Summary: Mrs Y complains there were failings in the way the Council provided her grandchild Z with alternative educational provision while carrying out an education health and care needs assessment and Z could not attend school causing distress and loss of educational provision. We found fault as the Council delayed the education health and care needs assessment and issuing a final education health and care plan. The Council has accepted it was at fault and apologised which is suitable action for it to take. We have found no evidence of fault by the Council in the way it considered whether to provided Z with alternative provision. So we have completed our investigation.

The complaint

1. Ms X complains for Mrs Y there were failings in the way the Council provided her grandchild Z with any alternative educational provision while carry out an education, health and care needs assessment (EHC needs assessment) and Z could not attend school.
2. Ms X also says the Council failed to name a school in Z’s education health and care plan (EHC Plan) that can meet Z’s needs, or to amend the EHC Plan to name a suitable school. And failed to provide Z with alternative provision or the provision set out in the EHC Plan, after it was issued on 17 November 2023.
3. Ms X says Z has been caused distress and loss of educational provision.

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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 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. 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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How I considered this complaint

11. I reviewed the information Ms X provided. I made enquiries with the Council, considered its response, and reviewed the relevant law.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative educational provision

13. 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). We refer to this as section 19 or alternative educational provision.
14. 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)
15. 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 needs assessment

16. Education, health and care (EHC) plans set out the special educational provision required to meet a child or young person’s special educational needs. 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. Those relevant to this complaint include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
17. 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.
18. To see if a child or young person needs an EHC Plan, a council can decide to complete an EHC needs assessment. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
19. The guidance says when a council receives a request for an EHC needs assessment, it must:
• decide whether to agree to the assessment and must send its decision to the child’s parent within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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);
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
20. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Appeal rights

21. 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.
22. 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)
23. 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.
24. 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.

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What I have and have not investigated

25. I have investigated Mrs Y’s concerns about the alternative provision of education during the needs assessment process between 18 September 2023 to 17 November 2023 when the Council issued the EHC Plan. I have not investigated the needs assessment before 18 September 2023. This is because Mrs Y had exercised her right to appeal to the SEND Tribunal about the Council’s decision to refuse the needs assessment request in July 2022. As paragraph seven explains we cannot investigate a complaint if someone has appealed to a tribunal about the same matter
26. I have also not investigated Mrs Y’s complaints the Council failure to name a suitable school in the EHC Plan issued in November 2023 or to provide alternative provision or the provisions set out in EHC Plan. This is because Mrs Y has appealed to the SEND Tribunal. And the reason for Y’s non- attendance at school from November 2023 is linked to and is a consequence of Mrs Y’s disagreement with the special educational provision or the educational placement in the EHC plan sections B, F, and I. This is because it forms the grounds of Mrs Y’s appeal.

What happened

27. This is a brief outline of the complaint and is not meant to include all events and communications between Ms X, Mrs Y, and the Council.
28. Z attended a mainstream secondary school and received SEN support. In July 2022 the school requested an EHC needs assessment for Z on behalf of Mrs Y. Mrs Y said Z suffered from anxiety, was in the wrong school setting and needed an EHC Plan to progress their education. The Council’s SEN Panel (Panel) considered Z was progressing in line with expected outcomes with support from SEN mentoring and counselling and refused the request in November 2022.
29. Mrs Y disagreed with the decision and attended mediation with the Council. During this time Z received specialist teacher and OT input and was diagnosed with autistic spectrum disorder (ASD). The Council noted the school offered Z access to its Hub provision. This provided a quieter space for pupils to work and was a setting for those to go to get help from adults. It was set up with desks and dividing panels.
30. In June 2023 the Council told Mrs Y she could submit a new EHC needs assessment request. But Mrs Y submitted an appeal to the SEND Tribunal against the Council’s decision not to agree to an EHC needs assessment in November 2022. The hearing was listed for October 2023.
31. On 20 July 2023 the Council agreed to carry out an EHC needs assessment due to Z’s formal diagnosis of ASD and other information. The Council started the statutory process and sought supporting information about Z from professionals. It noted Z’s attendance for the academic year 2022 -2023 had been 89.04%.
32. The Council says it was due to make the decision on the outcome of the needs assessment on 31 August 2023 to meet the statutory timescales. But did not meet the date due to a delay caused by the school summer holidays and need to obtain Educational Psychologist (EP) input before reaching a decision.
33. The Council received the EP advice and OT report in September 2023. The Council also responded to notification of Mrs Y’s appeal from the SEND Tribunal on 18 September 2023. The Council did not oppose the appeal and said it had already agreed to complete a needs assessment. The Tribunal process ended due to the Council conceding.
34. In October 2023 the Panel noted Z struggling to engage and attend the school setting with the Council’s Inclusion team made aware. The Panel considered whether a SEN base at mainstream school may be suitable setting for Z and did not agree to a specialist school setting. The Panel noted Z was making progress at school and had SEN support. The EP advised Z needed a moderate level of specialist support. Z used the Hub and had open ended access to it. Among the comments the EP noted Z had been attending smaller classes but did not want to return to the school.
35. The school had offered Z an alternative online learning programme and 1:2 support for English lessons. But the family refused these. The school tried to continue with emotional literacy support assistants (ESLA) online with Z, but it had not been successful. The school said it used an online programme to help with pupil engagement for Z. And Z had access to online lessons, lesson materials and had the ability to submit work.
36. The Panel noted the school provided Z with a taxi to get to and from school to avoid travelling by bus which caused Z anxiety. The Panel agreed Z needed an EHC Plan to obtain the intensive provision and alternative class sizes. The Council says it made the needs assessment outcome decision on 4 October 2023 at the Panel meeting.
37. The Council issued a draft EHC Plan on 19 October 2023 for Mrs Y’s comments. It was due to issue the final decision by 26 October 2023 which was the 20-week date based on 6-week decision following review at mediation in June 23. The Council says it did not meet this statutory timescale due to the delayed decision on the needs assessment outcome and allowing Mrs Y time to comment on the draft issued.
38. Mrs Y responded to the draft decision in early November 2023. The Council issued the final EHC Plan on 17 November 2023. It named Z’s current school as the setting as it did not agree Z needed specialist provision. The Council told Mrs Y of her appeal right to the SEND Tribunal against EHC Plan and school setting.

Events after November 2023

39. Mrs Y says Z’s mental health worsened once the Council issued the final EHC Plan as Z did not want to go back to the school. Mrs Y believes the Council should have provided Z with alternative provision from September 2023 when Z could not attend school due to anxiety. In response to my enquiries the Council says it did not consider Z was missing from education during autumn term of 2023/24. Or that it had a duty to provide Z with alternative provision as the child was absent from school for more than 15 days as Mrs Y alleged. The Council says this is because the school worked with her to put an appropriate package in place for Z’s re-integration while the EHC needs assessment was put in place and a Plan issued. The Council confirmed the school offered online learning via a national provider of online learning accredited by the DFE. The school also offered other provision to Z, but Z did not engage with any of the providers.
40. The Council confirms it put in place an EHC Plan from November 2023 with funding to support the school to meet Z’s needs. The Council says while there was evidence to say Z may struggle to access a mainstream school environment there was no evidence to say that Z could not attend school at all on health grounds. Therefore, s19 provision did not apply in Z’s case.
41. The Council says it was only from 15 November 2023 the school formally said it felt it could no longer meet Z’s educational needs although the Council did not agree. So, the 15-day point for Z to be out of school started in November 2023 and commenced on 6 December 2023. The Council confirms that when alerted in November 2023 it immediately started a search for alternative provision for Z and advised Mrs Y it would consider any responses at a Panel meeting in December 2023.
42. In December 2023 the Panel considered the alternative provision request. It noted Z had not attended school since September 2023 and the alternative provision offered by the school which had been refused.
43. The Panel noted the sole offer for alternative provision now received was for online learning which it agreed to offer Z while it looked for a new school. Mrs Y submitted an appeal to the SEND Tribunal in December 2023 about section B, F, and I for Z’s EHC Plan. After discussions with Ms X and Mrs Y the Council held an emergency annual review of Y’s EHC Plan in February 2024. It agreed to amend the EHC Plan with Z attending a specialist setting and receiving a personal budget for online learning in a certain subject.

My assessment

44. The Council has already acknowledged when responding to Mrs Y’s complaints it delayed in reaching the decision on the outcome of the needs assessment. So, this led to it issuing the final EHC Plan three weeks later than the statutory timescale of 20 weeks. The Council has apologised to Mrs Y for the delay which I consider is suitable action for it to take. Part of needs assessment process falls within the timescale I am not investigating as Mrs X had exercise her right of appeal against the Council’s decision not to do the needs assessment in November 2022. So, while I appreciate the frustration caused to Mrs Y for the Council’s delay in issuing the final EHC Plan I do not consider delay of such significant to warrant a further remedy in addition to the apology already received.
45. The documents provided show the Council was aware that Z was not attending school from September 2023, and it was aware of the school’s action to offer support while not attending. The Council considered it sufficient that Z had access to online learning and the school’s Hub with additional support. In addition, Z also received SEN support and counselling.
46. The Council considered the school’s offer was ‘available and accessible’ to Z. This was because there was no medical evidence to say Z could not attend school at all on health grounds and therefore the Council’s duties under s19 did not apply before November 2023. I am satisfied the evidence shows the Council maintained an oversight of Z’s education as the Panel met regularly to consider the needs assessment, EHC Plan and the breakdown of Z’s placement. So, there is no evidence of fault by the Council in regard to providing Z with alternative educational provision between September and November 2023.

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Final decision

47. I have completed my investigation. There was fault by the Council as it delayed issuing a final EHC Plan following a needs assessment. But this did not cause such a significant injustice to Mrs Y to warrant a further remedy in addition to the apology already given by the Council. There is no evidence of fault by the Council in regard to providing Z with alternative educational provision between September and November 2023.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman