Summary: The complainant alleged that there was delay in providing her daughter, who has special educational needs, with alternative education during her school years when studying for her General Certificates of Secondary Education (GCSEs). The complainant also alleged the Council delayed in issuing an Education, Health and Care (EHC) Plan. The Council has accepted fault on most aspects of the complaint. We have recommended a way to remedy the resulting injustice which the Council has accepted. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council had failed to provide appropriate education to her daughter, B. The Council investigated the complaint and upheld the following complaints:
1. failed to identify B’s poor attendance at school during Year 10 (2020/2021);
2. failed to address B’s education needs between September 2020 to January 2022 (when tuition was provided);
3. wrongly stated that the complainant rejected the offer of alternative provision; and
4. delayed in issuing a final Education, Health and Care (EHC) Plan.
2. The Council only partially upheld the complaint that, once it was aware of B’s absence from school, it ignored this.

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What I have and have not investigated

3. I have investigated the Council’s actions since September 2020 to May 2022 when the Council issued the final amended EHC Plan. I have not investigated matters after this date as Mrs X had a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal about the contents of the final EHC Plan.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We 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)
5. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
6. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
8. If we are satisfied with a council’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)
9. 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.

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How I considered this complaint

10. I have spoken to Mrs X on the telephone and made enquiries of the Council. Mrs X has responded to the Council’s comments. I issued a draft decision statement and have considered the additional comments before reaching a final decision.

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What I found

Legal and administrative arrangements

11. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
12. 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. Section F sets out the special educational needs provision and Section I names the suitable placement.
13. 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. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
14. 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 missing from school

15. The Department of Education (DfE) defines these children are those not on a school roll or being out of education for more than four school weeks, who are not being privately or home educated. Councils have a duty under section 436A of the Education Act 1996 to establish the identities of these pupils. The statutory guidance of 2016 says councils should have robust policies to ensure schools and councils work together. Councils can prosecute parents for failing to ensure their child attends school.

Children out of school because of medical needs

16. Section 19 of the Education Act 1996 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”.
17. 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.
18. 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.
19. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Key events

20. As the Council has upheld most of the complaints, I have kept the chronology brief.
21. B is visually impaired, but she was managing at school (School D) without an EHC Plan. She is an able student and was predicted to take ten General Certificate Standard Examinations (GCSEs). Mrs X says that B started to struggle with severe anxieties in September 2020 (the beginning of Year 10, the start of her GCSEs) and was unwilling to attend school. School D was aware why she was unable to attend.
22. In April 2021, B received a formal diagnosis of autistic spectrum condition (ASC). B was unable to accept this diagnosis. Throughout Year 10, B’s absence from School D continued. This pattern continued through to December 2021 when B was in Year 11, the year of her GCSE examinations. Mrs X says that School D only allowed B to sit six GCSEs.
23. The Council recognises that its system of picking up absences from schools had not happened in this case. It seems that School D failed to complete the necessary referral form to the Council, alerting it of B’s absence from school for 15 days because of her medical needs. The Council accepted that its duty to provide alternative education under s19 was triggered in January 2021, when it was clear B was not attending school because of her medical needs, and it has calculated that B had missed nine school months of education between January to December 2021.
24. Mrs X says that the alternative education was very limited, 1.5 hours English, Mathematics and Science.
25. In mid 2021, Mrs X requested an assessment of B’s special educational needs. The Council agreed to this.
26. In November 2021, the Early Help Team (Children’s Services) became involved. Mrs X had a meeting with the medical needs team, and it was agreed that tuition would be provided. Mrs X says that the tuition during Year 11 was not tutor led and was primarily a revision programme.
27. In January 2022, Mrs X attended a meeting at School D, and it was confirmed that B would take only six not seven GCSEs. It was agreed that B would have two hours Science, 2 hours English, and one and a half hours Maths per week. The final EHC Plan should have been issued by the end of January 2022. But it was not.
28. In February 2022, Mrs X made a formal complaint to the Council about the lack of provision and delays in completing the EHC Plan. B applied to attend School D’s sixth form to study Art, Performing Arts and Applied Science.
29. In March 2022, a draft EHC Plan was issued. Mrs X says that B’s tuition was suspended because B was not attending due to anxiety. Mrs X asked School D to increase its online sessions with B in respect of Maths, Science and English. It is not clear how much online learning was provided at this stage.
30. During May, there were three further drafts issued. B was diagnosed with Attention Deficient Hyperactivity Disorder (ADHD). At the end of May 2022, the Council issued a final EHC Plan. School D was the named placement with daily support to be provided at school and for School D to offer catch up lessons as from July 2022. Mrs X has not appealed the EHC Plan because School D agreed to admit B to its sixth form even if she did not achieve the required GCSEs.
31. In June 2022, B took some GCSEs at home because she was too anxious to attend school. She obtained one GCSE having originally being predicated to be able to take ten.
32. In July 2022, the Council agreed a personal budget for B to attend a charity centre (Provider 1) which provides riding lessons and volunteering and work experience opportunities. The aim is to build up the pupil’s confidence so that they can successfully return to school.
33. In September 2022, B had a place at sixth form at School D. Mrs X says that B has struggled to take up this place. As part of a remedy for the complaint, Mrs X has asked for an early review of B’s EHC Plan and consideration given for B to repeat her current year (Year 12).

The Council’s decisions on Mrs X’s complaints

34. The Council accepted that its system for picking up school absence failed in this case (complaint a). Schools have now been asked to notify the Council of pupils who have missed 20-30 sessions (10-20 days). The Council is using the Department of Education (DfE)’s new attendance portal to identify these pupils.
35. The Council accepted B had missed out on nine school months of education during 2021 (complaint b). But it says some education was provided. Mrs X says that B’s attendance at School D was about 40% to July 2021 and then 6% for September to December 2021.
36. The Council accepted there was a significant delay of four months (complaint d) in issuing the final EHC Plan. Mrs X considers that, if the EHC Plan had been issued on time (January 2022), B would have had the support set out in the EHC Plan sooner and this might have enabled her to reintegrate back to School D, and would have improved her GCSE chances, and transition to sixth form.
37. The Council made a payment of £1,800 for the loss of education (£200.00 per school month) and £100 for the avoidable distress and frustration.

Findings

38. There was fault on complaints a), b) and d). On complaint c), it seems that there is no evidence Mrs X refused provision from Provider 1. So, I uphold this complaint.
39. The key issue is the resulting injustice and appropriate remedy. My views are as follows.
40. On complaint a), the Council is responsible for monitoring pupils’ absences from school and those missing from school. I recognise that the Council was reliant on School D to alert it of B’s absences during September to December 2020. It is good that the Council recognises its policy was not robust enough to pick up B’s absence sooner, and it has now improved its policy, using the DfE attendance portal. But, as Mrs X has pointed out, the September 2020 term was the start of B’s GCSE studies, and it is likely that missing the early parts of her syllabus would have adversely affected B’s chances of obtaining her predicted GCSEs.
41. On complaint b), B might have received some education at school during 2021. But the Council has accepted its duty under s19 was triggered by January 2021 and it should have provided alternative provision throughout 2021 on a full-time basis. The longer B missed out on education the more likely B would have found it very difficult to keep up with her studies. I also consider the alternative provision of five hours tuition per week would not be sufficient to cover the GCSE syllabus. And it is not clear why the Council considered it would. However, on the information provided to date, it seems that B’s anxiety prevented her attending face to face tuition. I also consider the Council could have offered the personal budget sooner.
42. On complaint d), a delay in issuing the EHC Plan would have meant a delay in a parent appealing to SEND Tribunal. However, Mrs X has not appealed, so she has not been adversely affected in this respect. But once the final EHC Plan was issued in May 2022, the Council had a duty to provide the specified provision in section F of the Plan. I cannot comment on the provision set out in the Plan as this would have been a matter for a Tribunal. But we would expect a council to provide the provision set out in an EHC Plan, regardless of appeal rights.

How the Ombudsman remedies injustice caused by fault

43. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

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Agreed actions

44. Within one month of the final decision, the Council will do the following:
1. in recognition of the initial delay in picking up that B was absent from School D, the Council will make a payment of £300 to Mrs X which she can use in a way she considers will help B continue with her education;
2. for the loss of education during 2021, I accept that there were offers of education, and B accessed some. Therefore, the Council will make a payment of £400 for each lost school month of education. This equates to £3,600 to be paid to Mrs X for B’s educational benefit minus the £1,800 which it has already been paid;
3. for the avoidable frustration caused by the delay in issuing the EHC Plan, and the avoidable distress and time and trouble, the Council will make a symbolic payment of £500 to Mrs X, minus the £100 already paid;
4. the Council has already agreed to carry out an early review of B’s EHC Plan and I understand that this has now taken place. It is important that the Council ensures the SEN provision required by B’s EHC Plan is provided at School D or, if this is not possible, the EHC Plan is amended without delay. Consideration should also be given to the request for B to repeat the current year. Mrs X has said that School D has agreed this so it will now be for the Council to decide and it should do so two weeks after the early review; and
5. the Council has made improvements to its ability to pick up a pupil’s absence promptly. That is good. What is not clear is how the Council determines the amount of hours tuition should be provided and whether the Council ensures pupils in their GCSE years are able to continue fully with these studies, if able to do so. The Council will provide some information about this, and whether it considers more should be done (for example advice to its Medical Needs Team) to ensure GCSE pupils are receiving sufficient tuition (online or face to face) to be able to take these examinations, subject to their medical needs.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have found fault and injustice. The Council has agreed the recommended actions and therefore I have completed the investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman