Summary: Ms X complained the Council failed to provide alternative provision when her child, Y, was unable to attend school. We find the Council at fault for failing to consider whether Y required alternative provision. This caused distress and frustration for Y and Ms X, and meant Y missed education. The Council has agreed to apologise, make a symbolic payment and make service improvements to remedy the injustice caused.

The complaint

1. Ms X complained the Council failed to provide alternative provision when her child was unable to attend school from October 2023. Ms X also complained the Council failed to secure the content of her child’s Education, Health and Care Plan and named an unsuitable school in the Plan. Ms X told us the Council’s actions caused her distress and frustration and had a financial impact on the family. Ms X also told us her child’s educational attainment and mental health have been impacted. Ms X would like the Council to name a different setting in her child’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

2. 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.
3. 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)
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. 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)
6. 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(1), as amended)
7. 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

8. When a final Education, Health and Care Plan is issued 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.
9. The law says we cannot normally investigate a complaint where the person has a right to appeal to a tribunal about the same matter. The Council issued a final Plan in September 2024 which had a school named in section I. In response to the draft version of this Plan, Ms X informed the Council of her intention to appeal if the Council named a mainstream setting. I therefore consider it reasonable for Ms X to have used her right to appeal the final Plan issued in September 2024.
10. 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)
11. 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.
12. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
13. For this reason, I have not investigated the part of Ms X’s complaint which relates to the Council providing Y with access to education after the Education, Health and Care Plan was issued in September 2024.

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How I considered this complaint

14. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
15. Ms 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

Legal and administrative background

Education, Health and Care Plan

16. 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. 
17. 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);  

Maintaining an EHC Plan

18. The council has a duty to make sure the child or young person receives 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)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Section 19 duty

20. 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.
21. Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1))
22. 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”.
23. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.

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What happened

EHC needs assessment

24. Y stopped attending school in October 2023. In January 2024, Y’s school submitted a request for an assessment of Y’s Education, Health and Care needs. In accordance with statutory timeframes the Council should have completed the assessment process and issued a final EHC Plan no later than 3 June 2024.
25. The Council completed an assessment of Y’s needs and issued a final EHC Plan in the first week of July 2024. This is a delay of approximately one month.

Section 19 duty

26. Within the documents provided to the Council as part of the EHC needs assessment request it was well document that Y had been struggling to attend school since October 2023 and, despite support from the school, Y continued to struggle to attend school due to reasons associated with their special educational needs.
27. In February 2024 the Council’s medical needs panel considered whether it should provide alternative provision for Y. The panel concluded that although there was evidence Y has an autism diagnosis, the panel did not consider this a medical condition which prevented school attendance. The medical needs panel declined the referral.
28. The Council has not provided any evidence it considered whether the reason for Y’s attendance difficulties met the ‘other’ criteria set out in section 19 of the Education Act 1996.

Section 42 duty

29. When the Council issued a final Plan in July 2024 there was no setting named for Y to attend. In the email sent to Ms X alongside the final Plan the Council explained it was aware an updated educational psychology (EP) assessment had just been submitted. The Council told Ms X it planned to review the EHC Plan alongside the EP report and it would then complete school consultations.
30. The Council issued an amended draft Plan to Ms X in August 2024. In response to this draft Ms X advised the Council she intended to appeal if a mainstream setting was named in the Plan.
31. The Council issued an amended final Plan, naming a mainstream school, in September 2024.

My findings

32. There was a one month delay in the Council completing the EHC needs assessment process and issuing the final EHC Plan. The delay is fault which caused frustration and uncertainty for Y and Ms X.
33. There is no evidence of fault in the Council’s consideration of whether Y was unable to attend school because of medical reasons. The Council’s medical needs panel considered the available evidence and reached a decision that Y did not have medical needs which prevented school attendance.
34. The Council has failed to provide evidence it considered whether Y required alternative provision under the ‘other’ category as outlined in section 19 of the Education Act 1996. The Council’s failure to consider its full section 19 duty is fault which caused Y and Ms X distress, frustration and uncertainty. On the balance of probability, based on the evidence provided with the initial EHC needs assessment request, I consider the Council’s failure to consider its full section 19 duty caused a loss of education for Y between January 2024 and July 2024. This is approximately two terms of missed education.
35. The Council failed to provide the special educational provision detailed in Y’s EHC Plan between July 2024 and September 2024. This is fault which caused Y to miss approximately 20 days of special educational provision between July and September 2024.

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Action

36. Within one month of the final decision the Council will:
• Apologise to Y and Ms X for the injustice caused by the faults identified. 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 its apology.
• Make a symbolic payment of £2,600 to Y and Ms X for the delay in completing the EHC needs assessment, the loss of education caused by the Council’s failure to consider its duty to provide education under section 19 of the Education Act, and the Council’s failure to secure special educational provision between July and September 2024. This is calculated in line with our guidance on remedies and considers the delay in issuing the final Education, Health and Care Plan, and harm caused by two terms of missed education.
37. Within three months of the final decision the Council will:
• Ensure it has a process in place which considers the full scope of the Council’s section 19 duty to provide access to suitable, full-time education for children who are unable to attend school because of exclusion, illness or otherwise. The Council should ensure its process is not restricted to only considering medical needs.
• Ensure its relevant staff are aware of the Council’s section 19 duty and the correct process to follow when it becomes aware a child is not accessing education.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman