Summary: Mrs X complained the Council delayed issuing an education, health and care plan, did not get or consider important information, failed to provide alternative education, and handled her complaint poorly. She said this caused distress and anxiety, and meant her child lost out on education. We find the Council at fault and this caused injustice. The Council has agreed to apologise, make a payment to Mrs X, and improve its service.

The complaint

1. Mrs X complained about the way the Council handled her child’s education and special educational needs. Specifically, she complained the Council:
1. delayed issuing her child’s education, health and care plan;
2. failed to get the professional assessments she asked for;
3. did not consider the private psychology report she provided;
4. failed to provide alternative educational provision when her child could not attend school; and,
5. handled her complaint poorly.
2. Mrs X said this caused unnecessary and avoidable distress and anxiety. She said the stress exacerbated her illnesses. She said the impact on her child is that they were not at school and were not receiving any education, they were isolated and lonely. She said there has been a financial impact of having her child at home every day, and paying for private reports.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. As I have said above, we cannot investigate late complaints unless we decide there are good reasons. In this case, Mrs X complained to us in July 2024. She first complained to the Council in June 2023 about issues going back to May 2022.
11. This would usually mean that we would not investigate further back than July 2023 (12 months before she complained to us). However, in this case the Council delayed responding to Mrs X’s complaint by nine or ten months. If the Council had responded to Mrs X’s complaint when it should have, and if Mrs X had complained to us without delay (as she did later on), we would look back to November 2022.
12. I therefore find there are good reasons for us to exercise our discretion and look back at events from November 2022 onwards.
13. Mrs X complained the Council failed to get the professional assessments she asked for to inform her child’s education, health and care (EHC) plan (part b of the complaint) and did not consider the private psychology report she provided (part c of the complaint). These both relate to the EHC plan.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. Parts b and c of the complaint relate to the content of the EHC plan. Mrs X had the right to appeal the EHC plan, which she did. For this reason, I cannot investigate parts b or c of the complaint.
16. The above also means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
17. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
18. Mrs X complained the Council failed to provide alternative education when her child, B, could not attend school (part d of the complaint). B stopped attending school in March 2023 for health reasons. The Council issued B’s EHC plan in December 2023. This gave Mrs X the right to appeal the plan. Mrs X exercised that right and appealed content of the plan and the named placement (B’s existing school), among other things.
19. B was not attending school. The reason for B’s non-attendance is linked to Mrs X’s disagreement about the educational placement in the EHC plan. For this reason, I cannot investigate a lack of alternative educational provision from the date Mrs X had the right to appeal the EHC plan. This was in December 2023.
20. The end of the scope of my investigation is August 2024, when the Council issued its final complaint response. At that time, the Tribunal process had not concluded.
21. For these reasons, I cannot investigate any lack of alternative educational provision from December 2023 to August 2024.
22. Therefore, for part d of the complaint, I have investigated B’s alternative educational provision between March 2023 (when they stopped attending school) and December 2023 (when Mrs X had appeal rights).
23. 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). 

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How I considered this complaint

24. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
25. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, health and care plans

26. A child or young person with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
27. A council will do an EHC needs assessment and decide if the child needs an EHC plan. If the council decides an EHC plan is not necessary it must notify the child's parents of its decision and of their right to appeal that decision.
28. If a parent appeals a decision not to issue an EHC plan, and the council concedes that appeal before a Tribunal hearing, the council must issue the EHC plan within 11 weeks of the council notifying the Tribunal.

Alternative educational provision

29. 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.
30. 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”.

What happened

31. In September 2022, the Council decided to do an education, health and care (EHC) needs assessment for Mrs X’s child, B. In December, the Council decided not to issue an EHC plan for B. Mrs X appealed this decision.
32. In March 2023, B stopped attending school. In June, Mrs X complained that B had been out of education since March. She asked the Council to provide alternative educational provision for B.
33. The Council replied. It said it had arrangements for supporting children’s attendance in school and for providing alternative provision for children who were too unwell to attend school. It said B’s school was working with the Council’s attendance team. The Council said B’s school would be able to work with the Council to make sure B got alternative provision.
34. In August, before the Tribunal hearing, the Council decided it would issue an EHC plan for B.
35. In September, Mrs X asked the Council to further consider her complaint. She also chased the Council for a complaint response.
36. In October, Mrs X asked the Council to provide an Education Otherwise Than At School (EOTAS) for B. She again asked the Council to consider her complaint further.
37. In November, the Council told Mrs X it would respond to her complaint within four weeks. It said it would keep her updated about the progress of her complaint. A week later, Mrs X asked for an update on her complaint.
38. In December, the Council issued B’s EHC plan.
39. In January 2024, the Council met with Mrs X. It said the school had made a medical referral to the Council about B’s absences. The Council said it was arranging a tutor for B.
40. In February, the Council asked Mrs X to clarify what her complaint was about. It said it would respond within 20 working days of her reply.
41. In April, Mrs X chased the Council for a complaint response. The Council said it needed more time.
42. In July, Mrs X complained to the Ombudsman.
43. In August, the Council sent Mrs X its final complaint response. It recognised B had been out of education since March 2023. It recognised the delay responding to Mrs X’s complaint. It apologised and offered her £75.

Analysis

Issuing the education, health and care plan

44. Mrs X complained the Council delayed issuing her child’s education, health and care (EHC) plan (part a of the complaint).
45. As I have said above, if a parent appeals a decision not to issue an EHC plan, and the council concedes that appeal before a Tribunal hearing, the council must issue the EHC plan within 11 weeks of the council notifying the Tribunal.
46. In this case, Mrs X appealed the Council’s decision not to issue B with an EHC plan. In August 2023, the Council changed its mind and decided to issue an EHC plan. The Council notified the Tribunal of this on the same day.
47. 11 weeks from the date the Council notified the Tribunal was mid-November. The Council actually issued the EHC plan at the end of December. This is a delay of one and a half months. This is fault.
48. I find this fault caused Mrs X injustice in that it delayed her right to appeal the plan.
49. The Council has accepted that it issued B’s EHC plan late. It has offered to apologise to Mrs X and make a payment of £200 to remedy the injustice here. I am satisfied that these remedies reflect the level of injustice, and are appropriate and proportionate.

Alternative educational provision

50. Mrs X complained the Council failed to provide alternative educational provision when her child, B, could not attend school (part d of the complaint).
51. I have investigated B’s alternative educational provision between March 2023 (when they stopped attending school) and December 2023.
52. In February, before B stopped attending school, the family support worker referred B to the Council’s legal intervention team. This team is in place to work with children with poor school attendance. The team agreed to offer B support from an attendance project. The aim of this was to support B to return to regular school attendance.
53. In May, the Council’s legal intervention team met with B’s school to discuss alternative educational options for B. In June, they met again. The team and the school decided the case needed to go to the Council. They told Mrs X to contact the Council and ask for alternative provision for B.
54. Mrs X asked the Council for alternative provision immediately after the meeting. The Council said if its legal intervention team and B’s school agreed that B needed alternative provision, then the school would be responsible for it. The Council told Mrs X to speak to B’s school.
55. In July, the Council told Mrs X it was important to allow time for the school to consider and attempt reasonable adjustments to get B back into school before the Council arranged alternative provision. It said its intervention and support service would keep working with the school to make sure B could access appropriate educational provision while the plan to reintegrate them into school was underway.
56. Also in July, the Council’s legal intervention team stopped working with B.
57. Mrs X said that between March and December 2023, the school sent no work home for B. She said B got no provision in that time.
58. I am satisfied that the Council’s legal intervention team was working with B between March and July to try to reintegrate them back into regular school attendance. I am satisfied the Council was involved with the school and regularly liaised with the school. I am also satisfied there were regular reviews with the school and the Council’s legal intervention team. This was appropriate.
59. Regarding the autumn term, the Council contacted B’s school in August and October because the school had not made a medical referral to the Council about the reasons B could not attend. Also, the Council pointed out that the school was still recording B’s absences as authorised because of ill health.
60. After many attempts, the Council managed to speak to the head teacher. The head teacher told the Council B would not return to the school, and Mrs X wanted an Education Otherwise Than At School (EOTAS) for B. The Council told the head teacher to complete a medical referral.
61. The school sent the medical referral to the Council in December.
62. The Council told the Ombudsman Mrs X was “satisfied with the change in approach that had been taken by the school in supporting [B]” after its legal intervention team stopped the attendance programme with B in July.
63. I am not persuaded by this statement. Mrs X emailed the Council in June, after the meeting with the school and the Council’s legal intervention team. At this meeting, it was agreed that the case needed to go to the Council. Mrs X was told to contact the Council and ask for alternative provision, which she did immediately. Also, Mrs X emailed the Council in October asking for EOTAS.
64. For these reasons, I am not persuaded Mrs X was satisfied with the school’s change of approach in supporting B. I find B did not get any provision from the school or the Council during that term.
65. The Council said it did not consider its section 19 duties to provide alternative provision were triggered until June 2023, when it asked the school to complete a medical referral.
66. I find no fault with this decision. It is clear that B’s school was working with the Council’s legal intervention team from March to the end of the summer term with the aim of reintegrating B into regular school attendance. For that reason, I do not consider the Council had a legal obligation to arrange alternative educational provision for B during that time.
67. However, B did not return to school in September. The school marked B’s absences as authorised because of ill health. The Council asked the school to make a medical referral for B in August and October. However, when the school did not provide this, the Council should have taken action. The Council did not act until it received the school’s medical referral in December. The Council should not have waited to receive this form to act.
68. The guidance says if specific medical evidence 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”.
69. I find the Council did not act in line with the guidance. The Council did not act to ensure minimal delay in arranging appropriate provision for B.
70. The Council said its section 19 duties were triggered in June 2023. I therefore find the Council should have made sure to arrange alternative provision for B from September onwards.
71. I consider this fault meant B lost educational provision for the autumn term. Also, by the Council not acting sooner to arrange alternative education for B, this caused Mrs X uncertainty. These are injustice.

Complaint handling

72. Mrs X complained the Council handled her complaint poorly (part e of the complaint).
73. In August 2024, the Council told us that an administrative error meant a significant delay in the Council responding to Mrs X’s complaint.
74. Mrs X asked the Council to further consider her complaint in either September or October 2023. The evidence here is conflicting but I am not persuaded it makes a lot of difference.
75. This means the Council should have sent its final complaint response in October or November 2023. The Council actually sent it in late August 2024. This is a delay of nine or ten months. This is fault.
76. Also, the Council failed to keep Mrs X informed of progress with her complaint, despite saying it would. This is fault.
77. These faults caused Mrs X injustice in that they caused unnecessary and avoidable distress and uncertainty. Mrs X also spent a lot of time and trouble chasing the Council for a response.
78. In its final complaint response, the Council apologised for the delay. I find the apology is unsatisfactory. The Council apologises for the delay but fails to recognise the injustice caused by the delay.
79. Our published guidance on remedies suggests a maximum payment of £500 for distress and uncertainty. Given the significant delay, the lack of updates, the amount of time and effort Mrs X spent chasing the Council for a response, and that the Council failed to send a final response until the Ombudsman got involved, I do not consider the Council’s offer of £75 is adequate or proportionate.

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Action

80. Within four weeks of this decision, the Council has agreed to apologise in writing to Mrs X for:
• delaying Mrs X’s appeal rights by delaying issuing B’s EHC plan, as the Council suggested (part a of the complaint);
• the impact of the lost term of educational provision on B (part d of the complaint);
• the uncertainty caused by failing to act to arrange alternative provision for B (part d of the complaint); and,
• the unnecessary and avoidable distress and uncertainty caused by the Council’s delay responding to Mrs X’s complaint. Also, for the amount of time and trouble Mrs X spent chasing the Council for a response (part e of the complaint).
81. 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 this apology and future apologies.
82. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £2950. This is made up as follows:
• £200 to remedy the injustice caused by the delay issuing B’s EHC plan (part a of the complaint), as suggested by the Council;
• £2000 for the term of missed provision (part d of the complaint). Our guidance on remedies suggests a payment of between £800 and £2000 per term of missed provision. I have considered that no educational provision was provided to B at all during that term. I have also taken into account that the Council knew its section 19 duties had been triggered in June, and that the Council was waiting for a form from the school in order to take action. For these reasons, I consider the highest payment is appropriate and proportionate to the level of injustice caused here;
• £350 to remedy Mrs X’s uncertainty which was caused by failing to arrange alternative educational provision (part d of the complaint). Our guidance on remedies suggests a maximum payment of £500 for uncertainty. In this case, I have taken into consideration that Mrs X spent a lot of time and effort repeatedly trying to get the Council to arrange provision for her child. For this reason, I consider a higher-level payment is required here. I consider £350 is appropriate and proportionate to the level of injustice; and,
• £400 for the distress, uncertainty and Mrs X’s time and trouble caused by the significant delays responding to her complaint (part e of the complaint). As I have said above, our published guidance on remedies suggests a maximum payment of £500 for distress and uncertainty. Given the significant delay, the lack of updates, the amount of time and effort Mrs X spent chasing the Council for a response, and that the Council failed to send a final response until the Ombudsman got involved, I consider a higher-end payment of £400 is appropriate and proportionate to the level of injustice here.
83. Within three months of my final decision, the Council has agreed to remind all relevant staff, including managers, of the Council’s duty to provide alternative educational provision. The Council should remind staff not to wait for forms from schools: the Council must not delay arranging alternative provision.
84. The Council should provide us with evidence it has complied with the above actions.

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Decision

85. I find fault causing injustice. The Council has agreed to take action to remedy injustice and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman