Summary: We found fault with the Council for not taking responsibility for the complainant’s (Mr X) son’s (Y) education when he was out of school, for the delays with Y’s Education Health and Care needs assessment and issuing Y’s Education Health and Care Plan and when dealing with Mr X’s complaint. The Council’s fault caused injustice to Y and Mr X. The Council agreed to apologise, to make symbolic payments and to carry out training for the special education and disabilities team and the complaint handling staff.

The complaint

1. Mr X complains about the Council’s failings to:
• ensure Y received education when he could not attend the school;
• comply with the statutory timescales when carrying out an EHC needs assessment and issuing an EHC Plan for Y;
• obtain all professional advice needed for Y’s EHC needs assessment.
2. Mr X says because of the Council’s failings Y missed education and additional support he needed. His anxiety deteriorated. Mr X says the inadequate EHC needs assessment means Y’s EHC Plan will be inaccurate. The Council’s failings, he says, had negative financial impact on the family and affected their well-being.

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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. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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)
8. 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

9. I have not investigated anything that happened before March 2023. Mr X brought his complaint to us in April 2024 and there are no good reasons to investigate events which happened before March 2023. If Mr X was unhappy about Y’s education before then, he could have complained earlier.

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How I considered this complaint

10. I spoke with Mr X and considered the information he provided.
11. I made enquiries with the Council and considered the information it provided.
12. I referred to our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” issued in July 2022 and updated in August 2023.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

Alternative provision

14. 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.
15. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
16. 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)
17. 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’)

EHC needs assessment and EHC Plan

18. Where the SEND Tribunal requires the LA to make an assessment or reassessment, the LA must notify the parents that it will make an assessment (notification starts the process) within two weeks. Following the assessment or re-assessment:
1. if the LA decides not to issue an EHC plan, they must so notify the parent or young person within 10 weeks of the SEND Tribunal order; and
2. if the LA decides to issue an EHC plan they must issue the finalised EHC plan within 14 weeks of the SEND Tribunal order. (Special Educational Needs and Disabilities (Amendment) Regulations 2015 paragraph 8(a)(3) and (3A))
19. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)

Complaint handling

20. The Council’s policy on corporate complaints says the Council:
• will acknowledge complaints within three working days;
• will respond at stage one within 20 working days. In exceptional circumstances due to complexity of the issues raised the Council may within 20 working days advise the complainant it will take longer to respond;
• if the complaint is escalated to stage two, the Council’s head of service or a director will respond within 20 working days. In exceptional circumstances when due to the complexity of the issues it will take more time to investigate, the Council will tell the complainant within the initial 20 working day period why it will take longer to investigate and when the complainant can expect the response.

What happened

Background

21. Y is 14 and has a life-long health condition which affects his movement and coordination. From the beginning of his placement at the mainstream secondary school (School 1) in September 2021 Y struggled with attendance.

Education

22. By the end of Year 8 Y’s attendance fell to three percent. School 1 was following the Council’s attendance team’s advice. School 1 put in place a bespoke timetable including different start and end times and teachers offered to meet Y on an individual basis. School 1 also implemented other strategies to overcome Y’s barriers to school attendance and engagement but nothing worked for him.
23. In response to Mr X’s requests for alternative provision for Y in March 2023, the Council told him School 1 was responsible for Y’s education.
24. At the beginning of March 2023 School 1 referred Y to the school provision which supports children with health needs preventing them from attending their schools (Medical School). In the referral form School 1 stated Y’s attendance had been sporadic and had recently decreased even further. Medical School eventually offered a place for Y from November 2023.
25. From mid-November 2023 until the end of May 2024 Y had a place at Medical School. Y attended until Christmas 2023 but struggled to attend from January 2024. As part of this placement, Medical School liaised with School 1 and participated in the team around family meetings.
26. During the team around family meeting at the end of May, School 1 and Medical School stated they could not meet Y’s needs. In his email to the Council Mr X said School 1 and Medical School tried everything to help Y but they did not succeed.
27. In its response to my enquiries the Council said it had only found out about Y’s non-attendance at Medical School from Mr X’s email in the third week of May 2024.
28. At the end of May 2024 the Council told Mr X it would be arranging 15 hours of tutoring a week for Y with a view of increasing it. The Council issued a formal decision about tutoring for Y two weeks later and tutoring commenced.

EHC needs assessment and EHC Plan

29. Mr X asked for an EHC needs assessment for Y at the beginning of February 2023. At the end of April Mr X appealed the Council’s refusal to carry out Y’s EHC needs assessment.
30. In mid-July 2023 the Council conceded the appeal.
31. At the end of July 2023 Mr X asked the Council to obtain specific professional advice as part of the assessment of Y’s EHC needs. The Council told Mr X it had contacted all the professionals working with Y and would consult with any other person the Council thought was appropriate. The Council asked for the professional advice at the beginning of August 2023. Mr X suggested the Council should also obtain advice from any person Y’s parents reasonably requested. He asked that the Council obtain Educational Psychologist (EP), Occupational therapy (OT), Speech and Language therapy (SLT) and Physiotherapy advice from the professionals with specialist knowledge of Y’s health condition.
32. At the beginning of September the Council told Mr X it would carry out Y’s EHC needs assessment.
33. At the beginning of November the Council commissioned a sensory assessment from the independent OT provider. Mr X privately got an addendum OT report from the therapist with specialist knowledge relevant to Y’s health condition.
34. The Council received the EP advice for Y in December 2023. Two months later the EP amended her report.
35. The Council issued a draft EHC Plan for Y at the end of February 2024. When drafting Y’s plan the Council referred to two OT reports prepared in January 2024 and a Physiotherapy report prepared in September 2023. The OT addendum and the Physiotherapy reports were privately obtained by Mr X. Mr X paid £245 for the Physiotherapy report and £306 for the OT addendum report.
36. The Council told Mr X it was consulting with three school placements at the beginning of April 2024. It also asked for parental preference for a school for Y. At the end of April School 1 told the Council it could not meet Y’s needs.
37. At the end of August 2024 the Council issued Y’s final EHC Plan naming an independent specialist setting from September 2024 in Section I.

Complaint

38. In the third week of January 2024 Mr X complained to the Council. He said the Council had failed to:
• provide alternative education to Y. Mr X said since the beginning of his Year 7 in September 2021 Y was most of the time out of education apart from part-time attendance in Medical School since late November 2023;
• comply with the statutory timescales for the EHC needs assessment;
• ask for all the professional advice needed as part of Y’s EHC needs assessment.
39. Throughout February, March and April Mr X sent many emails to the Council asking for its response to his complaint and to escalate it to stage two. Having received no response Mr X contacted us in mid-April 2024.
40. After some further correspondence from Mr X and us, at the beginning of May 2024 the Council responded to Mr X’s complaint at stage one. It said:
• there was insufficient evidence to respond to Mr X’s claim of non-compliance with the Council’s responsibilities under Education Act 1996 section 19;
• it upheld Mr X’s complaint about the Council’s non-compliance with the statutory timescales for an EHC needs assessment and issuing of EHC Plan;
• there was insufficient evidence to accept or deny that the Council did not get all professional advice needed for Y during the EHC needs assessment;
• there was insufficient evidence to accept or deny the impact of the Council’s delays, lack of communication and lack of education on Y and his family.
41. In its stage two response to Mr X’s complaint the Council said it should have issued Y’s EHC Plan by the end of January 2024 but until then Y’s school remained responsible for providing him with education. The Council reaffirmed its position that an apology was a suitable remedy for the delays in Y’s EHC needs assessment and issuing of his EHC Plan. The Council said it correctly directed Mr X to the relevant services for the OT and SLT assessments and did not consider it necessary to ask for an addendum to the OT report and for the Physiotherapy advice.

Analysis

Alternative provision

42. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. In the report we said we expect council to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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;
• where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
43. The evidence suggests that the Council knew about Y’s difficulties with attending school at least from February 2023, when Mr X asked for an EHC needs assessment for Y. In March 2023 Mr X told the Council Y was not receiving any education and asked for alternative provision. The Council failed to acknowledge its responsibility and to act to ensure Y received education. The Council told Mr X that as long as Y was on School 1’s roll it was School 1’s responsibility to monitor his attendance and provide education.
44. From mid-November 2023 until the end of May 2024 Y had a place in Medical School. He could not attend it from January 2024. The Council would have known about Y’s non-attendance as it continued Y’s EHC needs assessment at the time. Besides Mr X regularly contacted the Council and complained about the lack of education for Y. The Council failed to act to ensure education offered to Y was suitable and he could access it.
45. On the balance of probabilities, I consider that if not for the Council’s fault Y would have received education from March 2023 until mid-November 2023, when Y started Medical School placement and from the beginning of March 2024 until mid-June 2024, when Y’s tutoring started.
46. The Council’s failings meant Y did not receive any education for many months. When visiting him at home, School 1’s staff noted Y was not able to engage and barely left his bedroom. On the balance of probabilities it seems more likely than not that lack of education contributed to the decline in Y’s emotional, social and mental health.

EHC needs assessment and EHC Plan

47. Following the unopposed appeal the Council should have issued Y’s final EHC Plan by the end of October 2023. It did so at the end of August 2024. The delay of ten months is fault. It caused injustice to Y as he should have got support included in Section F of his EHC Plan sooner. Lack of this support must have contributed to his difficulties in engaging with education. The Council’s fault also caused injustice to Mr X as he was increasingly frustrated by the Council’s delays and their impact on his son. He spent much time and effort communicating with the Council and attending meetings.
48. As explained in paragraph 19 of this decision when obtaining parental request for professional advice during an EHC needs assessment the Council should consider whether the request is reasonable and provide its response to the parent with its reasons. This did not happen when Mr X asked for specific advice for Y.
49. The Council told Mr X it was getting advice from the professionals involved with Y and from its EP. It failed to explain why it considered getting advice from the professionals with specific knowledge of Y’s health condition was unreasonable. This is fault. The Council’s failing to follow the right process when assessing Y’s needs meant that Mr X sought the relevant advice privately. The Council used this advice when drafting Y’s EHC Plan. This shows the Council considered this advice as necessary to get the full description of Y’s needs and to find adequate arrangements for supporting him.

Complaint handling

50. The Council delayed its response to Mr X’s complaint. It should have responded at stage one by the end of February 2024. It did so at the beginning of May and after much correspondence from Mr X and from us. The Council delayed its complaint response by over two months.
51. The Council’s responses to Mr X’s complaint at both stages show confusion about the Council’s statutory duties as well as the unwillingness to take responsibility for its actions and learn by its mistakes. This is particularly concerning with regard to the stage two response, which came from the acting head of service. Specifically the Council:
• referred to incorrect timescales for its duties after the unopposed appeal against its decision not to carry out Y’s EHC needs assessment;
• failed to recognise its responsibility for Y’s education even though he was on School 1’s roll;
• failed to apply the correct test when assessing its duties for obtaining professional advice during an EHC needs assessment;
• failed to offer suitable remedies to recognise Y’s and Mr X’s injustice.
52. The Council’s failings within its complaint handling are fault. They caused injustice to Mr X. Mr X as he spent much time and trouble trying to get his concerns resolved. He was frustrated by the lack of accountability and the Council’s unwillingness to accept its failings.

Service improvements

53. Within the last 12 months we have already recommended some service improvements to the Council:
1. regarding alternative provision:
1. in the complaint reference number 22 016 538 the Council agreed to issue written reminders to relevant staff to ensure they are aware they have a duty to fully consider individual circumstances in deciding whether there is a statutory duty to provide alternative provision for children out of school due to illness, exclusion or otherwise.
2. in the complaint reference number 22 012 609 the Council agreed to share our focus report, ‘Out of school, out of sight’, with relevant staff who oversee children out of education so staff are aware of what actions they need to take or consider when children are out of school and explain to us how it intends to monitor and review all cases of children out of school regularly, so it is in line with our focus report.
3. in the complaint reference number 23 010 313 the Council agreed to remind relevant SEND staff to keep regular oversight of any alternative provision arrangements it agrees with schools for children with EHC Plans who are not attending school. This is to ensure the Council meets its legal duty to provide the provision set out in section F of EHC Plans and to prevent gaps in a child’s education.

We now need to ensure any actions taken by the Council in response to our recommendations are robust and effective.

2. regarding the EHC Plan timescales after unopposed appeals against the Council’s decision not to carry out an EHC needs assessment – in the complaint reference number 23 021 345 in August 2024 we recommended the Council review its SEN correspondence templates with the post-Tribunal notification to ensure the Council gives parents correct timescales for its actions. We need to allow some time for the Council to implement recommended improvements.

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Agreed action

54. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mr X and Y for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Mr X £4,500 to recognise the injustice caused to Y by the lack of suitable education for him for nearly three terms from March 2023 until mid-June 2024, excluding a term between mid-November 2023 and the end of February 2024;
• pay Mr X £551 to recognise the injustice caused to him by the Council’s failure to follow the right process in response to Mr X’s request for professional advice during the EHC needs assessment for Y;
• pay Mr X £800 to recognise the negative impact of the delays within the process of Y’s needs re-assessment and issuing of Y’s EHC Plan;
• pay Mr X £350 to recognise the distress caused to him by the Council’s failing and £250 for Mr X’s time and trouble when complaining.

The total the Council will pay to Mr X is £6,451.

The Council will provide the evidence that this has happened.

55. We also recommend the Council within three months of the final decision:
1. arrange a comprehensive training for all SEND staff, including managers and staff handling SEND complaints on the Council’s duties when children are out of school because of exclusion, health or any other reason. During this training the participants will review our decisions listed in paragraph 53 of this decision;
2. arrange for a senior member of its education team to develop an action plan, including any guidance for officers, to ensure the Council meets its statutory duties when obtaining advice for EHC needs assessments and regarding education of the children who are out of school; and
3. refer the action plan, together with this decision, to the Council’s Chief Executive and the extended leadership team with the aim to involve elected members in a robust discussion about the effective plan for service improvements.

The Council will provide the evidence that this has happened.

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Final decision

56. I uphold this complaint. The Council was at fault for not taking responsibility to ensure Y received suitable education when he was out of school and for failing to comply with statutory timescales when issuing Y’s EHC Plan. The Council also failed when handling Mr X’s complaint. The Council’s fault caused injustice to Y and Mr X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman