Summary: Ms A complained that the Council did not appropriately support her child when she was unable to attend her school due to serious mental health issues. We found the Council is at fault and has caused an injustice as the child has missed out on education. The Council agreed to apologise and make a recognition payment.

The complaint

1. Ms A complains the Council did not appropriately support her child when she was unable to attend her mainstream school due to serious mental health issues, throughout the 2023 / 2024 academic year. She complains about the Council’s process in issuing the Education, Health and Care plan and about the Council’s communication with her throughout.
2. Ms A says the Council has caused extreme stress impacting her mental and physical health. She has had to try to work while also looking after her child who had serious mental health issues.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
7. 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.
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. Ms A brought her complaint to this office in October 2024, so I have considered matters from October 2023.

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How I considered this complaint

11. I considered evidence provided by the Council and Ms A as well as relevant law, policy and guidance.
12. The Council and Ms A have had an opportunity to comment on my draft decision. I considered comments provided before making a final decision.

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What I found

Law and guidance

General section 19 duty

13. 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.
14. 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)
15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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”.
17. 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’)
18. 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]) 

LGSCO guidance

19. 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
20. We made six recommendations. Councils should:

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

21. 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.

EHC Plan 

22. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
23. 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: 
• If the council decides 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).

Background

24. My investigation begins in October 2023. Leading up to this, Ms A’s daughter’s school had contacted the Council in May 2023 to ask for an Education, Health and Care (EHC) Needs Assessment. The Council considered the request and made a decision not to assess.
25. In October 2023, the Council received notification that Ms A would appeal the decision not to assess her daughter’s needs. The Council says the Inclusion Officer noted there were issues with Ms A’s daughter, X’s attendance from October 2023.
26. In December 2023, the Council agreed to assess X’s needs.
27. In May 2024, the Council spoke with the school. The school confirmed X was attending 3 times a week and it had implemented changes to try to help her to access education in a way that worked for her.
28. Ms A explained the changes made were still not allowing her child to access education properly and this was impacting on her mental health.
29. The Council completed its assessment and issued an EHC plan in June 2024. The plan named a mainstream school as being appropriate to meet X’s needs.
30. X suffered a mental health related crisis in June 2024.
31. Ms A was unhappy with the EHC plan, and the Council re-issued a further EHC plan naming a special school a month later.
32. X has been able to access education at the special school since September 2024, and her attendance has not been an issue since she started there.

Analysis and Findings

33. The Council were aware that X had issues accessing education at the mainstream school she was at in October 2023. It has not shown that it took any steps to understand why X was missing so much school and whether it needed to make extra arrangements to ensure X was receiving suitable education.
34. I have seen the Council contacted the school in May 2024 to discuss this. The school confirmed that X was attending only 3 days a week as she was having to mask while she was there. The school said it had implemented a part time timetable and was sending work home for X to complete.
35. The Council said there was an expectation the school would provide suitable alternative provision to allow X to access education without exacerbating her mental health. This is fault as the responsibility lies with the Council to ensure this is done. It is not enough to depend on or expect the school to meet the Council’s duty.
36. The Council says it considered the steps the school had put in place to be sufficient for X. However, the Council should have contacted the school as soon as it was aware there were concerns about X’s attendance. Its failure to do so is fault and has meant the Council did not make a decision as to whether X needed alternative provision for at least eight months.
37. The Council agreed to assess X on 14 December 2023. As the Council then agreed to issue an EHC plan, it is required to do this within 14 weeks – so, by 22 March. The Council did not issue a plan until June 2024. This is fault.
38. The Council should have made a decision about whether X had suitable alternative provision in place from October 2023 and there is no evidence of this. The Council’s failure to consider its section 19 duty from October 2023 is fault.
39. Where we find a Council at fault, we consider the injustice caused. In this instance it is difficult to say for certain as there are many variables at play. However, I have seen that when the Council considered what was in place in May 2024, it made a decision that it was sufficient. On the balance of probabilities, it is likely the Council would have said the same in October or November 2023. I cannot therefore conclude that X has missed out on provision the Council would have put in place if it had made its decision sooner.
40. Although X accessed some education between October 2023 and September 2024, Ms A has described how X’s mental health declined to a dangerous degree by June 2024. Again, I cannot say with any certainty this would have been prevented if the Council had made a decision about alternative provision sooner.
41. We can say however that the Council’s fault has caused significant distress and uncertainty over a period of eight months. I have recommended the Council make a payment of £1000 in recognition of the impact of the Council’s failure to consider whether X’s alternative provision could be increased for approximately two terms from October 2023 to May 2024. This figure allows for the fact that X was receiving some education during this time.
42. Additionally, there was a delay of approximately three months in the EHC process. This caused further distress and uncertainty and delayed Ms A’s right to appeal, so I recommended an additional recognition payment of £450. The Council has shown it has already made a payment of £200 during its internal complaints process, which can be deducted. The remaining £250 is to be paid.
43. I have not made a recommendation for service improvements as the Council agreed to remind staff dealing with cases where a child is not attending school, to consider its Section 19 duty in accordance with relevant law and guidance, in another recent decision. This includes exploring whether alternative provision can be increased at each opportunity to do so. We will continue to monitor how this is working through our case work.

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Agreed Action

44. Within one month of the decision, the Council should:
• Apologise to Ms A and to X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a payment of £1000 to Ms A in recognition of the impact of the Council’s failure to make a decision about its section 19 duty sooner.
• Make a payment of £250 to acknowledge the distress, frustration and uncertainty caused by the delay of approximately three months in issuing X’s EHC plan.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed to apologise, and make a recognition payment.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman