Summary: The Council took too long to issue a final Education Health and Care (EHC) Plan. It also did not properly consider its duty to make alternative educational provision when the child could not go to school for a prolonged period. The Council also failed to communicate with his mother, Ms B properly during this time. The Council’s shortcomings caused Ms B distress and meant that her child did not receive a suitable education for some time. It has agreed to remedy the injustice.

The complaint

1. Ms B complains that the Council:
• failed to ensure that, her son had access to education from Year 8 onwards;
• took too long to issue a final Education Health and Care (EHC) Plan for her son; and
• failed to communicate with her properly throughout this time.
2. Ms B says that as a result of the Council’s shortcomings her son has missed education and the social aspect of school, and this has also impacted on his mental health and wellbeing. Ms B says she has had to leave work to support her son and had to chase the Council to progress the EHC Plan. It has caused her and her son distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

5. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement.
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 found

The law and guidance

The EHC Plan process

7. 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.
8. 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.
• 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.
• If the Council concedes an appeal it is treated as if it were determined in favour of the appellant. In some situations the parties may agree t o a consent order.
• If the appeal was against the Council’s decision not to assess, and the Council conceded the appeal, then it should carry out the assessment within four weeks of it notifying the Tribunal. The Council then has a further 14 weeks to issue the final EHC Plan.
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Alternative educational provision

9. 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.
10. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
11. 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))
12. 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])
13. 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)
14. The education provided by the council must be full-time unless the 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)
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
17. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

18. Ms B’s son, K has special educational needs. In June 2022, Ms B asked the Council to assess K for an EHC Plan. K’s attendance at school had been very low since 2020 due to his significant anxiety, hypersensitivity and difficulty in engaging in school life. The school had arranged that K could go to its special nurturing room instead of a classroom, but K was unable to go inside the school building. The school’s plan was for K to slowly reintegrate to school by him going to the school grounds every day, and then for a very short time inside the school, building on this until he could access the nurturing space. The Council refused to assess K for an EHC Plan, and Ms B appealed this decision.
19. By January 2023, K had not been able to go to school, the reintegration plan and reduced timetable was not working. The Council arranged a meeting of all the professionals involved with K. His attendance was around 6%. The school said that K had managed to get to the school grounds, and sometimes into the school building, spending some time with a key worker. The school said that if K could attend, then he could go to the small nurturing space and work with one adult. K’s Doctor was at the meeting and confirmed that K had traits of autism and high emotional responses and was awaiting assessment.
20. The Council decided that it would continue with the school’s plan to improve K’s attendance because the school could meet his needs and the doctor had said there was no medical reason for K not to go to school.
21. In February 2023, the Council conceded the appeal and said it would issue an EHC Plan. The SEN Regulations 2014 say that the Council must carry out the EHC Needs assessment within four weeks of notifying the Tribunal that it conceded the appeal, and issue the final EHC Plan within 14 weeks. This means the Council had until 23 May 2023 to issue the final EHC Plan.
22. The school continued to review K’s attendance improvement plan. In February, the review noted that K was still not receiving any formal education but the school was looking at work being sent home or some online work. K had made it to school but could not go in. Ms B explained that he wants to attend but cannot. The review also noted that therapies and interventions tried so far had not worked.
23. In March, at another review of the attendance improvement plan, it was noted that K had managed to get inside the school for a short amount of time and there was some online work available. K had been working with an outreach worker who was liaising with school. The Council decided that it did not need to review the attendance improvement plan further but there would be monitoring via a team around the family.
24. Ms B complained in June that the Council had not issued the draft EHC Plan and that she had emailed various officers without reply. The Council then issued the draft Plan on 3 July. Ms B complained again on 24 August. The Council responded to the complaint on 26 September. It upheld that it had delayed sending the draft Plan to her and apologised. The Council said it had now consulted various schools and colleges. It said that it had kept in touch with her throughout the delay however, except when a key worker left and there was some time before a new worker was allocated.
25. By September, the school contacted the Council to raise its continuing concerns that K was not attending. The Council’s case notes say it told the school could get support from an advisory teacher. The Council also asked the school what it thought might help.
26. On 1 October 2023, Ms B asked the Council to consider the complaint at stage two of its process. Ms B pointed out that her son had not had any proper education since 2020. The Council responded on 7 November. It said that K was still on the school roll and that the school had offered the nurturing centre and 1:1 staff, and that K had a reduced timetable. The Council did not uphold her complaint. Ms B said she did not think this was a fair outcome as K had not received education.
27. The Council’s case notes says that towards the end of 2023, the Council started to consider Education Other than at School (EOTAS) and consulted with education providers. In January the Council agreed to fund a proposed EOTAS timetable consisting of several providers.
28. The Council issued the final EHC Plan at the end of January 2024. This said that K would be educated at a local college campus yet to be identified and in the meantime he could continue with his EOTAS timetable.

Analysis

29. The Council has acknowledged that it took too long to issue the final EHC Plan. It was 35 weeks overdue by the time it was issued in January 2024. This had a significant impact on K and Ms B. It caused significant uncertainty, distress and frustration. It also delayed Ms B’s right of appeal.
30. As well as progressing the EHC Plan, the Council also had to consider whether it had a duty to make alternative provision of education for K as he was not able to access the school. K’s attendance at school had been poor since 2020 (I have noted that this is during the COVID-19 pandemic when schooling was interrupted for most pupils). However, K’s attendance reduced markedly in 2021/22 at 13% and in 2022/23 at 8%.
31. The Council liaised with the school to make sure that it implemented a plan to improve K’s attendance. It reviewed the plan and had a good understanding of whether progress was being made. The Council held a multi professionals meeting which also allowed it to get medical advice from K’s doctor. It is for the Council, after due consideration of the available evidence, to decide whether a child’s health needs are preventing him from going to school.
32. However, the Council should also decide whether the education that the school is providing is available and accessible to the child if he is out of school for reasons other than health. K remained on the school roll and the school was able to offer a nurturing space and other support. But K was unable to access this. I acknowledge that the Council was monitoring K’s attendance and the support given him to improve this. But I am not persuaded that the Council properly considered whether an education was available and accessible to K.
33. A variety of approaches had been tried, and K had not been able to consistently access school to receive an education for some time, despite his keenness to return to education and his increasing worry that he had already missed so much schooling. The Council should have made alternative provision much sooner, particularly as the EHC Plan had been so delayed. The Council should have made alternative provision from at least September 2022, as it was clear K had been without education for some time; the plans to improve his attendance had not worked; and any improvement would take a very long time. I would also have expected the Council to take account of the fact that K’s GCSE study years were approaching and he was clearly very concerned that he had fallen behind.
34. Ms B has complained that the Council did not communicate with her properly. I can see that the Council did keep in touch with Ms B, but there were times when it did not, critically as the delay in issuing the EHC Plan worsened. This was compounded when the Council failed to deal with Ms B’s complaint in good time at both stages of the procedure.
35. The Council’s shortcomings caused uncertainty, frustration and distress to Ms B. These also caused distress to K and meant that he missed educational provision for a significant period of time.

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Agreed action

36. The Council will within one month of the date of this decision:
• Apologise to Ms B, and if she deems it appropriate also to K (the Council can also place K’s apology on his records for him to access at a later date if Ms B finds this more appropriate). 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.
• Pay to Ms B a symbolic payment in recognition of K’s missed educational provision over four terms from September 2022 to December 2023. This totals £8,000. Ms B can use this for the benefit of K, as she sees fit.
• Pay to Ms B £500 in recognition of the distress and frustration it caused her when it took too long to issue the EHC Plan, and when it did not deal with her complaints in good time.
• Share this decision with relevant staff dealing with alternative provision.
37. The Council will within three months of the date of this decision share a copy of the decision and the learning outcomes with the relevant scrutiny committee or cabinet member.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman