Summary: Mrs X complains the Council failed to make alternative education provision for her son when he could not attend school. The Council is at fault as it did not make alternative provision for Y when he was unable to attend school. As a result, Y did not receive suitable provision and support between April 2021 and February 2022. The Council also delayed in issuing Y’s Education, Health and Care plan and in agreeing a personal budget. The Council has agreed to remedy Y’s injustice by making a payment to acknowledge he has been disadvantaged by the lack of alternative provision and a payment to Mrs X for the distress caused.

The complaint

1. Mrs X complains that the Council:

• Failed to make alternative provision for her son, Y, when he could not attend school due to severe anxiety;
• Failed to ensure Y received the provision set out in section F of his Education, Health and Care plan (EHC plan) while he was out of school;
• Delayed in issuing an final EHC plan following the emergency annual review meeting in May 2021;
• Delayed in issuing a personal budget for Y;
• Failed to make the provision set out in section F of the amended final EHC plan.

2. Mrs X considers that as a result Y has missed a significant amount of education and support and Mrs X has been caused significant distress, avoidable time and trouble and had to reduce her working hours.

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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. The courts have established that if someone has lodged an appeal to a Special Educational Needs and Disabilities (SEND) Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
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 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

7. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Summary of law and guidance

8. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
9. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
10. We have issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
11. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

EHC plans

12. 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
13. The procedure for reviewing and amending EHC plans is set out in legislation and the Code. The plan should be reviewed by the council and the school with the parents and/or the child at least once a year. Sometimes an early review may be requested if there is a need to amend a plan more urgently. For example, if a school placement has broken down.
14. 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)
15. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

18. Mrs X’s son Y attended a primary school. Y became reluctant to attend school due to anxiety and in March 2021 stopped attending school. He has not attended since. A few months later Y was diagnosed with autism spectrum disorder with pathological demand avoidance profile.
19. In February 2021 the Council issued a final EHC plan for Y. Mrs X requested an early review of the EHC plan as she considered Y’s needs had not been properly identified. Mrs X also requested the Council carried out a further needs assessment for Y. The Council declined Mrs X’s request as Y’s EHC plan had only been in place for a short time.
20. Y’s school held an early annual review of his EHC plan in late May 2021. The reports for the annual review meeting showed Y was out of school and the efforts made by the school to reintegrate him without success. The Council agreed to amend Y’s EHC plan.
21. Mrs X privately commissioned a number of assessments for Y to identify his needs. In July 2021 Mrs X asked the Council not to issue the notice of amendment until she had received the reports. In her email Mrs X said that Y was receiving emotional literacy support from the school for 15 minutes per week but this was all he could manage. He was struggling to access any provision and his placement at the primary school had broken down. I understand the reports were provided to the Council shortly after Mrs X sent this email.
22. Mrs X also requested a personal budget for a mentor to work with Y and for alternative provision. She arranged for an autism mentor to work with Y.
23. In late August 2021 Mrs X chased the Council for an update on the notice of amendment and her request for a personal budget. Mrs X also said Y was still unable to access school and she wanted to increase the hours he worked with the mentor but could not afford to do so. The Council responded to Mrs X. It said Y was still on roll at his primary school and the school was responsible for putting provision in place. The Council advised that any direct payment would come from the money allotted to the primary school for Y.
24. In mid September 2021, the Council sent the notice of amendment to Mrs X together with a working document. Mrs X provided her comments on the notice and working document. The Council issued further notices of amendment and amendments to the working document. It then issued the final EHC plan in February 2022. Mrs X has appealed to the SEND tribunal as she is unhappy with the EHC plan.
25. In December 2021 the Council agreed provide a personal budget from 1 January 2022 for Y’s mentor.

Complaint

26. In October 2021 Mrs X made a complaint to the Council. She complained the Council had not made alternative provision for Y since he had been out of school, failed to make the provision in his EHC plan and failed to approve her request for a personal budget so she could source her own provision for Y. The Council considered Mrs X’s complaint through its two stage complaints procedure. The Council acknowledged there had been delay in issuing Y’s final EHC plan and in considering Mrs X’s direct payment request. The Council did not uphold Mrs X’s complaint that it should have made alternative provision for Y.
27. In response to my enquiries the Council has said:

• The Council considers alternative provision for children who are too unwell to attend school and the Council’s ‘school attendance and children missing education policy’ requires evidence to be provided. Mrs X did not provide evidence to show Y was too unwell to attend.
• Y remained on roll at his primary school and the Council delegated funding to the school to provide the provision in his EHC plan.
• The school have recorded Y’s absence as unauthorised so the Council considers that a valid reason for non attendance has not been evidenced.
• The Council issued a number of notice of amendments and a working document. This was due to the number of amendments needed and the Council considering this would be a more supportive and proactive way of working with Mrs X. It apologised for the delay in issuing the final EHC plan.
• A decision on Mrs X’s request for a direct payment could not be made until changes to the notice of amendment had been considered. This was because the provision requested by Mrs X was not specified in Y’s EHC plan.
• The Council agreed education otherwise than at school (EOTAS) in December 2021.

28. Mrs X considers the Council has failed to make appropriate education and support for Y since March 2021 which has been detrimental to him. he also has not received any provision set out in his EHC plans. This has also caused significant distress to Mrs X and her family and she has had to reduce her working hours. Mrs X has said the Council has now agreed an EOTAS package of support for Y but it has not been fully implemented as yet.

Analysis

Jurisdiction

29. There are limits on our powers which mean we cannot consider all of this complaint. Mrs X has appealed to the SEND Tribunal as she is unhappy with the EHC plan issued on 15 February 2022 and her appeal involves the provision, including the EOTAS package, and named placement. This means we do not have jurisdiction to consider events from 15 February 2022 as Mrs X’s appeal is inextricably linked to the failure of the Council to make alternative provision for Y after this date.

Alternative provision

30. On balance, I do not consider the Council has complied with its duty under section 19 of the Education Act 1996 to ensure Y received suitable education. The Council’s position is that it did not consider Y was out of school for valid reasons as Mrs X did not provide medical evidence to show he was too unwell to attend and the school marked his absences as unauthorised. But the Council was aware that Y was not in school at all and not accessing any education provision. There is no evidence to show the Council assessed whether the school could meet Y’s needs or whether it should take action to reintegrate Y back into education. There is no evidence to show the Council commenced proceedings against Mrs X for Y’s non attendance which suggests the Council accepted Y was out of school for valid reasons. It should therefore have made alternative provision for Y. The Council’s failure to do so is fault.
31. There is also no evidence to show the Council kept Y’s non attendance under review to see if it should make alternative provision the longer he was out of school. The Council should have reviewed Y’s position in July 2021 when Mrs X told the Council he could not access any provision other than the emotional literacy support. The Council consulted Y’s primary school in October 2021 when amending his EHC plan. The school told the Council it could not meet Y’s special educational needs. The Council should have again reviewed Y’s circumstances as this time to see if it should provide alternative provision. It also undermines the Council’s position that the school could provide suitable education for Y.

EHC plan and personal budget

32. The Council failed to issue the final EHC Plan within eight weeks of the notice of amendment. The Council sent a number of notices of amendment with good intentions and there were a number of amendments to make. But the Ombudsman considers councils must abide by the statutory timeframes so the Council’s failure to send the final EHC plan within eight weeks is fault.
33. In response to Mrs X’s complaint the Council acknowledged it had delayed in dealing with her request for a personal budget for a mentor for Y. The Council’s delay in issuing the final EHC plan also contributed to this delay. This is fault.
34. Mrs X has also complained that the Council failed to ensure the school delivered the provision set out in Y’s EHC plans while he was out of school. The Council has an overarching duty to ensure the provision set out in EHC plans is delivered. I am mindful that Y being out of school would make it difficult for the school to deliver the provision set out in section F of Y’s EHC plan. Much of the provision in the February 2021 plan was school based. But there is no evidence the Council checked if the school could deliver some provision to Y even when Mrs X raised her concerns. This is fault. This also goes to the Council’s failure to make alternative provision for Y.

Injustice

35. Mrs X’s emails with the Council shows that Y could not access education provision made by the school due to his anxiety. I therefore cannot say Y would have been able to engage with education if the Council had made alternative provision when he stopped attending school. But the Council could have provided or funded support for Y to help his reintegration into school or his engagement with education. The fact Y has not received suitable provision since March 2021 will have only made it harder for him to reintegrate and engage with education. So, I consider the failure to make alternative provision for Y has meant he did not receive any support between April 2021 and January 2022 other than the mentoring support which Mrs X funded. From January to 14 February 2022 Y only received the mentoring support which is very limited provision.
36. The Council should make a payment of £250 per month to reflect Y did not receive sufficient support between April 2021 and January 2022 and £125 from 1 to 14 February 2022. These payments are in accordance with our guidance on remedies. The payments also take into account that Y may not have been able to engage with educational provision if provided by the Council
37. The delay in agreeing the personal budget meant Mrs X paid for a mentor between July 2021 and December 2021. The Council should therefore make a payment to Mrs X which is the equivalent of the personal budget she should have received for Y between July and December 2021.
38. The failure to provide alternative provision for Y has also caused significant distress and avoidable time and trouble to Mrs X. The Council should make a symbolic payment of £500 to Mrs X to acknowledge the injustice caused to her. The recommended payment is in accordance with our guidance on remedies.

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Agreed action

39. That the Council:

1. makes a payment of £2625 to Mrs X on behalf of Y to acknowledge he has been disadvantaged by the Council not making appropriate alternative provision for him between April 2021 and 14 February 2022.

2. makes a payment to Mrs X which is the equivalent of the personal budget she should have received for Y between July and December 2021

3. sends a written apology and makes a payment of £500 to Mrs X for the distress and avoidable time and trouble caused to her by the Council’s failure to make alternative provision for Y.
4. by training or other means, ensures officers are aware of the Council’s duty under section 19 of the Education Act to make alternative provision for children out of school including the factors they should consider when deciding whether alternative provision needs to be made.

The Council should take the action at a), b) and c) within one month and the action at d) within two months of my final decision.

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Final decision

40. Fault causing injustice to Y and Mrs X.

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Investigator's decision on behalf of the Ombudsman