• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide education for her child from May 2021 until May 2023. We found fault with the Council for delaying production of Mrs X’s child’s Education Health and Care plan for 21 months and failing to keep Mrs X suitably informed. We also found fault with the Council failing to provide suitable education for Mrs X’s child from May 2021 to September 2022. The Council agreed to apologise to Mrs X and pay her £4,850 in recognition of her child’s lost education and £750 for the prolonged distress and uncertainty caused by the Council’s fault.

The complaint

1. Mrs X complained the Council failed to provide education for her child from May 2021 until May 2023.
2. Mrs X complained she needed to repeatedly chase the Council for any action by the Council.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
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)
8. 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

9. I have exercised the Ombudsman’s discretion to investigate the lack of education for Mrs X’s child back to May 2021. This is because Mrs X’s child has been out of education since this time and the Council was aware of the issues Mrs X’s child was experiencing with attending school. All matters from May 2021 to May 2023 form the scope of one complaint issue. It is suitable to address this complaint considering the full timescale.
10. I have not investigated any matters since 12 May 2023. This is because the Council produced the final Education Health and Care Plan for Mrs X’s child on 12 May 2023. This resolved the complaint issues about delays in production in the Education Health and Care Plan. Since the Council produced a final Education Health and Care Plan naming an educational placement for Mrs X’s child, Mrs X also gained an appeal right to the tribunal about this educational placement. If Mrs X had concerns about her child’s education since 12 May 2023 at this educational placement, this would be a matter for the tribunal to consider. The Ombudsman should not try to displace the tribunal.

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How I considered this complaint

11. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

Rules and regulations

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
18. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
19. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

20. On 18 May 2021, the Council held an emergency annual review for Mrs X’s child’s, who I shall refer to as Y, EHC Plan.
21. On 9 November 2021, the Council issued a Notification to Amend letter with a proposed draft EHC Plan for Y.
22. Mrs X made a formal complaint to the Council on 5 February 2023. Mrs X said the Council had failed to provide suitable contact or updates about finding a new school placement for her child and that it had delayed in production of Y’s EHC Plan.
23. The Council issued its Stage 1 complaint response on 28 April 2023. The Council apologised for delays in producing the EHC Plan but said it had now offered a place at a school for Y and would be naming this in Y’s EHC Plan.
24. On 12 May 2023, the Council produced a final EHC Plan for Y. This final EHC Plan named a school in Section I of the EHC Plan and confirmed the plan was for Y to start at this school on 5 June 2023.

Analysis

25. The Council had four weeks from the emergency annual review meeting to decide whether to amend, maintain or cease Y’s EHC Plan. The Council failed to meet this timescale and only decided to amend Y’s EHC Plan on 9 November 2021. This was fault.
26. The Council also had twelve weeks from the 18 May 2021 emergency annual review to issue an amended EHC Plan for Y. This meant the Council had until 11 August 2021. The Council only issued the amended EHC Plan for Y on 12 May 2023. This was fault.
27. The Council delayed by 21 months outside the timescales for production of the EHC Plan for Y. This delay will have caused Mrs X uncertainty over what provision Y would receive and frustration over the continuing delays.
28. While the Council’s delays in producing the final EHC Plan are mitigated due to difficulty in finding a new school placement for Y, this does not remove the Council’s responsibility to adhere to the timescales. The Council should have produced a final EHC Plan for Y naming any school placement it considered suitable. Mrs X could then have engaged her appeal right to the SEND tribunal should she have disagreed with this educational placement.
29. The Council has also accepted that it failed to suitably keep in touch with Mrs X about its efforts to source a new school placement for Y. The Council has accepted there were unacceptable delays in its actions and a general failure to regularly keep Mrs X informed.
30. The Ombudsman’s guidance on remedies says where we decide it is appropriate, we will normally recommend a remedy payment for distress and uncertainty of up to £500. However, we can go beyond this £500 amount when the injustice to a person is either severe or prolonged. Given the delays amounted to nearly two years, this shows that Mrs X experienced prolonged distress and uncertainty through the Council’s fault and justifies an award more than £500. We recommend the Council apologises to Mrs X and pays her £750 for the frustration and uncertainty caused through its delays in production of the EHC Plan and failure to keep in regular contact with Mrs X.

Alternative Provision of education for children

Rules and regulations

31. 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.
32. 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))
33. 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)
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
35. 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;

36. 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
37. 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.
38. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

39. At the 18 May 2021 emergency EHC Plan review, Y’s school confirmed it was more commonly excluding Y from school. The school said it cannot meet Y’s needs as it does not have the right space or environment for Y. The Council agreed to look for a new school placement for Y and in the meantime agreed a reintegration plan and support for the school to bring Y back into education from 20 May 2021.
40. Following a further incident at the school, Mrs X took Y out of education at the school in May 2021. Y did not return to school for the rest of the academic year and the school removed Y from enrolment on 31 August 2021.
41. The Council started to liaise with potential schools for Y in the autumn term of 2021. One school accepted Y but Mrs X rejected this following a visit in February 2022.
42. The Council continued to consult with schools until the end of the academic year 2021/2022.
43. On 23 September 2022, the Council stated to provide 4.5 hours of home tuition for Y each week, made up of three 1.5 hour long sessions.
44. Mrs X made a complaint to the Council on 5 February 2023. Mrs X said the Council had failed to provide suitable education for her child since May 2021.
45. On 28 April 2023, the Council issued its Stage 1 complaint response and upheld Mrs X’s complaint about the failure to source suitable education for Y since May 2021.
46. On 5 June 2023, Y started to attend a new school.

Analysis

47. Y stopped attending school in May 2021. The Council has agreed that Y stopped attending school and has also agreed that it would have been aware that Y was no longer attending school.
48. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
49. While the Council agreed a reintegration plan with the school for Y to start on 20 May 2021, this reintegration failed come into place following a further incident with Y at the school. The Council has acknowledged it cannot evidence that it gave sufficient consideration to whether Y was receiving suitable education for his age, ability or aptitude from May 2021 to September 2022. The Council has accepted it was at fault for failing to provide suitable education from 20 May 2021 until 23 September 2022.
50. The Ombudsman’s guidance on remedies recommends a payment between £900 and £2,400 per term to recognise the impact of lost education on a child. In the Council’s response to the Ombudsman it has offered to pay Mrs X £1,500 per term for Y’s missed education from 20 May 2021 to 23 September 2022. This amounts to three full terms and 3 weeks of missed education for Y totalling £4,850 for Y’s missed education.
51. This offer falls in line with the Ombudsman’s guidance on remedies. Since the Council has made a suitable offer, I am satisfied to maintain this offer from the Council.
52. From 23 September 2022, the Council started to provide Y with 4.5 hours of tuition each week. The Council should normally look to provide full-time education for a child. A council may provide less educational provision if it considers this is appropriate for a child’s ability and aptitude. If a child is receiving 1:1 tuition then the Council may provide less than a normal full-time education since the provision is more intense.
53. When the Council introduced the 1:1 tuition, it was appropriate for it to provide 4.5 hours as an initial amount to see how Y coped. This was suitable given Y’s long absence from education and I do not find fault.
54. The Council has shown that Y’s tutor provided regular feedback to the Council about Y’s progress and engagement with the tuition. The Council kept Y’s provision under review with the view to increasing this in line with Y’s engagement. The Council offered an increase to Y’s provision through a second tutor but Mrs X declined this over concerns this may overwhelm Y.
55. The Council kept Y’s education under review and made a suitable offer to increase this provision at a time it considered Y could cope. Mrs X was entitled to reject the increase in provision and it was correct for the Council not to try to push for the extra provision. I do not find fault with the Council’s actions to provide education for Y from 23 September 2022 to 12 May 2023.

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Agreed action

56. Within one month of the Ombudsman’s final decision the Council should:
    • Provide Mrs X with an apology and a payment of £750 for the avoidable distress and uncertainty caused by the 21 month delay in producing Y’s EHC Plan and the failure to keep Mrs X suitably informed.
    • Provide Mrs X with a payment of £4,850 for Y’s missed educational provision from May 2021 to September 2022.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. There was fault by the Council and as the Council has agreed to my recommendations 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

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