Summary: Miss B complained the Council failed to ensure her son received full-time education, failed to identify a suitable secondary school placement, failed to provide updates, failed to carry out annual reviews of her son’s education, health and care plan and failed to send her a final education, health and care plan following a review in October 2022. The Council failed to put in place any education provision between April and November 2022, failed to identify a suitable secondary school and failed to carry out annual reviews properly. An apology, payment to Miss B, reminder to officers and amendment to processes is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• failed to ensure her son received a full-time education after she removed him from school A following a safeguarding incident;
• failed to identify a suitable secondary school placement for September 2023;
• failed to provide updates on what was happening;
• failed to carry out annual reviews of her son’s education, health and care plan (EHCP); and
• failed to send her a final EHCP following the October 2022 review.
2. Miss B says the Council’s failures have had a significant impact on her son’s social skills and mental health and have caused her significant distress and extra costs.

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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 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B and the organisation now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should have happened

Provision of education

9. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
10. Councils have a responsibility to ensure the child receives an education. They may take legal action against parents to enforce attendance at school through school attendance orders, penalty notices or prosecutions. (Education Act 1996, part VI, chapter 2)
11. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.
12. Statutory guidance issued by the Government called "Alternative Provision" says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
13. 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)
14. 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?' July 2022). We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

Education, health and care plans

15. A child with special educational needs may have an EHCP. An EHCP describes the child’s special educational needs and the provision required to meet them.
16. The procedure for assessing a child’s special educational needs and issuing an EHCP is set out in regulations and Government guidance.
17. An EHCP should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s EHCP.
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP.
19. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing EHCPs. It deals with reviewing plans as follows.
20. Councils must review an EHCP at least every 12 months. The first review must take place within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. They may carry out a review earlier.
21. The review meeting should consider how appropriate the EHCP is in the light of the child or young person’s progress or any changes of circumstances.
22. The Council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHCP as it is, amend it or end it.
23. If the Council decides not to amend the EHCP it must write to the parent or the young person with its decision and tell them about the right of appeal.
24. If the EHCP needs to be amended the Council should start the process of amending, it without delay. It must:
• send the child’s parent or the young person a copy of the EHCP with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the EHCP and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
25. If the Council decides to amend the EHCP following the representations it must issue the final amended EHCP within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
26. An EHCP must be reviewed and amended in sufficient time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

27. Miss B’s son has special educational needs. In 2019 the Council issued an EHCP naming school A in section I. That was a primary school. Miss B’s son began attending the school in January 2020.
28. An annual review of the EHCP took place in September 2020. The school raised concerns as it was finding it challenging to make suitable provision for Miss B’s son. The Council agreed to additional funding for a full-time teaching assistant.
29. An early annual review of the EHCP took place in June 2021. At that review Miss B requested a new school placement. The Council agreed that request in August 2021 and began looking for a new school. In the meantime Miss B’s son remained on the roll of school A and continued to attend.
30. In October 2021 the Council provided Miss B with an update on consultations with possible school placements. None of the schools consulted could accept Miss B’s son. Later that month the attendance advisory service told the Council Miss B’s son had stopped attending school A. Miss B also told the Council she would not send her son back to school A due to safeguarding issues. The Council continued to consult other schools but could not identify a placement.
31. The Council provided Miss B with a further update on its search for a school placement in November. Following that the Council consulted further schools. It could not identify a school placement.
32. When the Council contacted Miss B in January 2022 to provide an update on the search for a new school she told the Council her son was still not attending school and she did not agree school A was an appropriate placement. Miss B told the Council school A had refused to send work home as it said it was her choice to keep her son at home.
33. In February and March 2022 the attendance advisory service chased the education department at the Council for details of what was happening with education provision for Miss B’s son.
34. The Council arranged a meeting with school A. Following that meeting the Council emailed school A to confirm its discussions about various children. The Council noted school A had agreed to seek support from another school. In the meantime the Council continued to seek an alternative school placement but could not identify one.
35. In April 2022 the attendance advisory service again chased the education department for an update on education for Miss B’s son. School A also contacted the Council to say it could no longer provide education to Miss B’s son. The Council said it would follow up on that issue and provide a suggested way forward.
36. The Council provided Miss B with an update on the progress in seeking an alternative school placement in May 2022. During that telephone call Miss B told the Council her son was not receiving education and school A had not sent any work home for him to complete. The Council continued to seek an alternative school placement but could not identify one.
37. Miss B chased the Council for an update in June 2022. The Council said it had not yet identified a suitable school.
38. Miss B asked for another annual review in September 2022. Miss B also asked if her son could return to the school he had attended before school A as it had said it could take her son back with support until he moved to secondary school in September 2023.
39. The annual review took place in October 2022. Miss B agreed to provide some medical evidence to update the EHCP. The Council agreed to refer Miss B’s son to the education programme for alternative provision. Miss B’s son began receiving 4.5 hours per week tuition from the programme in November 2022. The Council continued to seek an alternative placement for Miss B’s son but was unsuccessful.
40. In January 2023 the Council noted it was waiting for medical documents from Miss B to progress the annual review paperwork and reminded Miss B about that. The education programme also told the Council it intended to increase Miss B’s sons tuition to 7 hours per week. The education programme provided the Council with an update on his progress so it could share that with schools for the secondary transfer in September 2023.
41. On 15 February the Council issued an amended final EHCP which named a type of placement in the section I. That was a mainstream secondary school from September 2023 and for him to receive education other than at school until July 2023. The Council sent Miss B copy of that by email and said it had named a mainstream secondary school as the type of placement in section I as it had not yet secured a secondary placement. The Council told Miss B the matter would go to the specialist resource provision panel in the coming weeks. The Council also said it would make the amendments requested at the last annual review as soon as possible. The following day the Council spoke to Miss B to explain its reasoning and reminded her it needed the medical information previously requested.
42. Miss B provided the medical evidence by email in March 2023. The Council says the document was not legible.
43. In May 2023 Miss B chased the Council and told it she could no longer cope with having her son at home all day every day. The Council told Miss B it could not read the reports she had provided and asked her to send them again or hand the documents in, in person. Miss B did that later in May.
44. Miss B chased the Council again in June 2023 as she was concerned her son did not have a secondary placement for September 2023. The Council told Miss B the caseworker was out of the office but would return her call.
45. As of June 2023 the Council had not yet amended the EHCP using the medical information Miss B provided in May 2023. The Council’s intention was to issue an amendment notice and then an amended final EHCP which it would send to the schools it had already consulted to see whether any could provide a placement for September 2023. In the meantime the Council’s intention is to continue providing tuition from the education programme.

Analysis

46. I have exercised the Ombudsman’s discretion to extend the period of the investigation to September 2021 when Miss B removed her son from his allocated school. That is because I am satisfied Miss B has been in continual contact with the Council since and believed the Council would find a school place for her son.
47. Miss B says the Council failed to ensure her son received full-time education after she removed him from his allocated school. The evidence I have seen satisfies me Miss B removed her son from his allocated school in September 2021. There is no evidence in the documentary records to suggest Miss B told the Council she had taken that action or that she considered school A unsuitable.
48. I appreciate Miss B had asked for an alternative placement for her son at the annual review which took place in June 2021. However, there is no evidence in the paperwork to suggest either Miss B or school A said her son could not continue to attend the school while the Council sought an alternative placement. I cannot criticise the Council for not putting in place alternative education for Miss B’s son at the point at which she removed him from the school given there is no evidence it knew about that decision and nor is there any evidence the Council considered school A an unsuitable placement for Miss B’s son at that point.
49. By October 2021 though the attendance advisory service had contacted the education department to tell it Miss B’s son was not attending school. There is no evidence the Council took any action on that referral until March 2022 when Council officers met with the school. That was after the attendance advisory service had chased. What the Council should have done in October 2021 is consider whether school A remained appropriate for Miss B’s son. If it considered it was the Council should then have considered taking enforcement action to require Miss B to return her son to the school. If it did not consider it appropriate the Council should have considered providing alternative education until a new school placement could be identified. There is no evidence the Council considered those options. That is fault.
50. I could not say though fault by the Council means Miss B’s son missed out on education between October 2021 and April 2022. That is because it is possible if the Council had considered the case properly it would have considered school A a suitable placement given the school did not say until April 2022 it could not provide education to Miss B’s son. Given that fact, the fact Miss B had removed her son from school A without notice and as Miss B had made clear she would not return her son to school A I consider her injustice is uncertainty about whether the outcome for her son would have been different had the Council properly considered the case between October 2021 and April 2022.
51. The situation is different from April 2022. By that point school A had told the Council it could no longer provide education to Miss B’s son. The Council accepts it should have put in place alternative provision at that point. Failure to do that is fault. The Council did not put alternative provision into place until 14 November 2022. Miss B’s son therefore missed out on education provision between April 2022 and November 2022 due to the Council's fault. Miss B’s son also missed out on his special educational needs provision during that period.
52. Taking into account the fact Miss B’s son did not receive any education or any of his special educational needs provision and that he was assessed as requiring part-time provision at first I consider a suitable remedy would be for the Council to pay Miss B £1,800 per term for the missing education. That means a total financial remedy for the missing education of £3,000, to reflect the fact Miss B’s son missed out on provision for one full term and two thirds of the term from September 2022. I also recommended the Council:
• draw up a plan, to be shared with the Ombudsman, to show how it will deal with similar cases in future to ensure drift does not occur when a child is out of school. This should set out a clear pathway for taking timely action to decide whether to either take enforcement action for non-attendance, plan for re-integration into school, seek an alternative placement, or offer alternative provision for medical or other reasons;
• ensure it has procedures in place for checking it takes the necessary action following review meetings to issue amendment notices and draft and final EHCPs;
• remind officers of the Council's duties to provide alternative provision when a child of statutory school age is out of school. The Council should consider sharing a copy of our focus report 'Out of school…. Out of sight?' and our final decision with the reminder.
53. The Council has agreed to my recommendations.
54. Miss B says the Council failed to identify a suitable secondary school placement for September 2023 for her son. As I said in paragraph 26, the code of practice is clear when a transfer to secondary school is to take place the Council should issue a revised EHCP naming an appropriate provision no later than 15 February of that year. Although the Council issued a final EHCP in February 2023 that EHCP did not name a suitable school. Nor did the plan contain the amendments necessary. I therefore consider the Council issued the EHCP solely to meet the 15 February deadline even though the EHCP was not in its final form at that point.
55. I appreciate there have been difficulties because the Council began looking for an alternative placement for Miss B’s son in a primary school in August 2021. The Council has had difficulty identifying a suitable placement and it is likely the Council concentrated on seeking a primary school placement rather than a secondary school placement given the difficulties it was experiencing. Nevertheless, the Council should have sought and identified a secondary school placement for Miss B’s son by February 2023 and failure to do that is fault. That means Miss B’s son still does not have a secondary placement which is concerning given the amount of time he has already been out of education.
56. The Council says it could not consult secondary schools for the September 2023 start until it received medical evidence from Miss B to enable the Council to amend the EHCP to send it to secondary schools. The Council says it did not receive that evidence until May 2023. However, I note the annual review took place in October 2022. There is no evidence the Council asked Miss B for updated medical evidence until January 2023 and the Council delayed telling Miss B the medical information she had provided was not legible between March and May 2023.
57. There is also no evidence the Council issued a revised EHCP to take account of that medical evidence or began consulting secondary schools by the time of its response to my enquiry on this complaint in June 2023. Those additional delays are fault and, again, means the Council had still not identified a placement for Miss B’s son to start in September 2023. I recommended the Council amend and issue a revised EHCP as a matter of priority and begin consulting secondary schools straightaway. The Council has agreed to my recommendation.
58. Miss B says the Council failed to provide any updates on what was happening and she had to telephone the Council repeatedly. There is some evidence of Miss B contacting the Council for updates and also some periods where the Council was not communicating with Miss B about the lack of education. There have been better communications from the Council around the search for a new school place. As I consider the Council has been in regular contact with Miss B I do not consider this warrants a finding of fault.
59. Miss B says the Council failed to carry out annual reviews of her son’s EHCP. The documentary evidence shows reviews took place in 2020, 2021 and 2022. However, the Council accepts following those reviews it did not follow the code of practice by issuing amendment notices and informing Miss B what it intended to do. That is fault and meant Miss B missed out on her right of appeal. I recommended the Council remind officers dealing with EHCPs of the need to follow the code of practice when receiving annual review paperwork from schools and ensure it has procedures in place for checking it takes the necessary action following review meetings to issue amendment notices and draft and final EHCPs. The Council has agreed to my recommendation.
60. Miss B says the Council failed to send her a final EHCP following the review in October 2022. The evidence I have seen satisfies me the Council issued a final EHCP in February 2023. I am satisfied the Council sent that EHCP to Miss B as it has provided a copy of an email sent to her, attaching the EHCP. As I said earlier though, the Council had not completed the amendments to the EHCP and I consider it likely the Council issued it to meet the 15 February deadline.
61. I am concerned the Council issued the final EHCP without making the amendments or asking Miss B to provide the additional medical evidence to enable it to amend the EHCP and send it to appropriate secondary schools. I am also not convinced the final EHCP reflects the situation with Miss B’s son given it refers to him needing a mainstream placement when the Council has agreed a specialist school is appropriate. I make no recommendation here given the type of school named in section I is outside the Ombudsman’s jurisdiction other than for the Council to prioritise issuing an amended final EHCP to include the medical evidence Miss B has provided.
62. I set out earlier in this statement the financial remedy to reflect Miss B’s son missing out on education and special educational needs provision between April 2022 and November 2022. In addition to that I recommended the Council pay Miss B £500 to reflect her distress and frustration because of the faults identified in this statement. The Council has agreed to my recommendation.

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Agreed action

63. Within one month of my decision the Council should:
• apologise to Miss B;
• pay Miss B £3,500;
• issue a revised EHCP and begin consulting secondary schools straightaway;
• consider whether to increase the hours of education provided to Miss B’s son pending the Council identifying a suitable school placement and keep the number of hours under review;
• remind officers in education of the Council's duties to provide alternative provision when a child of statutory school age is out of school. The Council should consider sharing a copy of our focus report 'Out of school…. Out of sight?' and our final decision with the reminder;
• remind officers dealing with EHCPs of the need to follow the code of practice when receiving annual review paperwork from schools.
64. Within two months of my decision the Council should:
• draw up a plan, to be shared with the Ombudsman, to show how it will deal with similar cases in future to ensure drift does not occur when a child is out of school. This should set out a clear pathway for taking timely action to decide whether to either take enforcement action for non-attendance, plan for re-integration into school, seek an alternative placement, or offer alternative provision for medical or other reasons;
• ensure it has procedures in place for checking it takes the necessary action following review meetings to issue amendment notices and draft and final EHCPs.

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Final decision

65. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman