Summary: Mr and Mrs X complained about the way the Council dealt with their child, P’s education and special educational needs provision. We have found fault by the Council, causing injustice, in failing to provide P with a suitable education and with its complaint handling. The Council has agreed to remedy this injustice by: apologising; making payments to reflect the distress caused to Mr and Mrs X and the impact of the missed education on P.

The complaint

1. Mr and Mrs X complain about the way the Council dealt with their child, P’s educational and special educational needs provision. They say the Council failed to:
1. provide P with a suitable full-time education, as required by Section 19 of the Education Act 2016, from September 2023 to July 2024. P was unable to attend school during this period for medical reasons because of their autism related social anxiety; and
2. complete the Education Health Care needs assessment process for P within the statutory timescales. It then delayed issuing a final plan naming an appropriate placement.
2. Mr and Mrs X say, because of the Council’s failures, P missed out on a suitable education throughout year 6. The delay naming the placement meant they missed out on the transition and preparatory work for their move to secondary education. The damage caused has affected P’s future and is irrevocable. They want a full apology and redress from the Council for its failings.

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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.
4. 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)
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)
6. 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

Events from 28 March 2024

7. 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
8. I have not investigated Mr and Mrs X’s complaint about issues relating to the naming of P’s placement which arose after 28 March 2024.
9. This is because:

• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter;
• 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); and
• 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.

10. Mr and Mrs X had the right to appeal against the Council’s decision to name a mainstream school as P’s placement in the final plan issued on 28 March 2024. They went on to appeal to the Tribunal against this decision.
11. On this basis, I consider the complaint about the delay in naming Mr and Mrs X’s preferred school as P’s placement for September 2024 was part of their appeal to the Tribunal.

P’s alternative provision from March 2024

12. I have investigated that part of Mr and Mrs X’s complaint about P’s alternative provision which concerns the period from March to July 2024. This is because:

• we can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal; and
• in my view, Mr and Mrs X’s complaint about the Council’s continuing failure to make alternative provision for P from September 2023 to July 2024 is not connected to their appeal about the naming of P’s placement from September 2024.

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How I considered this complaint

13. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
14. Mr and 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

What should have happened

Timescales and process for EHC assessment and EHC Plans 

15. 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.
16. 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);  
• The council 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.

17. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative provision

18. 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.
19. 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)
20. 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’)

Our expectations of councils

21. 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
22. We made six recommendations and said councils should:

• consider the individual circumstances of each case and be aware that they 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

23. 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.

What happened

24. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
25. Although some of the contact with the Council may have been by Mr X and/or Mrs X, I have referred to all contact and complaints as being made jointly by Mr and Mrs X.

Background

26. P moved to a new primary school in June 2023. They struggled to attend school from the start of the new school year in September 2023.
27. On 25 September 2023, Mr and Mrs X asked the Council to carry out an EHC needs assessment for P. They told the Council, in the request, P was unable to attend school because of their anxiety issues.

October 2023: Council’s response to the EHC needs assessment request

28. On 5 October Mr and Mrs X told the Council P was unable to attend school because of their autism and related anxiety. They provided a letter from the GP confirming P was experiencing high levels of anxiety particularly in, and when contemplating, school. They asked the Council to provide P with alternative provision under S19.
29. In its response to the EHC needs assessment request, the school told the Council P had been unable to attend school from September 2023. It had put a part-time table of 1.5 hours a day in place, but P was currently unable to manage this.
30. On 27 October the Council told Mr and Mrs X it had decided to carry out an EHC needs assessment for P.

November 2023: Discussions about P’s educational provision

31. The Council had a meeting with Mr and Mrs X and the school on 13 November to discuss a plan for P’s education. The Council’s note of the meeting says it was agreed:

• P would not physically attend school for four weeks to lessen their anxiety and support a re-set;
• the school would provide work for P to complete at home;
• an alternative provision with YZ would be trialed to support P with regaining confidence – initially 1.5 hours a week which could be slowly increased if successful;
• P had been provided with six sessions with another support organization, Q. A further period of support with Q would be arranged; and
• the plan would be reviewed in four weeks time.

32. Mr and Mrs X contacted the Council on 14 November to ask about funding for P’s travel to sessions with YZ. They also:

• referred to the Council’s section 19 duty to provide suitable alternative education, equivalent to full-time education, for children unable to attend school. They said this provision should be in the region of 20 hours a week for a child of P’s age: and
• asked what other alternative provision the Council proposed arranging for P.

33. In its response, the Council said:

• it would fund P’s travel to alternative provision sessions with YZ;
• under the agreed plan, the school was providing P with work over the four week review period. P’s return to the school hadn’t been ruled out;
• it could consider changes to P’s alternative provision hours with YZ if this went well; and
• its Panel would consider further alternative provision for P, including tutoring, if it was decided this was needed at the end of the review period.

December 2023: review of P’s support plan

34. A further meeting with the Council, the school and Mr and Mrs X was held on 11 December to review P’s support plan.
35. I have not seen a record of this meeting. But I understand it was accepted P was unable to return to school because, following this meeting, the Council started looking for alternative provision providers for P.
36. I also understand that the proposed alternative provision with YZ did not go ahead.

Further contact about alternative provision

37. In January 2024 the Council told Mr and Mrs X its Panel had agreed to provide P with a period of tutoring. It said it would like to discuss a tutoring package with them.
38. On 31 January Mr and Mrs X asked the Council when the home tutoring for P would start. On 26 February, they confirmed their complaint about the Council’s failure to arrange alternative provision for P.
39. They asked the Council again about alternative provision for P in March 2024. P’s current school had said it could not commission any provision until it had funding through the final EHC Plan.
40. On 22 April the Council recorded that the school had now commissioned two hours of 1:1 tutoring a week for P. I understand the school put in place two hours a week of online tutoring for P for the last half of the summer term to July 2024.

January 2024: Council’s decision to issue an EHC Plan

41. The Council completed its assessment of P’s EHC needs. On 22 January it told Mr and Mrs X it had decided to issue P with an EHC Plan. On 23 January it sent them a draft plan for their comments.
42. Mr and Mrs X told the Council their preference was for EOTAS provision to be agreed for P for the remainder of the school year 2023/2024 to support their transition to secondary school in September 2024. They also said P’s secondary school should be named by 16 February 2024.
43. The Council sent Mr and Mrs X information about different education settings. It told them it would consult with their parental preference, and school A, as their nearest mainstream secondary school.

February 2024: comments on the draft EHC Plan

44. Mr and Mrs X instructed a specialist advice organisation, H, to contact the Council on their behalf about the draft EHC Plan.
45. H sent their proposed amendments to the Council on 7 February. The Council then issued an amended draft plan for their comment.
46. On 9 February, the Council told Mr and Mrs X the Panel had declined their request to name EOTAS as P’s provision in the plan. The options now were to name P’s current mainstream school in the final plan, giving them the right to appeal against this, or delay finalising the plan until they had obtained further advice from the educational psychologist (EP) and re-submitted their request for EOTAS to the panel.
47. On 21 February H, on Mr and Mrs X’s behalf, agreed with the Council the issue of P’s final plan should be delayed until further EP advice was received. This was on the understanding this might mean the plan was completed outside of the statutory timescale.
48. H also told the Council Mr and Mrs X’s preference for P’s placement in September 2024 was school Q.

March 2024: Final EHC Plan

49. The Council consulted with school Q which said there were no places currently available in P's year group. Mr and Mrs X told the Council they now wanted it to consult with another placement they had recently visited, school R (an independent special school), about a place for P from September 2024.
50. The Council issued a further amended draft EHC Plan on 15 March.
51. It issued the final EHC Plan on 28 March. This set out P’s SEN provision in section F, named their current school as their placement in section I until September 2024, and a mainstream secondary school as their placement from September 2024.

April 2024: Draft amended plan

52. The Council issued a draft amended plan on 22 April, including information from a further report obtained by Mr and Mrs X.
53. On 25 April the Council told Mr and Mrs X it had been advised school R and not school Q was now their preferred placement for September 2024. It would refer the request to its panel and amend the EHC Plan.
54. The Council began its consultation with school R.

May to June 2024: Further contact about P’s September 2024 placement

55. In May, the Council told Mr and Mrs X school R had offered P a place for September 2024. It said the request for school R, as a special school, still had to be agreed by its Panel.
56. On 22 May, the Council told Mr and Mrs X the Panel had agreed in principle to a placement for P at school R for one academic year with a review in the autumn term.
57. It later explained to Mr and Mrs X, on 3 June, the Panel had recommended a re-engagement year at school R rather than an ongoing placement and this would be discussed at a further panel meeting.
58. Mr and Mrs X told the Council they had been waiting in good faith since May, when school R had offered P a place, for the Council’s decision about naming this as P’s placement for September in a final EHC Plan. They needed confirmation so they could appeal to the SEND Tribunal.
59. Mr and Mrs X then made a late appeal to the SEND Tribunal against the content of section B, the provision in section F and the placement for September 2024 named in section I of P’s final EHC Plan issued in March 2024.

July 2024: Tribunal proceedings and issue of final EHC Plan

60. The Tribunal accepted Mr and Mrs X’s appeal out of time.
61. The Council’s Panel agreed the request for a placement for P at school R from September 2024.
62. The Council issued P’s final amended plan on 11 July, naming their placement from September 2024 as school R.
63. The tribunal proceedings were concluded by consent on 15 July on the basis the Council had agreed to name school R as P’s placement from September 2024.

Mr and Mrs X’s complaint to the Council

64. In February 2024 the Council referred to Mr and Mrs X’s concerns and asked them to confirm any outstanding matters of complaint. It said it would then arrange a formal investigation and provide a full complaint response.
65. Mr and Mrs X confirmed their complaints regarding P’s educational provision were about the Council’s:

• failure to make alternative provision for P while he was unable to attend school; and
• delay issuing P’s final EHC Plan.

66. The Council issued its final response to the complaint in April 2024. It said:

• P’s final EHC Plan had been issued on 28 March 2024. It had been delayed so that additional information could be obtained in order to make further changes; and
• it understood Mr and Mrs X’s preference for P’s school from September 2024 had now changed. It was consulting with this new school and would then refer the request to its panel.

67. The Council did not respond to the complaint about its failure to make alternative provision for P.

My view – was there fault by the Council causing injustice?

a) Failure to provide P with a suitable education

68. In my view, the Council failed to: properly consider its section 19 duty; and provide P with a suitable education from mid December 2023 to July 2024. This is because:

• there was a delay by the Council in considering its duty to make alternative provision for P. It had been told in September P was not attending school and Mr and Mrs X asked it on 5 October to provide P with alternative education. But it did not take action to consider P’s circumstances and its section 19 duty until the meeting on 13 November;
• following the review meeting in December the Council accepted P was unable to return to school and that it should now make alternative provision for them. Had the Council promptly and properly investigated P’s circumstances and its section 19 duty, I consider it would have decided in about mid November it should make alternative provision for P;
• it should then have promptly arranged to put appropriate provision in place for P. Had it done so, I consider alternative provision should have been put in place for P from mid December 2023; and
• although there were discussions about a tutoring package and other alternative provision, the Council failed to arrange any educational provision for P until the last half of the summer term when two hours a week of online tutoring was put in place.

69. The Council’s failure to properly consider its section 19 duty and provide P with a suitable education was fault.

Impact of this fault

70. The Council failed to provide P with a suitable education from mid December 2023 until July 2024.
71. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
72. Here, the Council failed to make any educational provision for P from mid-December 2023 to July 2024 (save for two hours a week of online tutoring in the last half of the summer term). On this basis I consider the payment for Z’s loss of education provision should be at the top of our range.

b) Delays completing the EHCNA process and naming P’s placement

73. The Council issued the draft EHC plan on 23 January 2024 in accordance with the statutory timescale.
74. The final EHC plan should then have been issued on 12 February 2024. But the Council agreed with Mr and Mrs X and their representative to delay the issue of the final plan until further EP advice had been received. Taking this into account I don’t consider the delayed issue of the final plan on 28 March (six weeks outside the statutory timescale) was fault causing injustice.
75. I have not investigated any delay naming P’s placement in the plan for the reasons explained in paragraphs 7-11.

Complaint handling

76. The Council failed to address Mr and Mrs X’s complaint (as confirmed in February 2024) about its failure to make alternative provision for P while he was unable to attend school. It did not make any comment about this in its final response of April 2024.
77. This was fault which caused Mr and Mrs X uncertainty and upset about the outcome of this part of their complaint.

Service improvements

78. We have made a number of recent decisions on complaints about the Council’s handling of its section 19 duty in which the Council agreed to make service improvements. These include ensuring it has robust processes in place to review provision for children unable to attend school and reviewing its processes for ensuring those to whom it owes a section 19 duty are receiving appropriate education.
79. On this basis, I have not asked the Council, in this decision, to make any further service improvements this complaint issue.

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Action

80. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr and Mrs X for its failure to provide P with a suitable education from December 2023 to July 2024 and to respond to their complaint about this. This apology should be in line with our guidance on Making an effective apology:
2. pay Mr and Mrs X, on P’s behalf, £4,835 (£2,400 x 1.5 terms and one week from mid December 2023 to May 2024, and £2,100 x 0.5 terms from May to July 2024). This is a remedy for P’s benefit to recognise the injustice the missed education has caused them: and
3. pay Mr and Mrs X £300 to reflect the upset, frustration and uncertainty caused by its failure. This is a symbolic amount based on our guidance on remedies;
81. The Council should provide us with evidence it has complied with the above actions.

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Decision

82. I find fault causing injustice. The Council has agreed to take the above actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman