Summary: Ms X complained the Council failed to provide suitable education for her child since September 2019. Ms X also complained the Council delayed in producing her child’s Education, Health and Care Plan from February 2022 until October 2023. We found fault with the Council failing to provide suitable education for Ms X’s child from January 2020 until October 2023. We also found fault with the Council delaying by 38 weeks outside the statutory timescales in producing Ms X’s child’s Education, Health and Care Plan. The Council has already paid Ms X £4,500 for missed education, from September 2022 to October 2023 and £1,500 for the avoidable delays, distress and frustration caused. The Council agreed to pay Ms X an extra £11,650 for her child’s missed education from January 2020 to September 2022.

The complaint

1. Ms X complained the Council failed to provide suitable education for her child since September 2019. Ms X said the Council delayed in providing education despite identifying suitable Education Otherwise Than At School provision.
2. Ms X also complained the Council took from 23 February 2022 to 14 October 2022 to decide not to issue an Education, Health and Care Plan for her child. The Council then took from March 2023 to October 2023 to issue an Education, Health and Care Plan following mediation.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. 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)
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.

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How I considered this complaint

9. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Both Ms X and the Council had opportunity to comment on my draft decision which I considered before reaching my final decision.

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What I found

Providing education for children

Rules and regulations

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. [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.
12. 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))
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. 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
15. 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;

16. 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
17. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
18. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council policy and government guidance on attendance

19. The Council’s policy on school attendance details that schools must keep records of a child’s attendance at school.
20. The Council says a school should tell the council about any pupil who fails to attend school regularly or has been absent without permission for 10 days or more.
21. The Council confirms in this policy that it has a responsibility for arranging suitable education for children of compulsory school age who, because of health reasons, would otherwise not receive suitable education.
22. The Council confirms the Department for Education guidance, Working Together to Improve School Attendance, advises that all local authorities should rigorously track local attendance data.
23. The guidance says the Council should hold termly meetings with schools to identify children at risk of poor attendance. These meetings should use the school’s attendance data to identify children at risk.

What happened

24. On 9 October 2019, Y stopped attending school.
25. The Council met with Y’s school on 31 January 2020 to complete a register check of pupil’s attendance. Y’s school did not bring the Council’s attention to Y’s absence during this meeting.
26. The Council met with Y’s school again on 25 November 2021 to complete a register check of pupil’s attendance. During this meeting, Y’s school told the Council about Y’s absence.
27. On 6 December 2021, the Council held a meeting with Ms X about Y’s access to education. Ms X said she ideally wanted tutors for Y and discussed options of educational provision for Y. Y’s school confirmed it had authorised Y’s absence and would not be providing input about Y’s services.
28. On 24 January 2022, the Council assessed Y’s access to education and noted that Y was self-led in online learning. The Council decided Y was “not open to inclusion” services with the Council. The Council did not assess the suitability or accessibility of Y’s school and did not take any steps to provide support or education for Y.
29. In May 2022, the Council referred Y to its Alternative Provision of education service who decided not to provide education for Y at this time. The Alternative Provision of education service passed this matter back to school to arrange for an education and mental health support provider to work with Y, Provider 1.
30. From September 2022, Provider 1 supported Y for 2 hours each week.
31. In March 2023, the Council noted that Y had been working with Provider 1 since September 2022 and this was going well. The Council referred Y back to its Alternative Provision of education service for further consideration of education.
32. On 3 May 2023, the Council’s Alternative Provision of education service arranged for Y to access 1 hour of mentoring each week from 10 May 2023.
33. From 22 June 2023, Y also accessed 2 hours of group sessions each week alongside the 1 hour of mentoring until the end of the academic year.
34. In September 2023, the Council agreed to provide three days of education through an education provider, Provider 2, alongside provision with Provider 1. This provision started from 2 October 2023.
35. Ms X complained to the Council about the lack of access to education for Y. The Council provided its final Stage 2 complaint response on 23 February 2024 and detailed its recommendation on 25 March 2024 to address the fault identified. The Council offered Ms X £4,500 for Y’s missed education from September 2022 to October 2023. The Council paid Ms X this award on 27 March 2024.

Analysis

36. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from 9 October 2019 to 31 January 2020 about why the school failed to tell the Council about Y’s absence from school. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
37. While Y’s school did not specifically draw the Council’s attention to Y’s absence on 31 January 2020, the Council had every opportunity to notice Y’s persistent absence from school on this date. This is because the Council met with the school and had access to the school’s attendance records. Failure to notice that Y had been absent from school consistently for over three months during this meeting was fault by the Council.
38. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
39. The Council should have first become aware of Y’s absence on 31 January 2020. Y had already been absent from school for more than 15 days by this date. The Council failed to notice or take any action in response to Y’s consistent absence from school.
40. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. Since Y had already been absent for more than 15 days on 31 January 2020, the Council’s Section 19 duty would have started from 10 February 2020.
41. Because of the Council’s failure to notice Y’s absence, the Council failed to ensure Y received any education from 10 February 2020 until September 2022.
42. Between 10 February 2020 and September 2022, the Council considered Y’s access to education in January 2022 and May 2022. On both occasions the Council’s Alternative Provision of education provider decided not to provide education for Y. While the Council’s Alternative Provision of education provider made this decision, the Council gave no thought to the suitability of Y’s school and whether this was accessible education for Y. The Council also did not consult with relevant professionals, did not help formulate a reintegration plan for Y to attend school or consider whether to require Y’s attendance at school. The Council noted that Y was self-led in online learning but failed to consider any support measures that may have helped with Y’s online learning, or even detail consideration whether this online learning was suitable.
43. The Council failed to take suitable steps to assess Y’s access to education from 10 February 2020 to September 2022. The Council failed to meet its Section 19 duty to provide education and this was fault.
44. The Council has already accepted fault for failing to provide suitable education for Y from September 2022 until the end of October 2023, when it put in place education through Provider 2, supported by Provider 1.
45. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
46. The Council has already provided a payment of £4,500 to Ms X, of £1,500 per term, for Y’s missed education from September 2022 to the end of October 2023. Having reviewed the circumstances, I consider this a suitable award for the missed education during this time.
47. However, the Council has not provided any award for Y’s lost provision from February 2020 to September 2022. During this period, Y missed seven terms and six weeks of education without any support from the Council or educational input from Y’s school.
48. Of these seven terms and six weeks, the Covid-19 pandemic impacted many other children’s access to education in the Council area for one term and eleven weeks. This does not directly lessen the impact on Y, as Y continued to receive no support or education, but the comparative education on offer to other children reduced. This lessened the overall comparative impact on Y compared to her peers during this one term and eleven weeks.
49. We recommend the Council pays Ms X £1,850 for the one term and eleven weeks impacted by the Covid-19 pandemic and £9,800 for the other five terms and eight weeks. Ms X may use this total sum of £11,650 to source any catch-up educational provision she considers suitable for Y.
50. I have addressed the delays and frustration caused to Ms X for this matter in paragraph 73.

EHC Plans

Rules and regulations

51. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
52. 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: 
53.  

• 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 declines to issue an EHC Plan following assessment, a person may appeal to the SEND Tribunal. If the Council concedes this appeal, and agrees to issue an EHC Plan, it must produce a draft EHC Plan within five weeks and final EHC Plan within 11 weeks of conceding the appeal.

54. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
55. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

56. On 23 February 2022, Ms X made an EHC Needs Assessment application to the Council for Y.
57. On 14 October 2022, the Council communicated its decision not to issue an EHC Plan for Y following its assessment.
58. Ms X appealed the Council’s decision to the SEND Tribunal and entered into mediation with the Council about its decision.
59. On 1 March 2023, the Council agreed at panel to issue an EHC Plan for Y.
60. The Council issued a draft EHC Plan for Y on 24 March 2023.
61. On 17 April 2023, the Council told the SEND Tribunal it had conceded Ms X’s appeal and agreed to issue an EHC Plan.
62. On 23 October 2023, the Council issued a final EHC Plan for Y.
63. Ms X complained to the Council about the delays in production of Y’s EHC Plan. The Council provided its final Stage 2 complaint response on 23 February 2024 and detailed its recommendation on 25 March 2024 to address the fault identified. The Council offered Ms X:
• £500 in recognition of the time and trouble taken in pursuing this matter with the Council.
• £500 for Y as a vulnerable young person in recognition for any contribution made to the anxiety or distress already experienced.
• £500 to acknowledge the frustration and uncertainty caused by delays identified.
64. The Council paid Ms X this £1,500 on 27 March 2024.

Analysis

65. Ms X requested an EHC Needs Assessment from the Council on 23 February 2022. The Council agreed to complete an EHC Needs Assessment. Since the Council agreed to complete an EHC Needs assessment, it had 16 weeks to decide whether to issue an EHC Plan following Ms X’s request. This meant, the Council had until 15 June 2022 to make this decision.
66. The Council failed to meet the statutory timescales and instead only decided not to issue an EHC Plan for Y on 14 October 2022. This was 17 weeks outside the statutory timescale and was fault.
67. Ms X appealed the Council’s decision not to issue an EHC Plan for Y to the SEND Tribunal. The Ombudsman cannot find fault with the Council for any time taken for the SEND Tribunal to consider Ms X’s appeal.
68. The Council effectively conceded the appeal to the tribunal on 1 March 2023 when it agreed to issue an EHC Plan for Y. While the Council did not formally tell the SEND Tribunal until 17 April 2023, since it agreed to issue an EHC Plan on 1 March 2023, this was the effective date of its concession.
69. When the Council conceded the appeal on 1 March 2023, it had five weeks to issue a draft EHC Plan and 11 weeks to issue a final EHC Plan. The Council met the five-week timescale by producing a draft EHC Plan on 24 March 2023. I do not find fault with the Council for this.
70. Despite meeting the draft EHC Plan timescale, the Council failed to send a final EHC Plan to Ms X until 23 October 2023. This was 21 weeks outside the 11-week timescale. This was fault.
71. Overall, the Council delayed for 38 weeks outside the statutory timescales in producing Y’s final EHC Plan from February 2022 to October 2023; this was fault. This fault caused Ms X avoidable frustration and uncertainty through the delays in production of the Final EHC Plan. This fault also meant Y experienced uncertainty about what EHC Plan provision she would have been entitled to during this time.
72. Since the Council had not produced an EHC Plan for Y, it had no duty to provide any specific provision detailed within an EHC Plan. The Ombudsman cannot find fault for any specific lost provision in these circumstances but, we can consider the lost opportunity.
73. Having reviewed the circumstances involved in Ms X’s complaint, I consider the Council’s offer of £1,500 is suitable in the circumstances. This is in line with the Ombudsman’s guidance on remedies for avoidable distress, anxiety and uncertainty caused through both its handling of Y’s EHC Plan assessment and failure to provide suitable education. Since the Council had already paid this to Ms X, I do not consider it needs to provide any further award to address this. I have addressed the impact of the direct loss of Y’s education already in paragraphs 36 to 50.

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Agreed action

74. Within one month of the Ombudsman’s final decision the Council should:
• Provide a payment of £11,650 for Y’s missed education from 10 February 2020 to September 2022. Ms X may use this as she sees fit to source catch-up educational provision for Y.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. There was fault by the Council as the Council has agreed to my recommendation, 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