Summary: The Council failed to provide education for Y when she was unable to attend school, and it delayed issuing an Education, Health and Care (EHC) plan. The Council has agreed to make payments to Y and Mrs X and to take action to prevent similar failings in future.

The complaint

1. Mrs X complains that the Council failed to take appropriate action when her daughter, Y, was too unwell to attend school. In particular, she considers it failed to provide alternative education for Y.
2. Mrs X also complains about failings in the EHC plan process. She says there were significant delays, communication was poor and she was given incorrect information.
3. Mrs X says that Y has missed out on around 19 months of education which has affected her development and well-being. She says the Council’s failings have also caused her significant distress and frustration; she has had to give up work and her health has suffered. She says all members of her family have been affected.

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The Ombudsman’s role and powers

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 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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
8. 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.
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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 period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
13. 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)
14. 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

15. As explained in paragraph six, we will normally only investigate complaints about matters that a complainant became aware of in the preceding 12 months. Mrs X’s complaints have been made to us late. However, I consider there are good reasons why Mrs X did not complain sooner and have therefore exercised discretion to investigate.
16. I have investigated Mrs X’s complaints about the EHC process and the lack of alternative education. I have not investigated any decisions which included a right of appeal to the SEND Tribunal or any matters which were a consequence of a decision which had a right of appeal.

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How I considered this complaint

17. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Background information

Education, Health and Care (EHC) plans

18. A child or young person with special educational needs may have an 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.
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 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).
20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC plan themselves.
21. Mediation is an informal way to resolves disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal.

Alternative education

22. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. 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)
24. 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)
25. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.

What happened

26. Mrs X stopped sending her nine-year-old daughter, Y, to school in April 2021 because she was experiencing significant anxiety.
27. In July, Mrs X asked the Council to carry out an Education, Health and Care (EHC) assessment. The Council refused Mrs X’s request on 12 October.
28. Mrs X disagreed with the Council’s decision and requested mediation. On 25 October, the Council conceded and agreed to carry out an EHC needs assessment.
29. The school arranged monthly ‘team around the family’ meetings to support the family. During a meeting on 1 March 2022, Mrs X was told that the Council had advised the school to start marking Y’s absence from school as unauthorised, unless medical evidence was provided to show she was unable to attend school. Y’s school told Mrs X that if it marked Y’s absence as unauthorised, it may lead to the Council prosecuting Mrs X for failing to ensure Y attended school.
30. Mrs X sought specialist advice and then wrote to the school explaining why she considered Y’s absence should be marked as authorised. The school decided to continue marking Y’s absence as authorised.
31. A draft EHC plan was issued in March 2022. Mrs X did not consider any school setting would be appropriate for Y. She asked the Council to provide a personal budget for Education Other Than at School (EOTAS).
32. The Council refused Mrs X’s request because it considered Y’s needs could be met in a setting.
33. Mrs X arranged for Y to have an assessment by a psychology service which resulted in a diagnosis of Autism Spectrum Disorder with a Pathological Demand Avoidance (PDA) profile.
34. The Council issued the final EHC plan in August. Mrs X disagreed with the contents of the plan and requested mediation. In particular, she did not agree that mainstream provision would be appropriate for Y, and she considered the plan needed to include Y’s PDA diagnosis.
35. Mrs X also complained to the Council about its failure to provide Y with any education since May 2021, the content of the EHC plan and failings in the EHC plan process.
36. During a meeting on 12 September 2022, the Council agreed to provide a personal budget for EOTAS. Y’s final EHC plan was amended and issued on 30 September.
37. In the Council’s response to Mrs X’s complaint, it apologised for not putting any alternative provision in place. It also accepted the EHC plan process had taken too long.
38. Mrs X received the personal budget for EOTAS on 10 November.
39. Mrs X contacted the Council again on 1 June 2023 and said she wanted to take her complaint further. The Council’s stage 2 response was similar to its first. Mrs X remained dissatisfied and complained to the Ombudsman.

My findings

EHC process

40. The SEND Code of Practice states that councils must give their decision in response to any request for an EHC needs assessment within a maximum of six weeks from when the request was received, and that 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. It also states that it is not reasonable to expect councils to comply with these timescales where the school is closed for at least four weeks.
41. The Council received Mrs X’s request for an EHC assessment on 30 July 2021 and it decided not to carry out an assessment on 12 October 2021. Taking into consideration the school holidays, I do not consider the Council delayed providing its decision to Mrs X.
42. The Council considers the 20-week time scale should be paused between 12 October, when it refused to carry out an assessment, and 25 October, when it conceded and agreed to carry out an assessment. If new evidence was provided which led the Council to change its decision, I would consider it unreasonable to include this period within the 20-week timescale. However, I have seen no evidence of this here. I therefore consider the Council should have issued a final EHC plan by 21 January 2022. This was 20 weeks after the school term started on 3 September 2021. The Council issued the final EHC plan on 2 August 2022, over 27 weeks late. This delay was fault.
43. The law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter. I do not consider we should investigate the Council’s decision to refuse an EOTAS package because Mrs X had a right to appeal this once the final EHC plan was issued. Mrs X followed the appropriate route to challenge this decision by requesting mediation. The Council conceded and agreed to provide a personal budget for Y to have an EOTAS package and so she did not need to appeal to the SEND Tribunal.
44. The Council issued a revised final EHC plan on 30 September 2022 which stated that Y would receive a personal budget to pay for an EOTAS package. Mrs X says that she did not receive any direct payments until November 2022. The Council should have backdated the direct payments to 30 September 2022. It did not do so; this was fault.
45. If there had been no delays by the Council in the EHC process, I consider the Council would likely have agreed a personal budget for EOTAS by May 2022.

Alternative education

46. Y did not receive any education between 21 April 2021 and November 2022. We cannot investigate the lack of education between 2 August 2022 and 30 September 2022 for the reasons explained in paragraphs 10 to 12 above. The lack of education during this period was connected to the Council’s decision that Y could attend a mainstream setting, which had a right of appeal.
47. I have investigated whether the Council should have provided alternative education between 21 April 2021 and 2 August 2022. It was not necessary to provide alternative education after 30 September 2022 because the Council agreed to pay a personal budget for an EOTAS package.
48. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware that Y was not attending school and that the school was not providing Y with any education.
49. The evidence suggests that at the time, the Council failed to recognise that it had a duty to provide Y with alternative education. The Council now accepts that it was responsible for this.
50. The Council failed to provide Y with any alternative education between May 2021 and August 2022. This was fault and will have affected Y’s development and well-being.

Threat of prosecution

51. The government guidance applicable at the time of this complaint stated that schools should authorise absences due to illness unless they have genuine cause for concern about the veracity of an illness. If the authenticity of illness is in doubt, schools can ask parents to provide medical evidence, but they should not do so unnecessarily.
52. I have seen nothing to suggest the school did not consider Y was unwell. After considering notes of the ‘team around the family’ meeting, I consider it likely, on the balance of probabilities, that the Council wrongly advised Y’s school to mark her absence as unauthorised if she did not provide medical evidence to show that she was unable to attend school. This was fault.
53. The Council’s failings here caused Mrs X distress and she was put to the inconvenience and avoidable expense of seeking advice and then explaining to the school why it should not mark Y’s absence as unauthorised.

Communication

54. Mrs X has provided evidence which shows the Council delayed or failed to respond to her emails. This was fault. It caused delays in the process and added to Mrs X’s frustration.
55. Mrs X considers the Council gave her incorrect information when it said that it could not include Y’s PDA diagnosis within her EHC plan because it is not a recognised condition. Mrs X has provided evidence to show that in another child’s case, the Council issued an EHC plan stating that the child had a diagnosis of Autistic Spectrum Disorder (ASD) with Demand Avoidance profile (PDA).
56. The Council says that PDA does not appear as a separate diagnostic condition in nationally and internationally recognised diagnostic manuals and for this reason, the Council and NHS Services do not accept PDA as a diagnosis. It says a PDA profile is accepted as part of an ASD diagnosis but not as a separate diagnosis. This is a view the Council is entitled to reach. I do not consider the Council gave Mrs X incorrect information. However, it would have been helpful if it had explained at the time that it could include Y’s PDA profile as part of her ASD diagnosis in her EHC plan.

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Agreed action

57. Within four weeks, the Council will take the following actions:
• Make a payment of £5100 to Mrs X for not providing Y with a suitable education for around 15 months. This money should be used for Y’s benefit.
• Make a payment of £300 to Mrs X to acknowledge her distress and frustration and the trouble she has been put to seeking advice and pursuing her complaint.
• Backdate Y’s personal budget to 30 September 2022, if it has not already done so.
58. Within eight weeks, the Council will take the following actions:
• Ensure staff record the reasons for refusing to carry out EHC assessments.
• Provide training or guidance to all relevant staff on the EHC process timescales. This will include the timescales which apply when the Council initially refuses to carry out an assessment but then decides to assess after the parent exercises their right to mediation or appeal.
• Finish developing its EOTAS policy if it has not already done so.
• Provide training or guidance to all relevant staff on the Council’s and school’s duties when a child is unable to attend school, to ensure they receive a suitable education.
• Review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
• Publish its communications policy on its website, if it has not already done so.
• Provide an update on the progress which the EBSA working group is making towards developing a clear pathway for Emotionally Based School Avoidance.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman