Summary: Mrs X complained about the Council’s failure to provide her child with a suitable education and support for their special needs when they were unable to attend school. We found the Council to be at fault. There was also fault with the Council’s communication and complaint handling. To remedy the injustice to Mrs X, the Council has agreed to apologise, make a payment and confirm action it has taken to improve its service.

The complaint

1. Mrs X complains the Council failed to provide her child, Y, with a suitable education and support for their special educational needs since October 2022.
2. Specifically, she complains about:
1. delay caused by unlawful refusals to carry out an Education, Health and Care Plan needs assessment;
2. failure to include information from relevant professionals in the Education Health and Care Plan;
3. failure to comply with the legal duty to provide Y with a suitable education when they were unable to attend school;
4. failure to provide support for Y’s special educational needs from August 2023;
5. failure to secure a school place for Y at an independent special school in September 2023, when one could have been available; and
6. poor communication and complaint handling.
3. This has caused significant distress to both Mrs X and Y. Their well-being and mental health suffered greatly. Mrs X has been unable to work because Y was out of school for so long. This has had a significant impact on the family finances.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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)

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What I have and have not investigated

11. Certain decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 (‘the Hillingdon judgment’).
12. The Hillingdon judgment reconfirmed that we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal, it also said we cannot consider the consequences of that decision.
13. Because of this, I will not investigate 2(a) above. This is because the Council’s decision to refuse to carry out an EHC needs assessment was the subject of an appeal to the SEND Tribunal by Mrs X. While I understand Mrs X is of the strongly held belief that the Council’s initial refusals were a deliberate attempt to delay the process, because of decision was appealable, I am unable to investigate any aspect of the Council’s decision making, including delay in the EHC Plan process.
14. Nor will I investigate 2 (b) above.
15. This is because the content of Sections B and F of the EHC Plan are both appealable to the Tribunal. Mrs X’s complaint about the Council’s failure to incorporate information from professional reports was a challenge to the contents of the final EHC plan issued in August 2023.
16. I have seen no evidence to persuade me it was not reasonable to have expected Mrs X to appeal about this when the appeal right arose.

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How I considered this complaint

17. As part of the investigation, I have:

• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• sent my draft decision to both the Council and Mrs X and took account of their comments in reaching my final decision.

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What I found

Education, Health and Care Plans

18. A child or young person with special educational needs (SEN) 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. Section B specifies the child’s SEN and section F sets out the SEN provision needed for the child. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 

Maintaining the EHC Plan

19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Appeal rights

20. There is a right of appeal to the SEN Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• 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;
• Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Children out of school

21. 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 education provision.
22. 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)
23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

What happened

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
25. Mrs X’s child, whom I shall refer to as Y, attended a mainstream secondary school (School P) from September 2022. They were diagnosed with Autistic Spectrum Disorder in 2020 and Attention Deficit Hyperactivity Disorder in 2022. In October 2022, Y was no longer able to attend because of school based anxiety. Y found the transition to a larger school overwhelming and had found attendance difficult for a long time. School P put various measure in place to try and help, but they were unscuccessful.
26. In November 2022, both Mrs X and School P told the Council that Y was not attending at all and required alternative provision. Y was provided with home tuition (six hours per week, increased later to eight and a half hours) and a place an animal-based therapy centre (one morning per week) from February 2023.
27. Mrs X also requested an EHC needs assessment because she felt Y needed additional support that would only be available if Y had an EHC Plan. The Council twice refused to carry out an assessment. Mrs X appealed this decision to the Tribunal.
28. In April 2023, shortly before the Tribunal was due to consider the matter, the Council changed its mind agreed to carry out an assessment and issue a EHC Plan. A draft plan was issued in June 2023. Mrs X says this plan was full of errors and omissions, but the Council took no action to correct them. Mrs X was particularly concerned the plan did not include recommendations from an occupational therapist that were crucial to Y’s development and progress.
29. The final EHC Plan was issued in August 2023.
30. Based on what Mrs X considered to be an inaccurate draft plan, the Council carried out consultations with seven schools in July 2023, including School H, an independent special school. Mrs X was understandably desperate for Y to return to school for the start of the autumn term and was disappointed when a place was not available. She was told five schools said they could not meet Y’s needs and that School H had not responded.
31. Mrs X says she was told by School H that the Y has been offered a trial visit with a view to starting in September. She says the Council failed to pass on this information that led to Y missing out on a school place for September.
32. On 4 September 2023, School H asked the Council if Y still needed a place. The Council said yes, but it needed School H to formally respond to its consultation letter from July.
33. The Council send a further remainder to School H on 20 September 2023. In response, School H advised the Council the request was “in the tracker”. The Council heard nothing further from School H.
34. Between October 2023 and February 2023, Mrs X and the Council undertook mediation to address the problems Mrs X had identified the plan, specifically the content of Sections B and F. An amended final plan was issued in February 2024.
35. Shortly afterwards, the Council reconsulted with School H. Y was offered a place for the start of the summer term.

Mrs X’s complaint

36. In July 2023, frustrated by the lack of progress, lack of proper alternative provision and long delay since she made her application for an assessment, Mrs X complained to the Council. She also expressed concern that consultations with specific schools had been agreed on 7 July 2023, but this had not been done straight away. This would impact on the possibility for a school place for September. Other areas of complaint were added by Mrs X during the three stage complaints process that spanned several months.
37. In response to Mrs X’s complaint and the Ombudsman’s enquiries, the Council’s position is set out below.
1. In its stage two response, the Council apologised for the length of time it took to agree and conduct Y’s assessment. Mrs X was offered £500 in recognition of this delay.
2. It accepted there were delays in including agreed actions in Y’s EHC Plan due to staff resourcing constraints. This included making amendments that had been agreed during mediation in November 2023. It said it has restructured the SEND service, appointed several managers and officer posts to improve capacity and provide oversight.
3. School H did not respond to the first consultation, despite two remainders. It did not block a trial visit in the summer of 2023, as suggested by Mrs X. The Council was aware of School H bypassing the local authority in some cases and it had spoken to School H about following the expected process.
4. Between November and January, enquiries were made about Y’s non attendance. The Council’s “Children Missing Education (CME)” Department was aware of Y but as their absence was authorized illness, there was no need for the Council to consider enforcement action. School P was advised the CME department would only become involved where 20 days absence was unauthorised. From late January 2023 the absences were recorded as “Educated off site”. Alternative provision was arranged by School P. The Council took the view Y was not medically signed off and it was School P’s responsibility to support Y to reintegrate back to school. This option remained available to Y.
5. In satisfaction of Y’s EHC Plan, the Council provided home tuition (six hours per week), a therapy placement (2 hours per week), and a one to one therapy session (one hour per week from December 2023 whilst Y did not have a school place).

Analysis

38. I will consider the areas of complaint I have investigated below.

Failure to comply with the legal duty to provide Y with a suitable education when they were unable to attend school

39. The law is clear that where a school does not make appropriate arrangements for a child who is out of 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.
40. However, just because a child does not attend school does not necessarily mean the council has to make alternative arrangements.
41. The Ombudsman takes the view it would be unreasonable to expect councils to intervene if it is unaware of the child’s circumstances. Relevant guidance also makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. In this case, School P made the arrangements from February 2023 onwards so I will only investigate up to that point.
42. The school’s attendance records show School P made a referral to the Council on 16 November 2022 because they had been unable to attend school for 15 days, with a request for alternative education. The absences were recorded as being predominantly school-based anxiety. Mrs X made a similar request.
43. Shortly afterwards, the CME officer became involved, but she took the view that because the absences were authorised, no action would be taken to enforce attendance. The school was told they would only become involved once there were 20 or more consecutive days of unauthorised attendance.
44. In my view, the Council took the wrong approach here. Instead to considering whether it owed a duty under section 19 (as properly requested by School P and Mrs X), it focussed solely on whether the non-attendance was authorised. When a parent reports a child as being ill, it will generally be authorised, as was the case here.
45. I have seen no evidence the Council considered its section 19 duties at that time. Whilst it made referrals to the CME team and the Education Welfare Service, this did not directly address the request made by Mrs X or the School.
46. The Council has subsequently stated in its complaint responses that there was no medical evidence that stated Y was unable to attend school, and for that reason it did not have to provide alternative education. This should have been considered at the point Y was absent for 15 or more days. This was fault. It is not my role to determine whether the section 19 duty did or did not apply between November 2022 and February 2023, but it may have done, in the absence of any alternative arrangements being made. This uncertainty is an injustice that requires a remedy (below).

Failure to provide support for Y’s special educational needs from August 2023

47. I have asked to the Council to comment on Mrs X’s assertion that the alternative provision, whilst preferable to nothing at all, did not satisfy the requirements of Y’s EHC Plan when it was issued in August 2023. In response, the Council has just said “it has continued to support the school in providing alternative provision”.
48. This was put in place before the Council agreed issue an EHC Plan and was predominantly academic provision. Unfortunately, the Council’s response had not provided any helpful clarity about whether Section F was being delivered or not as part of this out of school package.
49. I have seen no evidence the Council made any attempt to satisfy itself that, as from August 2023 provision described in Section F was being provided. Section F describes how Y would be supported in a school setting, not how this would work while Y was not at school. This included Y being provided with a “key adult” for no less than an hour a day to help with emotional and mental health needs. Y did not receive this support from August 2023.
50. The case records show the Council latterly agreed to fund a therapy session of one hour per week from December 2023. It is reasonable for me to assume this was an attempt to address the fact Y was not receiving the therapeutic support they would have been receiving had they been at school. It also incorporated reference to the animal-based therapy sessions into the revised EHC Plan in the event of a school place not being found.
51. Despite some provision being made to meet some of Y’s therapeutic needs while out of school, I cannot ignore the fact there is an absolute legal duty to deliver provision as set out in plan. Failure to do so was fault that caused an injustice that requires a remedy.
52. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s Guidance on Remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £900 and £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs, the stage of the child’s education and whether any partial provision was made.

53. I have taken this guidance into account when making recommendations to the Council (below).

Failure to secure a school place for Y at an independent special school in September 2023, when one could have been available

54. Mrs X says Y missed out in a school place at School H because the Council failed send out its consultation letters quickly enough and then failed to tell her a place was possibly available. She says this meant Y missed out on a school place for September 2023.
55. The evidence I have seen does not support a finding of fault here. The Council agreed to consult with School H and several other schools on 6 July 2023. The letters were then sent on 14 July 2023 (6 working days later). While I appreciate time was particularly of the essence here because schools are not obliged to respond after the end of term, I do not consider a delay of six days to be so excessive to justify a finding of fault. SEN case workers have many cases to manage at once and sometimes it is not possible to attend to all matters immediately. The records show, all the other consulted schools did respond before the end of term any event, it was only School H that did not.
56. Nor is there evidence to show the Council failed to facilitate the offer of a trial visit. The first contact from School H was on 4 September, asking if Y still needed a place. It later said their name had been “put on the tracker”. There is no record of a formal response ever being sent. For this reason, there was no fault by the Council here.

Poor communication and complaint handling.

57. The case records show Mrs X was often not kept properly informed about what was happening with Y’s case, particularly about progress being made with the EHC Plan and to find a school place which was an understandable priority for her. The Council would usually respond to her emails, but Mrs X should not have had to chase officers or their managers for updates. The Council has explained this is due to the case officer having a relentless workload. While I welcome the Council’s commitment to improve communications with parents by restructuring and employing more staff, the evidence I have seen leads me to still making a finding of fault in the way Y’s case was managed.
58. There was further fault with the Council’s complaint handling. The stage one response was poor and failed to properly address the issues raised by Mrs X, particularly about the refusal to carry out the assessment. This has been accepted by the Council in its later responses and has taken action to ensure first responses are more thorough in future. Contradictory information about this issue was given in all three stages of the complaints procedure. The stage one explained the reasons for the refusal as being acceptable and in line with usual procedures, yet the second response apologised and made a payment to Mrs X for the delay. This will have caused avoidable frustration to Mrs X.
59. It is clear these avoidable faults caused additional distress and frustration to Mrs X that require a remedy (below).

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Agreed action

60. To remedy the injustice caused by the identified faults, we the Council has agreed to take the following action, within four weeks of the final decision on this complaint.
1. Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how councils should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mrs X £3000 to recognise the loss of provision set out in Y’s EHC Plan for two school terms (Autumn 2023 and Spring 2024). I have decided £1500 per term is an appropriate amount because some support for Y’s SEN was arranged.
3. Pay Mrs X £250 to recognise her distress caused by the uncertainly when the Council failed to properly consider whether Y was owed a duty under section 19 in November 2022.
4. Pay Mrs X £250 to recognise her frustration time and trouble involved in the complaint process and caused by the Council’s poor communication.
5. The Council has explained it has recently restructured the SEND team and employed more staff to cope with increasing demands. The Council should provide the Ombudsman with a brief summary of action taken far to improve its service going forwards.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have found the Council to be at fault and made recommendations to the Council to remedy the injustice to Mrs X. The Council has agreed with my findings and recommendations and on this basis 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