Summary: Mrs X complained the Council failed to arrange suitable education provision for her child, W, when they stopped attending school. The Council did not properly consider whether W was out of school for health reasons but we cannot say, even on balance, that this meant W missed out on education they should have had. The Council was at fault for delay in amending W’s Education, Health and Care Plan. To remedy the injustice this caused, the Council will apologise to Mrs X and pay her £800. It will also issue a staff reminder.

The complaint

1. Mrs X complained the Council failed to arrange suitable education provision for her child, W, when they stopped attending school in November 2023. Mrs X also complained the Council failed to carry out W’s Education, Health and Care Plan phase transfer annual review properly.
2. Mrs X said this affected W’s mental health and self-esteem and meant W fell behind their peers. She said it also caused her distress and impacted on W’s sibling.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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How I considered this complaint

7. I have considered:
• All the information Mrs X provided and discussed the complaint with her;
• The Council’s comments about the complaint and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

9. 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 provision.
10. 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)
11. 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”.
12. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Education, Health and Care Plans

13. 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 which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.
14. 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.
15. There is a right of appeal to the Tribunal about several decisions councils make in relation to EHC Plans. This includes 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; and
• Amendment to these elements of an EHC Plan.

Special educational provision

16. The council has a duty to “secure” 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)
17. Where the special educational provision is intended to be delivered wholly within a school setting, councils meet their duty by funding a school place for that child, providing the school remains available and accessible to them.

EHC Plan annual reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). The council must send its decision within four weeks of the review meeting.
19. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). The council must then consider the response to its proposed amendments and issue a final amended EHC Plan. This must happen within 12 weeks of the annual review meeting.
20. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This is called a phase transfer review. This allows planning for and, where necessary, commissioning of support and provision at the new institution. Any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

EHC Plan reassessments

21. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
22. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Equality Act

23. Schools have a legal obligation under the Equality Act 2010 to provide support to disabled children by making reasonable adjustments so the disabled child can benefit from school in the same way as a non-disabled child.

What happened

24. This section sets out the key events in this case and is not intended to be a detailed chronology.
25. In November 2023, W was in year six at a mainstream school and had an EHC Plan in place. W stopped attending school that month. Mrs X says this was because W needed a mental health break and that W’s GP had recommended it. Mrs X sent me records of two consultations she had with people at W’s doctor’s practice. One was from mid-November 2023 when Mrs X spoke with a clinical practitioner who noted W was having ongoing issues with their behaviour and that Mrs X felt the school was not being supportive. The other was from mid-December 2023. Records of that consultation noted the doctor had spoken to Mrs X on the phone. They noted “[Mrs X] is requesting a note for school – advised can take copy of this discussion”.
26. At the end of November, the school held an EHC Plan annual review meeting on the Council’s behalf. During the meeting, Mrs X asked for Education Otherwise Than At School (EOTAS) and the school said it thought the Council should do an EHC reassessment. EOTAS is a form of education delivered outside of a school setting. It is often made up of several kinds of provision.
27. In early December 2023, the Council received a notification from the school that W was not attending. The absences were not authorised by the school. The Council advised the school to follow its attendance policy.
28. The Council received the annual review meeting records from the school at the end of the month. The Council told me the annual review minutes did not show there was any medical reason why W could not attend school.
29. In January 2024, Mrs X met with W’s school to talk about reintegrating W back into class. At the end of the month, Mrs X told the Council that the school had agreed in the meeting that it would not be in W’s best interests to attend school.
30. The Council agreed to carry out a reassessment of W’s EHC Plan a few days later, in early February.
31. The school told the Council it had put a range of support in place since W had stopped attending in November 2023.
32. In early May 2024, the Council issued a final EHC Plan for W. It did not send a copy to Mrs X. This was based on W’s previous Plan and was not as a result of a reassessment.
33. Mrs X complained to the Council in early May. She said the information from the school about the provision it had offered W was inaccurate. She said some of the support never happened and other support was unsuitable for W’s needs.
34. In its stage one complaint response in early August, the Council said:
• It was satisfied W’s school had tried several alternative approaches to W’s education. However, the Council said it accepted that not all of the school’s attempts had been sufficient to meet W’s needs. It explained W’s needs prevented them from accessing some forms of education; and
• It would work with Mrs X and the school to improve W’s educational provision while the reassessment was ongoing.
35. Mrs X was unhappy with the Council’s complaint response and asked for a stage two reply.
36. In mid-September 2024, following the reassessment, the Council issued W’s EHC Plan. It continued to name W’s school in section I. Mrs X appealed to the SEND Tribunal to change the content of section B (description of W’s needs), section F (W’s special educational provision) and section I (the school W would attend).
37. The Council issued its stage two response to Mrs X’s complaint in late September. It said:
• It had not arranged alternative provision for W because there was no medical evidence to show W was out of school due to ill-health; and
• W’s school had made attempts to reintegrate W and help them participate in education. It said while Mrs X did not agree with how the school had done that, the school staff were professionals.
38. Subsequently, Mrs X spoke with the Council to agree changes to the Plan, which included that W would move to a specialist school in early January 2025. She asked the Tribunal to agree those amendments. The Tribunal issued its decision to agree to the amended EHC Plan in late December.
39. W began attending their new school in January 2025, where Mrs X says they are engaging with a full-time education.

Findings

Annual review and reassessment

40. The Council was required to issue W’s amended EHC Plan by 15 February 2024 because W was due to move to a secondary school in September 2024. However, it did not decide to reassess W’s needs until early February 2024 and did not complete the reassessment until mid-September, after the start of the new school year. This was a delay of seven months and was fault.
41. While the reassessment was ongoing, the Council nonetheless amended W’s EHC Plan and issued a final version in early May 2024. This was fault, the Council should have waited until the reassessment was complete before issuing a final Plan.
42. The Council did not send Mrs X a copy of the May 2024 Plan. This was fault. It meant Mrs X did not know she had a right of appeal to the SEND Tribunal to challenge the content of that Plan, including the fact it named W’s school. Mrs X felt W’s school was unsuitable so the loss of the appeal right caused her significant upset and uncertainty about whether she could have found a school she felt was suitable for W sooner.
43. The Council has a SEND Improvement Plan in place from Ofsted. One of the areas for improvement is the quality of EHC Plans. The Council’s work in this area involves improving how quickly it completes EHC Plan assessments and annual reviews. I am satisfied this work is suitable to prevent the faults occurring again, so I have not made a further recommendation.

Education and special educational provision

44. Mrs X says W was unable to attend their school because of their mental health. During the period I investigated, Mrs X felt W would have been able to engage in education at the right placement. The Council first became aware W was not attending school in early December, when W’s school notified the Council of their absences. The notification was clear that W’s absence was unauthorised, meaning the school felt it was not because of medical reasons. The Council advised the school to follow its attendance process and waited for the minutes of the annual review meeting the school had held the previous month. This was a reasonable step to take, so the Council could decide if W was not attending because of their health and therefore if the school was still available and accessible to W, with or without changes to the special educational provision in their EHC Plan.
45. The Council says the annual review meeting minutes did not show W was out of school because of illness. However, the Council failed to seek any more information from Mrs X or any medical professionals involved with W to establish is this was the case. This was not in line with the statutory guidance. The Council also failed to consider the fact the school agreed with Mrs X in January 2024 that it would not be in W’s best interests to return to school at that time. This was fault.
46. I cannot say, even on balance, that but for the fault the Council would have decided it owed W the duty to arrange alternative provision. That is because the medical evidence Mrs X has provided, that could have been available to the Council, did not say W could not attend school.
47. The Council issued an EHC Plan for W in May 2024, naming their current school. The EHC Plan shows the Council had decided the school was available and accessible to W; that they were not out of school because of their health. The Ombudsman cannot question a council’s decision about what school it should name in a child’s EHC Plan. That is for the SEND Tribunal but as noted above, Mrs X did not know the Council had issued the Plan, so she could not appeal to the Tribunal.
48. A short time after the Council issued the May 2024 EHC Plan, Mrs X complained about the provision W’s school had put in place for them. W was out of school and the Council had decided W was not missing school because of their health. Therefore, it should have taken the following steps without delay. Its failure to do so was fault and caused Mrs X avoidable frustration and uncertainty.
• Directed Mrs X to appeal if she wanted to change the school or type of school named in the May 2024 EHC Plan.
• Invited Mrs X to send it any new evidence she had to show why W was unable to attend school.
• Considered whether to work with W’s school to improve the provision the school was offering under its duty to make reasonable adjustments for disabled children.
49. In its stage one complaint response, the Council said it accepted some of the interventions put in place by the school were insufficient to meet W’s needs and as a result, it would work with the school to improve the provision it was offering. It was the Council’s choice to do this, given it had not accepted the duty to provide alternative provision for W. However, there is no evidence the Council took any more steps to work with W’s school by the time it issued W’s amended EHC Plan in September. This was fault. I cannot say, even on balance, that the faults in this paragraph and paragraph 48 led to W missing out on educational provision. However, the Council’s faults caused Mrs X further frustration and uncertainty.
50. The Council continued to name the school W was on roll at in the September 2024 Plan because it felt the school was available and accessible to them. Mrs X exercised her right to appeal that decision, and therefore the Council’s decision not to arrange alternative provision for W. For the reasons set out below, I am unable to investigate the period after the Council issued the September Plan.

Education provision- what I cannot investigate

51. 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)
52. This means that if a child or young person 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.
53. 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. The same restriction applies where a person had a right of appeal and should have used it.
54. It was not reasonable for Mrs X to have appealed the May 2024 Plan because the Council failed to send it to her. However, Mrs X appealed the description of W’s special educational needs, the special educational provision and the school named in the September 2024 EHC Plan. Once the Council issued the EHC Plan, Mrs X’s complaint that W did not have a suitable education while she was not attending school occurred as a consequence of the Council’s decision to name the school in her EHC Plan. Therefore, I cannot investigate that part of Miss X’s complaint between mid-September 2024 and late December 2024, when the Tribunal issued its decision to agree the consent order.

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Action

55. Within one month of the date of my final decision, the Council will complete the following actions.
1. Apologise to Mrs X for the uncertainty, upset and frustration she felt because of the faults set out in this decision. 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 the apology.
2. Pay Mrs X £800 to recognise that injustice.
3. Remind staff that before they decide that a child is not out of education because of poor health, they should seek information about the child’s medical needs.
56. The Council will provide us with evidence it has complied with the above actions.

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Decision

57. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman