Summary: Mrs X complained the Council failed to provide appropriate education for her child, Y and delayed issuing him with a final Education Health and Care Plan. She also complained its communication with her was poor. We found fault by the Council on all parts of Mrs X’s complaint. As a result Y missed education he was entitled to, and he and Mrs X were caused distress, frustration and put to avoidable time and trouble. The Council agreed to apologise and make a payment to Mrs X and Y in recognition of the injustice caused to them.

The complaint

1. Mrs X complained the Council failed to provide appropriate education for her son, Y and delayed issuing him with a final EHC Plan. She also complained council officers failed to communicate with her properly.
2. Mrs X stated the Council’s actions have resulted in Y missing education he is entitled to. It also caused her and Y distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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.
7. 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)
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)

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What I have and have not investigated

9. I have investigated matters which occurred between May 2023 and May 2024, when Mrs X complained to us.
10. I have not investigated Mrs X’s concerns about matters which happened before May 2023. These parts of Mrs X’s complaints are late and there is not enough reason to accept these parts of it for investigation now.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. I set out my initial thoughts on the complaint in a draft decision statement and invited Mrs X and the Council to comment.

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What I found

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. 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)
15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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))
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. The statutory guidance 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”.

Ombudsman focus report

19. 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
20. 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.
21. 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.

Education, Health and Care (EHC) Plan.

22. 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. 
23. 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);  
• 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.

What happened

24. What follows is a summary of the key events. It does not show everything that happened.
25. Y has complex health needs, low mood and anxiety.
26. In February 2023 Y stopped attending school (School 1) because he was too anxious to do so. Y was under the care of the Children Adolescent Mental Health Service (CAMHS) and it authorised Y’s absence from school.
27. In March 2023 School 1 made a request to the Council for alternative provision for Y because he could not attend school despite it trying various measures to help him to do so.
28. Meanwhile Mrs X was asking the Council for help to arrange alternative provision for Y. The Council told her it could only offer its Community and Hospital Education Service (CHES). This is a short-term service that focuses on integrating children back into school. Mrs X said this would not be suitable for Y’s needs.
29. In May the Council told Mrs X it would not provide Y with any alternative provision because there was insufficient evidence supporting, he could not attend for medical reasons.
30. Mrs X challenged the Council’s decision and asked it what evidence it required if information from CAMHS was not sufficient.
31. The Council reconsidered Y’s case and in early June he began to receive online tuition and extra-curricular activities for 10-15 hours per week.
32. In July an Education Health and Care Plan Needs Assessment (EHCNA) was submitted for Y.
33. Also in July Mrs X asked the Council about a transition plan to help Y when he transfers to secondary school (School 2) in September. Mrs X said she was concerned the measures proposed by School 2 would not help Y. She asked the Council for an Education Other Than At School (EOTAS) package for Y.
34. In August Mrs X made a stage one complaint. She complained that:
• Y’s Education Welfare Officer did not attend a meeting about Y’s education, despite it being arranged to facilitate her attendance.
• Y’s Education Welfare Officer did not explain that its CHES service was all that it could offer. It then said it would discharge its duty to Y because she did not support a referral to the service.
• Officers do not reply to her communications or request for calls. This includes managers within the service.
• Y is still too unwell to attend school. The Council have not replied to her request for an EOTAS package for him in September.
35. In September Y was too unwell to start School 2. There was no EOTAS package in place for him.
36. Mrs X contacted the Council for help arranging suitable education for Y. She also chased up a reply to her complaint.
37. Meanwhile Mrs X found two hours of alternative provision for Y per week. She decided to fund the provision at a cost of £100 per week.
38. In November a meeting was held to discuss Y’s case. It was agreed the Council would pay for the alternative provision arranged by Mrs X until it issued him with an EHC plan. It also said it would refund the amount she had paid towards the provision.
39. In February 2024 Mrs X asked the Council for an update on the progress being made with Y’s EHC Plan and when she would receive the refund for Y’s alternative provision.
40. In March Mrs X made a stage two complaint to the Council. Her grounds of complaints remained the same. She also complained about its handling of her earlier complaint.
41. In April the Council agreed to pay for up to six hours per week of online tuition for Y. However there were problems setting up the tuition with confusion about whether the Council or School 2 were funding the provision.
42. Meanwhile the Council replied to Mrs X’s complaint. Its reply said:
• communication with Mrs X was poor and it apologised.
• it did not discharge its duty of care to Y when Mrs X refused its CHES service. It has continued to work with Y.
• it thought Y was attending School 2 and the school had made efforts to accommodate Y. However the communication between its officers and the school was not effective.
• Y has been allocated a Belonging Officer to work with him and School 2, however the officer has been unwell and so this did not go as planned. The Council agreed to pay for the alternative provision previously paid for by Mrs X.
• a draft EHC Plan has been sent to Mrs X and it includes the changes she requested. It has sent a consultation to Mrs X’s preferred specialist education provider to see if it can offer Y a placement. It is waiting for the provider’s reply.
• it will review some of its process because of Mrs X’s complaint.
43. Following receipt of the Council’s reply to her complaint, Mrs X asked the specialist provider if it would reply to the Council. The provider told Mrs X that it was waiting for the Council to confirm Y’s placement with it.
44. Unhappy with the Council’s reply to her complaint Mrs X complained to the Ombudsman. She provided copies of emails demonstrating her efforts to communicate with the Council.
45. We made enquiries of the Council. It told us:
• its Education Welfare Service (EWS) supported Mrs X by attending meetings led by CAMHS, requesting information from its Special Educational Needs (SEN) team and exploring alternative provision for Y.
• its EWS recorded the long-term plan was for Y to not attend School 2, as supported by CAMHS. It also agreed CHES would not meet Y’s complex needs and this was also supported by CAMHS. It was therefore arranging as bespoke education package for Y.
• a final EHC Plan was issued to Y in July 2024.

Finding

46. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education though exclusion, illness or otherwise.
47. When a child refuses to go to school because of anxiety, the Council need to consider whether the education offered to the child is “reasonably available and accessible”.
48. The Council became aware in February 2023 that Y was not attending school and so its section 19 duty was engaged at the start of the period I am investigating.
49. In May the Council concluded Y did not meet the criteria for section 19 because there was insufficient evidence, he could not attend school for medical reasons. I have seen no evidence demonstrating that it made enquiries of the professionals working with Y, and so I am unsure how it reached this decision. This is fault.
50. I note the Council reconsidered its decision and provided Y with 10-15 hours of provision from June 2023. I am therefore satisfied it complied with its section 19 duty from then until the end of term.
51. Y started School 2 in September 2023 and Mrs X told the Council he was not attending that month. The Council’s section 19 duty was engaged again from this point.
52. The Council’s reply to our enquiries says it accepted School 2 was not suitable for Y and the CHES was not appropriate, and so it was tailoring a bespoke package of education for Y. However I have seen no evidence demonstrating it was actively doing so. This is fault. Y did not receive any alternative provision, save for that sourced by Mrs X, until the summer term. This is injustice.

EHC Plan Needs Assessment

53. We expect councils to follow the statutory timescales set out in the law and the Code which is statutory guidance.
54. The Council received an EHC needs assessment in mid-July 2023. The statutory time-limit to issue a final EHC Plan is 20 weeks from the date of the request. The Council should have issued Y’s final plan by December 2023. It issued the plan in July 2024, a delay over seven months. This is fault.
55. The delay caused Mrs X and Y uncertainty and frustration. This is injustice.

Communication

56. The Council’s reply to Mrs X’s stage two complaint accepts communication with her was poor. I agree. Case file notes and correspondence provided by Mrs X shows the Council did not:
• reply to her stage one complaint in writing and delayed in arranging a meeting to discuss it with her;
• attend meetings as planned;
• liaise effectively with Y’s schools to keep oversight of his case; and
• did not update Mrs X on matters or reply to her requests for information, meetings and telephone calls with senior staff.

This is fault.

57. The fault caused Mrs X additional frustration and put her to the avoidable time and trouble of pursuing matters. These communication problems also contributed to the delays identified above.

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Agreed Action

58. Within in one month of my final decision the Council will:
• Apologise to Mrs X in writing for the avoidable distress, frustration and time and trouble caused by the identified fault. 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 Mrs X a symbolic payment of £500 for the distress and frustration caused to her and Y by the delay in issuing Y’s final EHC Plan and its poor communication with her.
• Pay Mrs X £ 3600 in recognition of Y’s lost educational provision between May 2023 and May 2024. This figure considers Y had some alternative provision in the summer term of May 2023 and that he benefited from the provision sourced by Mrs X from September 2023. It also considers the period covers Y’s transfer to secondary school and the impact of Y missing education during this important period.
59. Within in six weeks of my final decision the Council will share a copy of my final decision with its education welfare and special educational need staff to identify learning from this complaint.
60. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

61. I have completed my investigation. There was fault by the Council causing an injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman