Summary: Mrs X complained the Council delayed in issuing an Education, Health and Care Plan for her son, Y, and failed to make alternative provision available for him while he was out of school. We find the Council at fault for failing to explore alternative provision options. The Council has agreed to apologise to Mrs X and Y, make a payment to recognise the injustice caused by the fault, and act to prevent recurrence.

The complaint

1. Mrs X complains the Council delayed in assessing Y’s EHC needs and putting an EHC Plan in place for him. Mrs X also complains the Council failed to secure alternative provision for Y while he was out of school. Mrs X says this meant Y did not receive a suitable education and missed out on social interaction he otherwise would have had.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 SEND tribunal is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 result of an EHC Neesa Assessment, we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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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What I have and have not investigated

12-month rule

8. We cannot investigate complaints that have been brought to us more than 12 months after the date of the events complained of. We can only exercise discretion if there are good reasons to do so.
9. Mrs X brought her complaint to the Ombudsman in October 2022, meaning any complaint about events that took place before October 2021 would be considered late. However, I have exercised discretion to investigate from April 2021, when the Council agreed to carry out an EHC needs assessment for Y.
10. This is because the issues complained of were ongoing from that point and Mrs X raised her complaint within 12 months of the Council agreeing to issue an EHC Plan.
11. Any reference below to matters that took place before April 2021 are for reference purposes only.

Issues linked to appeal

12. We cannot investigate complaints where someone has the right to appeal to a tribunal. There is a right to 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.
13. Mrs X’s right to appeal arose in August 2021 when the Council decided not to issue an EHC Plan for Y. I cannot consider the Council’s actions from that date until the appeal was completed in May 2023. This includes the Council’s decision not to issue an EHC Plan, the Council’s later decision to issue an EHC Plan without a school named, or any lack of Special Educational Needs (SEN) provision during that time. This is because these matters are all linked to the matters appealed, meaning we cannot seek a remedy for any injustice during that period.
14. However, I have mentioned what happened in this period below where appropriate for contextual reasons.

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How I considered this complaint

15. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
16. Mrs 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

EHC needs assessment

17. A child with SEN may have an 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.
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 needs 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.

Alternative provision

19. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have (Education Act 1996, section 19(6)).
21. 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).
22. 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 recommendations that 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
24. Government guidance on a council’s Section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
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)

What happened

26. Y was enrolled at School A, a mainstream school, but stopped attending in May 2019 due to mental health difficulties and bullying incidents. Mrs X made the Council aware of this and began educating Y at home through online courses she funded herself as she said the Council did not make alternative provision available.
27. On 21 April 2021, Mrs X asked the Council to carry out an EHC needs assessment for Y. The Council wrote to Mrs X agreeing to this on 21 May 2021. It requested the relevant reports, including an Educational Psychologist (EP) report at this time.
28. Mrs X complained to the Council in June 2021. Mrs X said Y did not have access to suitable full-time education, as required under Section 19 of the Education Act 1996.
29. The Council received an EP report on 2 July 2021. This suggested Y needed to return to school, but it would not be in his best interest to return to School A. The EP report said Y ideally required small group learning and would need an adapted curriculum to fill gaps in his learning.
30. The Council decided not to issue an EHC Plan for Y, and it wrote to Mrs X to explain this on 5 August 2021. The Council explained it recognised that Y has SEN, but considered the provision required to meet his needs could reasonably be provided within the resources available at a mainstream school.
31. Mrs X wrote to the Council later that month to explain she felt Y needed to attend a specialist school, but he could not get a place in one without an EHC Plan. Mrs X explained the information in the EP report suggested Y’s needs could not be met at a mainstream school. Mrs X asked the Council to reconsider and explained she would appeal to the tribunal.
32. The Council wrote to Mrs X in October 2021 to explain it would review its decision based on her comments.
33. The Council wrote to Mrs X on 11 November 2021. The Council said it still felt the provision required to meet Y’s needs could reasonably be provided within the resources available at a mainstream school and it would not issue him an EHC Plan.
34. In December 2021, Mrs X appealed to the SEND tribunal. At this time, Mrs X also removed Y from the roll at School A and continued self-funding online courses for him.
35. In January 2022 a specialist school, School B, agreed to arrange visit and taster days for Y. They offered him a place, starting in Year 9, subject to him receiving an EHC Plan. The following month, School B agreed to fund Y’s education through a bursary, pending the outcome of his tribunal hearing.
36. On 15 March 2022, prior to the tribunal hearing, the Council wrote to Mrs X to explain it had reviewed its previous decision and had decided to issue an EHC Plan for Y.
37. On 20 April 2022, the Council sent a draft EHC Plan to Mrs X. Mrs X returned this with her comments and asked for School B to be named as Y’s educational setting.
38. On 21 June 2022, the Council issued a final EHC Plan for Y. This said Y needed a flexible curriculum so gaps in his learning could be revisited. It also provided for small group learning and strategies to develop Y’s English, Maths and Science skills. The EHC Plan provided for 1:1 check ins for 15 minutes a day as well as 12 30-40 minutes of 1:1 Emotional Literacy sessions weekly and two 30-minute touch typing sessions weekly. This EHC Plan did not name an educational setting or school.
39. Mrs X appealed to the SEND tribunal as she felt the EHC Plan did not adequately provide for Y’s needs or name an appropriate educational setting.
40. On 13 September 2022, the Council wrote to Mrs X with the outcome of her complaint, providing an independent investigation report. This found the Council made a decision on whether to issue an EHC Plan for Y within the statutory time limits. However, it also found the Council knew Y was out of school, but missed the opportunity to offer alternative provision.
41. The Council apologised to Mrs X and refunded her £1,764.42 to cover the cost of online courses she had purchased while Y was out of school between September 2020 and September 2022. The Council also paid Mrs X £500 to recognise any anxiety and stress caused and £250 for the time and trouble spent pursuing her complaint.
42. The SEND tribunal considered Y’s case and directed the Council to produce a new EHC Plan, which was issued on 23 May 2023. This placed Y one year below his chronological age. It provided for small group learning and a minimum of 12 60-minute sessions of 1:1 literacy and language sessions, twice daily check-ins with a tutor, and a weekly 30-minute touch typing session. The final EHC Plan named School B as Y’s educational setting.

Analysis

Delays in issuing an EHC Plan

43. Mrs X asked the Council to assess Y’s EHC needs on 21 April 2021. The Council wrote to Mrs X on 5 August 2021 explaining it had decided not to issue an EHC Plan for Y. This was within the statutory time limits to give and answer and so I cannot find the Council at fault for delay and Mrs X had the right to appeal to the SEND tribunal from that point.
44. As Mrs X had the right to appeal, I cannot consider the Council’s actions from 5 August 2021 until the final EHC Plan was issued on 23 May 2023 following the tribunal hearing.

Alternative provision

45. The Council was aware from the starting point of my investigation in April 2021 that Y was not accessing full-time education and had a prolonged absence from school.
46. Councils are under a Section 19 duty to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise and must put this provision in place without delay. Alternatively, if councils believe children are well enough to attend school, there are a range of measures they can take to enforce attendance.
47. In the time period I have looked at, the Council did not take the opportunity to explore whether it should enforce attendance for Y at School A or provide alternative provision for him. This is fault and meant Y received limited education and socialising, which is injustice.
48. The Council had multiple opportunities to consider its Section 19 duty, including when Mrs X complained to in June 2021, from July 2021 when it had an EP report explaining it was not practicable for Y to continue attending School A, and from December 2021 when he was off roll there and it was no longer available. Not doing so is fault, and meant the injustice continued for roughly three school terms in the period I have investigated. It continued until Y started at School B in March 2022, at which point he began receiving a full-time education.
49. We cannot know with certainty what education would have been suitable for Y during this time, however, Y and his family have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve his educational outcomes during this period had it acted without these faults.
50. The Council has already reimbursed Mrs X for the online courses she funded herself and had paid her £500 to recognise the anxiety and stress caused to her. I find this goes some way towards the injustice caused. However, my view is the Council ought to make an additional payment to recognise the impact on Y’s educational career as it was an important period, with him beginning his GCSE studies.

Complaint handling

51. Mrs X first complained to the Council in June 2021, but she did not receive a final response until September 2022, more than a year later. While the situation was still ongoing and this is a particularly complicated case, that is a substantial delay, which is fault and meant Mrs X had to spend more time in the complaint process than she otherwise may have done, which is injustice. However, the Council has already paid Mrs X £250 to recognise this delay, and I find that to be a suitable remedy.

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Agreed action

52. To remedy the injustice caused by the faults identified above, the Council has agreed to, within one month of the date of this decision:
• Apologise to Mrs X and Y for failing to consider its Section 19 duty;
• Pay Mrs X £4,500 to recognise the impact on Y of the lack of suitable education and socialisation from April 2021 until March 2022; and
• Remind staff dealing with these cases that where they are aware a child is not attending school, it should consider each individual case and its Section 19 duty in accordance with relevant law and guidance.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I find the Council at fault for failing to explore alternative provision options for Y. The Council has accepted my findings and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman