Summary: Mr X complained that the Council failed to provide alternative education to his daughter when she was unable to attend school, and the Council delayed in issuing a final Education, Health and Care plan. We find fault causing a loss of education for Mr X’s daughter, and avoidable distress and frustration for the parents. The Council has agreed symbolic payments for the loss of education and avoidable distress, and it will review its alternative education policy and practice and ensure Education, Health and Care plans are issued on time. Therefore, we are closing the complaint.

The Complaint

1. The complainant, Mr X, complained about the failure to provide education to his daughter (Y) and a delay in issuing an Education, Health and Care (EHC) Plan. In particular the Council:
1. failed to provide any education between September 2023 to January 2024;
2. after this, failed to provide an adequate education equal to his daughter’s peers, providing only five hours tuition per week even though his daughter could have managed more;
3. failed to issue a final EHC Plan within the statutory timescale;
4. failed to respond to emails or telephone calls.
2. The injustice is that Y has missed out on suitable education and the family has been caused avoidable distress and frustration.

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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’.
4. 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. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
8. 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).
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. I am looking at events from September 2023 to October 2024 when the Council issued a final EHC Plan.

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How I considered this complaint

11. I considered evidence provided by Mr X and by the Council as well as relevant law, policy and guidance set out below.
12. I issued a draft decision statement to Mr X and the Council. I have taken into account their further comments when reaching my final decision.

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What I found

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 young person’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person:
• Section I: The named placement: and
• Section J: Details of any personal budget made. 

15. 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). There are exemptions to the timescale.

16. If the council agrees to assess, professionals should provide their advice within six weeks of the request. Parents/carers have the right of appeal to the SEND Tribunal if a council refuses to assess or issue an EHC Plan, or if dissatisfied with the EHC Plan.

Children out of school because of medical needs

17. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
18. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
19. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
20. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
21. The guidance also says that “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority [council], for example where the child can still attend school with some support”.
22. If a school is not appropriate, the council can arrange for any special educational needs (SEN) to be delivered somewhere other than at school. This is referred to as Education Otherwise Than At School (EOTAS). This should be specified in section F and section I left blank.

The Ombudsman’s Focus Report: Out of School, out of mind?

23. In July 2022, the Ombudsman issued a Focus Report about children out of school. It was updated in August 2023.
24. We made a number of recommendations. The most relevant to Mr X’s complaint is that, where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.
25. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented and communicated promptly to the parents.
26. Also, all cases of part-time education should be kept under review with a view to increasing it if a child’s capacity to learn increases.

The Council’s policy on alternative education

27. The Council’s policy highlights the responsibilities on schools and colleges to ensure it works with parents/carers and pupils to secure school attendance. But, if the measures are unsuccessful, the school should refer the child to its Access to Education Panel (the Panel). The Panel consists of relevant professionals.
28. The Panel must decide whether the school is available and accessible to the pupil. If the Panel decides it is not, the Panel can recommend additional support. This can consist of hospital tuition, online learning , special school outreach, alternative provision, specialist teachers and tuition.

Key facts

29. Mr X says that Y is an academically able child. She enjoyed her time at primary school. Her difficulties with attendance started in 2022 when she transferred to a secondary maintained school (School B). Mr X says that, during her first year at School B, the parents were able to encourage and ensure Y attended, despite her reluctance.
30. In August 2023, Y was diagnosed with autistic spectrum condition (ASC).
31. By September 2023, Y was refusing to attend School B, and Mr X says she had a breakdown, becoming very anxious. The parents could no longer persuade Y to attend School B, and they considered that it would have been harmful to her had they done so. Mr X says that in September 2023 he told the Council’s special educational needs (SEN) department that Y was not attending school B.
32. The Council says School B offered a part-time timetable and homework to complete at home. But Mr X says that this was insufficient, and the parents paid for Y to have some education at home. Mr X wrote to School B raising his concerns about the lack of appropriate education for Y and referring to the fact that Y had missed fifteen days of education, and the Council had a duty to provide alternative education.
33. In late November 2023, the Council’s SEN department was invited to an early help meeting at School B. Mr X says that he had to put pressure on the SEN department to attend this meeting. At the meeting, the parents were advised to consult a paediatrician to see whether hospital or home tuition would be appropriate.
34. Mr X says he approached the hospital home tuition service (Provider C) and the paediatrician responsible for Y completed the necessary form to request such tuition. It was agreed that Y would receive tuition from Provider C.
35. In December 2023, the parents requested an EHC needs assessment, which the Council refused.

Events of 2024

36. Mr X had a right of appeal to the SEND Tribunal regarding the Council’s refusal to undertake an EHC needs assessment. But Mr X provided further information to the Council and, in mid-February 2024, the Council agreed to assess Y. I consider that, at this stage, it was reasonable for Mr X not to have resorted to the SEND Tribunal and therefore I have exercised discretion to look at events despite this right of appeal.
37. In January 2024, Y started to receive five hours home tuition from Provider C. Mr X asked for Y to remain on the school roll at School B because this was the only way to ensure Y received some education, however limited. The parents also did not want the Council to say that they were ‘home educating’ Y when they were not and did not want to.
38. On 23 February 2024, two days after agreeing to carry out a needs assessment of Y, the Council sought professional advice from health, social care and the Educational Psychologist (EP).
39. Mr X raised a concern with the Council about the limited number of hours of home tuition offered to Y. The Council says that, because Y remained on the school roll at School B, there was an expectation that School B would arrange the alternative provision, and it would review the number of hours of tuition. The Council says that there were also regular team around the family meetings organised by School B.
40. Mr X says that it is because of his efforts that Y received some home tuition. He complained to the Board of Governors at School B about its lack of action. But his complaint was not upheld.
41. On 21 March 2024, the Educational Psychologist (EP) completed their advice. The EP highlighted that Y had significant difficulty leaving the house and had a tendency to self-harm when stressed and anxious. Y made it clear to the EP that she would not return to School B.
42. The Council says that it received the EP report on 15 April 2024. It is not clear why there was a delay between the EP completing the advice and the Council receiving this.
43. The Council should have issued a draft EHC Plan in March 2024 and a final EHC Plan by the end of April 2024. It was not until October that the Council issued a final EHC Plan.
44. In April, Mr X requested Education Otherwise Than At School (EOTAS) so that they could arrange the alternative education for Y. The Council told Mr X that this was not possible unless the Council was satisfied that there was no school suitable and available for Y.
45. In May 2024, the Council sent Mr X a copy of the EP report. Social care provided its advice on 10 May. On 21 May, School B told the Council that it could not meet Y’s needs. Mr X says that the Council did not tell him this directly.
46. Mr X had concerns about the EP report. At the end of May 2024, the EP issued an amended report, and the Council issued a draft EHC Plan without receiving the health advice.
47. Mr X looked at alternative schools for Y and raised concerns about the delay in issuing a final EHC Plan. In July, Mr X again asked for EOTAS with proposed provision for Y which the parents would arrange. The Council told Mr X that EOTAS could not be considered until alternative schools had been consulted. The Council says that Mr X asked for amendments to the draft EHC Plan before schools were consulted.
48. The Council agreed for Y to remain on the school roll at School B so that the home tuition could continue. On 9 October, the Council issued an amended draft EHC Plan. There was a further team around the family meeting held at School B. Mr X asked for consideration to be given for Y to attend another alternative education, Provider D. The Council says a referral was made. Mr X says that it was Provider C who recommended Provider D and who supported the application.
49. Provider D accepted the referral and Y started there at the end of October, receiving twenty hours per week online education. The Council issued a final EHC Plan naming Provider D in section I.
50. Mr X had a right of appeal to the SEND Tribunal if dissatisfied with the EHC Plan. Mr X says he did not need to do this because he was satisfied with the final Plan.
51. But I cannot consider events after October 2024 because of this right of appeal.

Findings: Complaint (a): failure to provide alternative education between September 2023 and January 2024

52. Mr X says that the Council was aware at the beginning of September 2023 that Y was not attending School B, and that Mr X was concerned that School B could not meet her needs.
53. Once the Council became aware of Y’s non-attendance in September 2023, it had a responsibility to consider whether School B remained available and accessible to Y, as set out in its policy and in the guidance and caselaw. It was known by August 2023 that Y had a diagnosis of ASC and Mr X had provided information about Y’s difficulties.
54. Section 19 is intended to cover circumstances in which it is not reasonably possible for a child to take advantage of existing suitable schooling. Therefore, whether School B remained available and accessible to Y should have been a key question for the Council.
55. I consider that there is no evidence that the Council considered this, instead relying on School B to continue to offer education to Y. Moreover, in May 2024, School B told the Council that it could not meet Y’s needs but there is no evidence the Council took account of this information. The Council did not consider the significance of School B’s assessment, as it should have done. By this stage, it was known that School B was not available or accessible to Y.
56. My view is that this amounts to fault.

Complaint (b): the alternative education was unsuitable

57. Mr X’s concern was that the five hours agreed and provided between January and October 2024 was insufficient. He raised his concern with the Council. But the Council decided that it was for School B to consider this because it was responsible for providing the five hours home tuition, and Y remained on the school roll at School B.
58. I consider that the Council was at fault for not accepting any oversight of the alternative education being provided by School B and for not considering Mr X’s concerns about the number of hours being offered. It seems that it carried out no assessment of Y’s needs when reaching its decision.
59. Mr X also asked for EOTAS but was told that this was not an available option because the Council had to be satisfied that there was no available and accessible school for Y. However, in May 2024, School B told the Council that it could not meet Y’s needs. So, there was evidence then that there was no available and accessible school for Y. But the Council did not take this into account when considering the EOTAS request.
60. In October 2024, it was agreed that Y should receive twenty hours tuition per week. I consider this could have been provided sooner had the Council exercised some oversight of School B’s provision and considered School B’s assessment that it could not meet Y’s needs.
61. My view is the failure to offer oversight of the alternative education and the lack of assessment of Y’s needs in respect of how much education she could manage amounts to fault.

Complaint (c): failed to issue a final EHC Plan within the statutory timescale

62. The Council should have issued a final EHC Plan by the end of April 2024. It was issued in October 2024, so approximately a five-month delay. This amounts to fault, whatever the reasons for the delay. The importance of issuing EHC plans on time is that it provides parents/ carers the right of appeal to the SEND Tribunal and this can ensure children and young people receive appropriate education.
63. In Mr X’s case, he did not appeal in October 2024 because, by that stage, it was agreed that Y would receive twenty hours tuition from Provider D. But, if at the end of April 2024 (when the Council should have issued the final EHC Plan), this provision was not available, it is likely Mr X would have appealed.

Complaint (d): failed to respond to Mr X’s emails and telephone calls

64. The issue here is that Mr X considers he had to take the initiative to secure appropriate education for Y. He feels that he had to chase up the Council to take action, which he considers it failed to do.
65. While parents/carers are responsible for ensuring their children attend school, once a child is absent for fifteen consecutive days, and the council is informed of this, it has some responsibility to consider whether its section 19 duties are triggered. If so, councils can ask or expect its schools to provide alternative education. But councils should retain some oversight.
66. In this case, the Council relied upon Mr X to seek out the alternative education at Provider C, and also then failed to have any oversight, despite his concerns about the limited hours of tuition. It failed to inform Mr X of its section 19 responsibilities or to tell him that School B told it in May 2024 that it could not meet Y’s needs.
67. The information provided to Mr X was inadequate and this amounts to fault.

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Action

68. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
69. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount (between £300 to £500) whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
70. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
71. In this case, I recognise that Y received some tuition from January 2024 albeit a limited number of hours and I have taken this into account when recommending a remedy.
72. Within one month of the final statement, the Council will:
1. apologise to Mr X for the faults identified and make a symbolic payment of £500 for his avoidable distress. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy the injustice. The organization should consider this guidance in making the apology I have recommended in my findings;
2. the Council did not consider whether its section 19 duties were triggered during the September 2023 term. It is possible that the alternative education provided in January 2024 could therefore have been provided sooner. The Council will make a symbolic payment of £500 to Mr X to be used for Y’s benefit;
3. Y started to receive alternative education through School B. But the Council did have any oversight of this, as it should have, especially when Mr X raised concerns about the limited amount of hours provided. Had the Council considered his concerns, it is possible that the increase in tuition hours might have started sooner. The Council will make a symbolic payment of £1000 to Mr X to be used for the benefit of Y;
4. in respect of service improvements, the Council should tell us what it is doing to ensure final EHC plans are issued within the statutory timescale, in particular how it ensures professional advice is received within six weeks;
5. the Council should remind relevant staff who deal with school absences that they must not delay in considering whether its section 19 duties are triggered;
6. after considering relevant evidence and reaching a view on whether its section 19 duties are triggered, the Council should ensure it tells parents/carers; and
7. the Council should consider amending its policy to take these improvements into account.
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 the recommended ways to remedy the injustice and improve services in future. Therefore, I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman