Summary: Mrs X complains the Council failed to provide suitable education provision for her daughter and delayed in dealing with her requests for an Education, Health and Care plan. The Council is at fault as it failed to consider if Y’s education provision met her needs and was reasonably accessible to her when she could not attend school on a full time basis and when the strategies put into place by the school failed. This caused uncertainty to Mrs X but we cannot conclude the Council would have found the education provision to be unsuitable. There was also fault in how the Council dealt with Mrs X’s complaint which caused uncertainty to her. The Council has agreed to apologise to Mrs X and make a payment of £300.

The complaint

1. Mrs X complains the Council has failed to provide suitable education provision when her daughter, Y was unable to attend school from September 2021 to date. As a result, Y has missed a substantial amount of education which has caused severe distress to her. Mrs X considers the failure to provide education has also caused significant distress to her and her family and caused Mrs X to stop working.
2. Mrs X also complains about how the Council dealt with her requests for Education, Health and Care needs assessment and Education, Health and Care plan for Y. Mrs X considers delays and poor communication by the Council caused significant distress to Y and her family.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
9. 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)

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What I have and have not investigated

10. I have not investigated the Council’s decisions to refuse an Education, Health and Care needs assessment in 2021, to refuse to issue an Education, Health and Care plan (EHC) plan in 2022 and the decision to name Y’s current placement in the EHC plan. This is because Mrs X had the right to appeal to the SEND Tribunal against these decisions and she exercised her right of appeal. I also cannot investigate the Council’s decisions of May and June 2023 not to amend Y’s EHC plan as Mrs X has the right to appeal against these decisions.
11. I cannot investigate the education provision made for Y since February 2023 when the Council issued the final EHC plan. This is because the provision is made by the school which is named on Y’s EHC plan and is not separable from this.

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How I considered this complaint

12. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

13. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs (SEN) he or she may have.
14. There is case law regarding the duty of a council to provide education to children who cannot attend for reasons other than illness or exclusion. This provides that if a council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education because the child is not taking advantage of the existing facility. (G v Westminster City Council [2004] EWCA Civ 45 and DS v Wolverhampton City Council [2017] EWHC 1660).
15. The duty to make alternative provision does not apply because parents or a child have reasonable objections to attending the school. The Council has to decide if the education offered is reasonably available and accessible to the child. (R (R) v Kent County Council [2007] EWHC 2135 (Admin)]
16. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
19. 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 process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.

What happened

20. The following is a summary of events which are key to my consideration of the complaint. They do not include everything that happened.
21. Mrs X’s daughter Y has a diagnosis of Autism and ADHD. In September 2021, Y transferred from primary to secondary school. Y struggled to attend school due to anxiety. The school attendance records show Y stopped attending after mid October 2021. The Council’s inclusion service monitored Y’s attendance and wrote to Mrs X in December 2021 to set out the expectations for Y’s attendance.
22. In March 2022 the school agreed to offer a reduced timetable to Y to support her attendance at school. The Council’s records note it held a review meeting in April 2022 with Mrs X and the school and other professionals to discuss Y’s attendance and efforts to encourage her attendance. The Council’s records note it continued to monitor Y’s attendance. The Council’s record of late June 2022 noted Y’s attendance was improving and she was following the reintegration programme devised by the school. Mrs X disputes Y’s attendance was improving.
23. The school put in place a further reduced timetable for Y at the start of the new school year. The Council held a review meeting in September 2022 and decided to continue to monitor Y’s attendance. The Council’s records note emails from Mrs X with the school and Council which show Y could not always attend school due to her anxiety and other issues.
24. The Council held a further review meeting in November 2022 to discuss Y’s attendance. The school introduced a new reduced timetable to support Y’s attendance.
25. The Council’s records show the school sent an email to the Council regarding Y’s needs for its consideration of whether to issue a EHC plan. The school set out the adjustments made to support Y’s attendance. This included its special educational needs centre with a high level of support, sending work home with a link to a teaching assistant, literacy programmes, outreach, personalised and visual timetables. The school also set out Y’s difficulties including feeling overwhelmed with the environment and school work.
26. In November 2022 the school put in place a further reduced timetable for Y to attend for one hour per day. The school intended to increase Y’s attendance by 30 minutes per week. Y continued to struggle to attend school due to her anxiety.
27. The Council’s records note it considered its responsibility under section 19 of the Education Act to provide suitable education in March 2023. This did not record if it considered the education provision to be suitable or if its section 19 duty had been triggered. The school also made a referral to Access to Education (A2E) for alternative provision and to a farm school.
28. I understand Y started to attend the farm school in April 2023. The school also provided a timetable to reflect Y’s attendance at the farm school and the days she would attend school to support her reintegration into school.

Education, Health and Care needs assessment and EHC plan

29. In July 2021 Y’s primary school applied for a needs assessment. The Council refused to assess Y. In December 2021, following mediation, the Council agreed to carry out an assessment. The Council completed the assessment in March 2022 and decided not to issue an EHC plan for Y. Mrs X appealed against this decision. In late November 2022 the Council conceded the appeal and agreed to issue an EHC plan for Y. The Council issued the final EHC plan for Y in February 2023 which named Y’s current school. Mrs X appealed against the plan as she considers Y requires a specialist placement.
30. In April 2023 the Council held an interim review of Y’s EHC plan to determine if Y’s needs could be met at the named placement or if she required a specialist placement. The Council decided Y’s needs could be met at her current placement and it did not amend Y’s plan. It notified Mrs X of its decision in May 2023 and of her right to appeal against this decision.

Complaint

31. In March 2023, Mrs X made a complaint to the Council that Y had been unable to access any curriculum learning between October 2021 and December 2022. The Council considered the complaint through its two stage complaints procedure. At stage one the Council said it was the school’s responsibility to provide education for Y. At stage two the Council acknowledged it had not addressed whether the Council had met its duty under section 19 of the Education Act 1996 to provide education for Y. It referred the matter back to the service to address.

Analysis

32. Mrs X considers the Council has a duty to make alternative education provision for Y as she has not been able to attend school full time or at all. Mrs X says Y has not received academic education since October 2021. She considers the provision made by the school to be therapeutic rather than academic.
33. Y has not attended school due to anxiety but the absences are unauthorised. So, she is out of school for reasons other than by way of illness or exclusion. The Council should explicitly decide if its duty under section 19 is triggered when a child is not attending school regularly or at all. For a child who cannot attend for reasons other than exclusion or ill health, it should first consider if the education provided can be reasonably and practicably accessed by the child. If it considers the education is accessible then the section 19 duty is not triggered and it does not have a duty to make alternative provision.
34. The Council’s inclusion service had oversight of the actions taken by the school to engage Y with education from September 2021 onwards. But there is no evidence to show the Council assessed Y’s needs and considered whether she could reasonably access the education provision, including the provision put in place by the school. The Council should also have reviewed whether the education provision met Y’s needs when her attendance declined throughout 2022 and the strategies put into place by the school did not improve her attendance. The only reference to the Council considering its section 19 duty is in March 2023 and school considering a long term plan. Again, there is no evidence to show the Council considered if Y could access the education provision made by the school. On balance, the failure to consider if the education provision met Y’s needs and whether she could reasonably access it is fault.
35. This fault will have caused some uncertainty to Mrs X. However, I cannot conclude, on balance, that the Council would have decided the education provision made by the school was not suitable for Y. The Council named the school on Y’s EHC plan so it is likely it would have considered the school to be suitable and accessible for Y so it would not have had a duty to make alternative provision. I therefore cannot conclude that the fault by the Council caused Y to miss educational provision.
36. In response to my enquiries the Council has listed the alternative provision made by the school. I cannot come to any view on the suitability of that provision as it is not separable from Mrs X’s appeal against the EHC plan and the named school. We also do not have jurisdiction to investigate the school’s decisions regarding what provision it should make. But the Council should be aware that it has the overall responsibility for deciding if it should make arrangements for alternative provision under section 19.

Education, Health and Care needs assessment and plans

37. There is a significant period of time between Mrs X’s first request for a needs assessment in September 2021 and the issue of the EHC plan in February 2023. I understand why Mrs X may consider her efforts to get appropriate support for Y were constantly blocked by the refusal to assess and the refusal to issue a EHC plan. But the Council’s decision making regarding the needs assessment and EHC plan is outside our jurisdiction as those decisions can be appealed and Mrs X has exercised her right of appeal. I can consider if there was any fault in the process between the Council deciding to issue an EHC plan and issuing the final plan.
38. On balance, there is no evidence of fault. The Council issued the draft plan within five weeks of its decision to issue an EHC plan. This is consistent with the timescale for issuing a draft plan in the event it is ordered by a Tribunal. The Council took three weeks to issue the final EHC plan following Mrs X’s comments on the draft. This is not an excessive period of time. I therefore consider the EHC plan was issued in a timely way.

Complaint

39. The Council is at fault in how it considered Mrs X’s complaint. In its stage two response, the Council acknowledged it had not addressed whether it had met its section 19 duty when dealing with Mrs X’s stage one complaint. However, it referred the matter back to the relevant department rather than addressing the matter in its stage two response. This is poor complaint handling as there was no reason why the Council could not address whether it had met the section 19 duty. Passing the matter back to the department added another stage to its complaint handling and will have caused some distress to Mrs X.

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Agreed action

40. That the Council will:
1. send a written apology and makes a payment of £300 to Mrs X for the uncertainty caused to her by its failure to consider if Y’s education provision met her needs so was reasonably accessible to her and for failing to address whether the Council had met its section 19 duty when responding to her complaint. The Council should ensure the apology to Mrs X is in accordance with our new guidance on remedies for Making an effective apology
2. by reviewing its procedures or other means, ensures it considers whether education provision is meeting a child’s needs and is reasonably accessible in the event a child is not attending full time or at all and keeps a record of this decision. The Council should also ensure it keeps the suitability of the education under review in the event a child does not quickly return to full time education.
3. by training or other means, ensure officers are aware that all issues raised in a complaint are appropriately addressed.
41. The Council should take the action at a) within one month and the action at b) and c) within two months of my final decision.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman