Summary: Mrs X complained the Council failed to provide alternative provision for her son when he stopped attending school and was late to issue an amended Education, Health and Care Plan following an annual review in early 2024. We found the Council was at fault for the delay in implementing the medical tuition it had agreed to and the delay in issuing the final Plan. This caused Mrs X distress, uncertainty and likely meant that her son missed suitable education. The Council should pay Mrs X £300 to recognise the injustice she experienced and additional £1500 for the education her son likely lost.

The complaint

1. Mrs X complains the Council failed to:
• provide alternative education for her son, S, when they became too unwell to attend school in July 2023;
• deliver the content of S’s Education, Health and Care (EHC) Plan;
• communicate with her about S’s education and absence; and
• finalise S’s EHC Plan following an annual review in January 2024.
2. Mrs X says the issues caused her distress and frustration. Mrs X says the issues impacted on S’s education.
3. Mrs X wants the Council to apologise to her and to S, pay a financial remedy, and make service improvements.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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)
8. 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)
9. 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.
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
11. 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.
12. 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

13. Some of the complaint Mrs X made to us relate to the actions of S’s school. We cannot investigate actions of the school, so I have not included those in the summary of the complaint, and I have not investigated them.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Alternative provision of education for children

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”. This is sometimes called a “section 19 duty”. (Education Act 1996, section 19(1))
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
18. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
19. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. 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 mind? How councils can do more to give children out of school a good education, published in 2022)
21. 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 (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
22. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
23. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly or have missed ten school days or more without permission.” This applies to all schools, including academies.
24. 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.
25. 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.

Annual reviews of EHC Plan

26. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
27. Councils must review an EHC Plan at least every 12 months.
28. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
29. Within four weeks of the review meeting, the Council must decide whether it proposes to amend the plan and notify the young person of this decision. If it decides to amend the EHC Plan, it must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a high court decision from March 2022 says the Council must issue any draft amended plan within four weeks of the annual review meeting. The Council must issue the final amended plan within 12 weeks of the annual review meeting. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
30. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
31. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
32. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179). The transfers from primary school to secondary school is one of the key transfers.

EHC Plan provision

33. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
34. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement. 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

35. In early 2023 Mrs X contacted the Council about the issues S was facing with school attendance. At the time, his school told Mrs X that it was managing the situation.
36. S stopped attending school in July 2023. At the beginning of the next school year Mrs X asked the school to contact the Council and ask for support. The school contacted the Council, and it provided advice to school on how to support S. Mrs X says the school did not follow this advice.
37. In September 2023 Mrs X asked school for medical tuition for S for his upcoming surgery in December 2023.
38. The Council’s records show that S’s school highlighted S’s attendance to the Council in November 2023 and again in February 2024.
39. In January 2024 the Council held an annual review for S’s EHC Plan. It decided that it did not need amendments. It sent a letter to Mrs X with this information. In the same month the school requested medical tuition for S, but sent the request to a Pupil Referral Unit, rather than the Council.
40. In February 2024 the Council realised there was a pending medical request, worked with the school and agreed that S should receive medical tuition. The Council said that S’s school agreed to fund this as a reasonable adjustment.
41. In mid- February 2024 Mrs X complained to the Council. She said that S had not been attending school for the last eight months and did not get the education that he was entitled to.
42. In late February S’s school confirmed that it had sent the forms for medical tuition to be completed by S’s health consultants. It also confirmed that it needed to make changes to the annual review paperwork following comments from Mrs X.
43. The Council responded to Mrs X’s complaint in late March 2024. It said that it was concerned about S’s attendance and the current provision to deliver his EHC Plan. The Council said that one of its officers would contact Mrs X by the end of the week.
44. The following day the Council’s officer emailed Mrs X with an update. They said that:
• the school had sent the medical tuition referral early that week;
• the school was providing education for S via online tuition and activities to complete at home; and
• the school was to return the annual review paperwork after it made the changes Mrs X requested.
45. In early April Mrs X told the Council that:
• S’s school was not sending any work for S to complete between September 2023 and February 2024 as it believed he was too unwell to complete the work at home, despite his consultants saying otherwise;
• S’s school started sending work sheets for him home in February 2024 and started 20–30-minute weekly calls;
• Mrs X told the school this was insufficient as Mrs X still had to support S to access the learning which prevented her from working; and
• the Council suggested the use of a robot, but the school had concerns and did not implement this.
46. A couple of weeks later, the Council’s records show that it considered the school should be taking steps to allow S to attend school and exploring the use of the specialist robot. At the time the Council considered that it would not be suitable to arrange alternative provision for S away from school because it considered that he had a school place that could meet his needs with reasonable adjustments in place.
47. In late April the Council reached out to S’s consultants and asked for input in planning his medical tuition. Mrs X questioned why the Council was only now asking for this input when the medical tuition was agreed in February 2024.
48. In May the Council asked its Inclusion team to be involved and advise on provision that could be made available for S. In the same month S’s school held another annual review meeting for S’s EHC Plan.
49. From June 2024 he started getting four hours per week of tuition. The Council said that it decided four hours per week would be sufficient provision to met S’s needs and this could potentially increase if he coped well. The Council noted that at the time it believed that apart from the four hours of tutoring S was also accessing small group sessions and online sessions to accompany this learning and create opportunities for social interaction with his peers. The Council’s Team Around the Family meetings notes show that Mrs X said that initially S found it difficult to attend the two hour long tutoring sessions because of the intensity.
50. In early July Mrs X asked the Council to reassess S’s needs to amend his EHC Plan. Mrs X said the Council failed to respond to her request within the statutory 15 days.
51. In late July 2024 the Council decided that its section 19 duties (sometimes called alternative provision duty) were not engaged. It explained this to Mrs X in an email, where it said that it considered S had access to suitable education in his school with the appropriate reasonable adjustments to allow him to attend.
52. The Council responded to Mrs X’s complaint about the delays in the EHC Plan process in mid-August 2024. It:
• apologised for not responding to Mrs X’s request for a reassessment of need and confirmed it would do it on the same day; and
• apologised for its delay to issue a response following the May 2024 annual review meeting; this was done few days prior to the complaint response.
53. On the same day the Council told Mrs X that it would not reassess S’s needs. This was because it considered that there were no significant changes since the last review meeting in 2024 which resulted in a decision not to amend S’s EHC Plan.
54. Mrs X was unhappy about the Council’s decision, and she asked the Ombudsman to investigate.

Analysis

Alternative education since July 2023

55. Between July 2023 and early 2024 Mrs X was working with the school to address S’s attendance issues. It is our understanding that from September 2023 S had access to online provision the school prepared for him. From what we can see, the school first made the Council aware about S’s attendance in November 2023. At the time, the Council believed the school was supporting S in improving his attendance.
56. We cannot say the Council was at fault for not provision alternative provision before it was aware of the school’s failed attempts to support S’s attendance.
57. The Council became involved in February 2024 when it realised that the school had made a request for medical tuition, albeit sent to the provider rather than the Council. Following this it promptly agreed that the school should arrange the agreed medical tuition for S. Alongside the tutoring, the school agreed to weekly calls and activities for S to complete at home.
58. Following this agreement, there seems to be a significant delay in implementing the tuition until June 2024. The school agreed to arrange the tuition, and the Council can delegate this task to it. However, if the school fails, we expect the Council to step in as it cannot delegate the responsibility to the school for ensuring that S had the medical tuition he was entitled to. We consider the Council was at fault for not stepping in and implementing the medical tuition itself sooner than June 2024.
59. This led to a significant delay in S accessing the tuition the Council agreed he needed.
60. I have decided not to make service improvements as the Council is in the process of implementing an extensive improvement plan which suitably addresses the faults I have found in this decision statement.
61. In late July the Council’s notes suggest that it considered S no longer met the criteria for medical tuition and that he should be reintegrated back into school. This is a decision the Council is entitled to make based on information it had available from school and from the professionals working with S. We have not found fault in how the Council made this decision and because of this we cannot question the decision itself.

Delivery of Education, Health and Care Plan

62. Mrs X said that S missed out on provisions from section F of his EHC Plan when he was unable to attend school.
63. We looked at the interventions written into S’s EHC Plan and they are mostly designed to be delivered in a school setting. Between September 2023 and February 2024 the Council considered S had a suitable school place that was named in his EHC Plan and would be able to deliver those provisions.
64. Mrs X did not raise concerns with the Council before early 2024 about S’s school not sending work home for him. Because of this we cannot ask the Council to act about something that it was not aware of.
65. However, once the Council agreed in February 2024 it should have given consideration if there were other aspects of his Plan that could have been delivered to him when he could not attend school. This is fault. It cased Mrs X uncertainty about what, if anything, the Council would have implemented for S had it considered the contents of his EHC Plan.
66. In early 2024 the school started to send activities for S to complete at home during times he felt he was able to do it. It also had weekly calls and check ins with the family. We consider this partially meets the requirements of S’s EHC Plan however it does not take uncertainty Mrs X experienced about what else, if anything, the Council could have implemented after February 2024.

Communication standards

67. Mrs X said that her communications with the Council fell below the expected standard.
68. Having looked at the email exchanges we can see that some of her emails and questions went unanswered for extended periods. The records show in July 2024 the Council answered the questions Mrs X asked in March and April 2023.
69. We consider this delay in addressing her concerns amounts to fault. This caused Mrs X avoidable frustration and uncertainty about the Council’s processes and decision making.

EHC Plan following an annual review in January 2024

70. The Council accepted that it was at fault for the delay in issuing a response letter to Mrs X following the annual review meeting in January 2024 and later her request for a needs reassessment.
71. The Council has apologised and issued both responses to Mrs X, which gave rise to her appeal rights against both the decision to not amend S’s EHC Plan and not to reassess his needs.

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Action

72. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and S for the delay in arranging the medical tuition for him between February 2024 and June 2024. The Council should refer to our guidance on making an effective apology;
• pay Mrs X £1500 for the educational provision S missed as a result of the delay in implementing his tuition between February and July; and
• pay Mrs X £300 to recognise the avoidable distress, frustration she experienced as a result of some of her questions not being answered at the time she made them and the distress she experienced as a result of the delay in implementing the medical tutoring for S.
73. The Council should provide us with evidence it has complied with the above actions.

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Decision

74. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman