Summary: Mrs X complained the Council failed to provide suitable support for her child resulting in declining attendance followed by a stop in attendance. Mrs X complained the Council delayed production of her child’s Education, Health and Care Plan. Mrs X also complained the Council delayed providing alternative provision of education for her child and when it did provide this it was unsuitable for her child’s needs. We found fault with the Council for failing to provide suitable education for Mrs X’s child for most of the period 14 September 2023 to 4 March 2024. We also found fault with the Council for delaying outside the statutory timescales in producing Mrs X’s child’s Education, Health and Care Plan. The Council agreed to apologise to Mrs X, pay her £150 for the frustration and uncertainty caused and £2,000 for her child’s missed education. The Council also agreed to provide guidance and training to staff about recognising contacts showing a child is absent from school, and about considering a child’s individual needs when considering suitable alternative provision of education.

The complaint

1. Mrs X complained the Council failed to provide suitable support for her child from August 2022 resulting in declining attendance at school throughout the following academic year.
2. Mrs X complained the Council delayed in producing her child’s Education, Health and Care Plan.
3. Mrs X also complained the Council delayed in providing alternative provision of education for her child following their complete stop in attendance in November 2023. Mrs X says when the Council did offer alternative provision of education this was not suitable for her child.

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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. 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)
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. (Local Government Act 1974, section 26(6)(a), as amended)
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 Mrs X’s complaints about the Council’s actions from August 2022 until the end of the academic year 2023/2024. This includes provision of support for Mrs X’s child, the Education, Health and Care Plan process and provision of education.
11. I have not investigated any matter about transport assistance or travel costs. This is because Mrs X has not raised this as a complaint with the Council in any of her complaint contacts and the first reference to this is in her complaint to the Ombudsman. The Council must be given opportunity to address any complaint before the Ombudsman can investigate.
12. I have also not investigated the Council failing to name an educational placement in Section I of Mrs X’s child’s Education, Health and Care Plan. This is because Mrs X has not specifically complained about the failure to name an educational placement in the Education, Health and Care Plan. Should Mrs X have concerns about the failure, or delays, in finding a suitable school placement for her child, this would be the subject of a new complaint or appealable to the tribunal.

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How I considered this complaint

13. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
14. Both Mrs 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

What happened

15. On 1 August 2022, Mrs X contacted the Council to advise she had concerns about her child, who I shall call Y, starting at high school in September 2022. The Council liaised with Mrs X and confirmed Y did not have an Education, Health and Care (EHC) Plan. The Council advised Mrs X to liaise with the school.
16. Mrs X met with the head-teacher of the school in September 2022 and told the Council she felt reassured about the school.
17. In November 2022, Mrs X told the Council Y was having good days and bad days at school.
18. On 19 January 2023, Mrs X contacted the Council to advise Y was refusing to go to school. The Council liaised with Mrs X about Y’s issues at school. Mrs X reiterated that Y was still refusing to attend school on 23 January 2023 but she planned to take Y into school the following day. The Council told Mrs X how to make an EHC Needs Assessment application.
19. Y’s school created a school attendance plan in February 2023 and put this into place. The Council was not involved in this school attendance plan.
20. On 2 March 2023, Mrs X contacted the Council again about Y refusing to go to school. The Council responded to Mrs X to ask if there was anything it could do to help support Mrs X and Y. Mrs X did not advise she needed support from the Council in response.
21. On 28 July 2023, the Council received Mrs X’s application for an EHC Needs Assessment for Y. Mrs X highlighted that Y’s attendance at school was declining because of a lack of support for Y’s anxiety.
22. In September 2023, Mrs X reiterated to the Council that Y’s attendance at school had been very low.
23. The Council agreed to complete an EHC Needs Assessment of Y on 4 October 2023.
24. On 12 October 2023, Y’s school contacted the Council about Y’s attendance.
25. Y’s school provided input to Y’s EHC Needs Assessment in November 2023 in which it told the Council that Y’s attendance was 33% this academic year. When the Council produced Y’s draft EHC Plan on 24 November 2023 it noted Y’s attendance was 22%.
26. The Council began consulting specialist educational settings for Y from 27 November 2023.
27. On 3 January 2024, Mrs X made a formal complaint to the Council. Mrs X said Y needed alternative provision of education. Mrs X said the Council had failed to provide suitable education for Y since August 2022 when she made it aware of Y.
28. On 11 January 2024, The Council offered 15 hours of online learning through Provider 1. Mrs X responded to the Council’s offer the following day advising she did not consider online learning through Provider 1 would be suitable for Y. Mrs X said she considered Y needed in person learning. Mrs X requested provision through Provider 2.
29. Provider 1 contacted Mrs X to offer the online learning to start from 22 January 2024. Mrs X contacted the Council again on 17 January 2024 to raise concerns about provision through Provider 1. Mrs X said Y did not have a laptop to access this provision and that online learning would not be suitable for Y and the Council had failed to consider Y’s individual needs. Mrs X reiterated a request for provision through Provider 2.
30. On 30 January 2024, the Council arranged to send a laptop to Y and made a request for provision through Provider 2 for 12 hours a week across three days.
31. On 7 February 2024, the Council produced a final EHC Plan for Y. The final EHC Plan:
• Detailed most of Y’s Section F provision would be provided in a classroom setting which included high adult to pupil ratios, a low sensory environment, structured and predictable timetables and a social and emotional curriculum.
• Said Y should receive 2 x 30 minutes and 1 x 60 minute counselling and mentoring for Y each week.
• Stated Y should attend a specialist educational setting in Section I but did not name a specific setting.
32. The Council provided a Stage 1 complaint response on 9 February 2024. The Council said:
• Mrs X contacts from August 2022 to March 2023 did not show that Mrs X needed input from the Council for Y’s attendance.
• The Council advised Mrs X how to make an EHC Needs Assessment application in January 2023.
• It received Mrs X’s EHC Needs Assessment application in September 2023 and finalised the EHC Needs plan on 7 February 2024.
• It had been consulting specialist settings for Y and in the meantime had provided tuition through Provider 1 and Provider 2.
33. Mrs X asked the Council to contact Provider 3 to replace Provider 1. Mrs X reiterated that Provider 1 was not suitable because online provision needed an adult present but both her and her partner worked. Mrs said she was happy for Provider 2 to start provision.
34. On 14 February 2024, the Council said it had asked Provider 1 if it could provide face-to-face provision but had not received a response.
35. Mrs X requested consideration of her complaint at Stage 2 on 15 February 2024. Mrs X said:
• The Council should have addressed Y’s lack of education since January 2023 when she contacted it.
• The Council’s failure to produce a final EHC Plan until 7 February 2024 was a failure to meet statutory timescales.
• The alternative provision offered through Provider 1 by the Council was not suitable for Y’s needs. Mrs X asked how the Council considered online tuition through Provider 1 was suitable for Y’s needs.
• She had concerns about the school failing to tell the Council about Y’s absences from school until October 2023.
36. On 20 February 2024, the Council declined to progress to Stage 2 of its complaints process but held a meeting with Mrs X on 21 February 2024. During this meeting the Council agreed to cancel the provision through Provider 1, retain provision through Provider 2 and contact Provider 3 to replace Provider 1. The Council confirmed that Provider 2 could meet Y’s Section F EHC Plan provision until a full-time educational setting could be found for Y.
37. Provider 2 started to provide education for Y on one day a week from 4 March 2024.
38. Mrs X and the Council continued to liaise about Y’s access to education. The Council contacted Provider 3 about provision for Y. Provider 3 did not respond to the Council’s request.
39. The Council offered provision through Provider 4 for 10 hours each week. Mrs X declined this offer on 26 March 2024.
40. On 9 April 2024, the Council reiterated that it did not consider a further complaint response would lead to a different outcome.
41. From the week starting 22 April 2024, Provider 2 started to provide two days a week for Y. Provider 2 increased this to three days a week from 10 June 2024.
42. On 19 June 2024, the Council completed an annual review meeting for Y’s EHC Plan. The Council noted that Provider 2 would not be suitable long-term provision for Y and it either needed to find a suitable school placement or agree to Education Otherwise Than At School (EOTAS). The Council agreed to take the EOTAS request to panel.
43. On 17 July 2024, the Council confirmed to Mrs X the panel rejected the request for EOTAS for Y. The Council said it would look to name a suitable school placement on Y’s EHC Plan.

EHC Plans

Rules and regulations

44. 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.
45. 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);  

46. 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.
47. 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.

Analysis

48. Mrs X contacted the Council in August 2022 to raise concerns about her child’s support at secondary school. Y had not yet started at secondary school and there was no evidence available to the Council on this contact that Y would need support at secondary school. The Council acted suitably to direct Mrs X to the school before it took any action. Mrs X’s subsequent contact in September 2022 confirmed she felt reassured by the school which prompted the Council not to take further action. The Council acted proportionately to Mrs X’s contact and I do not find fault.
49. Following Mrs X’s contact in January 2023, the Council told Mrs X how to make an application for an EHC Needs Assessment. The Council provided Mrs X with the relevant information at this time, and I do not find fault.
50. The notes from Y’s attendance plan show Y’s school decided it would not make an EHC Needs Assessment for Y. But, the school advised Mrs X it would support her if she decided to make an EHC Needs Assessment request. It is not the role of the Ombudsman to investigate the actions of a school.
51. Both the Council and the school provided Mrs X with information about making an EHC Needs Assessment request. Mrs X decided to make this request on 28 July 2023. Since the Council did not receive a request for an EHC Needs Assessment before 28 July 2023, I do not find the Council at fault for delays in provision of support before this date.
52. Mrs X requested an EHC Needs Assessment from the Council on 28 July 2023. The Council had six weeks to decide whether to complete an EHC Needs Assessment, which would be 8 September 2023. The Council agreed to complete an EHC Needs Assessment on 4 October 2023, four weeks outside the statutory timescales; this was fault.
53. Since the Council agreed to complete an EHC Needs assessment, it had 20 weeks to produce the Final EHC Plan following Mrs X’s request. This meant, the Council had until 15 December 2023 to produce the Final EHC Plan. The Council produced the Final EHC Plan on 7 February 2024. This was seven and a half weeks outside the statutory timescales; this was fault.
54. This fault caused Mrs X avoidable frustration and uncertainty through the delays in production of the Final EHC Plan. This also caused Y missed opportunity at receiving support detailed in their EHC Plan. We recommend the Council apologises to Mrs X and pays her £150 for the uncertainty and frustration caused.
55. Following production of Y’s EHC Plan on 7 February 2024, the Council had a responsibility to provide all provision detailed in the EHC Plan. The Council had no responsibility to provide any EHC Plan support or provision before 7 February 2024.
56. The Council ensured Y’s Section F provision was provided through the alternative provision of education through Provider 2 until it found a suitable school placement. I do not find fault with the Council providing access to Y’s Section F provision from 7 February 2024 to the end of the academic year 2023/2024.

Alternative Provision of education for children

Rules and regulations – Alternative Provision

57. 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.
58. 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))
59. 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)
60. 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
61. 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;

62. 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
63. 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.
64. 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.

Rules and regulations – Attendance

65. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education.
66. Schools have a duty to notify councils at regular intervals of any child who fails to attend school on a regular basis under Section 12(1) of the Education (Pupil Registration)(England) Regulations 2006.
67. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.
68. The Council sets out how it proposes to meet Section 436 of the Education Act 1996 on its website and through its policy “Children Missing Education”. The policy says:
• Schools have a duty to notify the Council about cases of irregular or continuous absence;
• Schools should notify it if a child is absence for 10 consecutive days whether authorised or unauthorised;
• Schools should notify it if a child has irregular attendance or regular absence where attendance is not improving despite ongoing school intervention;
• Schools should notify the Council where a part-time timetable or pastoral support plan has failed and attendance has not improved or it has deteriorated further.

Analysis

69. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from September 2022 to October 2023 about why the school failed to tell the Council about Y’s absences from school.
70. Mrs X’s contacts with the Council before January 2023 do not highlight any issues with Y’s attendance at school.
71. 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. As such, I cannot find fault with the Council before January 2023.
72. 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.
73. The Council first became aware of Y’s absence from school on 19 January 2023 following Mrs X’s contact. At the time of Mrs X’s contact, Y had only missed five days of school, of which not all were consecutive. By 23 January 2023, Y had been back in school but was again absent on this date. However, Y had only been absent for a total of six days including 23 January 2023. The Council had no duty to act to provide education for Y at this time. I do not find fault with the Council.
74. When Mrs X next contacted the Council about Y’s absence from school on 2 March 2023, Y had now missed 15 non-consecutive school days across the school year. The Council should have contacted Y’s school and enquired about Y’s education and considered its Section 19 duty. The Council’s failure to act was fault.
75. While the Council was at fault for failing to consider its Section 19 duty, this did not present an injustice to Y. This is because Y was back in school by 3 March 2023 and attended regularly throughout March 2023. Had the Council made enquiries of the school, and considered its Section 19 duty in response to Mrs X’s contact on 2 March 2023, it would not have needed to exercise its Section 19 duty. This is because Y was receiving full-time education at school again.
76. The next time the Council was advised about Y’s absence from school was on 28 July 2023 when Mrs X submitted the EHC Needs Assessment application to the Council. The EHC Needs Assessment application confirmed that Y’s attendance was declining. Submission of this application should have prompted the Council to assess Y’s access to education given previous contacts about Y not being able to attend school and the content of the EHC Needs Assessment application. Had the Council acted it would have found a significant increase in Y’s failure to attend school since April 2023 with 28 days absence across the summer term.
77. The Council failed to take any action in response to this contact. Had the Council acted it would have confirmed Y’s absence met the threshold to engage its Section 19 duty. 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 Mrs X submitted the EHC Needs Assessment application, the Council’s Section 19 duty became engaged from the sixth day following this contact. This would have been 14 September 2023, given the school summer holidays.
78. The Council failed to consider its Section 19 duty from 14 September 2023 until January 2024. This was fault.
79. In January 2024, the Council decided it needed to provide alternative provision of education for Y. The Council offered provision through Provider 1 to meet this need. While the Council acted correctly to try to meet its Section 19 duty to provide education for Y, it failed to properly consider the suitability of this provision. The Council has failed to show it considered Y’s individual needs when deciding online tuition would be suitable for Y. Mrs X repeatedly questioned the suitability of Provider 1 and provided rationalised concerns about this provision. The Council failed to properly consider Mrs X’s concerns until 21 February 2024. The failure to consider the suitability of Provider 1 meant Y did not receive alternative provision of education through Provider 1 and the Council cancelled this on 21 February 2024. This was fault.
80. Y’s other alternative provision of education through Provider 2 only started fully on 4 March 2024 with only two and a half days in January 2024 before this date.
81. 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.
82. From 14 September 2024 to 4 March 2024, the Council failed to fulfil its Section 19 duty meaning that Y missed education during this time. However, Y attended school for 11 school days and received two and a half days of alternative provision during this time. Considering the education Y received, this meant Y missed 1 full term and 3 weeks of education from 14 September 2024 to 4 March 2024 because of the fault by the Council. We recommend the Council pays Mrs X £2,000 for Y’s missed education during this time.
83. There were two main underlying reasons the Council delayed in providing suitable alternative provision of education for Y. The first was the failure to recognise the importance of the contact in July 2023 about Y’s poor attendance at school. The second was the failure to consider Y’s individual needs when suggesting an alternative provision of education package. We recommend the Council provides training to its staff about these two matters.
84. From 21 February 2024, The Council tried to put in place provision through Mrs X’s chosen provider, Provider 3, but it failed to engage with the Council. When this failed, the Council offered Provider 4 to Mrs X but she declined this because she did not consider Y could manage the change required for provision through Provider 4. Mrs X was entitled to decline provision through Provider 4 but I cannot find the Council at fault for failing to source suitable provision when it offered this to Mrs X.
85. It is also of note that from 4 March 2024, Provider 2 started to provide education for Y for 4 hours on one day a week. Provider 2 increased this gradually for Y through to the end of the academic year in line with Y’s ability to cope with increasing education. Provider 2 has acted suitability to increase Y’s access to education gradually at a pace Y could cope with. I do not find fault with the gradual increase in provision. Provider 2’s slow introduction of provision also shows that Y would not have been able to cope with immediately higher levels of education earlier and needed a gradual increase to this education. As such, I cannot find fault with the Council failing to provide full-time education for Y from 4 March 2024 to the end of the academic year. Instead, Y’s education has been tailored to meet Y’s specific needs and ability to cope.
86. By 17 July 2024, the Council declined to offer EOTAS for Y. This is a decision the Council was entitled to make and one I cannot find fault with. The Council needs to find a suitable school placement for Y on the back of this decision. If Mrs X has a specific placement in mind, or does not wish to wait for the Council to name a placement, she can exercise her right to appeal to the Special Educational Needs and Disability Tribunal about the Council’s failure to name a suitable school placement in the 7 February 2024 final EHC Plan. The Council’s actions from 17 July 2024 are outside the jurisdiction of the Ombudsman as this presents future access to education from the start of the 2024/2025 academic year in September 2024. The Ombudsman cannot pre-judge the actions of the Council.

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Agreed action

87. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mrs X for delays in production of her child’s EHC Plan and delays in providing suitable education for her child.
• Provide a payment to Mrs X of £150 for the avoidable frustration and uncertainty caused by its delays in producing her child’s EHC Plan.
• Provide a payment to Mrs X of £2,000 for the delays in provision of alternative provision of education for Y.
88. Within three months of the Ombudsman’s final decision the Council should:
• Provide guidance and training to staff about the importance of recognising and acting on information it receives detailing a child’s failure to access education. This guidance and training should focus on the Council’s responsibility to consider and act on its Section 19 when a child has been absent from school for 15 days, whether consecutive or cumulative.
• Provide guidance and training to staff about considering a child’s individual needs when considering what alternative provision of education is suitable for a child.
89. The Council should provide us with evidence it has complied with the above actions.

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Final decision

90. 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