• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs S complains the Council did not arrange alternative educational provision for her daughter after she became unwell and unable to attend school. It also delayed completing her Education, Health and Care needs assessment. Mrs S says the Council’s fault meant X missed out on suitable educational provision for a year and has not received special educational needs support she may have been entitled to. We uphold the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant (Mrs S) complains the Council:
   • failed to arrange alternative educational provision for her daughter (X) after she became unwell and unable to attend school;
   • delayed completing X’s Education, Health and Care (EHC) needs assessment in line with statutory timescales.
2. Mrs S says the Council’s fault meant X missed out on suitable educational provision for a year and did not receive special educational needs (SEN) support she was entitled to. Mrs S says this caused her uncertainty and distress and had an impact on X’s academic development and well-being.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. 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)
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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How I considered this complaint

8. As part of the investigation, we have:

• considered the complaint and the documents provided by Mrs S;
• made enquiries of the Council and considered its response;
• spoken to Mrs S;
• sent my draft decision to Mrs S and the Council and considered their responses.

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What I found

Legal and administrative background

EHC needs assessment and EHC Plans

9. A child or young person with SEN 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 SEND Tribunal or the council can do this.
10. 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).

Alternative provision

11. 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)
12. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
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. 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])
15. 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.
16. 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.

17. 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.

What happened

Background

18. X was born in 2012. At the time this complaint relates to, she was attending primary school. X was experiencing anxiety about attending school. She had also been referred for an assessment for Autism Spectrum Disorder (ASD).
19. Mrs S’s says X has been out of full-time education since April 2023. She says from then until the end of the summer term, she attended school for a maximum of an hour a day.

The EHC needs assessment

20. On 12 June 2023 Mrs S completed a form asking the Council to carry out an EHC needs assessment for X.
21. On 11 August the Council wrote to Mrs S advising it had agreed to start an EHC needs assessment.
22. The Council’s educational psychologist completed their report at the end of January 2024.
23. The Council issued:
    • a draft EHC Plan in mid-March;
    • the final EHC Plan on 11 June;
    • an amended EHC Plan naming a school in July 2024.
24. Mrs S says she has appealed the EHC Plan on the basis of the school the Council has named in it.

Alternative education

25. From May 2023 Mrs S was in contact with Council officers from its School Attendance Support Service advising X was refusing to attend school. Mrs S advised the school was not doing much to help.
26. Towards the end of June 2023 Mrs S wrote to the Council requesting it arrange alternative education for X, as set out in Section 19 of the 1996 Education Act. She suggested some organisations outside the school where X might attend. The School Attendance Support Service contacted the school and requested it arrange a meeting to explore the barriers to X attending school.
27. In July, X’s school advised:
    • since April, X had been only attending the school for one hour a day, with advice from the Council to increase this gradually, by increments of 10 minutes;
    • X was at home for the rest of the day. On the Council’s advice it had withdrawn its offer to provide X with online classroom provision, due to a concern it might entrench X’s wish to stay at home;
    • the school felt online learning would need to take place in school.
28. Later in the month the Council’s SEN Panel considered Mrs S’s request for alternative provision. Its decision was the school had appropriate provision in place and it could request further advice as needed. The school reported X was doing well during her time in school.
29. After the summer vacation, in mid-October, the school wrote again to the Council. It advised X “…continues to be on a part-time timetable to support her reintegration to school …her time in school is being increased in incremental steps”.
30. After this, Mrs S was in contact with the Council about X’s lack of education. She sent a Council officer (Officer 1) her earlier request for alternative education. She also presented letters from X’s GP saying X needed support. Over a series of contacts Officer 1 gave Mrs S some advice about what the Council expected schools to do when a child, too ill to attend school full-time, needed extra help from the Council.
31. Officer 1’s further investigation noted what Mrs S had requested from the school. She also noted the school could have done more to contact various teams for advice and support. The school’s relevant member of staff said no concerns had been raised with them about X’s difficulties.
32. The Council made referrals for support for X. It also arranged a meeting for Mrs S, X, the school and the Council to discuss the issues.
33. On 17 January 2024 the Council hosted a meeting. The school’s special educational needs co-ordinator (Senco) attended. The record of the meeting notes X’s:

“…mental health and anxiety has reached a point where she is unable to attend school as it is too much for her mental wellbeing and she requires additional help and support. She has not accessed her classroom for learning or had any peer interactions since summer 2023 and attempts to increase her hours or engage her in learning tasks cause increased anxiety and distress.”

34. In early February Officer 1 visited X and Mrs S and discussed options for placements and tutoring and agreed a tuition package, as a starting point, increasing over time. The tuition started in February. From September X started at a special school.

Complaints

35. Mrs S complained X had been out of school since April 2023 and was not getting any education, as a part-time timetable had failed. During that time the Council had also delayed assessing X’s needs in its EHC needs assessment. The Council’s November 2023 response:
    • outlined the support and plan in place to try to rebuild X’s relationship with the school with the aim for her to return to school;
    • apologised for its delay in its EHC needs assessment. That was due to delays in completing an educational psychologist assessment.
36. In February 2024 the Council responded at stage two of its complaint procedure. It advised:
    • it upheld the complaint about the lack of alternative provision being offered and accepted delays in coming to a resolution about the education that best met X’s needs whilst awaiting the EHC needs assessment. In response to the Ombudsman’s later enquiries, it advised its view was the period of delay was the 2023 autumn term;
    • it would, in principle, agree to arrange some named provision for X while waiting for the outcome of the EHC needs assessment;
    • it would arrange a meeting between Mrs S, X and her support worker to agree what package would work best for X;
    • offered Mrs S £600 for the delay in carrying out the assessment. This was based on an anticipated end date to the delay of the end of May 2024.
37. Mrs S complained to the Ombudsman.

Analysis

EHC needs assessment

38. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
39. Mrs S asked for an EHC assessment in June 2023. The Council decided to carry out an assessment and issued a decision letter in the middle of August. The Code allows councils six weeks from the date of a parental request to make a decision. So this was a delay of about two and half weeks. That delay was fault.
40. The Code says educational psychologist reports should be completed within six weeks of a request. The Council’s SEN team requested educational psychologist advice at the same time as it decided to assess X. This means the educational psychologist’s report should have been available by 24 July to comply with the six-week timeframe. The educational psychologist’s report was not completed until the end of January 2024 – a delay of six months. The delay was not in line with the Code and so was fault.
41. The Council also failed to complete the process and issue a final EHC Plan within 20 weeks from the date of Mrs S’s request. It should have issued X’s final plan around the third week in September. The final EHC Plan was not available until the second week of June 2024, a total delay of around two and a half terms. That delay was fault.
42. The delay had an adverse impact on Mrs S and X. It delayed the right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up.

Alternative education

43. Mrs S was requesting alternative education for X from May 2023. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding that the steps the school was taking were sufficient. There is a record that, in July 2023, the Council advised the school its view was that it was in X’s best interests to focus on incrementally increasing her attendance at the school, due to its view about the risks of entrenching X’s non-attendance.
44. So, in X’s case, the Council did actively consider the education she was receiving. It liaised with the school and came to a decision about the best course of action for X. It gave cogent reasons for its advice. It was of the view that X had education available and accessible to her. In those circumstances, the Section 19 duty was not applicable.
45. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. My decision is, at this early stage, I see no administrative fault in the Council’s decision making. So I cannot criticise the merits of its decision.
46. In the first term of the new academic year, X was no longer attending school. Mrs S was in touch with Council officers. Their enquires established there was more the school could have been doing.
47. From November 2023, the Council started the process of making referrals for X to various alternative providers, including a tutor, that started in February 2024.
48. I accept the Council’s submission that its delay in providing X with alternative provision began in September 2023. But my decision is the end date in this period is February 2024 – when X started work with a tutor. This means she missed some provision for around one and a half terms.

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Agreed action

49. With reference to the approach set out in our guidance on remedies, the Council has agreed to take the following actions. The actions do not account for any payments the Council has already made to Mrs S, which it should deduct from my recommendations.
    • For the missed provision of the contents of X’s EHC Plan for around two and a half terms, the Council has agreed to make a payment to Mrs S of £4225.
    • For the missed provision of any alternative education for X, for around a term and a half, the Council has agreed to make a payment to Mrs S of £2225.
    • Provide Mrs S with a letter apologising for the faults I have identified. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
    • For Mrs S’s avoidable time and trouble, make a payment to her of £250.
50. Mrs S should use the payments for X for her educational benefit, as she sees fit.
51. The Council should provide us with evidence it has complied with the above actions.
52. In June 2024 the Department of Education issued the Council with an Improvement Notice, following an Ofsted and Care Quality Commission inspection. This Notice included instructions to improve both the timeliness of EHC needs assessments and its delivery of alternative education. For this reason, I am not making any recommendations for service improvements.

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Final decision

53. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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