Summary: Mrs B complained that the Council failed to ensure the provision in her daughter C’s Education, Health and Care (EHC) plan was in place from September 2022, failed to provide her with a full-time education from January 2023 when she was no longer able to attend school, failed to carry out annual reviews and failed to communicate properly with Mrs B. We have found fault with the Council’s actions. The Council has agreed to pay Mrs B £300, C £1000 and to improve its procedures for the future.

The complaint

1. Mrs B complained that Devon County Council (the Council) in respect of her daughter, C:
• failed to ensure the provision in her Education, Health and Care (EHC) plan was in place from September 2022;
• failed to provide her with a full-time education from January 2023 when she was no longer able to attend school;
• failed to amend her EHC plan since 2019;
• delayed in updating the EHC plan since the Annual Review in March 2023;
• failed to put education in place for the start of term in September 2023; and
• failed to communicate properly with Mrs B throughout this period.
2. C has missed out on education at a vital stage and will have to repeat Year 10. Mrs B and C have been caused significant distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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 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).
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)

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What I have and have not investigated

7. The Council issued C’s final EHC plan on 8 June 2023 with a right of appeal to the SEND Tribunal. Mrs B appealed to the Tribunal about the EHC plan including section I (the named placement) so I cannot investigate the events after that date.

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How I considered this complaint

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Special educational needs

10. A child with special educational needs 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.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Failure to secure provision

12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
13. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Reviewing an EHC plan

14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

Alternative education provision

17. 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). 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)
18. 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)
19. 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])
20. 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
21. 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.

22. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
23. 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)
24. 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’)

What happened

25. Mrs B’s daughter C has autism and a visual impairment. She has had an EHC plan for many years. Prior to this year, the most recent final version was from 2019 and included the requirement for C to have fully modified resources in all her lessons and specialist adult support throughout the whole day along with a quiet regular space to work outside lessons with a specialised timetable. She was attending a local mainstream school.
26. The Council said it last carried out an annual review on 29 September 2021 and on 3 March 2022 agreed to amend the EHC plan. But it did not issue an amended draft plan. At this point C’s attendance at school was over 80%.
27. C started to experience problems in the autumn term of 2022. She was now in Year 10 and the resources she required were more complex. She said teachers were not making the lessons accessible and her resources were not properly modified so she felt increasingly isolated and unsupported.
28. In December 2022 the school tried to arrange an annual review but were unable to do so because the review from the previous year had not been completed.
29. The visual impairment report for the autumn term confirmed there had been significant problems with the resources and support. The visual impairment officer (VIO) planned to arrange training for subject teachers as soon as possible in the new year to improve inclusivity. The VIO said C’s mental health and wellbeing had been affected and she had started to self-harm due to the high levels of anxiety.
30. On 13 January 2023 Mrs B sent an email to the caseworker at the Council about the problems C had been experiencing since September 2022. She said C was feeling increasingly anxious about attending school due to the lack of proper resources and support. She said teachers had changed and C felt they were blaming her for the inadequate resources. On 19 January 2023 C provided an email explaining how she was struggling with anxiety about attending school because of the poor resources and support. She gave specific examples of software not being uploaded onto her tablet, poorly modified resources and emails she had sent during lessons when problems arose.
31. On 20 January 2023 C stopped attending school, following an emergency meeting where the school said it was providing the required report and raised sanctions against C for taking photos and emails during lessons. Mrs B explained C had to do this to try and keep up with the lessons as the resources were inadequate.
32. On 1 February 2023 the school told the Council that Mrs B was refusing to send C to school and requesting all lessons be sent home for C to complete there. It said that Mrs B was also requesting that only one adult worked with C whom she trusted. The school was not happy with the request and asked the Council for advice.
33. On 9 February 2023 Mrs B’s advocate from a visual impairment group sent an email to the Council asking for the delayed amended EHC plan from 2021/22 to be issued as soon as possible. Mrs B submitted comments on the current draft on the Council’s system explaining all the current problems at school.
34. The Council issued a draft amended EHC plan on 13 February 2023 naming C’s current school and a week later consulted with C’s current school and two others. Her current school did not reply but one of the others refused saying it could not meet needs.
35. Mrs B said that in meetings in February 2023 the school had said to her that it could not meet C’s needs and only ever said it could meet needs until the end of key stage 3 (year 9). There is no written record of this.
36. During this period the school was providing lessons with modified resources for C to complete at home but without any teaching. She received one hour remote sessions with the VIO once a week.
37. C’s GP wrote to the school on 11 March 2023 saying that C was medically unfit to attend mainstream school and had been since January 2023. This was due to the lack of resources and skilled staff necessary to support C meet her educational potential. The problems had led to C experiencing increased anxiety which was preventing her from attending school. They felt the situation could only be remedied by C attending a specialist school.
38. The school did not accept the GP’s letter as sufficient evidence to authorise C’s absence. Mrs B said she had an emergency meeting at the school on 29 March 2023, but the Council has not provided any notes of what was discussed or agreed.
39. On 18 April 2023 C’s paediatrician wrote a letter to support the school’s referral for alternative educational provision, following an appointment with C. They said that C’s school situation was clearly a trigger for her anxiety, and it was important for her to have structure and predictability as well as advance warning of changes. They supported a move to a specialist setting if the right level of support could not be provided in a mainstream setting. Under the heading regarding suggestions for strategies to aid reintegration into mainstream school they said:

“I do not feel that child’s autism or anxiety are specifically preventing her from accessing school. Child and her mother describe that child’s anxiety and low mood have evolved due to her concerns about not having the right level of support to fully engage in her learning.”

40. Twice in April 2023 Mrs B emailed the Council asking it to consult with a specialist setting in a different part of the country but the Council did not respond. The setting confirmed the Council had not consulted it and sent Mrs B an offer of a place for C. C sent the Council her reasons for wanting to go to the specialist setting. Mrs B emailed the Council in early May with a copy of the acceptance letter and asked for an update, but the Council did not reply. Mrs B emailed the Council again in May to ask about the school saying it could not meet C’s needs beyond year 9. She sent another email asking for a response.
41. At the end of May 2023, the caseworker said in an internal email that she did not think any of the agreements or actions from a professionals meeting in January 2023 had been implemented before C stopped attending school. Her view was that although C had high needs they could be met in a mainstream setting with the right support and sufficient time to prepare resources. The Council has not provided any evidence of the professionals meeting or the agreed actions.
42. The caseworker on the same day also sent an email to Mrs B with a list of actions she would complete over the next few weeks, including consulting with the specialist setting, setting up a weekly meeting with Mrs B, discuss the process for requesting a residential setting and C’s absence with her manager and prepare to take C’s case to a placement panel by 16 June 2023.
43. On 4 June 2023 Mrs B sent a large amount of information including:
• evidence of the inadequate resources and difficulties with her teaching assistant and lessons that C had experienced before she stopped attending;
• an email from the school confirming that it had said during the transition process that it was unlikely to be able to meet C’s needs beyond the end of key stage 3;
• evidence that C’s anxiety was inextricably linked to the school, and she was traumatised by continuing contact;
• evidence that the school would not authorise C’s absence because it considered it was providing the support as detailed in the EHC plan and her anxiety was not preventing her from attending school.
44. The caseworker met with Mrs B on 6 June 2023 and said that the Council needed to exhaust all mainstream options before considering any other options including the specialist setting or a hybrid package of education other than at school in conjunction with the specialist school.
45. The Council issued a final EHC plan on 8 June 2023 naming C’s current school but said work would continue to find a suitable placement.
46. On 22 June 2023 C’s current school said in writing it could not meet C’s needs.
47. By the end of September 2023 the Council had arranged and approved a package of EOTAS.
48. C was unable to take her English GCSE in Year 10, as her peers did, because the modified revision resources were not provided. As she missed so much schooling during this year, she will have to repeat Year 10.
49. In response to our enquiries the Council said that in May 2023:

‘the school also submitted a referral to section 19 in May this year. There was no supplementary evidence provided by CAMHs or a Paediatrician. As the young person had a current EHCP it was declined on the grounds that any intervention would be short term and any change would be better affected though a review of her plan.’

Analysis

50. Looking at each part of the complaint in turn:

failed to ensure the provision in her EHC plan was in place from September 2022

51. C started to experience problems at school from September 2022, but she was still attending and trying to resolve the problems with her lessons, resources and support. By December 2022 it was clear from the visual impairment report that C was not receiving the support as detailed in her EHC plan and this was affecting her health and wellbeing. A proper Annual Review at this point would have been useful to alert the Council to the problems but this did not happen as the previous year’s review had not been completed.
52. In January 2023 the VIO was planning to arrange training for staff and the Council said it held a professionals meeting where actions were agreed. There is no evidence of what actions were suggested, but it is clear by 13 January 2023 the Council was fully aware of the difficulties C was experiencing at school due to the lack of adequate resources and support and it knew by 1 February 2023 that C was no longer attending school.
53. I do not find fault with Council’s actions up to December 2022 as it was not fully aware of the problems and C’s school attendance was still high. However, it should have carried out an Annual Review in December 2022 and looked at ways of improving the support and resources a month earlier than it did. The failure to do so was fault.

failed to amend her EHC plan since 2019 and delayed in updating the EHCP since the Annual Review in March 2023

54. An Annual Review took place in September 2021 and the Council decided in March 2022 to amend the EHC plan but did not do so. This was fault. It took far too long to act on the outcome of the review and then failed to follow through its decision. The EHC plan was out-of-date and should have been updated before C started Key Stage 4.
55. Mrs B says an Annual Review took place in December 2022 and an interim emergency review in March 2023. But the Council says no reviews took place after September 2021 and I have not seen any evidence that the review process was followed. This was fault as Mrs B was clearly having review meetings with the school during the period that C was struggling and then stopped attending altogether, but the Council appears not to have been involved during this key period.
56. The Council took 21 months from the Annual Review in September 2021 to issue a final EHC plan. This was far too long and excessively outside the timescales set out in the statutory guidance. It created uncertainty as to whether C was receiving appropriate support in the correct placement. It also denied Mrs B the opportunity to appeal against the Council’s view that her current mainstream school was a suitable placement.

failed to provide her with a full-time education from January 2023 when she was no longer able to attend school

57. C stopped attending school because of severe anxiety about the failure to provide adequate resources and support to enable her to properly participate in lessons. This was supported by evidence from the VIO, her GP and her paediatrician. However, the school would not authorise C’s absence and said she was not unable to attend school due to medical reasons. It considered it was providing support in accordance with C’s EHC plan.
58. C was not receiving education. She was receiving work at home with modified resources for her to complete on her own and from March 2023 one hour a week with the VIO. It only increased to two hours in May 2023.
59. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education.
60. Where it is clear a child will be away from school for 15 days or more, councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required. While there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.
61. The duty to arrange alternative provision does not automatically apply simply because there is an expert opinion that says the child is unfit to attend school. This is because the council may have a rational ground to disregard that opinion, having considered it. The council is the decision-maker in this situation.
62. I have not seen evidence that the Council considered whether C was medically unfit to attend school or whether the education provided by the school was suitable and accessible.
63. The response sent to us in September 2023 indicates that the school made a section 19 referral in May 2023 which was refused due to lack of medical evidence and because a review of her EHC plan would be more effective. I am not clear who dealt with this referral and whether it was the school or the Council. It is somewhat ironic that either body refused making any alternative provision in favour of a review when the review from September 2021 was still outstanding.
64. In any event the referral was made far too late, four months after C had been out of school. The decision also makes no mention of the significant evidence provided by Mrs B and C that the main reason C stopped attending school was anxiety arising from the school’s failure to provide resources and support in accordance with C’s existing EHC plan. I note this reason was also supported by the medical evidence provided by C’s GP and consultant.
65. This was fault. The Council did not reach its own decision on the evidence or explain why it discounted the evidence provided by Mrs C. It appears to have accepted the school’s view that C was not unable to attend school due to medical reasons, taking one line out of the paediatrician’s letter and ignoring the important context of the inadequate support.
66. This meant that C was without education from 20 January 2023 until 8 June 2023 (the end point for the purposes of my investigation). She was unable to take a GCSE in English and missed out on a significant amount of education at an important stage as well as the social aspects of school life.

failed to put education in place for the start of term in September 2023

67. This is outside the period I can investigate.

has failed to communicate properly with Mrs B throughout this period.

68. There were many examples of emails sent to the Council by Mrs B which went unanswered and there were long delays in responding to Mrs B’s enquiries about progress with the EHC plan and a placement for C. It was not until the end of May 2023 that the Council provided a timetable and list of tasks to complete and met with Mrs B. This was four months after C had stopped attending school and three months after it had issued the draft EHC plan. This delay was fault which caused Mrs B significant distress, frustration and uncertainty.

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Agreed action

69. In recognition of the injustice caused to Mrs B and C, I recommended within one month of the date of my final decision, the Council:
• apologises to Mrs B and C:
• pays Mrs B £300 and
• pays Mrs B for the benefit of C’s education, £1000.
70. I also recommended within three months that the Council reviews its procedures for making alternative educational provision for children who are unable to attend school due to medical reasons or otherwise, to ensure staff are clear that responsibility for the provision of that education, including the decision whether a child is unable to attend school for medical reasons or otherwise, lies with the Council, not the school, and the Council should be weighing up the available evidence to reach that decision as quickly as possible.
71. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

72. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman