Summary: Miss X complained the Council failed to provide a suitable education for her son between July 2023 and March 2024. We found there was a delay in reviewing Y’s Education Health and Care Plan and a failure to provide an education for Y while he was not attending school. We recommended an apology and payment to recognise the impact.

The complaint

1. Miss X’s son, Y, has been out of education since July 2023. She complains the Council failed to ensure that he received a suitable education since that time. She stated the period out of school affected Y’s education and mental health and it was stressful and difficult for her.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I am investigating the events of Miss X’s complaint between July 2023 and 10 April 2024 when a new Education Health and Care Plan (EHC Plan) was issued. We cannot investigate the events after the EHC Plan was issued because case law has found 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). The period we cannot investigate starts from the date the appealable decision is made.

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How I considered this complaint

6. I considered Miss X’s complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special Educational Needs (SEN) Statutory Guidance

8. Statutory guidance states that councils must arrange for an EHC Plan to be reviewed at least once a year to make sure it is up to date. A council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The process is only complete when a council issues a decision about the review.
9. Within four weeks of a review meeting, councils must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194).  Case law sets out this should happen within four weeks of the date of the review meeting. A Council should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issued within 12 weeks of the review meeting.

Education Act 1996

11. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
12. Councils must “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.” (Education Act 1996, section 19(1))

Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’

13. This statutory guidance says, as soon as it is clear that the home school can no longer support the child’s health needs and provide suitable education, the school should speak to the local authority about putting alternative provision in place. There is no absolute legal deadline by which local authorities must start to arrange such an education. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year. When a local authority arranges alternative education, it should begin as soon as it is possible, and at the latest by the sixth day of the child’s absence from school.
14. The duty to provide a suitable education applies to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. 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)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What Happened

18. In July 2023 Miss X contacted the Council to explain that her son was struggling to attend the school named in his Education Health and Care Plan (EHC Plan). I have referred to this as School A.
19. She told the Council that School A had changed Y’s class teacher and this had caused him significant anxiety and he was refusing to attend school.
20. Miss X met the school on 21 July to discuss the situation and the headteacher wrote to Miss X. The school decided that it would not move Y to another class and it could not provide 1:1 support for him. The headteacher stated the school would arrange an annual review of Y’s EHC Plan in the Autumn term and it would arrange a cognitive assessment and referral to the Children with Disabilities Team. The school offered to send work home. It noted that Miss X stated she would not start any work with him before the new term in September.
21. On 20 September Miss X asked the Council if Y could have work sent home for him. She noted the Council’s duty under Section 19 of the Education Act to ensure he was provided with an education. There is no evidence this happened.
22. An annual review of Y’s EHC Plan was arranged for 29 September. It appears this was subsequently cancelled.
23. In early October 2023 Miss X asked the Council about Y’s current educational provision. The SEN team told Miss X that if Y had been signed off from school as medically unfit to attend, the school had a duty of care to respect this and they would not be responsible for providing work for him to complete. The SEN team stated various professionals were feeding into Y’s annual review and this would help determine the best transition and reintegration plan for him.
24. In further correspondence Miss X explained her concerns about the school and made suggestions about how the school could accommodate Y to allow a change of class teacher.
25. An Annual Review of Y’s EHC Plan took place on 8 December 2023. The report stated Y still needed an EHC Plan, but he was more academically able than the other children at School A. It was recommended that Miss X should be supported to look for an alternative placement.
26. The Annual Review documents refer to Y being a school refuser since July 2023. They noted Y was Autistic and did not like change. The documents explained that Y had significant levels of anxiety and described Y’s recent behaviour and difficulties. A letter from CAMHS explained Miss X’s concerns that Y had not been able to cope when moving up a year group and having a new teacher. The changes and an incident at school triggered a significant increase in Y’s anxiety. Y’s behaviour had changed at home; he was increasingly aggressive, lower in mood and he was reluctant to leave the house and he was hurting himself. Miss X later commented in correspondence that all those at the meeting agreed School A could no longer meet Y’s needs. The Council agreed to amend the EHC Plan to reflect that.
27. On 11 December Miss X emailed the SEN team again to ask for clarification about when Y would be getting some home tuition while waiting for permanent placement to be arranged. She stressed that he had been out of education for around 6 months.
28. The Council sent an amendment notice to Miss X on 2 January 2024. On 8 January a change of placement was agreed at a panel meeting.
29. On 19 January the Council requested a referral for tutoring for Maths and English on four afternoons per week. The Council was awaiting a tutor to be allocated as at 6 February 2024. The Council told us the referral for tutoring was online, but this was not considered suitable by Miss X. The Council stated it did not continue to pursue tuition at this point. The Council stated it offered a double forest school session for an hour but this was not taken up as it was offered at a time Miss X was visiting possible new placements.
30. The Council stated towards the end of January a new head teacher took over at School A and started discussions about reintegrating Y back to the school.
31. In early February the Council noted Y was struggling at home, being aggressive and it was difficult to leave the house with him. Officers discussed the school requiring weekly medical notes to support Y’s non-attendance. They noted this was proving difficult for Miss X. The Council agreed to advise the school that weekly medical notes were not needed, as the reason for Y not attending school was sufficiently clear, and contact and welfare visits were ongoing. In the communication the Council noted a key issue for Miss X was the school not providing work. The SEN team stated that they agreed if a child was too ill to attend school they would be too ill to complete work.
32. The Council issued Y’s final EHC Plan on 28 March 2024. This named School A.

What should have happened

EHC Timescales

33. The Council was aware in July 2023 that Y was having difficulties and he was not attending school. If a child with an EHC Plan is unable to attend their named placement, we would generally expect this to prompt an urgent review of the plan. This is to establish whether their needs have changed and the plan needs to be updated to reflect different provision or a change of placement.
34. Although Y’s issues were known of before the term started in September, a review of Y’s EHC Plan only took place in December at the end of the school term. I found the delay in reviewing Y’s EHC Plan was fault.
35. Following the review the Council met the statutory timescale for sending a notice confirming Y’s EHC Plan would be amended. However, a final EHC Plan should be issued within 12 weeks of an annual review meeting. In Y’s case, it should have been issued by 27 February 2024. The Council was around four weeks late issuing the final plan as a result. This too was fault.

Education Provision

36. Y’s absence from school began in July 2023 shortly before the end of the summer term. It appears Y’s refusal to attend was due to changes and incidents at school which led to an increase in Y’s anxiety.
37. The Council told us, when children were unable to attend school and there were medical/health issues, its process was to consider whether the child was medically fit to engage with education. It stated, in Y’s case the school were provided with medical notes to record that he was too anxious to attend school. However, the Council provided no evidence it had considered to what extent Y could receive an education, other than at school, while his EHC Plan and his needs were being reviewed. The Council’s case notes indicate the SEN team took the view that if Y was unable to attend school, he was too ill to do school work. This is not necessarily the case.
38. It seems clear that Y was unable to attend school. As a result, his school place was not available and accessible to him. However, it is not clear that this meant he could not engage with any education. There is no evidence to show that Y’s ability to receive an education at home or in another environment was properly considered. I found this was fault.
39. I note some provision was offered by Y’s school in July 2023. However, based on the information we have seen, it appears to have been clear in September when school resumed, that Y would remain off school and be away from school for 15 days or more because of his health needs. Miss X was seeking alternative education for Y at this point. The Council should have actively considered In September 2023 whether Y could have engaged in a full-time education, and, if not, to what degree Y could engage. It should then have put in place suitable full‑time alternative education for Y, or provided as much provision as Y could have coped with while he was not able to attend school. In saying this, I note the Council made a referral for online tuition in January 2024, but it did not pursue any other form of tutoring or education when online tuition was considered unsuitable.
40. I found there was a failure to properly consider providing a suitable education for Y for two terms, between September 2023 and March 2024. It seems likely Y could have received some education during this time. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. I have based Y’s remedy on £1500 per term.
41. We have made improvement recommendations within the last 12 months on similar issues in other complaints. As a result, I have not made any recommendations for the Council to review policies or training.

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Agreed action

42. Within four weeks of my final decision:
43. The Council agreed to apologise to Miss X for the delay in reviewing his Education Health and Care Plan and the failure to provide a suitable alternative education while Y was out of school. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
44. To recognise the distress and time and trouble that Ms X spent pursuing Y’s Education Health and Care Plan and her complaint the Council should pay her £200.
45. To recognise the loss of education Y had between September 2023 and March 2024, the Council should pay Ms X, for Y, £3000.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. There was fault and injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman