Summary: Mrs X complained that the Council failed to provide alternative education from the end of June 2023 to February 2024 when her child was unable to attend school on health grounds. We have found fault causing an injustice. The Council has agreed to apologise, make a symbolic payment for the lost education and service improvements.

The complaint

1. The complainant, Mrs X, complained that the Council failed to provide appropriate education to the complainant’s daughter, Y, since June 2023. Y has an Education, Health and Care (EHC) Plan, which Mrs X said meant that the required support -Speech and Language Therapy, (SALT) and Occupational Therapy (OT) - as specified in the Plan - was not provided.
2. In addition, the complainant says that the Council delayed issuing a final amended EHC Plan after the annual review of March 2023, and it failed to provide a covering letter when the Council sent the final amended EHC Plan in September 2023. There were also other errors with the EHC Plan.
3. Mrs X says that the Council’s faults have caused a loss of education for Y, and she fell behind academically. The family has also been caused avoidable distress and frustration.
4. The Council has investigated the complaint. The Council upheld some complaints, or partly upheld them. But the Council does not consider a remedy is required for the loss of education to Y.
5. Y is now placed at a special school, School B, as from February 2024.

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The Ombudsman’s role and powers

6. 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’.
7. 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).
8. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).
9. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended.
10. 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).
11. 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

12. I have looked at the complaints from June 2023 to February 2024, when Y was placed at her new school, School B.

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How I considered this complaint

13. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
14. I issued a draft decision statement to the complainant and to the Council. I have taken into account their further comments before reaching my final decision.

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What I found

Relevant legislation and guidance

Section 19 education

15. 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.
16. 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))
17. In more general terms of educational provision and attempts at reintegration, the Department of Education (DfE) statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority, for example where the child can still attend school with some support”. The guidance envisages that in the first instance schools are responsible for managing attendance issues relating to ill-health and special educational needs.
18. The DfE has updated its guidance in August 2024.  
19. 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
20. 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.
21. 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)
22. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
23. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.
24. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

The Council’s policy

25. The Council says that its 2023 ‘attendance toolkit’ is used by schools to follow a parental responsibility pathway, along with the support that schools are required to provide. This policy deals with actions to be taken if it is considered parents are breaching their legal obligation to send their child to school.
26. The Council has a medical needs tuition team, which provides tuition to pupils who are unable to attend school because of ill health. The referral requires support from a health clinician. It seems that the Council considers schools are primarily responsible for making such referrals.

Special educational needs

27. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. A council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.

Annual reviews

28. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

29. Case law sets out that an amended final EHC plan should be issued no later than twelve weeks after the review meeting. R (L,M and P) v Devon County Council [2022]

Key facts

30. This is a brief account of events.
31. Y has a diagnosis of autism and attention deficit hyperactivity disorder (ADHD). She has been identified as having a complex profile, with sensory processing difficulties and anxiety and communication difficulties. In addition, she has an eating disorder. Y has had an EHC Plan since 2022.
32. Y is known and receives support from the local Children and Adolescent Mental Health Service (CAMHS). She attended School B, an academy. Academies are not within our jurisdiction, so we cannot investigate School B’s actions.
33. In March 2023, there was a review of Y’s EHC Plan. The Council says, contrary to Mrs X’s account of events, an amended draft EHC Plan was sent to Mrs X and to School B. A final EHC Plan was issued at the end of the month to School B and to Mrs X, also advising her of the right of appeal to a SEND Tribunal.
34. Mrs X says that she did not receive this.
35. The Council says, however, that it accepted the format of the final March 2023 EHC Plan was not in accordance with the statutory guidance. As a result, the Council provided training to staff in its special educational needs (SEN) department. The Council has apologised to Mrs X for this error.
36. The Council says that Y’s attendance at School B was good until June 2023. But the Council says it was unaware of Y’s absence from School B until October 2023 after Mrs X had raised a complaint with the Council’s complaints department.
37. Mrs X provided medical confirmation of Y’s ill-health and inability to attend School B. She also says that the Council’s early help team became involved, so the Council was aware of Y’s absence from school as from June/earlyJuly 2023.
38. The Council has explained that it does not receive reliable data from educational settings. The Council says that this case shows how important it is for referrals to be made to its medical tuition service or to its designated attendance and children out of school officer by schools. I am assuming this officer works for the Council.
39. In September 2023, the early help worker spoke to a health professional who stated that the medication would not make a difference to Y’s difficulties attending school.
40. Mrs X asked for an emergency review of Y’s EHC Plan because she was still unable to attend school, and she asked for a copy of her EHC Plan. The Council says that the parents wanted to share the EHC Plan with other professionals and this did not represent a new decision.
41. Mrs X says that School B told her an early review of Y’s EHC Plan was not appropriate. Mrs X asked for the support of the early help team to support her request for an emergency review, which was then agreed.
42. In late October 2023, there was an emergency review. The Council received a formal referral from School B to its medical tuition service supported by health. This came about because of Mrs X’s complaint to the Council about the loss of education to Y.
43. In early December 2023, the Council issued a final amended EHC Plan. Mrs X had a right of appeal to the SEND Tribunal at this point. But there was no need for her to appeal because the Council accepted Y required a specialist school placement. Therefore, although Mrs X had a right of appeal, I have exercised discretion to look at events after this date because there was no need for her to appeal.
44. In December 2023, there was an early help multi-agency meeting when the attendance and out of schools’ officer was told that the plan was now to integrate Y into specialist provision.
45. In December 2023, the Council accepted the referral to its medical tuition service. Mrs X says that a meeting did not take place until the end of January 2024. However, Y started at her new specialist school in February 2024, so no tuition was provided.
46. The Council had not accepted, as part of its consideration of Mrs X’s complaint, that the Council’s actions meant that Y has missed out on education between June 2023 to February 2024. It also stated that Y’s EHC Plan did not specify SALT and OT involvement. But Y’s EHC Plan specified SALT and OT strategies and provision to be provided in a school setting.

Findings

47. In respect of the final amended EHC Plan issued in March 2023, the Council has evidence that this was sent with an accompanying letter explaining Mrs X’s right of appeal to the SEND Tribunal. While I cannot explain why Mrs X did not receive this, I do not find fault.
48. I am also satisfied that the Council sent Mrs X a copy of the March 2023 amended final EHC Plan in September. It was not a fresh decision.
49. Mrs X says she provided evidence that Y was considered medically unfit to attend School B from late June 2023, and to the early help team. On the basis of the evidence available, I am satisfied that the Council was aware of Y’s absence from school from the end of June 2023.
50. However, the Council expects its schools to make a referral to its medical tuition team for pupils unable to attend school for medical reasons. The Council has accepted that this is not always a reliable way for it to be made aware of pupils’ absences for medical reasons.
51. The Council also has an early help team and an attendance and out of school officer. I consider that those Council departments should have some responsibility to inform the medical tuition team when they had medical confirmation of Y’s inability to attend school. Those departments did not do this.
52. Therefore, I find the Council has been at fault in not considering its s19 duty to provide alternative education to Y sooner than it did. I consider that the Council should have been considering this option by July 2023.
53. The Council would have needed time to arrange some alternative education. On that basis, I consider that Y has missed out on education since September 2023, causing her an injustice. This has also caused avoidable distress to Mrs X and time and trouble.

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Agreed action

54. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
55. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
56. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
57. Our guidance on remedies also says that “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”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

58. Given the severity of Y’s special educational needs, I consider the Council should provide a remedy payment at the higher end of our tariff, which also takes into account the loss of the SALT and OT strategies.
59. Within one month of the final statement, the Council will:
1. apologise to Mrs X and make a payment of £350 for her avoidable distress and frustration;
2. make a payment of £2,400 for Y’s loss of education for the period of September to December 2023, and £800 for the January 2024 term. Mrs X should use this for Y’s educational benefit; and
3. the revised DfE statutory guidance may assist the Council in managing school absences because of proven ill health. But the Council needs to ensure that schools, the early help team and its attendance and out of school officers are aware of the referral process to the medical tuition team, and they do not delay in making such referrals where there is proof of ill health. The Council has agreed to provide training to these departments within three months of the final statement.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have found fault causing an injustice. The Council has agreed to recommended ways to remedy that injustice. Therefore, I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman