Summary: Miss C complained the Council failed to provide her son with Alternative Provision when he was unable to attend school. She also said it failed to comply with the Education, Health and Care (EHC) plan process. We found the Council failed to meet its duty to provide Alternative Provision which caused Miss C and her son distress, and he had a loss of education. There was no fault in the EHC plan process, and other parts of the complaint were either late or can be appealed to a tribunal.

The complaint

1. The complainant, whom I shall refer to as Miss C, complained about the Council’s handling of her son’s (Child X) education when he was unable to attend school. She said:
• it failed to put in place suitable alternative provision between December 2021 to July 2022 when he was unable to attend school due to health grounds, and provide Free School Meals which met his needs; and
• it wrongly refused her request for an Education, Health and Care Plan Needs Assessment (EHCNA), and when it agreed to do so, it caused delay in obtaining professionals assessments which were therefore not included in his Final EHC plan in July 2022.
2. Miss C also complained:
• the provision and educational provider set out in her son’s July 2022 final amended EHC plan did not meet his needs, and it had wrongly refused a suitable education provider;
• the Council failed to arrange all the provision set out in her son’s July 2022 Final EHC plan and wrongly refused her personal budget request to ensure provision was received;
• her child’s data protection rights may have been breached; and
• it had not properly addressed her concerns about her son’s educational provision since his early years education.
3. As a result, Miss C said Child X had experienced a loss of educational provision and experienced distress. She said she had also experienced distress, had time and trouble to get the Council to address her concerns, and she had costs to provide her son with an education and obtain a report from a professional.

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What I have and have not investigated

4. I have investigated Miss C’s complaint about Alternative Provision from January 2022 to July 2022, and the EHC plan process.
5. I have not investigated the parts of Miss C’s complaint set out in paragraph 2. This is because I cannot investigate:
• disputes about provision and education providers set out in an EHC plan. Such matters can be appealed to the SEND Tribunal, and Miss C has since appealed;
• matters which have not been considered in the Council’s complaints process;
• issues about the schools handling of data protection rights, such matters should be brought to the school’s and the Information Commissioner’s (ICO) attention; and
• matters which have been brought to our attention late, which includes Miss C’s concerns about the Council’s handling of Child X’s education before December 2021.

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The Ombudsman’s role and powers

6. 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)
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. 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)
9. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
10. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
13. 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

14. As part of my investigation, I have:
• considered Miss C’s complaint and the Council’s responses;
• discussed the complaint with Miss C and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
15. Miss C 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

Relevant law and guidance

Education, Health and Care plans

16. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
17. 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.
18. 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 EHC plans. 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 EHC plans “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 EHC plan 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 EHC plan.
19. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
21. Those consulted have a maximum of six weeks to provide the advice.
22. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
23. 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).

Alternative Provision

24. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. 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)
26. 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)
27. 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’)
28. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says:
• councils should arrange alternative education provision as soon as it is clear a child will be absent for health reasons for more than 15 days;
• councils should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision;
• alternative provision should address the needs of individual children through an appropriately tailored approach;
• councils should not have inflexible policies which prevent children from getting the right type of provision and a good education; and
• ‘virtual classrooms’ and learning platforms should generally not be used as the sole provision, though in some cases virtual education may be suitable for some children.
29. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
30. 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)
31. 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.

Free School Meals

32. Children are entitled to Free School Meals if they are in a government funded school and in reception class, year one, or year two. Children may continue to be entitled in later early years education if their parents receive certain income related benefits, or their income is below a set amount.
33. The Council’s website says parents, whose children receives free school meals, should report their child’s change in circumstances which may affect their right to claim. This includes if a child leaves school or is absent from school for a long time.

What happened

34. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between the parties involved.
35. Miss C’s son, Child X, has since early years education had issues in attending school and accessing his education. He has since been diagnosed conditions including dyslexia and Autistic Spectrum Condition (ASC).
36. Child X’s difficulties in school worsened during the Autumn term of the 2021-2022 academic year. His allocated mainstream school put him on a reduced timetable to support him re-engaging with school and accessing his education.
37. However, by the end of December 2021 Child X stopped attending and he did not attend the school for the rest of the academic year.
38. In January 2022 Miss C requested the Council to carry out an EHCNA for Child X, she also told the Council he would not be in school.
39. Six weeks later the Council told Miss C it had refused her EHCNA request. It told her it did not find Child X’s needs to require an assessment, and it was more appropriate to seek mental health support through her GP and the Child and Adolescent Mental Health Services (CAMHS).
40. Miss C appealed the Council’s EHCNA to the SEND Tribunal.
41. In Spring 2022, the Council held a mediation meeting with Miss C. It agreed to complete an EHCNA for Child X, and subsequently sought views from professionals which included an Educational Psychologist (EP).
42. Miss C asked the Council to also obtain an occupational therapist (OT) assessment for Child X. However, the Council did not agree this was necessary as his difficulties were not significant enough and the issues he did have could be managed by the school, paediatrics, and its EP team.
43. In June 2022 the Council shared its Draft EHC plan for Child X with Miss C.
44. Miss C made comments on the Draft EHC plan to the Council. She also asked it to make a referral for a speech and language therapy (SALT) assessment.
45. The Council told Miss C it agreed to make a referral for a SALT assessment, but this would not be included in Child X’s Final EHC plan. This was because it would take some time for the assessment to be completed.
46. In July 2022 the Council shared its Final EHC Plan for Child X with Miss C.
47. In August 2022 Miss C shared a privately arranged OT assessment report with the Council. She made comments on the changes she wanted in Child X’s Final EHC Plan and requested a personal budget for some provision the education provider was not assigned to deliver or where no provision had been sourced.
48. The Council asked an OT service to consider Miss C’s private OT report.
49. In September 2022 Miss C appealed the Council’s Final EHC plan for Child X to the SEND tribunal. The Council was not aware of this at the time.
50. A few days later, the Council issued an Amended Final EHC Plan for Child X which had very limited changes. It subsequently told Miss C it would make a further amended Final EHC Plan for Child X when it received the SALT assessment report and its OT services view on her private OT report. However, if Miss C appealed the EHC Plan to tribunal it would not be able to make further amendments as the EHC plan would become a working document subject to the SEND Tribunal process.
51. In late September 2022, the Council’s OT service agreed Miss C’s OT report was appropriate to be used as part of the EHC plan. And, in October 2022 it received the SALT report.

Miss C’s complaint

52. Miss C complained to the Council in August 2022 after Child X’s Final EHC plan had been issued. She said:
• its educational offer did not meet Child X’s needs and the education provider referred to in the EHC plan did not have the required staffing, environment and opportunities available. She also said the EHC Plan did not include information from SALT and OT reports;
• it had wrongly refused an education provider due to costs, which she had found suitable to meet Child X’s needs;
• she wanted a personal budget and a farm school provision included in the EHC plan provision; and
• it had failed to provide Child X with an education for eight months since he was unable to attend his school.
53. In response the Council told Miss C it had not upheld her complaint. It explained it had consulted with the education provider and set out how Child X’s education could be delivered in his Final EHC plan. It had not included SALT or OT assessments as it had found this was not necessary to determine need, but it had since made a referral for a SALT assessment which had not yet been received as Miss C’s request was made shortly before it issued its Final EHC plan.
54. The Council said it agreed the education provider was new provision set up in Summer 2022, but it was satisfied the education provider could meet Child X’s needs as set out in his EHC plan and had the staff to do so. It encouraged Miss C to work with the education provider to discuss the offer available.
55. Miss C was not satisfied with the Council’s response to her complaint and asked it to escalate her concerns. She also raised concerns about:
• the lack of clarity about the provision to be delivered by the education provider and contact from the provider to set up the provision;
• the timescale it had taken to complete Child X’s EHC plan and the process the Council had followed;
• its refusal to approve a personal budget; and
• the Council’s handling her concerns around Child X’s education up to 2019, which included a refusal to complete an EHCNA.
56. In October 2022 the Council provided its final complaint response to Miss C, but it did not change its view. It told her the education provider had attempted to contact her to discuss provision but had been unsuccessful. It asked her to discuss the education offer with the provider until the SEND Tribunal could consider her appeal.
57. Miss C asked the Ombudsman to consider her complaint. She said she had costs to arrange educational provision for Child X since January 2022 when he was unable to attend school, and towards assessments of his needs. She also said she lost out on Free School Meals as the Council did not provide this.
58. Miss C has since said the Council refunded the costs she had for her private OT report.

Analysis and findings

The EHC plan process

59. Miss C complained about the Council’s handling of her EHCNA request and EHC plan process from January 2022.
60. Miss C made her request for an EHCNA for Child X in January 2022. The Council responded to her request within 6 weeks and provided its reasons why it found the assessment was not needed for Child X. It told Miss C she could appeal its decision to the SEND Tribunal and suggested she could ask her GP and the CAMHS service for help with Child X’s mental health support.
61. Miss C had a right to appeal to the SEND Tribunal and used her right to do so. I cannot therefore consider the Council’s EHCNA refusal.
62. In the March 2022 mediation meeting between Miss C and the Council, it agreed to complete an EHCNA for Child X. At this time, it had a further 14 weeks to finalise the process.
63. I have not found fault in how the Council handled the EHC plan process. This is because it:
• consulted with professionals it deemed relevant, including an educational psychologist, and considered the information it received;
• considered Miss C’s and Child X’s views. This included her request for an OT assessment of Child X’s needs;
• told Miss C it had decided a referral for an OT assessment was not needed as Child X did not have significant physical or sensory needs which could not be managed by the school, paediatrics and its EP team;
• issued a draft EHC plan in June 2022 and offered Miss C 14 days to make comments;
• consider Miss C’s comments and issued Child X’s Final EHC plan in July 2022 which was 14 weeks after it had agreed to complete the EHCNA. It was therefore within the 20 weeks to complete the EHC plan process.
64. Miss C said the Council was at fault as Child X’s Final EHC plan in July 2022 did not include a SALT or OT assessment.
65. I understand Miss C decided to commission her own private OT assessment for Child X and shared this with the Council after it had issued Child X’s Final EHC plan. However, the Council was entitled to reach its view an OT assessment was not necessary based on the information available to it at the time. As I found no fault in the process the Council followed, I cannot therefore criticise the merits of its decision. However, I understand the Council has since decided it was appropriate to refund the costs Miss C had for the private OT report.
66. In June 2022 Miss C asked the Council for Child X to be referred for a SALT assessment. I have not found the Council at fault for failing to include a SALT assessment in Child X’s Final EHC plan in July 2022. This is because:
• it agreed to make the referral, and made the referral without delay;
• I would not expect the Council to be able to obtain a SALT assessment within a few weeks, and it had to issue Child X’s Final EHC plan in July 2022 to meet the statutory timescales; and
• it told Miss C it would issue Child X’s Final EHC plan without the SALT assessment, but it would amend his EHC plan once it received the assessment report.
67. The Council issued an amended Final EHC plan with very minor amendments in September 2022. Miss C has since appealed the Plan to the SEND Tribunal.
68. Any concerns Miss C has about the provision and the education provider set out in Child X’s EHC plan should be considered by the SEND Tribunal. This is because:
• I cannot consider concerns about the suitability or ability of the education provider to meet Child X’s needs set out in his EHC plan, as this is inextricably linked to the matter under appeal; and
• her concerns were not part of her initial complaint to the Council and has not completed the Council’s complaints process due to the ongoing appeal.

Alternative Provision

69. Miss C told the Council and the school that Child X would not be attending school in January 2022 due to his health.
70. The Council said as Child X did not have an EHC plan until July 2022, his school was responsible for ensuring he received an education.
71. The Council is entitled to delegate its education duties to schools, but it remains responsible for ensuring its duties are properly discharged and children within its area receives the education they are entitled to.
72. In this case, the Council was aware Child X had been without an education for 15 days, and it therefore had a Section 19 duty to consider whether Alternative Provision should be provided to him, or whether it should force Miss C to ensure Child X attended the school where he was on roll.
73. The evidence shows the school, the Council and Miss C had discussions and mediation meetings during Child X’s absence from School. However, at no stage was any meaningful provision arranged by the Council or the school which Child X could engage with. Nor was there any evidence Miss C wrongly kept Child X out of school and the Council took any steps to address this. This was fault.
74. Child X therefore received no education between January 2022 and July 2022 when his Final EHC plan was issued, except for the provision Miss C arranged. I am satisfied Child X and Miss C experienced distress due to the uncertainty this caused and the trouble she had to arrange some education provision for him.

Free School Meals

75. Child X was entitled to Free School Meals from the Council, which it had delegated to his school to provide. He was receiving these until he was unable to attend school in January 2022.
76. Child X did not stop being entitled to Free School Meals when he was unable to attend his school where he remained on roll until July 2022.
77. The Council confirmed Child X School sent Miss C general notifications to book Free School Meals periodically, but Miss did not book these. The School also provided Miss C with Free School Meal vouchers during school holidays by email which she downloaded.
78. I understand Miss C may not have been aware she could continue to request the Free School Meals from Child X’s School where he remained on roll. However, these were available for her to book, and notifications were sent to her. I have therefore not found the Council at fault for failing to provide or offer these.

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Agreed action

79. To remedy the injustice the Council caused to Miss C and Child X, the Council should, within one month of the final decision:
1. apologise in writing to Miss C and Child X, and pay her £400 to acknowledge the distress and uncertainty the Council’s faults caused them, including the trouble she had arrange some educational provision herself;
2. pay Miss C £2,750, to use as she sees fit for the benefit of Child X, to acknowledge the loss of education Child X had and the costs Miss C had to provide some education provision between January 2022 to July 2022.
80. Within three months of the final decision the Council should also:
1.  
2.  
3. complete a review to ensure it meets its statutory duty to arrange Alternative Provision to children who are not attending school for reasons of illness, health or otherwise, which is expected to last for 15 school days or more without delay. Including, how it can monitor any arrangement made remains in place and suitable for children.
81. The Council should provide us with evidence it has complied with the above actions.

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Final decision

82. There was fault which caused Miss C and Child X an injustice, the Council has agreed with my recommendations. It is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman