Summary: Miss X complained her daughter had been unable to attend school since October 2022 with no suitable alternative provision provided. Miss X said there had been delays in the education, health and care plan process. She also said the Council’s communication had been poor. We find the Council was at fault. This caused significant distress to Miss X and her daughter. We make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains her daughter has been unable to attend school since October 2022 with no suitable alternative provision provided. Miss X said there has been delays in the education, health and care plan process. She also said the Council’s communication has been poor.
2. Miss X said this has caused her and her daughter significant distress.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I have investigated matters between January 2023 when the Council became aware Miss X’s daughter was out of education until March 2024 when the EHC Plan was finalised.
10. I have not investigated matters after the plan was finalised as Miss X had the right of appeal against the school placement.

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How I considered this complaint

11. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plans

13. 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. 

Timescales and process for EHC assessments

14. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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). 

General section 19 duty

15. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. 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)

Health needs

17. 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])

Summary of the key events

18. Miss X’s daughter, B’s school contacted the Council late January 2023. They said they had just completed an early help assessment with B whose attendance was 26%. The school also said:
• Miss X said B’s nonattendance was due to anxiety and mental health issues, but the school said they had no evidence to support this; and
• they had tried everything but said B needed to be in school to benefit.
19. In February 2023, the Council’s notes stated there were concerns as B had not been in school since October 2022. It was noted the school had referred B to a service who offer support to children, but this was declined by Miss X who had not attended meetings. The school were advised to explore legal action.
20. The Council and school carried out an unannounced visit to Miss X in the following month and left a calling card.
21. Miss X called the Council shortly after. The Council explained it was investigating poor attendance and stated it needed to see B. The Council asked Miss X to provide medical evidence. But Miss X advised she had previously sent this to school. The was a GP letter stating B struggled with anxiety and mental health issues.
22. The Council continued to visit Miss X and B throughout March 2023. It was noted the school had not sent work home as they were not authorising B’s absences.
23. In April 2023, the Council’s emails to the school note it did not consider there to be any specific evidence relating to a mental health diagnosis.
24. Miss X complained to the Council in the same month. She said B had not been able to attend school since October 2022. She said the adjustments at school were not helpful and school were refusing to send work home.
25. The Council made several attempts to arrange a visit to Miss X and B in April 2023, but it was noted Miss X had declined. The notes state school had visited, but had no response, so a referral was made to the police to complete a welfare check.
26. There was an early help review in April 2023 which was attended by the Council and school. It was noted that current issues were discussed, and the school could not authorise B’s absences. This was because the school stated no evidence had been provided to suggest B was unable to attend.
27. Towards the end of April 2023, Miss X reiterated her concerns for B. She asked how they could access education. In response, the Council said it needed to gather information and fully understand B’s needs via the early help process. It said without this information, it was difficult for a medical panel to consider what support may be required. It asked to arrange a further meeting with Miss X to explore how it could move forward.
28. Miss X made a request in May 2023 for an EHC needs assessment.
29. The Council asked Miss X when she was free. But Miss X said due to anxiety, she did not think she could attend any meetings. In response the Council said:
• without fully understanding B’s needs, it was difficult for school to establish what provision was most appropriate;
• requests for alternative education due to medical reasons are considered by a medical panel. The panel would expect schools to have undertaken an early help assessment. They would expect a developed individual health care plan which outlined the reasonable adjustments school had put in place;
• the panel also require supporting information from medical professionals; and
• it would liaise with school in the meantime to see whether any interim arrangements for remote learning could be in place whilst waiting for B’s appointment with Child and Adolescent Mental Health Services (CAMHS).
30. The Council visited Miss X and B in June 2023. It discussed B accessing online work and stated the school would provide a laptop.
31. The school provided the Council with the laptop on the 5 July 2023. The Council contacted Miss X and a meeting was agreed for the following day to set B up with the online work package. But Miss X later declined for the meeting to go ahead. This was because she said it was difficult to get B up in the mornings and asked for it to be rearranged.
32. Later in the month, the Council set B up with some online work to complete over the summer period.
33. On the 21 July 2023, Miss X asked for an update on the EHC needs assessment. The Council advised it was waiting for information from health before it could proceed.
34. An educational psychology report was completed in August 2023. It was noted B was experiencing emotionally based school avoidance. It was also noted the assessments indicated B may be autistic.
35. The Council wrote to Miss X in the same month. It said it had received her complaint and had escalated it to stage two. It said it would aim to respond within 20 working days.
36. Towards the end of August, the Council asked Miss X if she wanted to re-consider the previous online work package which is detailed in paragraph 31. But Miss X declined as she said it could set B back.
37. A meeting was held in October 2023 following the school’s refusal to refer B to the multi-agency medical panel. It was noted that:
• B was not attending school;
• school were asked to complete the referrals, and it was noted there were no grounds to refuse based on non-attendance; and
• an early help assessment needed to be open so referrals could be made.
38. Miss X contacted the Council twice chasing a response to a complaint she made in August 2023.
39. In October 2023, the Council contacted the school. It said it did not believe B was choosing to not attend school and said she could not both physically and mentally. It asked if the school would consider providing B with a tutor until alternative options were available.
40. In November 2023, Miss X chased the Council again for a response to her complaint made in August 2023.
41. In the following month, the school confirmed they would not fund any alternative provisions.
42. In January 2024, the Council agreed to provide funding for B to attend an alternative provision placement at a farm for one day a week.
43. Miss X received the draft EHC Plan on the 30 January 2024.
44. The Council responded to Miss X’s complaint in January 2024. It said:
• Miss X was informed of its decision to carry out a needs assessment on the 25 July 2023 and the 20-week deadline was the 28 September 2023. But the Council entered an extension to time limits due to the school holidays;
• the assessment was not completed on time due to delayed advice received from CAMHS. It apologised for the delay and said this advice was received on 18 October 2023;
• it considered referring B to a teaching service but said this could not be progressed as school were marking B’s absences as unauthorised, rather than illness;
• the early intervention team had advised the school the absences should be authorised due to supporting medical letters; and
• the early intervention team had approached the farm as an alternative provision with a view to B starting to attend to promote re-engagement.
45. It was noted B began attending the farm which was going well.
46. The EHC Plan was finalised on the 27 March 2024. It named B’s current school.

Analysis- was there fault by the Council causing injustice?

EHCP process

47. Miss X requested a needs assessment in May 2023. The Council agreed to an assessment in July 2023. The 20-week deadline to completing the final plan was the 28 September 2023. But the plan was not finalised until the 27 March 2024.
48. In response to our enquiries, the Council has accepted there was a six-month delay. It said Miss X was advised on the 25 July 2023 that it had entered an extension due to time limits due to the school holidays. But it has noted there had already been a 4-week delay in deciding to undertake an EHC needs assessment.
49. This delay caused significant distress to Miss X and B went without an EHC Plan for six months. This also frustrated Miss X’s appeal rights.
50. The Council said it has taken steps to mitigate such delays in the future. It has proposals to increase capacity within the SEND assessment and educational psychology services were approved.

Between January and September 2023

51. From the evidence seen, the Council became aware B was out of education in January 2023. The school made it aware B’s attendance was low, and they said they had tried everything. The Council advised the school to explore legal action and began its investigation.
52. It was noted the Council had deemed the GP letter provided by Miss X to be insufficient evidence to support B’s non-attendance. Therefore, the Council had decided its section 19 duties did not apply. This was a decision for the Council to take. As there is no fault in how this decision was made, I cannot question it.
53. As stated in paragraph 51, the Council began its investigation into B’s low attendance. This consisted of visits to Miss X and B to establish why B was out of school. From the evidence seen, Miss X did sometimes decline visits which led to some visits being postponed. Miss X said due to her chronic health issues she sometimes could not get out of bed.
54. The Council arranged for an online work package to be put in place in July 2023. Miss X said this was work provided on a website. But Miss X said due to short notice, she needed more time so B could prepare. Different online work was set up for B to complete over the summer holidays. It is noted that in August 2023, Miss X declined the offer to revisit the online work package as she said it could set B back. She confirmed B had been completing some of the online work.
55. The Council was entitled to take the approach it did. As it did not deem the medical letter to be sufficient, it needed to establish why B was out of education. It also said in the absence of any medical evidence to support B’s absence, it was considered that the school was available and accessible. I do not consider there to be any fault in the process and I therefore cannot question the merits of its decision.

Between October 2023 and March 2024

56. In October 2023, after its investigations, the Council accepted that B could not physically or mentally attend school. It asked the school to fund alternative provision which the school refused. Therefore, in January 2024 the Council arranged for B to attend an alternative provision setting for one day a week which started in February 2024.
57. As the Council accepted B could not attend school in October 2023, it had a duty to provide alternative provision. At that point, I acknowledge that online work was provided. The Council said apart from two days, B did not engage with this. The Council did not arrange the further alternative provision until January 2024.
58. In my view, there is fault as there was a delay in the further alternative provision being arranged. This meant B went without education between October 2023 and January 2024. The Council has accepted there was fault and proposed a financial remedy. In acknowledgment of missed education, we recommend a payment per term. I consider a suitable remedy in this case to be £1200. In determining this, I have taken into account the offer of online work.
59. As stated above, the Council arranged for B to attend an alternative provision setting for one day a week. This started in February 2023. The Council considered that even with an EHC Plan, it would have been necessary to take a phased approach to introducing B to the alternative provision. This was due to her needs and the length of time she had been out of school. It said if the EHC Plan had been in place in February and March 2023, the provision would have been the same as what was provided during this period. This was a decision the Council was entitled to take. It provided alternative provision that it considered to be appropriate for B.
60. As stated in paragraph 49, the delays meant B went without an EHC Plan for six-months. But as stated above, the Council has considered that in February and March 2024, B was provided with the same provision as she would have been provided through the EHC Plan. I will therefore take this into consideration when considering the remedy for the delays.

Communication

61. Miss X complained to the Council in April 2023. Miss X complained again in August 2023. I have seen evidence to support that the Council did acknowledge the August 2023 complaint and stated it would respond within 20 working days. Miss X continued to chase the Council for a response in October and November 2023. From the evidence seen, the Council responded to one of Miss X’s complaints in January 2024. Therefore, there is a significant delay in Miss X receiving a response. The Council has accepted it failed to provide a stage two response to Miss X’s complaint about the early interventions team. This caused her significant distress, and she spent unnecessary time and trouble in contacting the Council.
62. The Council said as part of its work to introduce the LGO’s complaint handling code in April 2026, it is currently carrying out a review of its complaint handling resources with a view to increasing capacity. It said particularly in relation to stage two complaint investigations as it is recognised that additional resource is required in this area.

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Agreed action

63. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £400 to acknowledge the unnecessary time and trouble she spent in contacting the Council;
• pay Miss X £1200 for the educational benefit of B, to recognise the impact of its failings on B’s education [between October 2023 and January 2024];
• pay Miss X an additional £300 for the educational benefit of B, in recognition of the impact of the delays in finalising the EHC Plan; and
• pay Miss X £250 in recognition of the distress caused to her by the delays in finalising the EHC Plan.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman