022, Mrs D complained to the School. The governors urged the School and the parents to “find a way forward and repair lines of communication for X’s benefit. Mrs D also engaged a solicitor who contacted the Council and asked for an emergency EHCP review.
60. The Council intended to complete the EHCP review in January 2021. It noted Mrs D had not requested a different school nor opted for elective home education.
61. The Council wrote to Mr and Mrs D in March 2021 saying it had decided the EHCP should remain unchanged. In particular, it said the School would be named in Section I as the setting for X’s education. A covering letter informed Mr and Mrs D of their right of appeal to the Tribunal.
62. The School continued to provide X with a home education package. This was extended by the School, pending a further review, in May 2021. The Council continued to investigate other educational options for X.
63. In June 2021, Mrs D wrote to the Council asking about progress with the EHCP review. She said X could not return to school until his EHCP was reviewed.
64. In late-June 2021, Mrs D spoke to Officer O, saying that she wanted X to be educated outside school. She said she wanted some flexibility. Officer O agreed to look into it and to try to find a way forward.
65. Mrs D says Officer O said she would contact the School and report back but did not do so until 10 September 2021 when she said X would have to attend school. Mrs D says the only option she was given was to elect to educate X at home.
66. Mr and Mrs D say they became increasingly frustrated by the Council’s failure to revise X’s EHCP. Their solicitor wrote to the Council in October 2021. They requested a review of the ECHP by 26 November 2021. The Council agreed. This did not occur.
67. On 20 January 2022, Mrs D formally complained to the Council about its failure to complete an EHCP review. She said the delays had adversely impacted X’s education. She said the Council was wrong to say the family had not engaged with the EHCP process.
68. Mrs D complained formally to the Council in February 2022 about a lack of progress with the EHCP process and poor communication. She said the failure to review the EHCP had caused irreparable damage to X.
69. The Council responded at stage two in May 2022. It accepted it had been at fault for delay in responding to Mrs D’s solicitor’s letter and in the EHCP process. It also accepted it had failed to communicate adequately with her due to staff absences. However, it said any delay in the EHCP process had not adversely affected X’s education. It said it would try to ensure that an EHCP review occurred as soon as possible but it would have to occur within the School.
70. Mrs D responded to the Stage two response. She said she welcomed the Council’s offer to help with the EHCP review but said the School could not be involved because “they have failed to address our concerns and have refused to investigate their own failures and the damage they have caused”.
71. Mrs D says that, a few days later, a Council officer, Officer P contacted her about the EHCP and began to work with Mr and Mrs D on the review. Mrs D says she was pleased with Officer P’s input. Officer P continued to work with the family until Easter 2022 when he had to leave the Council unexpectedly. At this point, Mrs D says, all progress on the EHCP stopped again.
72. The records show the Council sent Mr and Mrs D a final draft EHCP in April 2022. On this occasion, no educational setting was named in Section I. The accompanying letter notified Mr and Mrs D of their right of appeal. On receipt, Mrs D wrote to the Council and said the EHCP was incomplete. She said she would talk to Officer P on his return.
73. Mrs D wrote again to the Council on 28 June 2022 requesting an update on an EHCP review.

Was there fault causing injustice

Failure to review and revise X’s EHCP

74. The Council has sent evidence which shows it sent a revised EHCP to Mrs D in October 2020 and informed her of her right of appeal. Mrs D says she did not approve the EHCP and that it was not, therefore, final.
75. I accept the Council’s evidence. It did send letters and informed Mr and Mrs D of their right of appeal. The fact that Mrs D did not agree with the contents of the EHCPs does not mean that they were not complete.
76. The Council says that, while it tries to gain agreement from parents for EHCPs, it is not always possible. In such cases, it will issue an EHCP which will provide the parents with a decision they can appeal to the special educational needs Tribunal.
77. Mr and Mrs D says the School was not a suitable setting for X’s education. That is not a matter which the Ombudsman can decide on. It is a matter for the Tribunal. I cannot, therefore, find the Council at fault.
78. The Council has accepted that there were delays in the review process and failures in its communication with the family. It has offered Mr and Mrs D and X £150 in recognition of the injustice caused by this fault.
79. However, it is clear that the delays, along with failures of communication, caused Mr and Mrs D considerable distress. They believed, incorrectly, that X could not return to school while the EHCP was not finalised. They engaged a solicitor to help them get progress with the EHCP process.
80. For that reason, I am recommending that the Council should pay Mr and Mrs D £300 in recognition of their distress.
81. The Council has also agreed to pay X £150. I recommend that this figure too, is increased to £300 as he too will have faced distress and uncertainty.

Failure to provide X with suitable education

82. Mrs D says she could not return X to school until he had a new EHCP. However, this does not follow. X could have attended school with an out-of-date EHCP. The evidence shows that the School was providing X with a suitable education prior to the COVID pandemic school closures of March 2020. Mrs D says that some of the content of the EHCP dates from 2015. This did not stop X from attending school in early 2020 before COVID.
83. The records show that there was extensive correspondence between Mr and Mrs D and the Council and, in particular, Officers O and P. Mrs D has suggested officers told her that they considered that X’s condition was imagined. I have seen no evidence that officers took this view and the Council denies it.
84. Mrs D reached a view, during the COVID lockdowns, that the School was no longer a suitable educational setting for X. This was for various reasons. She thought X would be at risk of COVID though the School said it would put X in a bubble to prevent transmission. She was also concerned about noise and other factors which could aggravate X’s anxiety.
85. The Council, on the other hand, continued to believe, throughout 2020 and 2021 that the School was able to provide the education X required and was, therefore, a suitable school for X. Because Mrs D refused to send X to school, the Council and the School reluctantly agreed to provide him with online educational materials during that period.
86. Over this time, Mrs D refused to send X to school. Neither did she appeal any of the EHCPs nor did she suggest other educational settings for X. This left the Council with the option of either acquiescing to Mrs D’s request for remote learning provided by the School or taking steps to prosecute Mrs D for her failure to make X attend school.
87. This was a difficult choice the Council had to take while being sensitive to Mr and Mrs D and X’s interests. It was a decision taken by professionals having considered all the relevant information. The Ombudsman does not normally find fault with Councils for making such difficult, professional judgments and I do not intend to do so in this case.

Service improvements

88. In its response to my enquiries, the Council says it has committed to the following actions:
1. A review of protocols for children who are not in regular attendance at school to ensure that reviews of their EHC plans are held without delay;
2. A change in its casework allocation process so that X and all other children in similar circumstances have a dedicated named officer responsible for all aspects of EHC planning review and provision.
89. For this reason, I am not intending to recommend service improvements in this decision.

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Agreed action

90. The Council has agreed that, within four weeks of this decision, it will:
1. Write to Mr and Mrs D with an apology and offer them a meeting to determine next steps in relation to X’s school placement and to explore next steps.
2. Pay X £300, and
3. Pay Mr and Mrs D £300.

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Final decision

91. I have found the Council at fault for delay in the EHCP review and in communication. The Council has accepted my recommendations. I have closed my investigation.

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Parts of the complaint that I did not investigate

92. Much of Mrs D’s complaint regards matters which occurred at school or matters which were dealt with by the School. The Ombudsman has no jurisdiction to investigate these parts of the complaint. Matters relating to the sufficiency of the learning package provided by the school are, in my view, beyond our jurisdiction.
93. Mrs D’s criticisms of the headteacher of the School are also beyond our remit.
94. Mrs D has also said that individual Council officers were rude to her on the phone. There is no evidence to support these claims. We must make our decisions on the available evidence. If there is no evidence, we cannot make a decision.

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Investigator's decision on behalf of the Ombudsman