• 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: Ms X complained the Council failed to provide education for her child who was medically unfit to attend school. Ms X also complained the Council delayed in finalising her child’s Education Health and Care (EHC) Plan and failed to provide provision from the previous EHC Plan. We found fault with the Council failing to provide education for Ms X’s child for slightly over one and a half terms. We also found fault with the Council failing to provide provision from the EHC Plan for the same time. We also found the Council at fault for delays in finalising the EHC Plan. The Council agreed to apologise to Ms X, pay her £2,625 for the missed educational provision and £300 for the uncertainty and stress caused through the EHC Plan delays. The Council also agreed to provide training and guidance to its staff.

The complaint

1. Ms X complained the Council failed to provide education for her child, who I shall refer to as Y, who was medically signed off from school since January 2023.
2. Ms X says Y had an Education Health and Care Plan which the Council failed to provide provision for when they were out of school.
3. Ms X also complained the Council delayed in finalising Y’s Education Health and Care Plan which delayed her right of appeal.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have investigated Ms X’s complaint from March 2022 until 11 September 2023.
9. I have not investigated any mattes since 11 September 2023. This is because the Ombudsman must allow a council opportunity to consider and respond to a complaint before we can investigate it.
10. The Council issued its final complaint response to Ms X on 27 July 2023 in which it committed to providing an education for Y. The Council fulfilled this commitment on 11 September 2023. Any issues since 11 September 2023, including about the suitability of this educational provision, would be the subject of a new complaint. Ms X would need to raise a complaint about any matters since 11 September 2023 with the Council first before the Ombudsman could investigate.
11. It is also of note the Council produced Y’s Final Education Health and Care Plan on 29 June 2023. Ms X gained an appeal right to the Special Education Needs and Disability (SEND) Tribunal on this date about the contents of Y’s Education Health and Care Plan. Should Ms X have any concerns about the content of the Education Health and Care Plan she would need to approach the SEND Tribunal as the correct body to consider this matter.

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How I considered this complaint

12. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Both Ms X and the Council provided comments on my draft decision which I considered before reaching my final decision.

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What I found

EHC Plans

Rules and regulations

14. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments, and re-assessment, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
16.  

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);  

17. Once the Council completes the EHCP 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.
18. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
19. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
20. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
21. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
22. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final 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. (s22 (3) & (4) SEND Regulations 2014)
23. 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.
24. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

25. On 3 March 2022, Ms X asked the Council to reassess Y’s EHC Plan.
26. The Council agreed to complete a reassessment on 8 April 2022 before issuing a draft EHC Plan on 28 June 2022. The Council finalised this EHC Plan on 25 August 2022.
27. Following a request from Ms X, the Council held an emergency annual review meeting for Y’s EHC Plan on 22 November 2022. The Council asked Ms X, Y’s school and Y’s doctor to consider the matter further before it reconvened another meeting.
28. On 14 December 2022, the Council held a second annual review meeting for Y in which Y’s school suggested changes to the EHC Plan. The Council says it agreed to make these changes.
29. The Council issued Y’s draft EHC Plan on 14 February 2023. Ms X responded to the draft EHC Plan to provide comments.
30. On 29 June 2023, the Council issued a final EHC Plan for Y. The Council did not name a specific school for Y in Section I and detailed Y’s appeal rights to the SEND Tribunal.

Analysis

31. Ms X requested an EHC Needs re-assessment from the Council on 3 March 2022. The Council agreed to complete a reassessment of Y’s EHC Plan within six weeks of Ms X’s request. The Council acted in the correct timescales and I do not find fault with the Council.
32. Since the Council agreed to complete an EHC Needs re-assessment, it had 20 weeks to produce the Final EHC Plan following Ms X’s request. This meant, the Council had until 21 July 2022 to produce the Final EHC Plan.
33. The Council failed to produce the revised EHC Plan within the 20-week timescale and instead produced this five weeks outside the timescales. This delay of five weeks was fault.
34. Following Ms X’s request, the Council held an emergency annual review meeting in November 2022. At this meeting, the Council decided to maintain Y’s EHC Plan to allow Y’s school and doctor to provide extra submissions. The Council acted proportionately at this meeting, and I do not find fault with the Council’s actions.
35. Following the second annual review meeting on 14 December 2022, the Council had four weeks to issue a notification letter to Ms X of its intention to amend Y’s EHC Plan. The Council had 12 weeks from the annual review meeting date to issue the amended final EHC Plan.
36. The Council only issued the draft EHC Plan on 14 February 2023. This was four weeks outside the statutory time period to notify of an intention to amend an EHC Plan. This was fault.
37. The Council also took until 29 June 2023 to issue Y’s final EHC Plan. This meant the Council took over 26 weeks from the annual review meeting to produce Y’s final EHC Plan. This is a delay of over 14 weeks. This was fault.
38. The Council’s delays of over 24 weeks in reviewing Y’s EHC Plans in 2022 and 2023 have caused Ms X’s distress and frustration. This has also delayed her appeal rights to the SEND tribunal, should she have wanted to engage this.
39. Following production of the EHC Plan in August 2022, the Council had a duty to provide any educational provision detailed within the plan to Y. The Council provided this educational provision until 17 January 2023.
40. The Council has confirmed it has not provided this educational provision to Y since 17 January 2023 because Y was not attending school. The Council has a duty to ensure a child is receiving the educational provision detailed in their EHC Plan. If a child is not attending school, a council must still secure the provision to the best of its ability. The Council’s failure to provide the educational provision in Y’s EHC Plan since 17 January 2023 was fault. I have addressed the impact of this fault in paragraphs 72 to 76.

Alternative Provision of education for children

Rules and regulations

41. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
42. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
43. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
44. The education provided by a council must be full-time unless a 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)
45. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
46. 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 (with the exception of 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;
    • adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
47. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
48. 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.
49. 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

50. On 17 January 2023, a child an adolescent psychiatrist medically signed Y off from school. The psychiatrist wrote to the Council on this date to confirm Y would no longer be attending school.
51. Ms X contacted the Council on 25 January 2023 to enquire about what education could be provided to Y as they were not receiving any. Ms X asked about the Council’s Hospital Education Service.
52. On 3 February 2023, Y’s school completed the referral paperwork for the Council’s Hospital Education Service for Y.
53. Ms X liaised with the school and the Council’s Hospital Education Service about how to provide education for Y. Ms X told the Council’s Hospital Education Service Y would prefer an online learning option at the present time.
54. The Council’s Hospital Education Service started to send ICT work home for Y on 2 March 2023 by uploading this onto an online platform.
55. On 16 March 2023, Ms X sought different work for Y because they were getting frustrated with receiving the same work.
56. Mrs X followed up this request with request for work in other topics than just ICT. The Council’s Hospital Education Service advised it could not facilitate this at the present time due to capacity issues.
57. On 19 April 2023, Ms X contacted the Council’s Hospital Education Service to enquire about a space for Y in the classroom setting.
58. Ms X complained to the Council on 4 May 2023. Ms X said Y had been signed off from school since 17 January 2023 and had asked the Council for education but it had failed to provide this.
59. On 22 May 2023, the Council provided its Stage 1 complaint response. The Council said:
    • It agreed it must arrange suitable full-time education for children of compulsory school age who are missing school because of illness or mental health reasons.
    • It considered access to Y’s named school in their EHC Plan as inappropriate and detrimental to Y’s mental health.
    • It had arranged for suitable education at home for Y but this has not been as effective as envisaged.
    • It needed to complete further planning to ensure suitable interim education arrangements are in place for Y while it continued to look for a suitable school placement.
60. Ms X sought escalation of her complaint to Stage 2 of the Council’s process on 10 June 2023. Ms X said the Council issued a draft EHC Plan on 14 February 2023 but had not issued the final EHC Plan. Ms X said the education provided was not suitable for Y and it did not provide education for Maths, Science or English.
61. On 27 July 2023, the Council issued its Stage 2 complaint response. The Council said:
    • When a child is medically unfit to attend school, responsibility for organising alternative education, including home tuition, sits with the school.
    • Y’s school arranged education for Y through the Council’s home tuition service, the Hospital Education Service.
    • When Y’s school removed Y from enrolment after the summer term, it became the Council’s responsibility to provide education for Y.
    • It would create an action place to provide Y with an education.
62. On 11 September 2023, the Council started to provide 10 hours of tutoring to Y at home.

Analysis

63. The Council has told Ms X its responsibility for Y’s education only started following the school removing Y from enrolment, this was incorrect.
64. 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.
65. The Council first became aware of Y’s absence from school on 17 January 2023. Given a child and adolescent psychiatrist told the Council that Y was unfit to attend school, it would have been evident that Y was not attending school because of “illness”.
66. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence.
67. The letter from the child and adolescent psychiatrist did not specify a timescale for how long Y would be absent from school. When the Council received this letter it would not have known that Y would be absent from school for more than 15 days. I do not find the Council at fault for failing to provide education for Y from 17 January 2023 until 7 February 2023.
68. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate what, if any, education the school provided from 17 January 2023 until 7 February 2023.
69. As of 7 February 2023, the Council would have been aware that Y was still absent from school because of the referral made by the school to the Council’s Hospital Education Service on 3 February 2023. The Council was responsible for providing an education to Y from the sixth day following 7 February 2023; this was 15 February 2023.
70. The Council failed to provide suitable education to Y from 15 February 2023 until 11 September 2023. This was fault.
71. While the Council’s Hospital Education service school arranged some education for Y from 3 March 2023 until the end of the academic year, this was not equivalent to a full-time education.
72. It is also of note the education arranged by the Council’s Hospital Education service was not suitable for Y’s needs and did not provide an education in any of the core subjects. The education was not suitable for his ability and aptitude and failed to provide any of the special educational needs detailed in Y’s EHC Plan.
73. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
74. From 15 February 2023 until 11 September 2023, Y missed two and a half weeks without any educational provision. This was during 15 February 2023 to 3 March 2023 and 4 September 2023 to 11 September 2023.
75. Y missed a further full term and four weeks with only the unsuitable educational provision made available through the Hospital Education Service. This was during 3 March 2023 to the end of the academic year in July 2023.
76. The Council should pay Ms X £2,625 to acknowledge the potential impact of the missed education, and failure to provide educational provision detailed in Y’s EHC Plan, on Y.

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Agreed action

77. Within one month of the Ombudsman’s final decision the Council should:
    • Provide an apology to Ms X and a pay her £300 for the distress and frustration caused through the Council’s delays and handling of this matter.
    • Provide an apology and pay Ms X £2,625 to acknowledge the impact on Y of the lost educational provision from 15 February 2023 until 11 September 2023.
78. Within three months of the Ombudsman’s final decision the Council should:
    • Provide guidance to staff of its duty to reassess and produce Education Health and Care Plans within the correct timescales. This includes issuing notification letters to parents about the Council’s intention to maintain, amend or discontinue Education Health and Care Plans within four weeks of an annual review meeting. And to produce a final Education Health and Care Plan within 12 weeks of an annual review meeting.
    • Provide training and guidance to staff about the Council’s statutory duty to provide educational provision within a child’s EHC Plan. Including that this duty does not end if a child is not accessing education in a school setting.
    • Provide guidance and training to staff about the Council’s responsibility to provide education for children who are missing school, through illness or otherwise, when a child has been absent for 15 cumulative or consecutive days.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. There was fault by the Council 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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