Summary: Mrs X complained the Council failed to provide suitable education provision to her son while he was unable to attend school. She says the Council’s actions caused avoidable distress and uncertainty for her son and her family. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy to Mrs X and to make some service improvements.

The complaint

1. Mrs X complained the Council failed to provide suitable education provision to her son while he was unable to attend school. She also complained about the Council’s communication with her and says the Council delayed responding to her complaint. Mrs X says the Council provided very little support and its actions caused avoidable distress and uncertainty for her son and her family. She would like the Council to provide a financial remedy, follow relevant procedures and to provide education to children unable to access a school setting.

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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 law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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 have and have not investigated

7. I have exercised discretion to investigate the complaint dating back to February 2022. I have not investigated the period after October 2023. This is because Mrs X brought her complaint to the Ombudsman in October 2023; Mrs X’s complaints regarding events after this date do not form part of her initial complaint to the Council.

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How I considered this complaint

8. I discussed the complaint with Mrs X and considered the information she provided.
9. I made enquiries to the Council and considered the information it provided.
10. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Alternative provision

11. 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.
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
13. 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])
14. 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.

Education, Health and Care Plans

15. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
16. 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 producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• 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. 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 decision statement. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
18. 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)
19. 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.
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs X says her son, Y, was unable to attend his mainstream school from February 2022 onwards. Mrs X says Y felt overwhelmed by school and was unable to manage the pace of his lessons. She said Y had ‘meltdowns’ after attending school and she became concerned about the impact to Y’s mental health.
24. On 27 May 2022, Mrs X asked the Council to carry out an Education, Health and Care needs assessment. She said Y had hardly attended school during the early part of 2022 and had not attended at all since the beginning of the current term. Mrs X said Y’s special educational needs were dyspraxia and probable autism.
25. In July 2022, the Council told Mrs X it agreed to carry out an Education, Health and Care needs assessment.
26. The Council issued a draft Education, Health and Care (EHC) Plan on 28 October 2022.
27. Mrs X contacted the Council shortly after. The Council responded in early November 2022. It said that while Y was awaiting a final EHC Plan, the Council expected his current school to provide education, and for it to work with Y and Mrs X to ensure Y was able to access school. The Council said it could find no medical evidence to show why Y could not attend school; it said it would contact the school to ask it to liaise with Mrs X to ensure it made adjustments for Y to attend, and for it to provide him with an education.
28. On 9 November 2022, Mrs X provided comments on the draft EHC Plan and said Y had received a diagnosis of autism. Mrs X asked the Council to change Y’s education setting as she said his current school could not meet his needs; she considered Y required support from a specialist setting and named two alternative specialist schools as preferred options. Mrs X said she had worked with Y’s current mainstream school since January 2022 to try several adjustments and reintegration techniques, but said Y remained unable to engage. Mrs X told the Council the school said they were unable to offer anything unless Y was at school.
29. The Council issued the final EHC Plan on 28 November 2022, naming Y’s current school as the education setting.
30. The Council says it appointed a new EHC co-ordinator to Y’s case in March 2023. That same month, Mrs X asked the Council to consider alternative provision from providers she considered to be more appropriate to meet Y’s needs. The Council acknowledged the request and said it would enquire to see if the providers had capacity to support Y.
31. A few days later, Mrs X told the Council she had received contact from one of her preferred specialist schools who advised they had not received any consultation documents from the Council. The Council replied that same day and said it had sent the consultation documents; it said it would chase the matter up.

Mrs X’s complaint

32. Mrs X complained to the Council on 18 May 2023. She said Y had not received suitable education and had been unable to attend school since February 2022. Mrs X said she had followed the EHC Plan process, but the final plan named the existing mainstream school which Y was unable to attend. Mrs X complained the Council told her it consulted with the specialist schools she requested at the draft stage in November 2022, but the Council did not send the correct paperwork until about March 2023. Mrs X also complained she had to frequently chase a response from the Council when she sent emails.
33. The Council replied on 22 June 2023 and apologised for the delay in responding. It acknowledged Mrs X’s comments that Y had not accessed education since February 2022 but said its SEND team were not responsible for ensuring suitable provision was in place until it issued the draft EHC Plan in October 2022. The Council said its Access and Inclusion team were responsible for addressing Mrs X’s concerns about missed provision prior to this. The Council said it would have expected Y’s school to provide alternative provision from October 2022, and apologised that the SEND team did not maintain oversight of the situation. The Council acknowledged this resulted in missed provision and said its EHC co-ordinator would contact the school to arrange an early annual review of the plan.
34. The Council said it received Mrs X’s comments on the draft EHC Plan, and her request for a specialist setting in November 2022. The Council said it considered Mrs X’s request in March 2023 but decided Y’s needs could be met in a mainstream setting, with support as set out by the EHC Plan. The Council acknowledged it was unlikely it communicated this decision to Mrs X and provided an apology. The Council also apologised for not taking forward Mrs X’s initial request for specialist provision in a timely manner.
35. The Council acknowledged it had made minimal progress regarding responding to emails and apologised to Mrs X for this. It said the Council’s SEND team had undergone a restructure which it considered would provide a more collaborative and communicative service.
36. In July 2023, Mrs X escalated her complaint to stage two as she considered the Council had not made any progression regarding the lack of provision to Y.
37. The Council replied in August 2023 and provided details of the correspondence between Mrs X, the Council and the school. The Council upheld Mrs X’s complaint regarding the missed provision following the issue of the EHC Plan; it offered a financial remedy from the date it issued the final EHC Plan to the end of the Summer term in 2023. The Council also offered an additional financial remedy in recognition of the time and trouble taken and the distress caused.
38. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us. Mrs X says she has not received the financial remedy offered by the Council as part of its stage two complaint response.

Analysis – alternative provision

39. Mrs X complained the Council failed to provide suitable education provision to Y while he was unable to attend school. The Council’s complaint response upheld the complaint and apologised for a lack of oversight regarding missed provision to Y. It said its SEND team was not responsible for ensuring suitable provision was in place until it issued the EHC Plan, and that prior to this, missed provision was the responsibility of the Access and Inclusion team. In its response to our enquiries, the Council acknowledged Y was not accessing education at school from February 2022 and said its Access and Inclusion team supported the school during this period as Y’s absences were unauthorised.
40. The Council acknowledged a lack of oversight, but only from October 2022. This is when the Council issued the draft EHC Plan. However, the evidence shows the Council was aware Y was out of school from at least May 2022, when Mrs X requested the EHC needs assessment. Part of the assessment request stated Y hardly attended school between January and April 2022, and had not attended at all since then. We expect councils to employ a joined-up approach within their services. The Council was aware Y was out of school from at least May 2022; therefore, the Council should have made efforts to ensure it satisfied its section 19 duties from this time.
41. The Council says its Attendance and Inclusion team supported Y’s school with the aim of enhancing attendance. I acknowledge the Council advised the school in July 2022 that it had declined a service request to the Education Support Team for Medical Absence because it considered the medical evidence at the time did not meet the service’s criteria for support. The Council provided the school with possible considerations for next steps. However, the Council has not provided evidence to demonstrate how or if it considered whether the section 19 duty arose at that time, nor how or if it satisfied itself it had met those duties.
42. The Courts have found that it is a judgement for councils to decide whether a child’s health needs prevent them from attending school (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]). However, the evidence indicates the Council did not contact the school until November 2022 to say that without medical evidence, the school should consider its attendance process.
43. From the above, the evidence indicates the Council showed a lack of oversight from May 2022, not from October 2022; this lack of oversight is fault.
44. I acknowledge Mrs X’s comments that Y was unable to attend school. I also acknowledge there appears to be periods when the school authorised some absences but considered other absences to be unauthorised. As a result, there is conflicting information and therefore uncertainty regarding Y’s ability to attend school during this period. This, together with the lack of oversight from the Council caused uncertainty to Mrs X as to whether the Council fully considered its section 19 duties for this period.

Mrs X’s complaint about the Council’s communication with her

45. Mrs X complained about the Council’s communication with her and said she had to chase the Council for responses to her emails. The Council apologised to Mrs X in November 2022 for not contacting her sooner and said the reason for this was workload pressure. In its complaint response in June 2023, the Council acknowledged there had been minimal progress regarding this; the Council upheld Mrs X’s complaint as a result.
46. It is positive the Council has itself identified service failure in its communications with Mrs X. It says it has carried out a full restructure of the SEND team with a view to improving its services. I acknowledge the Council’s complaint response and the measures it has taken to improve its communication with service users. However, I agree with the findings of the Council’s complaint investigation regarding this matter and find the poor communication with Mrs X is fault.

Mrs X’s complaint about delays

47. Mrs X complained the Council delayed responding to her complaint. The Council’s complaints policy says it will respond to stage one complaints within 20 working days.
48. The Council took longer than 20 working days to respond to Mrs X’s stage one complaint; it apologised for this as part of its stage two response and offered a financial remedy to recognise the time and trouble taken in pursuing the complaint.
49. It is positive the Council has itself identified delay in its complaint handling. I agree with the findings of the Council’s investigation regarding this matter and find the failure to adhere to the Council’s complaints policy is fault.
50. There is evidence of further delay by the Council as part of the EHC Plan process. Mrs X requested an EHC needs assessment on 27 May 2022. The Council issued the final EHC Plan on 28 November 2022. The Council therefore took longer than 20 weeks to issue the EHC Plan following the assessment request and I find this failure to adhere to the statutory timeframe is fault.
51. There is also evidence of delay in following up on Mrs X’s request for a specialist setting for Y. Mrs X made her request in November 2022, before the Council issued the final EHC Plan. However, the evidence indicates the Council did not consider Mrs X’s request until March 2023, after the final EHC Plan was issued. The Council upheld this complaint at stage one and said it was evident the Council did not take forward Mrs X’s initial request for specialist provision in a timely manner. I agree with the findings of the Council’s complaint investigation and find the delay regarding this matter is fault.

The Council’s response to enquiries

52. The Council says the challenges to its SEND team have become increasingly pronounced over recent years due to an increase in demand for its services. It says despite its best efforts, it acknowledges there is room for growth and improvement, particularly in meeting the needs of children and young people with SEND.
53. The Council says it is working on plans to address the identified issues and says it has initiated a comprehensive improvement plan aligned with the findings of a recent SEND inspection. The Council says its strategic plan involves a substantial investment aimed at bolstering the capacity of its service, including the establishment of a SEND Academy designed to provide training for all incoming staff.
54. I acknowledge the Council’s comments, and the financial remedy offered to Mrs X as part of the Council's complaint investigation. It is positive the Council has taken steps to address the injustice to Mrs X caused by the fault identified, and that it is continuing to take steps to improve its service to other families. It is noted however, that Mrs X says she has not yet received the financial remedy offered by the Council.
55. Mrs X says the Council’s actions have meant Y has been out of education since February 2022. She says both his education and his relationship with his friends have suffered as a result. Mrs X says the Council’s actions have also caused avoidable frustration, distress and uncertainty as a result of the delays and poor communication from the Council.

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Agreed action

56. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X and Y for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Make a symbolic payment of £500 in recognition of the uncertainty caused by the fault identified for the period May 2022 to October 2022;
3. Make a further symbolic payment of £2,530 in recognition of the missed provision as set out in Y’s Education, Health and Care Plan. This is based on £900 per term and is for the period November 2022 to July 2023, and September 2023 to October 2023;
4. Make a further symbolic payment of £300 in recognition of avoidable distress and frustration caused by the delay in issuing the final Education, Health and Care Plan;
5. Make a further symbolic payment of £200 in recognition of the time and trouble taken in pursuing the complaint. The total recommended financial remedy therefore is £3,530;
6. Remind staff to adhere to the statutory timeframes regarding the issuance of an Education, Health and Care Plan;
7. Remind staff of the Council’s duty to secure the provision as set out in an Education, Health and Care Plan, and
8. Remind staff to adhere to the Council’s complaints procedure regarding response times.
57. The Council has also agreed to carry out the following action within three months of the final decision:
1. Carry out a review of the Council’s processes to identify ways in which it can improve communication between the Access and Inclusion team and the Special Educational Needs and Disabilities team, with a view to ensuring the Council fully considers and meets its section 19 duties.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman