Summary: Miss X complained the Council failed to ensure her son, Y received an education after he stopped attending school in June 2023. The Council failed to consider at the time whether it owed Y a Section 19 duty to put alternative provision in place. It also delayed completing Y’s Education, Health and Care needs assessment by 14 weeks which delayed Miss X’s right of appeal to the SEND tribunal. The Council agreed to apologise to Miss X and make payments to acknowledge the distress and uncertainty caused. It also agreed to carry out service improvements.

The complaint

1. Miss X complained the Council failed to ensure her son, Y received a suitable education after he stopped attending school in June 2023 for anxiety related issues.
2. Miss X said the lack of education has impacted on him academically and socially and has caused distress and uncertainty.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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

7. I have investigated matters from June 2023 until March 2024.
8. There is a right of appeal to the SEND tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
9. The courts have established that if someone has appealed to the Tribunal, the law says 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).
10. Miss X has appealed to the SEND tribunal following Y’s final EHC Plan in March 2024 against both the content of the Plan and the named placement. Y’s absence from school after March 2024 is linked to Miss X’s appeal and therefore puts the period outside of our jurisdiction.

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How I considered this complaint

11. I spoke to Miss X about her complaint and considered the information she provided.
12. I considered the Council’s response to my enquiry letter.
13. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
14. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. 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).
17. 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.

Education, Health and Care Plans

18. 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.
19. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

What happened

20. Miss X has a child, Y who in 2022 attended a mainstream primary school. Y has a diagnosis of autism and has other special educational needs around social, communication and sensory difficulties.
21. Y began struggling to attend school towards the end of 2022 and his attendance became inconsistent. Records show reintegration plans and part time timetables implemented by the school appeared to start working at the beginning of 2023 but gradually started to fail again. Attendance records show Y stopped attending school completely from the end of June 2023.
22. In July 2023 Miss X asked the Council to carry out an EHC needs assessment for Y. The EHC needs assessment request form included details about Y’s struggle to attend school. It said ‘currently Y is not attending school’. The form included the schools attempts to get Y back into school. It said ‘reintegration plans constructed to support Y’s return to a full time timetable. However, despite an increase of time in school, Y did not return to a full time timetable and is now currently not attending’.
23. The Council agreed to carry out the EHC needs assessment for Y. That being the case it should have issued the final EHC Plan by the start of December 2023.
24. As part of the EHC needs assessment process the Council asked for advice from an Educational Psychologist (EP). The EP provided their advice in September 2023. The advice report stated ‘unfortunately Y hasn’t attend school since 26 June 2023’.
25. The Council also consulted with Y’s school as part of the needs assessment. The school provided its response in November 2023. It outlined past reintegration attempts including one-to-one support which were unsuccessful. It said Y had not attended the school this academic year (2023/24).
26. Records show the Council notified Miss X in February 2024 that its intention was to name Y’s current school in the final EHC Plan.
27. Miss X complained to the Council at the start of March 2024 about the Council’s intention to name Y’s current school in the final EHC Plan. She said Y had not attended school at all for the last eight months as it could not meet Y’s needs.
28. The Council issued Y’s final EHC Plan on 13 March 2024 naming their current school in section I. This was 14 weeks outside the statutory timescales.
29. The Council responded to Miss X’s complaint at stage one of the complaints procedure in March 2024. It referred Miss X to the SEND tribunal process if she disagreed with its decision to name Y’s current school in the final EHC Plan. The Council said it understood Y had not attended school since the summer of 2023. It said there was support and specialist services available to Y’s school to help them reintegrate.
30. Miss X escalated her complaint to stage two in April 2024. She said there is no reintegration plan in place and those previously attempted did not work. She reiterated her dissatisfaction that Y’s current school was named in the final Plan.
31. The Council responded at stage two. It said past reintegration showed that Y can attend school for short periods and the school should continue trying to help Y re-engage, using the provision included in the final EHC Plan. The Council said it was not under a duty to provide alternative provision. It again referred Miss X to the tribunal process.
32. Miss X remained unhappy and complained to us. She appealed to the SEND tribunal against both the content and the named school in May 2024.

The Council’s response to us

33. The Council said it was not aware Y was not attending school until September 2024. It said neither the school or Miss X had notified it that Y was not attending and was not presented with any medical evidence.
34. It offered an apology and a goodwill gesture of £500 to recognise Y’s missed education with the caveat that it was unaware of the issue. It said it would review its communication with schools around attendance procedures.

My findings

EHC needs assessment delays

35. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
36. Following Miss X’s request for an EHC needs assessment the Council should have issued the final Plan by 4 December 2023. It did not do so until 13 March 2024 which was a delay of 14 weeks and fault which caused Miss X frustration and delayed her right of appeal to the SEND tribunal.

The Council’s Section 19 duty

37. The Council told us that it was unaware Y was not attending school until September 2024. However, there is evidence showing that the Council was, or should have been aware beforehand. This includes references to Y’s absence from school in:
• The EHC needs assessment request form submitted in July 2023.
• The EP advice from September 2023
• Miss X’s complaints and the Council’s complaint responses from March 2024 onwards.
38. So, while there was no formal referral from the school or Miss X, the SEND team had evidence available to it to show Y was out of school and not attending. It is likely, on balance that the correct officers were not made aware of Y’s absence due to poor communication and lack of information sharing from the SEND department which was fault.
39. The Council was aware in July 2023 that Y was not attending school. It is at this point it should have considered whether it owed Y a Section 19 duty to put alternative provision in place, or whether the school place remained available and accessible to Y. It did not do so which was fault and has left Miss X with uncertainty about whether Y could have had some alternative provision or more could have been done to try and reintegrate them back into school. The Council has already offered a £500 payment which is appropriate to remedy the uncertainty caused.
40. The Council has said it will review how schools communicate attendance issues with it which is appropriate. I have made further service improvement recommendations below.

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Agreed action

41. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Miss X for the distress, frustration and uncertainty caused by both the delays completing Y’s EHC needs assessment and for failing to consider whether it owed Y a Section 19 duty to put alternative provision in place between July 2023 and March 2024. We publish guidance on remedies which 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.
2. Pay Miss X £200 to acknowledge the frustration caused by the delays completing Y’s EHC needs assessment.
3. Pay Miss X £500 to acknowledge the uncertainty caused by its failure to consider whether it owed Y a Section 19 duty to put alternative provision in place between July 2023 and March 2024.
4. Remind officers to adhere to statutory timescales when carrying out EHC needs assessments to ensure EHC Plans are issued by the 20 week deadline.
42. Within three months of the final decision the Council should:
1. Review its communication process between departments involved in education to ensure that where there is evidence that a child is not attending school that it is communicated to the relevant officers so a decision can be made, at the time whether a Section 19 duty is owed.
2. Provide us with evidence that it has reviewed its communication process with schools to ensure information about children not attending school is passed to the Council at the earliest opportunity.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I completed this investigation. I found fault and the Council ageed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman