Summary: Ms X complained the Council delayed in completing Occupational Therapist and Speech and Language Therapist assessments of her child as part of an Education, Health and Care Plan assessment. Ms X also complained the Council failed to provide suitable education for her child since July 2023. We found fault with the Council for failing to provide suitable education for Ms X’s child from 21 September 2023 to 4 February 2024. We did not find fault with the Council delaying in completing Occupational Therapist or Speech and Language Therapist assessments. The Council agreed to apologise to Ms X and pay her £1,800, in addition to the £900 reimbursement already paid, for her child’s missed educational provision.

The complaint

1. Ms X complained the Council agreed to spot purchase Occupational Therapist and Speech and Language Therapist assessments and complete a review of her child’s Education, Health and Care Plan but has delayed in completing this.
2. Ms X complained her child has been without education arranged by the Council since July 2023.
3. Ms X says she paid for educational provision for her child since the Council produced the Education, Health and Care Plan in October 2023. Ms X says the Council’s offer of a £200 time and trouble award and £900 reimbursement for the educational provision she arranged is not sufficient to cover the loss of her child’s education.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 not investigated Ms X’s complaint about the Council failing to get an Occupational Therapy and Speech and Language Therapy report for her child’s Education, Health and Care Plan produced in October 2023.
11. The Ombudsman cannot investigate a councils decision not to get optional reports, or any injustice arising from this. Ms X had an appeal right to the Special Educational Needs and Disability (SEND) Tribunal about what reports the Council got when completing its assessment. Since this appeal right existed, and it was suitable for Ms X to use this appeal right, this matter is outside the jurisdiction of the Ombudsman.
12. I have not investigated any matters since the end of the academic year 2023/2024. The Ombudsman must give a council opportunity to investigate a complaint before we investigate. The Council has had opportunity to address Ms X’s complaint up to the end of the 2023/2024 academic year, but not matters since this point. Ms X would need to raise any complaint about issues since this point directly with the Council first.

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How I considered this complaint

13. 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.
14. 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

15. 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.
16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

17. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
18. Those consulted have a maximum of six weeks to provide the advice. 
19. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
20. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
21. 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.
22. 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

23. On 27 October 2023, the Council produced a final EHC Plan for Ms X’s child, who I shall refer to as Y. The Council named a mainstream school as Y’s educational placement in this EHC Plan.
24. Following issuing of the EHC Plan, the Council discussed Y’s EHC Plan with Ms X. The Council agreed to consider amendments to the EHC Plan and asked Ms X to advise of the amendments she would like.
25. On 9 November 2023, Ms X presented her requests for amendments to the Council. Ms X did not request a review or reassessment of Y’s EHC Plan.
26. On 5 December 2023, Ms X asked the Council to name Education Otherwise Than At School (EOTAS) in Y’s EHC Plan rather than the mainstream school because Y was not attending. The Council responded on 19 December 2023 to advise it needed to take this to panel before it could make any changes.
27. Ms X complained to the Council on 20 December 2023. Ms X said:
• Y is not receiving any of the educational provisions detailed in their EHC Plan because they are not attending school.
• The Council had not completed Occupational Therapy or Speech and Language Therapy assessments of Y for the EHC Plan. Ms X asked the Council to complete these.
28. On 18 January 2024, the Council provided a Stage 1 complaint response to Ms X. The Council said it could not advise of the timescales involved for completing Occupational Therapy or Speech and Language Therapy assessments of Y. The Council said it would complete these as soon as possible so it could update Y’s EHC Plan.
29. Ms X sought consideration of her complaint at Stage 2 on 2 February 2024. Ms X said the Council had not provided sufficient details about when it would complete the assessments of Y. Ms X said she had sought her own Occupational Therapy assessment and could provide this to the Council when it is completed.
30. On 12 March 2024, the Council provided a Stage 2 complaint response. The Council said it would issue an amended EHC Plan for Y once it completes the Occupational Therapy and Speech and Language Therapy assessments.
31. On 4 April 2024, an NHS Occupational Therapist contacted Ms X to arrange an appointment to assess Y. Ms X responded on 8 April 2024 to advise they had commissioned a private Occupational Therapy assessment of Y and it would not be fair for Y to undergo a further assessment. The NHS Occupational Therapist asked for a copy of the report on completion and told the Council it would need to review this report before making any recommendations.
32. Ms X provided the Council with the private Occupational Therapy report who gave this to the NHS Occupational Therapist.
33. On 20 May 2024, the NHS Occupational Therapist asked if they could meet with Y to complete an assessment. The NHS Occupational Therapist said the private Occupational Therapist does not understand what the NHS Occupational Therapy service can offer and the recommendations from the report do not meet their criteria.
34. In June and July 2024, Ms X liaised with the Council about the Occupational Therapy provisions. The NHS Occupational Therapist said that following a paper-based review of Y’s private Occupational Therapy report it considered it needed to conduct an assessment of Y to ensure Y’s needs are properly met. The Council confirmed with Ms X it needed their consent to complete this assessment.

Analysis

35. The Council produced Y’s first EHC Plan on 27 October 2023. The Council had a duty to collect information from various sources when completing this EHC Plan assessment as detailed in paragraph 16. As explained in paragraphs 10 and 11 the Council it is not mandatory to complete Occupational Therapist or Speech and Language Therapist assessments for an EHC Plan. Ms X had an appeal right to the SEND Tribunal about this matter meaning the Ombudsman cannot investigate this.
36. Following the 27 October 2023 EHC Plan, Ms X could also have asked for a reassessment of Y’s EHC Plan should she be dissatisfied with the EHC Plan. Ms X did not ask for a formal reassessment of Y’s EHC Plan and instead agreed to work with the Council to amend the EHC Plan. Since the Council had not agreed to a formal reassessment or emergency review of Y’s EHC Plan it was not bound by specific short-term timescales to complete any changes to Y’s EHC Plan.
37. The Council has until 27 October 2024 to complete the annual review process for Y’s EHC Plan. This annual review process includes an annual review meeting and the Council sending a decision notice about whether to maintain, cease or amend Y’s EHC Plan. The Council has 12 weeks from an annual review meeting to amend and produce a revised Final EHC Plan, if it decides to amend the plan. If the Council agreed to undertake Occupational Therapist and Speech and Language Therapist assessments, this would be the deadline for completion, and incorporation of any recommendations into the amended Final EHC Plan. I cannot find fault with the Council failing to complete these assessments before this date has elapsed.
38. Ms X has also complained the Council refused to use her private Occupational Therapist report to amend Y’s EHC Plan. A council may, on agreement, use a person’s private assessments from various professionals to better inform a child’s needs for an EHC Plan. However, a council is under no obligation to use a private assessment or report within an EHC Plan but should consider any provided on their own merits.
39. The Council sent Ms X’s private Occupational Therapist report to an NHS Occupational Therapist. The NHS Occupational Therapist completed a paper-review of the private report and decided it could not use this report and would need to complete its own assessment. The Council has adhered to the professional opinion of the NHS Occupational Therapist. The Council has offered an NHS Occupational Therapist assessment for Y, which remains on offer to de Council has acted correctly and I cannot find it at fault.

Alternative Provision of education for children

Rules and regulations

40. 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.
41. 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))
42. 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)
43. 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
44. 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;

45. 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
46. 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.
47. 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

48. In April 2023, Y’s attendance at school started to become sporadic with various non-consecutive half-day or full-day absences until July 2023.
49. On 13 July 2023, Y did not attend school. Y has not attended school since this date. Ms X told the Council about Y’s absence and said that Y’s attendance at school had been declining up to this point.
50. Ms X told the Council on 4 September 2023, 14 September 2023 and 18 September 2023 that Y was not attending school.
51. On 7 November 2023, Ms X met with the school who agreed to fund an educational package for Y until the Council agreed to EOTAS for Y.
52. Y started to attend 5 hours each week of Alternative Provision at Provider 1 from 22 November 2023 and 2 hours each week of Alternative Provision at Provider 2 from 27 November 2023.
53. Ms X contacted the Council about the lack of funding for Y’s educational provision while absent from school.
54. On 19 December 2023, the Council told Ms X it had not agreed to EOTAS for Y and this would need to be agreed at panel before it could provide any funding.
55. Ms X complained to the Council on 20 December 2023. Ms X said:
• Y cannot attend school and Y’s school has confirmed it cannot meet Y’s needs.
• They are providing education for Y at their own expense because of a lack of funding or action from the Council.
56. On 18 January 2024, the Council considered Y’s access to education at panel. The Council agreed Y could not access education at school. The Council agreed to provide one sessions (5 hours) at Provider 1, 2 hours at Provider 3, 2 hours through Provider 4 and 6 hours through Provider 5 until the end of the academic year.
57. The Council provided a Stage 1 complaint response to Ms X on 18 January 2024. The Council said It had discussed Y’s educational support package at panel and provided the outcome of this to Ms X today.
58. Ms X sought consideration of her complaint at Stage 2 on 2 February 2024. Ms X said:
• The Council had delayed in providing EOTAS for Y.
• The Council has provided no clarity on when it would start to provide EOTAS for Y.
• She wanted 2 hours per week at Provider 2, 1 hour per week Trampolining sessions and 30 minutes per week drumming lessons as additional educational provision for Y.
• The Council should provide a £300 time and trouble award, £900 reimbursement for the education she sourced for Y since 27 October 2023 and £2,400 for Y’s lost education since 27 October 2023.
59. On 5 February 2024, the Council started to provide the educational provision from Providers 1, 3, 4 and 5.
60. On 8 February 2024, the Council agreed to make a one-off payment of £720 to fund the provision through Provider 2, drumming lessons and trampolining from 5 February 2024 to the end of the academic year.
61. On 14 February 2024, the Council reimbursed Ms X £900 for the educational provision she sourced.
62. On 12 March 2024, the Council provided a Stage 2 complaint response to Ms X. The Council said:
• It had now arranged a suitable package of education for Y which had been agreed with Ms X.
• It considered the £900 reimbursement was suitable remedy for Y’s missed educational provision from 27 October 2023.
• It offered £200 for Ms X’s time and trouble.
63. The Council paid Ms X the £200 time and trouble payment on 15 March 2024 and the £720 enrichment payment on 10 April 2024.

Analysis

64. 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.
65. Y stopped attending school from 13 July 2023. While Ms X contacted the Council on 13 July 2023 and 4 September 2023, it would not have been clear that Y would be absent for fifteen days on either of these contacts. When Ms X contacted the Council on 14 September 2023 to confirm Y was still absent, this was the fifteenth consecutive day of absence. It would have been clear to the Council on this date that Y’s absence met the threshold for it considering its Section 19 duty on this date. The Council’s responsibility to provide education for Y under its Section 19 duty starts from the sixth day of absence following 15 days of absence; this would have been the 21 September 2023.
66. The Council failed to consider Y’s absence from school, suitably consider its Section 19 duty or provide any education for Y from 21 September 2023 until 27 October 2023. On 27 October 2023, the Council confirmed in Y’s EHC Plan confirmed Y was not attending school because of Emotional Based School Avoidance. This delay in considering Y’s situation or providing education was fault.
67. Despite acknowledging Y was not attending school in Y’s EHC Plan, the Council failed to consider further how Y would access education until January 2024. This was fault. When the Council did consider Y’s situation it decided Y could not access education in school and needed alternative provision of education.
68. 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.
69. From 18 September 2023 until 22 November 2023, Y received no education. Within this period, from 27 October 2023 to 22 November 2023, Y also did not receive the educational provision detailed within their EHC Plan. We recommend the Council pays Ms X £1,300 for Y’s missed education for this eight week period, including consideration of the missed EHC Plan provisions for the last three weeks.
70. From 22 November 2023 to 4 February 2024, Ms X sourced 7 hours of educational provision each week for Y and paid for this herself. The Council has accepted it should have been providing education for Y and reimbursed this educational provision costing £900. The Council has acted correctly to reimburse this educational provision.
71. However, the Council decided in January 2024 that suitable alternative provision of education for Y consisted of 15 hours each week. This means the education Ms X sourced for Y was below what the Council would consider suitable education for Y. While the reimbursement covers Ms X’s costs, this does not truly reflect the missed educational provision for Y from 22 November 2023 to 4 February 2024. This is because this was about half the amount the Council considered Y should receive.
72. Without the reimbursement, the Ombudsman would recommend the Council pays Ms X £1,400 for Y’s missed education from 22 November 2023 to 4 February 2024. This is because Y went did not have access to formal education in school or the educational provision detailed in their EHC Plan for the full period. As such, the Council should pay Ms X an extra £500 for Y’s missed education from 22 November 2023 to 4 February 2024.
73. From 5 February 2024 to the end of the academic year, the Council provided Y with access to 15 hours of educational provision and made a one-off payment for enrichment activities. The Council has evidenced it has taken a person-centred approach to considering Y’s access to education at panel and created an educational package that suits Y’s needs, without formal access to school-based education. I do not find fault with the Council’s provision of education since 5 February 2024.
74. Having reviewed the circumstances, I am satisfied the Council’s payment of £200 is in line with the Ombudsman’s guidance on remedies for the distress and inconvenience the Council’s fault caused Ms X.

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Agreed action

75. Within one month of the Ombudsman’s final decision the Council should:
• Provide Ms X with an apology and pay her £1,800 for Y’s missed educational provision from 21 September 2023 to 4 February 2024. This is separate from the £900 reimbursement the Council has already provided. Ms X may use this payment to purchase any catch-up educational provision she sees fit for Y.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. There was fault by the Council as the Council has agreed to my recommendation, 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