• 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 any educational support, or education, for their child since April 2023. Ms X also complained the Council delayed in producing the Education, Health and Care Plan for their child. We found fault with the Council for both matters. The Council has already paid Ms X £200 for delays in production of the Education, Health and Care Plan. The Council also promised to reimburse educational costs Ms X incurred totalling £2,675.98 for the period September 2023 to November 2023. The Council agreed to apologise to Ms X and pay her an extra £350 for the delays in production of the Education, Health and Care Plan. The Council also agreed to pay Ms X £1,350, or reimburse her for the education provided for their child, whichever is higher, for the period 16 May 2023 to 21 July 2023.

The complaint

1. Ms X complained the Council failed to provide any educational support, or education, for their child since April 2023.
2. Ms X complained the Council delayed from December 2022 until October 2023 in producing an Education, Health and Care Plan for their child.
3. Ms X complained the Education, Health and Care Plan produced in October 2023 promised funding for their child’s education until the Council found a suitable school placement. Ms X says the Council has not provided this funding.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. 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

10. I have investigated Ms X’s complaint about the failure to provide education for their child from April 2023 to 4 October 2023. I have also investigated the delays in production of the Education, Health and Care (EHC) Plan.
11. I have not investigated Ms X’s complaint about the failure of the Council to provide funding for the education detailed in the EHC Plan through the personal budget. This is because Ms X has not raised a formal complaint about this matter before bringing this complaint to the attention of the Ombudsman. The Council only considered the personal budget issue at panel in February 2024 despite Ms X bringing this complaint to the Ombudsman in October 2023. The personal budget complaint is the subject of a separate complaint.
12. I have also not investigated any actions by the Council in providing education, or the educational provision detailed in the EHC Plan, to Ms X’s child since 4 October 2023. This is because Ms X gained an appeal right to the Special Educational Needs and Disability (SEND) tribunal on 4 October 2023. Ms X engaged this appeal right on 16 January 2024.
13. Ms X appealed the educational placement named in Section I of the EHC Plan. Ms X also appealed the way in which the educational provision detailed in Section F should be provided. In the grounds of appeal, Ms X said the “provision lacks the necessary flexibility and tailored approach essential” for her child’s learning.
14. Since Ms X has appealed these matters to the SEND tribunal, the Ombudsman cannot investigate the same matters. Appealing the educational placement overlaps with any investigation the Ombudsman could complete about the education provided to Ms X’s child since 4 October 2023. The appeal about the way in which the Section F provision should be provided overlaps with any investigation the Ombudsman could complete about the Council putting in place this Section F provision.

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How I considered this complaint

15. 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.
16. Both Ms 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

17. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
18. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC 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: 
19.  

• 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);  

20. 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.
21. 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

22. On 5 December 2022, Ms X made a request to the Council for an EHC Plan Needs Assessment for her child, who I shall refer to as Y.
23. On 5 January 2023, the Council agreed to carry out an EHC Plan Needs Assessment of Y.
24. Ms X complained to the Council on 5 May 2023 about the delays in the EHC Plan Needs Assessment for Y.
25. On 19 May 2023, the Council issued its Stage 1 complaint response. The Council apologised for the delay in producing Y’s EHC Plan and advised this was because of a lack of Educational Psychologists.
26. The Council provided its Stage 2 complaint response on 26 June 2023. The Council accepted it had delayed in production of Y’s EHC Plan.
27. On 14 July 2023, the Council wrote to Ms X and offered her £200 in recognition of the time and trouble caused by the delay in production of Y’s EHC Plan. Following discussions with Ms X to clarify the £200 goodwill award was specifically for delay, Ms X accepted the goodwill award. The Council paid this £200 to Ms X on 2 August 2023.
28. The Council issued Y’s draft EHC Plan on 4 September 2023.
29. The Council issued Y’s final EHC Plan on 4 October 2023.
30. Ms X appealed the final EHC Plan to the SEND Tribunal on 16 January 2024. Ms X appealed both Section I and Section F of the EHC Plan.

Analysis

31. Ms X requested an EHC Needs Assessment from the Council on 5 December 2022. The Council agreed to complete an EHC Needs Assessment. Since the Council agreed to complete an EHC Needs assessment, it had 20 weeks to produce the Final EHC Plan following Ms X’s request. This meant, the Council had until 24 April 2023 to produce the Final EHC Plan.
32. The Council failed to meet the statutory timescales and instead only produced the Final EHC Plan on 4 October 2023. This was five and a half months outside the statutory timescales and was fault.
33. This fault caused Ms X avoidable frustration and uncertainty through the delays in production of the Final EHC Plan.
34. The Ombudsman’s guidance on remedies says we will recommend an award of £100 for each month a council delays outside the statutory timescales in producing an EHC Plan because of the lack of Educational Psychologists. This £100 payment is a symbolic payment to recognise the frustration and uncertainty caused. Since the Council delay for five and a half months this award would be £550. However, since the Council has already paid £200 for the same delays, we would recommend a payment of a further £350.

Alternative Provision of education for children

Rules and regulations

35. 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.
36. 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))
37. 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)
38. 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
39. 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;

40. 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
41. 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.
42. 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

43. Y’s attendance at school started to become sporadic at the start of January 2023 with their attendance becoming worse following the February 2023 half term break.
44. From 20 February 2023 to 5 May 2023, Y missed 23 days of school. On 5 May 2023, Y stopped attending school entirely without returning.
45. Ms X complained to the Council on 5 May 2023 and told the Council that Y could no longer attend school because of anxiety.
46. When the Council issued its Stage 1 complaint response on 19 May 2023 it promised that an allocated SEND officer would contact Y’s school about support in place for Y.
47. On 23 May 2023, Ms X contacted the Council to request an Education Otherwise Than At School package for Y. Ms X contacted the Council further in May 2023 to request education for her child outside of school.
48. On 26 June 2023, the Council issues its Stage 2 complaint response to Ms X. The Council said Y’s school should be supporting Y with their education and it was their responsibility to provide education for Y.
49. The Council issued Y’s final EHC Plan on 4 October 2023. Ms X appealed Section I of Y’s EHC Plan on 16 January 2024.
50. On 23 February 2024, the Council considered Ms X’s request for a personal budget and reimbursement of educational costs at panel. The Council agreed to reimburse Ms X’s educational expenses for Y from September 2023 to 31 November 2023 totalling £2,675.98.

Analysis

51. Y’s attendance at school started to become sporadic in the spring term of 2023. From the February 2023 half-term to 5 May 2023, Y missed 23 days of education at school.
52. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from January 2023 to 5 May 2023 about why the school failed to tell the Council about Y’s absence from school. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
53. 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.
54. The Council first became aware of Y’s absence from school on 5 May 2023 following Ms X’s contact. Y had already been absent from school for more than 15 days by this date over the past half-term. Ms X also told the Council that Y had now stopped attending school entirely.
55. The Council failed to take any action in response to Ms X’s contact on 5 May 2023 to further look into Y’s absence from school. Had the Council contacted the school it would have confirmed Y’s absence met the threshold to engage its Section 19 duty.
56. 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. Since Y had already been absent for more than 15 days when Ms X contacted the Council on 5 May 2023, the Council’s Section 19 duty became engaged from 16 May 2023.
57. The Ombudsman’s guidance for councils to fulfil their responsibilities to provide education for children who are out of school recommends the Council takes certain actions. A council should consider a child’s individual needs, work with parents to draw up a plan to reintegrate a child into school and choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision. The Council took none of these steps for Y and instead simply said the school should be providing education for Y. This was fault.
58. Because of this fault, the Council failed to ensure Y received a suitable education from 16 May 2023.
59. 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.
60. The Council has already committed to providing a reimbursement to Ms X totalling £2,675.98 for the education she sourced for Y from September 2023 to 31 November 2023. Given our recommendations amount to payments for up to £2,400 per term, this reimbursement for educational provision from September 2023 exceeds what we would normally look to award. As such, I consider this suitable action for the Council to take to address the fault from 1 September 2023 to 4 October 2023.
61. However, Y also missed nine weeks of education from 16 May 2023 to 21 July 2023 caused by the fault of the Council. We recommend the Council pays Ms X either £1,350 for Y’s missed education during this time, or reimburses Ms X the cost of educational provision she sourced for Y during this time, whichever is the higher amount.

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Agreed action

62. Within one month of the Ombudsman’s final decision the Council should:
    • Apologise to Ms X for the delays in production of Y’s EHC Plan and for failing to provide suitable education for Y from 16 May 2023 until 4 October 2023.
    • Pay Ms X an extra £350 for the frustration and uncertainty caused by the Council’s delays in production of Y’s EHC Plan.
    • Ensure it reimburses Ms X the £2,675.98 promised for Y’s educational provision from September 2023 to November 2023.
    • Pay Ms X either £1,350 or reimburse her for the educational provision she sourced from 16 May 2023 to 21 July 2023, whichever is higher, for Y’s missed education during this time.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. 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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