Summary: Miss X complained the Council failed to provide her child with sufficient education and failed to provide the Education and Health Care (EHC) plan support she was entitled to when she was unable to attend school through ill health. We found the Council failed to become involved to ensure Y received a suitable education. When it provided an education, it did not properly consider how the support in Y’s EHC Plan could be met. There was also a failure to properly respond to Miss X’s complaint. We recommended the Council made a payment and apologised to Miss X and to Y.

The complaint

1. Miss X complains that:
1. her daughter had insufficient education and Education and Healthcare (EHC) plan support between October 2021 and September 2022 when she was unable to attend school through ill health. She complains there was a delay providing any education or support and what was provided was limited and did not meet her daughter’s EHC plan needs.
2. the content of the EHC plan was outdated and inappropriate. It did not reflect her daughter’s needs properly because they had increased. She complained that some the plan content cast her daughter in a bad light and a school named in the EHC plan was unsuitable.
3. that the Council’s response to the complaint did not consider the key points she raised.
2. Miss X told us the issues with provision meant her daughter missed out on provision at a key stage of education and it caused significant stress to her and her daughter.

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What I have and have not investigated

3. We are investigating the complaint about the lack of provision, but we are not investigating the content of the EHC plan. This is because appeal rights exist to appeal the content, which I understand Miss X has used.

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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. 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

6. I spoke to Miss X and considered the complaint she made and information she provided. I asked the Council for information and I considered its response to the complaint.
7. Miss X 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

SEN Guidance and relevant legislation

8. 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.
9. Section 42 Children and Families Act states Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. 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).
10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
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. 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.
12. 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 EHC plan 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).
13. 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))

Department for Education Guidance “Ensuring a good education for children who cannot attend school because of health needs, January 2013”

14. Paragraph 14 says “The law does not specify the point during a child’s illness when it becomes the LA’s responsibility to secure for the child suitable full-time education. Schools would usually provide support to children who are absent from school because of illness for a shorter period, for example when experiencing chicken pox or influenza …More generally, LAs should be ready to take responsibility for any child whose illness will prevent them from attending school for 15 or more school days, either in one absence or over the course of a school year, and where suitable education is not otherwise being arranged.”
15. Paragraph 15 states “There is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs (unlike for excluded children, where provision must begin by the sixth day of the exclusion). LAs should, however, arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence.”

Department for Education Guidance ‘Mental health issues affecting a pupil’s attendance: guidance for schools’

16. The guidance states schools should inform the Council where pupils are likely to miss more than 15 days at school, and work with the family to provide education whilst determining with the Council whether alternative provision should be made under Section 19 of the Education Act…
17. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. They must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.

Background

18. Miss X’s daughter (referred to as Y in this statement) has ASD and she has had an Education and Health Care (EHC) plan for several years.
19. Y’s mental health declined in 2021 which led to hospital admissions and an increase in her needs. From October 2021 Y began a part-time timetable at the school named in her EHC plan (School A).
20. An Annual Review of Y’s EHC plan took place on 9 December 2021 due to a significant change in Y’s needs. At the review, it was noted that Y’s anxieties around attending school had increased and she had struggled to attend on a regular basis.

What Happened

Attendance and Provision January 2022 – August 2022

21. In mid-January School A told the Council it had held the annual review in December and it had not invited the Council to attend, in error. The school explained it had acted quickly in response to the availability of an Educational Psychologist to assess Y. School A stated it had significant concerns about Y’s wellbeing. It stated her attendance was minimal. She had only attended on two or three mornings at the start of the term. Attendance stopped on 18 January. The school stated they were unsure of the best option for Y and wanted to explore what options there were for her.
22. The Council advised the school that, generally, the first step was to review Y’s EHC Plan. It asked the school to send it the Annual Review paperwork and details of Y’s absence and it could advise on next steps.
23. School A sent the Annual Review paperwork and requested a full re-assessment of needs on 25 January 2022.
24. On 11 February School A contacted the Council’s Flexible Learning Team (FLT) to ask what support was available for Y. The FLT’s role is to work with children who are out of school to help them maintain schoolwork or reintegrate to school. The team responded, broadly explaining what they offer, and that it was mostly online learning with some teaching at learning hubs.
25. The Council considered the request for a full EHC plan re‑assessment at a panel meeting on 17 February 2022.
26. On 28 February the Council told School A it had declined to do a full re‑assessment. However, the Council stated it would complete a Notice to Amend the EHC plan. The Council stated Y’s parents could express a preference for other school placements and it could consult them.
27. On 7 March School A told the Council that Y stopped attending and it had provided maths papers and some RE and French assignments for Y to do at home.
28. On 8 March, the SEND team told School A to make a referral to its Flexible Learning Team (FLT). The Council says the SEND team chased School A to do this on 24 March and FLT received a referral on 1 April.
29. On 5 April FLT told School A that it needed medical evidence. The Council stated FLT required health guidance on the most appropriate provision for Y’s needs.
30. Y had been discharged from the Child and Adolescent Mental Health Service (CAMHS) so School A had to pay for a letter from a GP and this was provided to FLT on 28 April. Mrs X noted Y had not seen her GP. She explained the issue was severe anxiety which was related to Y’s Autism, rather than being an illness.
31. Following meetings between the school and FLT, a first home visit took place on 18 May 2022. It was agreed that FLT would provide online Maths and English with Computing and Science to be added later, once Y could manage more content. In June there was contact between School A and FLT about the appropriate exam boards for Y’s exams. In August the prospect of face-to-face learning was raised but it had not started. Miss X disputes what the Council stated about expanding the FLT provision. She stated the Council talked about adding other subjects but did not do so.
32. Late in August 2022 the Council issued a new EHC plan for Y which named a new school. This was a special school (School B). Miss X lodged an appeal against elements of the EHC plan content and the naming of School B. The content of the EHC plan and the suitability of the School B are not matters the Ombudsman can investigate as these are issues Miss X can appeal.
33. While the appeal against the school named in the August 2022 EHC plan was ongoing, Y continued to be supported by the LFT team.

Mrs X’s August 2022 complaint

34. Mrs X complained to the Council in August 2022. She complained about three points:
1. That an annual review established that Y’s needs had increased but since she was unable to attend school in late 2021, Y had largely been left with no support, despite having an EHC plan.
2. There was a delay in arranging education via the FLT until June 2022. When the FLT provision started, it was only Maths and English and no-one seemed to care if Y logged on or not. Also, that the FLT provision did not provide a key part of her EHC plan provision; this was support to help Y to develop communication and social skills and build relationships.
3. That some of the EHC plan content was outdated and the school named in the EHC plan from August 2022 was not suitable.
35. The Council responded on 31 August addressing each point. It stated, as Y was on the roll at School A, there was an expectation that School A would work with families and engage relevant professionals to address attendance issues. If non-attendance was for medical reasons FLT could provide support. The Council stated the delay was in the school providing medical evidence to enable FLT to become involved. When medical evidence was received, a panel agreed that support should be provided. The FLT support began on 18 May.
36. In terms of the support provided, the Council stated FLT was not a school and could not provide the full range of education expected from a school. However, the service monitored logins to its online learning systems and there were opportunities for Y to attend small group learning at the local learning hub. It referred to contacts between staff at the FLT team, Miss X and Y.
37. The Council noted that in August 2022 the Council named a new placement for Y which took effect from 1 September 2022. The Council noted Miss X planned to appeal this decision, but during the appeal support would continue to be provided by the LFT team. The Council responded to points made about the EHC plan content.
38. I understand Miss X responded to the Council, on or around 18 September 2022 disagreeing with points that it made in its complaint response. She noted that the first online lesson was 6 June. She stated the Council ultimately failed in its statutory duty to provide EHC provision.
39. Miss X also stated that they had been led to believe Y would be able to go to a local learning hub, but this had not happened, nor had Y been able to move onto subjects other than Maths or English. She felt that the LFT team had not adequately monitored whether Y was logging on and kept her up to date. She also commented further about the EHC plan content.
40. The Council stated it had commissioned support for Y throughout the year, so it did not consider it should pay compensation.
41. Based on the information the Council sent to us, it does not appear the Council sent Mrs X a response to her request, in September 2022 for the complaint to be considered further.

Education provision from September 2022

42. The notes the Council provided show that arrangements were made for Y to attend Maths and Computing lessons at a local learning hub from 21 September. I understand these lessons took place in addition to some online learning.
43. In November 2022 the Council told us Art and Science classes were discussed but it was felt Y had enough to do at that time. In mid-November Y agreed to attend Art class the following week. The introduction of Science was discussed on several occasions.
44. I note that from November 2022 there were some discussions with Miss X about Y attending School B. At the time of our investigation, I understand Y was still being supported by the LFT team.
45. The Council told us that the FLT team notified Miss X of Y’s non-attendance at online lessons on a number of occasions and did safe and well checks. They also contacted Miss X when Y did not attend lessons arranged at the learning hub. The LFT team also arranged home visits.

EHC Plan Support

46. Y’s EHC plan as at 2021 stated that Y needs access to small group support that focuses on developing social interaction and communication skills such as reciprocal turn taking, recognising how others may be feeling and strategies for managing conflict. She also needed support to develop scripts and opportunities to practice and rehearse those scripts so she can use them independently.
47. Y needed an environment that promotes emotional wellbeing, for example morning meet and greets, check-ins with key adults and access to support in unstructured times of the day. She needs at least one key adult who can meet her on a planned, regular basis to check on her well-being and help adjust support as needed.
48. The EHC plan sets out the need for explicit support to ensure Y has understood instructions and use of tasks and strategies to help her with working memory. Y also needs support to interact with others positively and respectfully and to manage her health and wellbeing.
49. In 2022 the EHC plan stated that Y needed opportunities to reflect on social situations that occur and to discuss them. She needed support to express difficult emotions and help to work on coping strategies.

Other complaints

50. The Council dealt with several other related issues as separate stage one complaints. On 3 October it responded to Miss X's concern that in early 2022 the council declined to do a full reassessment of Y’s needs, and her EHC plan content was inappropriate. In late October the Council responded to a complaint about the decision to site a new specialist school elsewhere in the County. In January 2023 the Council responded to a complaint that Y’s annual review from late 2022 had been delayed. In March 2022 it responded to a complaint about the way that the Council misled her in the December 2021 EHC plan review which ultimately led to an unsuitable school being named that was not her choice.
51. On 10 January the Council acknowledged a request for a Stage Two Review which the Council says it acknowledged on 18 September. However, the Council told us this was a Stage Two review of the response that the Council sent Miss X dated 3 October.
52. The Council does not appear to have replied to Mrs X’s response to the Stage One complaint response issued by the Council on 31 August 2022. Her response indicated she was dissatisfied and wished to take the complaint further.

Was there fault by the Council

Decision to decline to do an EHC Reassessment

53. I recognise Miss X (and School A) sought a full re-assessment of Y’s needs in January 2022. However, I cannot investigate this as Miss X has the right to appeal against the decision. Because Miss X can also appeal against the content of Y’s EHC plan and the suitability of the school the Council included in the plan from August 2022, I cannot include these points in my investigation. As a result, the focus of my investigation has been the education and EHC provision made available to Y while she was not attending school.

Provision of Education

54. Y stopped attending school from January 2022. I have considered whether Y was provided with a suitable education between January 2022 and 31 August 2022 (when the Council issued a fresh EHC plan naming School B).
55. I cannot consider the period after 31 August 2022. I say this because the courts have established that if someone has the right to lodge 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 EHC plan we cannot seek a remedy for lack of education or EHC provision after the date the appeal was engaged because the provision of an education would be inextricably linked to the disagreement about the school place named.
56. Section 19 of the Education Act 1996 places councils under 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.
57. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
58. The Council says it is dependent on schools to notify the Council when they are not attending due to ill health. Where a child is unable to attend school, it says schools should make a referral to the Council’s Flexible Learning Team along with guidance from a health professional on the most appropriate provision for the child’s needs. It emphasised that health guidance was essential to enable the Council to determine what provision was most appropriate. It noted that without such medical advice, it may take actions which would be counterproductive or unsafe for the child.
59. I recognise the Council considered a health assessment was needed to determine what was most appropriate education for Y while she was not at school. Health information can help to determine what provision a child can manage. However, our guidance makes it clear that the Council should consider making alternative provision where a child is not able to attend school for any valid reason (not just a medical need) where it is clear the absence will be over 15 days. In Y’s case, the Council was aware that Y’s attendance at school had been sporadic, and she had stopped attending school in mid-January.
60. DfE guidance regarding mental health issues affecting attendance states that councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. They must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.
61. In January the school told the council some work was being provided for Y to do at home. However, based on what the school told the Council, this would not constitute a full-time education. The statutory guidance ‘Ensuring a good education for children who cannot attend school due to health needs’ states the alternative provision on offer should be on a par with what is offered in school.
62. I found it was fault that the Council waited for the school to make a referral to its FLT team in April before it became involved, given its duty to ensure Y was receiving a suitable education at school or otherwise. I recognise there was a delay by the school in obtaining medical evidence and submitting a referral to the FLT team which delayed the Council’s FLT team beginning to provide an education to Y. However, we would have expected the council to promptly explore the reasons for non-attendance, and make an informed decision on whether the child was medically unfit, or ‘otherwise’ unable to attend school. Had it promptly explored this, it is likely Y would have received a suitable education from early February, around four months earlier than the FLT Support began.
63. Once the FLT support began, I am satisfied that the Council properly considered what amount of education Y would be able to do. This was via discussion and home visits with Miss X and Y. The Council says discussions included any barriers to learning, such as the pace and pitching of the lessons. Staff also offered 1-2-1 support. I recognise Miss X disagrees and considers other subjects should have been included sooner.

EHC Provision

64. Often, EHC plans detail support that should be provided by teachers and others across the school day and in the school environment. This means that it is not always possible to replicate the provision when a child is not in the school environment that was envisaged when writing the plan. However, there are some areas of provision that can be applied to other environments. Councils should seek to ensure that any EHC provision can be met in another environment, is met.
65. In Y’s case her EHC plan set out a need for Y to develop social interaction and communication skills in small group settings. This was to help her with such things as reciprocal turn taking, recognising how others may be feeling and strategies for managing conflict. Y’s EHC plan also required that Y received explicit support to understand instructions.
66. While some work was provided by School A, there is no evidence School A provided Y’s EHC provision from January when she stopped attending.
67. From the start of June until August 2022, Y was only taught via online learning through FLT. (I note that following Miss X’s complaint, she began attending a local learning hub where it was likely to have been possible for her to engage with others in a small group environment). Although I note staff were qualified, experienced and flexible in their approach, the Council did not provide any evidence that the approach taken with Y was adjusted to provide specific EHC plan support that was required. This was fault. The law places a duty on the Council to ensure that EHC provision is met.
68. As I state in the section above, we cannot seek to remedy any failure to provide an education or EHC support which is ‘inextricably linked’ to matters under appeal. As Miss X had the right to appeal the naming of School B in August 2022, the provision of education/EHC support since that time is not a matter we can investigate or seek to remedy.
69. I found that the Council’s failure to respond to Mrs X’s complaint at Stage Two of its complaints policy was also fault. I acknowledge that Miss X made several other complaints that the Council responded to, and one of these was escalated to Stage Two of the complaints process. However, the complaint that Miss X brought to the Ombudsman was not considered further after Miss X expressed dissatisfaction with the Stage One response in September 2022. This too was fault.
70. I have made recommendations to remedy the injustice this caused based on our guidance on remedy.

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Agreed action

71. Within four weeks of my final decision:
72. To recognise the failure to ensure Y received a suitable education and relevant EHC support between the start of February and the end of May 2022, I recommend and makes a payment to Miss X of £900 to be used for Y’s benefit.
73. To recognise the failure to provide, as far as possible, Y’s EHC support between June 2022 and August 2022, I recommend the Council makes a payment to Miss X of £450 to be used for Y’s benefit.
74. To recognise the frustration and distress to Miss X caused by the Council’s failure to provide support to Y, and the failure to respond to Miss X’s complaint at Stage Two of the complaints process it should pay her £300.
75. The Council should provide a written apology to Miss X and Y for the fault we have identified. The apology should take account of our guidance on making apologies which can be found on our website.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman