Summary: There has been fault by the Council. The Council has delayed finalising an Education, Health and Care plan. Child Y has been out of school for over 18 months, with 2 hours of therapeutic provision per week. Mr X appealed to the SEND tribunal, so events from the last 12 months are out of jurisdiction. However, there were 6 months of service failure by the Council prior to this as there is no evidence it considered trying weekly tuition when Y could not reintegrate into school. An apology and payment remedies the injustice to Mr X.

The complaint

1. The complainant, who I shall call Mr X, complains there has been delay in issuing an Education, Health and Care plan.
2. Mr X also complains the Council has not offered alternative educational provision after his child, Y, has been out of school for over 15 days. Mr X explains that he feels if the Council had acted sooner, Y may still be in education.

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The Ombudsman’s role and powers

3. 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)
4. The Ombudsman’s view, based on case law, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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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What I have and have not investigated

8. I have investigated the complaint from December 2021, when the EHC plan request was submitted and the Council became aware of Y’s problems attending school.
9. An Education, Health and Care (EHC) plan 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.

10. 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). So, I cannot investigate events after the Council issued the Education, Health and Care plan in August 2022. This is because Mr X appealed to the SEND tribunal.

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How I considered this complaint

11. I read the papers put in by Mr X and discussed the complaint with him.
12. I considered the Council’s comments about the complaint and any supporting documents it provided.
13. Mr X and the organisation 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

14. Y attended a mainstream secondary school.
15. In July 2021, after a fixed term exclusion from School, Y had a placement at a college to support reintegration back into school. Y had a further fixed term exclusion in November 2021.
16. The Council has said that Y’s attendance was decreasing in December 2021 as she could not attend school.
17. Y’s school requested an EHC plan needs assessment on 17 December 2021, as Y was at risk of permanent exclusion from school.
18. In January 2022 Y met with CAMHS for weekly sessions and Mr X attended a course. The Council says there was a second package of support at the college to aid reintegration back into school for 6 weeks, starting on 26 January 2022.
19. Y was excluded from the college on 11 March 2022.
20. The Council said the school set online work for Y on 14 March 2022. From 28 March 2022 Y had one hour a day education in its ‘boarding house’. The Council proposed to increase this to 3 hours on 4 April 2022, but Y could not attend.
21. Y attended the ‘boarding house’ sporadically during May 2022,
22. The Council proposed a final reintegration package in June 2022. Y could not attend school.
23. On 5 July 2022 Y began one hour a week therapeutic support sessions. The Council discussed alternative provision at another college with Mr X. This college said they could not meet Y’s needs.
24. Y continued the two hours per week therapeutic provision after the summer holidays. The Council said ‘this was the sole provision at home until Y was ready to engage in academic support’.
25. The Council sent the draft EHC plan to Mr X on 29 June 2022. The final EHC plan was published on 2 August 2022. This named the mainstream school Y had previously attended.
26. Mr X appealed to the SEND tribunal against the provision and the setting in the EHC plan on 29 September 2022.
27. In December 2022, Y was offered a place at another college. Y did not take up the offer of the placement.
28. The Council met with the Educational Psychologist (EP) on 13 March 2023. The Council said ‘after the meeting with Y, the EP explained to the school that Y was not ready or in a place to learn and the focus should remain on supporting her social, emotional and mental health needs’. In May 2023 Y attended a farm provision for a taster session. In July 2023 the farm said they could not meet Y’s needs and the sessions stopped. Y is now in year 11.

My analysis

EHC plan

29. 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.
30. The EHC plan should have been finalised 20 weeks after the application, on 6 May 2022. There was a delay of 12 weeks finalising the EHC plan. This was fault. As Mr X appealed the EHC plan, his appeal will have been delayed by 12 weeks, potentially resulting in loss of provision of 12 weeks.
31. Until the appeal is heard by the SEND tribunal we do not know if the provision will alter or what any new provision will be. So, I propose a financial payment to remedy and recognise Mr X’s frustration and uncertainty because of the EHC plan delay of £500.

Alternative Educational Provision

Law and guidance

32. 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. 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)
33. The courts have considered the circumstances where the section 19 duty applies. Case law 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)
34. 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 sight? published July 2022 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties and properly fulfilled.

What happened

35. Mr X complains that Y has had little or no educational provision over the last 2 years. He said that he feels that if suitable provision was made earlier, then he would not be in the situation he is in now where his child is at home in the year they would be taking GCSE exams. Mr X explains that the current therapeutic provision is 43 minutes, twice a week and school have not sent work home.
36. Y was in school from September to December 2021, although it is clear that their attendance was decreasing at this point.
37. The Council was aware in December 2021, through the EHC plan needs assessment, that Y was not attending school and was at risk of permanent exclusion.
38. From January to July 2022 Y had little education. Four reintegration packages were proposed, which were not successful. There was some online work set and an hour a day provision at a ‘boarding house’ for a few weeks.
39. The Council has said that ‘it does not consider there has been a service failure. The Council has attempted to provide suitable educational provision.’
40. I can see that the Council tried a number of provisions between January and July 2022. And, that professional advice confirmed that ‘Y was not ready or in a place to learn and the focus should remain on supporting her social, emotional and mental health needs’. However, I cannot see that the option of at home or online tuition was considered. Rather, there were 4 attempts at reintegrating a child who had struggled to attend school, which resulted in a further exclusion. I can also appreciate Mr X’s frustration that he wants more than the twice weekly therapeutic provision. However, it is not clear whether Y could have coped with more than this.
41. I do consider the Council has not provided Y with a suitable and accessible full time education from December 2021 until August 2022. This is service failure and has caused an injustice to Y and Mr X.
42. It is clear the Council has made some educational provision available to Y and has offered some different options. It is difficult to know if Y would have engaged with a home tutor if this had been offered, but I do think that Mr X will never know if Y could have managed some educational provision if this had been offered. So, I propose a remedy of £200 a month from January to July 2022, minus one month for school holidays. This totals £1200, which Mr X can use towards a private tutor.
43. The Ombudsman has made a number of recent decisions on complaints against the Council, in relation to EHC plan delays and alternative educational provision. These have included a number of service improvements as part of the remedies, which are relevant to this complaint. There is a recurring issue and the Council needs to take some robust action to address the concerns.

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Agreed action

44. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mr X for the delay in finalising the EHC plan (Please see the guidance on Making an effective apology).
• Pay Mr X £1700.
• Review its processes to ensure when a child is unable to attend a school alternative education provided by the Council is suitable, fulltime and on par with what a child would receive within school and that alternative provision is put in place without delay.
• Remind relevant officers of the need to finalise Education, Health and Care Plans within the statutory timescales.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation of this complaint. This complaint is upheld, as there has been fault by the Council. The remedy above, remedies the injustice to Mr X and his child, Y.

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Investigator's decision on behalf of the Ombudsman