Summary: Ms O complained on behalf of Ms X that the Council delayed issuing an education, health and care plan, and failed to provide Ms X’s child with suitable full-time education. Ms O said this caused Ms X distress, it took time, had a financial impact, and meant her child missed out on education. We find the Council at fault for delays issuing the plan which caused injustice. The Council has agreed to make a payment to remedy this injustice.

The complaint

1. Ms O complained on behalf of Ms X about the way the Council handled Ms X’s child’s education. Specifically, Ms O complained the Council:
1. delayed issuing an education, health and care plan; and,
2. failed to provide suitable full-time education when her child was unable to attend school.
2. Ms O said this caused distress to Ms X who was unable to work because she had to care for her child, which had a financial impact. Ms O said it also impacted on Ms X’s ability to spend time with her other child. Ms O said Ms X spent a lot of time chasing the Council. Ms O said it meant Ms X’s child missed out on education and this caused the child distress.

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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. 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 Tribunal in this decision statement.

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What I have and have not investigated

10. Ms O complained on Ms X’s behalf that the Council failed to provide suitable full-time education when Ms X’s child, B, was unable to attend school (part b of the complaint).
11. B was not able to attend school full-time for medical reasons. B reached compulsory school age at the end of December 2023. This is when the Council had a legal duty to provide them with full-time education. For this reason, I have not investigated part b of the complaint before December 2023.
12. The Council began providing B a full-time education in April 2024. For this reason, I have investigated part b of the complaint from January 2024 to April 2024. This is the spring term of that academic year.

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How I considered this complaint

13. Ms X has given written consent for Ms O to represent this complaint on her behalf. I therefore consider Ms O is a suitable person to represent this complaint on Ms X’s behalf.
14. I considered the information and documents provided by Ms O and the Council. I spoke to Ms O about Ms X’s complaint. Ms O and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
15. 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

16. A child or young person with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
17. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan.
18. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
19. The regulations say that where there has been mediation about an issue that could have been appealed to the Tribunal, and both parties reach an agreement at mediation, the council must issue the amended EHC plan within five weeks of the mediation agreement.

Alternative educational provision

20. 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.
21. 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)
22. The education provided by the council must be full-time unless the 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)
23. 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’)
24. The Department for Education guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. 

What happened

25. In June 2023, the Council issued Ms X’s child, B, with their first education, health and care (EHC) plan. Ms X appealed the plan. Ms X started mediation with the Council.
26. In September, B started at a primary school. B had a part-time timetable.
27. Also that month, Ms X and the Council reached a mediation agreement to include certain provision that Ms X wanted in B’s EHC plan.
28. In October, there was a review of B’s EHC plan. This review said that B was on a part-time timetable because they were struggling to regulate their emotions in school.
29. In January 2024, the Council told Ms X that the school felt B was too dysregulated to attend school on a full-time basis. It said that making B attend full-time would cause them further distress.
30. Also in January, the school provided alternative provision which was funded by the Council. This alternative provision was on top of B’s part-time timetable in school.
31. Ms O complained to the Council on Ms X’s behalf.
32. In February, the Council issued B’s amended EHC plan.
33. The Council responded to Ms X’s complaint. It accepted the EHC plan was late. It apologised for the frustration and distress this caused. It said it was doing training with staff to make sure it meets timeframes.
34. The Council said the school said in October that B was not able to regulate in school which is why they were on a part-time timetable. The Council said the school had arranged alternative provision to make sure B could reintegrate to full-time education. The Council said it was satisfied the school had appropriately arranged sufficient alternative provision for B.

Analysis

Education, health and care plan

35. Ms O said Ms X complained the Council delayed issuing an education, health and care (EHC) plan (part a of the complaint).
36. At mediation, Ms X and the Council agreed to include certain provision in B’s EHC plan. This meant the Council had five weeks from the date of this agreement to issue the final EHC plan.
37. The mediation agreement was in September 2023. The Council should have issued the final EHC plan in October. It actually issued the plan in February 2024. This is a delay of three and a half months. This is fault.
38. I find this fault caused Ms X injustice because it caused frustration and distress.
39. The Council has apologised for this injustice and has taken action to make sure this does not happen again. For this reason, I have not proposed below that the Council apologises or makes any improvements to its service.

Education

40. Ms O said Ms X complained the Council failed to provide suitable full-time education when B was unable to attend school (part b of the complaint).
41. As I have said above, I have investigated the spring term of 2024.
42. The Council accepted that its duties to provide alternative provision were triggered in January 2024. It said B was on a reduced timetable with a plan to reintegrate them into full-time education, depending on their ability to manage.
43. The Council said during that time it maintained regular communication with B’s school and Ms X. This communication was about B’s reduced timetable, the plan to reintegrate them into full-time education, and the supplementary alternative provision.
44. As I have said above, in very exceptional circumstances a child may need a temporary part-time timetable to meet their needs. An example of this would be where a child’s medical condition prevents them from attending full-time education and a part-time timetable is considered as part of a reintegration package.
45. This is the case here. B could not attend full-time for medical reasons, so they attended school part-time. The Council funded alternative provision which supplemented B’s part-time timetable and met the Council’s duty to provide alternative provision. This provision also supported B to reintegrate into full-time education.
46. As I have said above, the education a council provides must be full-time unless the 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.
47. In this case, the Council agreed with the school that B could not attend school on a full-time basis for health reasons. The Council also agreed with the school that it would be in B’s best interests to supplement this part-time timetable with alternative provision with a view to getting B back into full-time education.
48. These were decisions the Council was entitled to make. I find no fault with how the Council made these decisions.
49. As I have said above, if we find no fault in how a council made its decision, we cannot question the outcome. For these reasons, I do not find the Council at fault.
50. I note that B returned to full-time education the following term. This is positive.

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Action

51. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £350. In arriving at this figure, I have taken into account our published guidance on remedies. I consider £100 per month of delay issuing the final EHC plan (part a of the complaint) is appropriate and proportionate to remedy the injustice caused by the delay. £100 per month multiplied by three and a half months is £350.
52. The Council should provide us with evidence it has complied with the above action.

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Decision

53. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman