The Investigation

The complaint

1. Mrs X complained about the Council’s failure to carry out an EHC needs assessment for Y when she had asked for it in January 2022, comply with the statutory timescales for an EHC Plan process and deliver suitable full-time education to Y since September 2022.

2. Mrs X says the Council’s failings caused an increase in Y’s anxiety to the point of her not leaving the house. She also says they had a negative impact on her mental health and affected her relationship with family members. Mrs X says her husband had to take annual leave to attend meetings and support Y. He lost earnings and his health suffered due to stress. Mrs X claims the Council’s failings also affected her son’s education. He is autistic and felt resentful that he had to go to school when his sister was not going.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report we 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. We 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)

4. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)

6. 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 report.

7. 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)

8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

9. The Ombudsman’s view, based on caselaw, 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 on the part of 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)

10. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

EHC Plans

11. 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.

12. When the SEND Tribunal orders a council to carry out an EHC needs assessment, the Council has:

• two weeks to tell the child’s parent it will make the assessment;

• 14 weeks to send a final EHC Plan if it decides that it is necessary for special educational provision to be made for the child in accordance with an EHC Plan. (Special Educational Needs and Disability Regulations 2014, regulation 44 (2)(b))

Alternative provision

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. Provision under section 19 applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school and whatever type of school they attend. (Statutory guidance, ‘Alternative Provision’)

15. 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)

16. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

17. 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’)

18. The Department for Education (DfE) non-statutory guidance 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 reintegration package. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020)

19. 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? Ensuring children out of school get a good education’, updated in August 2023). We made seven 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;

• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;

• 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, they should retain oversight and control to ensure their duties are properly fulfilled.

Delivery of special educational provision

20. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)

21. 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)

What we have and have not investigated

22. We have not investigated the Council’s refusal to carry out Y’s EHC needs assessment following Mrs X’s request in January 2022. This is because Mrs X appealed the Council’s decision refusing to carry out Y’s EHC needs assessment. As explained in paragraph seven of this report we cannot look at a decision which has already been appealed to the Tribunal.

23. Mrs X told us she was unhappy about the Council’s refusal to offer Y transport to School 3. We have not investigated this issue as Mrs X has not yet exhausted the Council’s transport appeal process and the Council has not had an opportunity to investigate and reply.

24. We have not investigated anything which happened after Mrs X’s right to appeal arose at the end of April 2023.

25. Although the Council issued Y’s final EHC Plan at the end of February 2023, it was still consulting with educational placements for Y and told Mrs X it would be amending the plan following these consultations. For these reasons it would not be reasonable to expect Mrs X to appeal this plan, so we have investigated the period between the end of February and the end of April 2023.

How we considered this complaint

26. We have produced this report after talking to Mrs X and examining relevant files and documents.

27. We referred to our Focus Report ‘Out of school, out of sight’ updated in August 2023. Although our updated Focus Report was published after the events complained about, it is still relevant to refer to its content. The Focus Report aimed at clarifying what can be expected from the Council in relation to the alternative provision for children based on the legislation which has been in place at least since 2014.

28. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found 

What happened 

Background

29. Y is 12 and has complex special educational needs (SEN). Until July 2022 she attended a mainstream primary school (School 1).

30. Mrs X asked the Council for an EHC needs assessment for Y early in 2021 but did not pursue it as School 1 offered extra support for Y.

31. By the beginning of 2022 Mrs X had more reports describing Y’s difficulties and once again asked the Council to assess Y’s EHC needs. The Council declined Mrs X’s request and she appealed this decision to the SEND Tribunal.

32. In mid-August the SEND Tribunal ordered the Council to carry out Y’s EHC needs assessment.

33. Following discussions with Mrs X the Council agreed for Y to attend a mainstream secondary academy (School 2) from September 2022, despite this school’s location in another local authority. Mrs X thought School 2 was smaller than the others and should be better suited to meet Y’s needs.

EHC Plan process

34. At the beginning of September 2022 the Council told Mrs X it would carry out Y’s EHC needs assessment.

35. After several emails from Mrs X, in the third week of October the Council explained to Mrs X its difficulties with securing Educational Psychology (EP) advice, due to the nationwide shortage of EPs. The Council told Mrs X what it had been doing to reduce the impact of this.

36. At the beginning of December an EP assessed Y and by mid-December had prepared her advice.

37. The Council issued Y’s draft EHC Plan at the beginning of February 2023. Mrs X asked for longer to provide her comments and identify a suitable school for Y. The Council, however, told her it had to finalise the plan even if section I was left blank.

38. At the end of February the Council issued a final EHC Plan for Y. In section I it named a type of educational placement needed by Y.

39. The Council continued consulting with mainstream secondary schools for a place for Y. Throughout March Mrs X kept asking for the outcome of school consultations but did not receive a response.

40. In April the Council told Mrs X that out of four schools it had consulted, only one (School 3) had offered Y a place. Mrs X told us the Council had told her to fill in the form specifying School 3 as her preference. She also said she had been told by the Council to sign a transport disclaimer form, otherwise the Council would have named Y’s nearest mainstream secondary school (School 4) in section I. This was despite School 4’s refusal to offer Y a place. Mrs X did not sign the transport disclaimer form.

41. The Council issued Y’s final amended EHC Plan at the end of April. In section I it named School 3. Section I also said the Council agreed to name School 3 as parental preference although it was not the nearest suitable school, provided Mrs X and her husband (Mr X) would arrange and fund home to school transport.

42. At the end of July Mrs X lodged an appeal against sections B, F and I of Y’s EHC Plan asking the SEND Tribunal to decide Y needed an Education Otherwise than at School (EOTAS) package.

Alternative provision

43. During Y’s transition to her secondary placement in summer 2022 there were some concerns about School 2’s suitability to meet Y’s SEN. From the beginning of September Y struggled with school attendance. Soon after the beginning of the autumn term School 2 implemented a part-time timetable for her.

44. Mrs X contacted the Council’s attendance officer and was told to contact the other county, where School 2 was located. The Council repeatedly refused to get involved because School 2 was not in its area.

45. Y stopped attending School 2 in mid-October. Two weeks later the Children and Adolescent Mental Health Service (CAMHS) sent a letter to Y’s school giving reasons for her non-attendance.

46. The Council’s representatives met with School 2 and Y’s parents to discuss Y’s difficulties and any support arrangements for her in mid-November, following which School 2 prepared a reintegration plan. Y’s school proposed to review the plan in the second week of December.

47. At the beginning of December School 2 representatives met with Y’s parents to discuss Y’s education. A week later School 2 confirmed to the parents Y would receive some current topics that she could access via an online classroom. This online service was also offering free video lessons, resources and activities. School 2 intended this arrangement to be short-term until an outcome of the referral to the Council’s Education Access team was known.

48. Mrs X said during the lockdown she had provided evidence Y did not engage with online learning.

49. From October to December Mrs X kept asking the Council for support with Y’s education. The Council made a referral to its Education Access team in December.

50. At the beginning of February 2023 Mrs X met with School 2 and the Council’s representatives including a member of the Education Access team. Y’s education was discussed, including why she found it difficult to attend School 2. It was noted that the Council had delayed issuing an EHC Plan for Y. The Council’s representatives provided an outline of the educational support for Y. She would receive the work supplied by School 2 to the Education Access team. The Education Access team, if agreed, could provide reintegration and a small-stepped approach. After issuing Y’s EHC Plan her educational support would be transferred from the Education Access to a different team.

51. Mrs X was sceptical about the suitability of the arrangements proposed by the Council and School 2 as she believed School 2 did not differentiate the work offered to Y.

52. During the meeting in February the Council did not agree any educational support for Y while waiting for the outcome of an EHC needs assessment. The Council decided to wait to decide which team should organise Y’s support.

53. At the end of February the Council issued Y’s final EHC Plan without naming a specific school in section I.

54. After issuing Y’s final amended EHC Plan at the end of April, Y started attending School 3 on a part-time timetable.

55. From September 2022 until the end of July 2023 Mrs X arranged and funded some equine provision and social activities for Y. She also tried to offer Y some online learning, but Y did not engage with that.

Analysis

EHC Plan process

56. The Council should have told Mrs X it would carry out Y’s EHC needs assessment within two weeks from the date of the Tribunal decision, so by the end of August 2022. It did so 12 days later. The delay in sending this notification is fault but it was not significant enough to cause injustice.

57. The Council had 14 weeks to issue Y’s final EHC Plan and should have done this in the third week of November 2022. In fact it happened at the end of February 2023. The delay of over three months is fault. This caused injustice to Y as the Council’s failing delayed:

• support necessary for Y to access education;

• school consultations; and

• Mrs X’s right to appeal.

58. We accept the Council’s delay was primarily caused by the shortage of EPs. As it is to some extent outside the Council’s control a big part of the delay was service failure rather than maladministration. The difference is explained in paragraph nine of this report.

59. The Council has prepared a plan of action to address the impact of the EPs shortage on its services. It said it had introduced continuous recruitment, adapted the EPs’ working to include overtime and associate options and re-designed the service. As a result the EP capacity in the Council’s SEND teams has increased but has still not been able to fully match the increasing number of requests. The Council confirmed it had continued to work on innovative solutions to increase its capacity to provide EP advice as well as ensure the quality of its early intervention work in schools. The Council has agreed an approach to accept independent EP reports provided by parents when they fulfil the Council’s quality requirements, as confirmed by the Council’s EP service.

60. The Council’s plan of action demonstrates its efforts to mitigate the impact of the nationwide issue on its service users. We will monitor the effectiveness of the plan through our casework.

Alternative provision

61. During the EHC needs assessment Y had limited school attendance and from October 2022 stopped attending School 2.

62. The Council knew about Y’s difficulties with attending School 2 from the beginning of September 2022 as this is when it started Y’s EHC needs assessment. From October to December Mrs X continued asking the Council for its support with Y’s education.

63. As explained in paragraphs 18 and 19 of this report the Council should keep all cases of part-time education under review with a view to increasing it. This also applies when schools introduce part-time timetables for pupils. Until the meeting in November the Council refused to get involved because Y attended school in a different council’s area. When Mrs X asked for educational support for Y because she could not attend School 2, the Council advised her to contact the council in the area School 2 was located. The Council disregarded its responsibility based on Y’s residency in the Council’s area, as clarified in paragraph 14 of this report.

64. The Council’s refusal to recognise its responsibility for the oversight of Y’s education is fault, which caused injustice to her by delaying taking action to ensure Y is adequately supported to receive education. For Mrs X the Council’s failings meant she spent much time contacting both councils and was confused about the process. Mrs X remained frustrated at the lack of support for Y.

65. 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. This duty applies when educational provision the council has offered is not “available and accessible to the child”. This is called section 19 duty.

66. When looking at the way the Council approached its section 19 duty for Y we found fault in the following areas.

• The Council’s delay in considering reasons for Y’s non-attendance and whether the education in School 2 was accessible for her. School 2 referred Y to the Council’s Education Access team in mid-December 2022 but the meeting to discuss Y’s education took place at the beginning of February 2023. As explained above for children who are out of school councils should explore reasons for their non-attendance and whether the education offered by the Council is available and accessible to them. The delay of nearly two months in considering whether alternative education should be arranged for Y is unacceptable.

• Failure to check whether Y could access online education offered by School 2. The Council’s duty to arrange alternative provision applies also when a child is on a school’s roll. Schools can arrange for alternative provision if a child is out of school because of exclusion, illness or for other reasons, but councils remain responsible. The education offered must be suitable. In December 2022 and February 2023 School 2 offered some online materials for Y. Mrs X, however, consistently claimed Y could not engage with online learning, which they realised during the COVID-19 pandemic. Mrs X also raised concerns about the lack of differentiation of learning offered to Y by School 2. There is no evidence the Council checked if education offered to Y by School 2 was suitable for her.

• Lack of cooperation between the Council’s teams. At the meeting in February 2023 the Council told Mrs X that once Y’s EHC Plan was issued, a different team would be responsible for arranging her alternative provision. This seems to have stopped the Education Access team from making arrangements for Y’s education in view of the advanced stages of the EHC Plan process.

67. The Council’s fault caused injustice to Mrs X and Y of uncertainty on what education the Council might have provided if not for its failings.

68. We also consider if not for the Council’s failings, on the balance of probabilities, the Council would have accepted its duty to arrange alternative provision for Y at least from the beginning of January 2023. We came to this conclusion for the following reasons.

• The Council seemed to have accepted Y could not attend School 2 because of her medical and special educational needs.

• Mrs X sent medical evidence for Y on the basis of which School 2 authorised Y’s absence.

• All the evidence suggests Mrs X made every effort to ensure Y could attend School 2 – she supported a part-time timetable and frequently contacted the Council asking for help with Y’s education.

69. For the reasons explained above we consider the injustice caused to Y by the Council’s fault included a lack of suitable education at least from the beginning of January 2023 until the end of April 2023. This is likely to have resulted in the deterioration of Y’s academic progress and increased anxiety, and also put strain on the family.

Delivery of special educational provision

70. From the end of February 2023 the Council had a duty to deliver to Y special educational provision specified in section F of her EHC Plan. We accept that in March and April the Council was consulting with schools and making arrangements for Y starting School 3 so it would not be reasonable to expect the Council to arrange support for Y in line with section F for a short period of time.

71. Mrs X told us that in view of the prolonged lack of any educational support for Y she arranged some provision for Y to address her social, emotional and mental health needs. If Y had been receiving education, this might not have been necessary. The need for this provision was, therefore, consequential to the Council’s failing of not ensuring she was receiving suitable education. We have decided to recommend the Council refund the cost of some provision which Y received in March and April 2023.

Conclusions

72. The Council was at fault because it:

• delayed issuing Y’s EHC Plan by three months;

• failed to monitor Y’s education when she was on a part-time timetable and stopped attending school from September until mid-December 2022; and

• failed to consider whether it should arrange alternative provision for Y when she was out of school from mid-December 2022 until the end of April 2023.

73. The Council’s faults we have identified caused injustice. They are likely to have affected Y’s academic and personal development. Y’s anxiety and mental health worsened leading to her not wanting to leave the house.

74. The Council’s faults caused distress and uncertainty to Mrs X, placing strain on her and other family members. Mrs X struggled to find and put in place provision to ensure Y received some education and support when she could not attend School 2. Mrs X and Mr X spent much time contacting the Council and attending various meetings which, they said, had affected their health and work.

Our previous service improvement recommendations

75. In 2022 we issued several decisions recommending service improvements in the Council’s approach to its duties under section 19.

• In our decision 21 004 607, issued in April 2022, we recommended the Council at a senior level undertake a detailed case review, focussing on why the complainant’s child was not provided suitable alternative education when he was unable to attend his school. The purpose of this review was to adopt measures to inform service improvements.

• In our decision 21 005 643, issued in May 2022, we recommended the Council review its processes to ensure that where its SEN team becomes aware a child with special needs is out of school it will share that information with relevant teams within the Council. This is so they can consider whether further action is needed to support the child to attend school, take formal action for non-attendance or check that education provided at home is suitable, as needed.

• In our decision 21 005 470 issued in June 2022 we recommended the Council send a memo to officers dealing with children not attending school, to remind them it remains the Council’s responsibility for ensuring provision is in place if a school fails to make alternative provision, even if the child remains on the school’s roll.

• In our decision 21 013 183 issued in June 2022 we recommended the Council provide reminders or training to ensure that staff understand the Council’s duty to offer suitable alternative educational provision when children are out of school and not receiving a full-time education.

76. The Council’s approach to its duties under section 19 in this case shows that any service improvements carried out because of our recommendations in the complaints listed above have not been effective.

77. The Council has agreed with our draft report and recommendations, which is commendable.

Recommendations

78. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

79. In addition to the requirement set out above, to remedy the injustice caused the Council has agreed within four weeks of the date of this report to:

• apologise to Mrs X and Y for the distress and uncertainty caused by the Council’s delays in issuing Y’s EHC Plan and arranging suitable education. We published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;

• pay Mrs X £300 to recognise the negative impact of the delays with the issuing of Y’s final EHC Plan;

• pay Mrs X £320 to refund some of the provision she arranged and funded in place of the special educational provision not delivered to Y by the Council;

• pay Mrs X £2,000 to recognise the injustice caused to Y by the lack of suitable education from the beginning of January 2023 until the end of April 2023; and

• pay Mrs X £500 to recognise the distress caused to her by the Council’s failings.

80. To improve services, within three months of the date of this report the Council has agreed to:

• identify a senior officer from another service to review why previous service improvements around alternative provision have not been successful. Learning from this should be used to inform work to respond to the service improvements below and publicly reported to a relevant Member group;

• improve communication between the education welfare and special educational needs teams to ensure there are no delays in providing services to the children for whom EHC Plans are being issued;

• prepare an action plan to improve decision-making on education for children who are out of school and improve monitoring of part-time timetables. The plan should include:

  • timescales for making decisions on the Council’s alternative provision duty;

  • arrangements for monitoring suitability of any education offered by schools to children on part-time timetables or out of school;

  • clarity on the Council’s responsibilities when the child is educated at a school in a different council’s area;

• consider preparing a template for decision-making on the Council’s alternative provision duty.

Decision

81. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and her daughter, Y. The Council has agreed to take the action identified in paragraphs 79 and 80 to remedy that injustice.

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