Summary: Mrs Y complains the Council failed to ensure her child, W, received a suitable education once they stopped attending primary school. We find there was some delay by the Council in finalising and issuing W’s EHC plan after the SEND Tribunal’s order. However, this delay did not cause a significant injustice because the plan named the school which W was already on roll at. We do not find the Council’s duty to provide alternative provision was triggered because the school said it was supporting W with her reintegration and the attendance records suggested that W was receiving provision off-site.

The complaint

1. Mrs Y complains that:
1. the Council applied an unlawful test when it decided not to carry out an Education Health and Care (EHC) Plan needs assessment for her daughter in early 2023.
2. the Council failed to ensure her daughter received a suitable education between May and December 2023 when she was on a part-time timetable, and from December 2023 she was out of school altogether.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)

Back to top

What I have and have not investigated

6. We cannot investigate Mrs Y’s complaint a) as summarised in paragraph one of this statement. This is because the matter has been considered by the SEND Tribunal. However, we have investigated complaint b).

Back to top

How I considered this complaint

7. During my investigation I considered the notes of a telephone call made to Mrs Y to discuss her complaint. I also considered the written information she submitted to us.
8. We made enquiries of the Council and considered its response alongside the relevant law and guidance.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Law and guidance relevant to this complaint

EHC assessments and plans

11. 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.
12. Amongst other points, there is a right of appeal to the Tribunal against the decision not to assess or issue an EHC plan, the description of a child or young person’s SEN, the special educational provision specified, and the school or placement named in Section I.
13. Once the Tribunal issues an order, local authorities must comply within certain time limits as set out in Regulation 44 of the SEND Regulations 2014. This says that a local authority must notify the child's parent or the young person within two weeks of the order that it shall make the assessment or reassessment and shall:
1. where, following the assessment or reassessment, the local authority decides that it is not necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, notify the child's parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date of the First-tier Tribunal's order; or
2. where, following the assessment or reassessment, it decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal's order.

Section 19 duties

14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. Statutory guidance, ‘Arranging education for children who cannot attend school because of health needs (Dec 2023)’ says the duty to provide a suitable education applies, “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. 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))
16. The statutory guidance also makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged suitable education outside of school.
17. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)

What happened

18. W has Autism, ADHD and SEN. From April 2019 until May 2023 W attended a mainstream primary school in the Council’s area on a full-time basis. School attendance certificates for 2021 and 2022 show that W had around 98% attendance.
19. In April 2023 the Council received a request to assess W for an EHC plan.
20. On 1 June 2023 the Council wrote to Mrs Y confirming its decision not to assess W for an EHC plan. Mrs Y appealed this decision.
21. The school attendance certificate for the period 4 September 2023 to 21 July 2024 shows that W’s attendance dropped to 27%. Most of the absences were authorised by the school as “approved education activity as pupil educated off site”.
22. W’s primary school notified the Council on 11 September 2023 that it had implemented a part-time timetable for W.
23. An Early Health service provided by CAMHS [Children and Adolescent Mental Health Service] confirmed its view on 19 October 2023 that the school was not meeting W’s educational needs.
24. The SEND Tribunal considered Mrs Y’s appeal and issued an order on 11 December 2023. The order noted W’s low attendance and the school’s decision to place W on its SEN register. The SEND Tribunal ordered the Council to assess W for an EHC plan.
25. Mrs Y privately commissioned a tutor for W from 14 December 2023. The tutor delivered two hours of 1:1 provision each week covering Maths and English.
26. On 27 February 2024 Mrs Y complained to the Council. She said W had been receiving part-time education from the school but had not attended at all in the previous two months.
27. In March 2024 W’s school created a reintegration plan with objectives to reintegrate W back into school and prepare W for the next stage of education. The headteacher acknowledged the plan was “too little, too late” for W.
28. Following the order of the SEND Tribunal, the deadline for the completion of W’s plan was 17 March 2024. The Council issued the final EHC plan on 12 April 2024. This named the mainstream primary school where W was already on roll. From September 2024 the Council named an independent secondary school.
29. The decision to name the mainstream primary school in Section I of the plan carried a right of appeal to the SEND Tribunal.
30. The school removed W from their roll in August 2024 as the primary phase of education ended for W who was due to start secondary school the following month.

Was there fault in the Council’s actions causing injustice to Mrs Y and W?

31. Councils have a duty to ensure the provision of full-time or equivalent education for children absent from school for 15 or more days due to exclusion, illness or otherwise. The Ombudsman recommends that Councils arrange appropriate provision without delay and keep that provision under review to ensure it is at a level and frequency which is suitable for the young person.
32. In response to our enquiries the Council confirmed that W’s school did not inform the Council that W had stopped attending. The records show the school contacted the Council in September and October 2023 about a part-time timetable. The school did not say that W had stopped attending completely.
33. The Council advises that its admissions team did not receive any in-year applications from Mrs Y to enquire about a change of school. Nor did the Council receive any formal notification that W was removed from the school’s roll or had stopped attending. The Council says the attendance certificates show that W attended the school from September 2023 with some authorised absences showing W received education off-site. As it appeared from the files that W was receiving education, the Council took no action to arrange alternative provision.
34. Mrs Y points out that she told the Council in February 2024 that W had stopped attending school. She says the Council should have accepted this as notification of W’s absence and this should have triggered its duty to provide alternative provision under Section 19. I have considered this point alongside the records the Council has shared with us. These show that in the month following Mrs Y’s complaint W’s school shared a re-integration plan with carefully planned steps to help support W’s attendance at school. The statutory guidance says the Section 19 duty is not triggered if the child is being educated offsite or is receiving support from the school to increase their attendance.
35. In my view, there was no fault by the Council for not arranging alternative provision between May 2023 and April 2024. The records appeared to show that W continued to attend the primary school albeit on a part-time basis with authorised absences to allow for education ‘off-site’. The school had also produced an action plan with measures in place to support W’s attendance.
36. However, there was some fault by the Council because the provision of W’s final EHC plan was delayed by just under four weeks. The plan named the mainstream primary school which W was already on roll at, but with some tailored provision to make adjustments for W in school. In my view, the short delay of four weeks did not cause significant injustice to W who continued to have access to the school which the Council deemed to be appropriate for their needs. Any disagreement about this would be a matter for the SEND Tribunal to decide.

Back to top

Final decision

37. I have completed my investigation with a finding of fault causing no significant injustice for the reasons explained in this statement.

Back to top

Investigator's decision on behalf of the Ombudsman