Summary: The complainant alleged that the Council delayed in completing her son’s Education, Health and Care Plan and failed to provide alternative education when her son was out of school because of medical needs. We find fault causing injustice. The Council has agreed to the recommended ways to remedy the injustice caused. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council:
1. delayed in issuing an Education, Health and Care (EHC) plan for her son, B; and
2. failed to provide alternative educational provision while he was unable to attend his secondary mainstream school (School C) between December 2020 and October 2021 because of his medical needs.
2. Mrs X says that, as a result, B’s mental health deteriorated, and he started to self‑harm. He became isolated, unmotivated and distressed at not receiving education. Mrs X says that she suffered a financial loss due to solicitor’s fees and she had to reduce her working hours as B required constant supervision.
3. The Council has considered Mrs X’s complaint under its two-stage complaint procedure, and upheld some aspects.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question the merits of council’s decisions, properly taken, unless there is some fault leading up to the decisions taken.
6. 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)

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How I considered this complaint

7. I have spoken to Mrs X on the telephone, and I made enquiries of the Council. Mrs X has commented on what the Council has said.
8. I issued a draft decision statement to Mrs X and to the Council. I have considered their additional comments before reaching my final decision.
9. 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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What I found

Special educational needs

10. The Children and Families Act 2014 says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
11. Councils must decide whether to carry out an EHC needs assessment within six weeks of the referral and must notify the parent or young person it is considering doing so.
12. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the SEND Code of Practice which says that the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks, subject to some exceptions. Professionals should provide their advice within six weeks of the request.
13. Parents can appeal to the SEND Tribunal if the council refuses to assess or to issue an EHC Plan or if dissatisfied with the final Plan. Councils have a duty to provide the SEN provision set out in a final EHC Plan.

Children out of school because of medical needs

14. Section 19 (s19) of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
15. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
16. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
17. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

The Council’s policy on children out of school

18. The Council’s policy highlights s19 and defines medical conditions as being:
• short-term-affecting participation in school activities; and
• long term-potentially limiting pupils’ access to education and requiring extra care and support - eg (among other things) mental health/neurodevelopment conditions.
19. Key points of the policy are that pupils with medical conditions should be supported properly at school. The policy says that the Council must provide suitable fulltime education (or as much as the child’s health condition allows) once it is clear the pupil will be away for 15 days or more because of illness, whether consecutive or cumulative. The Council has a named officer responsible for education for pupils with additional health needs.
20. Schools must notify the Education Welfare Service (EWS) if a pupil is likely to be out of school for 15 days or more. The school should complete a referral form with an individual health care plan completed by a health professional or from the 0‑19 SEN department. The case is considered by the Education on Tract (EOT) panel. Schools retain responsibility for funding of provision.

Findings: Complaint (a): delay in issuing an EHC Plan

21. B was diagnosed with autism (ASD) in 2018. He experiences extreme agitation in noisy and busy environments. Mrs X says that B stopped attending School C in early December 2020 because of his medical needs and inability to cope at school.
22. The Council received a request for a special educational needs (SEN) assessment in late December 2020. This is when the Council became aware of B’s non-attendance at school. The Council agreed to the assessment and in May 2021 it issued a draft EHC Plan. It issued a second draft in June 2021.
23. The Council says that Mrs X was slow to respond to the draft, or to name her preferred school, and this caused some delay in the process. Mrs X says that she returned hers and B’s comments on the day she received the first draft. Mrs X says the Council agreed to specialist provision and she visited various specialist schools. Mrs X says the Council issued a second draft and she responded promptly naming a particular special school as her preferred choice. Mrs X had to approach a solicitor because of the delay in issuing a final EHC Plan. The solicitor sent a pre-action protocol letter, threatening judicial review. Three days later, Mrs X says the Council issued a final EHC Plan. She paid £1,500 legal costs.
24. The Council issued a final EHC Plan on 30 July 2021, naming School C. Mrs X did not accept that this was a suitable placement, and she exercised her right of appeal to SEND Tribunal.
25. The Council accepts that it breached the timescale of 20 weeks to finalise the EHC Plan and that this delayed Mrs X’s right of appeal to the SEND Tribunal. The Council has already apologised to Mrs X for this and agrees in principle to make a symbolic payment to recognise the avoidable distress and lost opportunity to appeal sooner. The Council also accepted in its complaint response of July 2021 that its communication with Mrs X was poor.
26. My view is that the delay and poor communication by the Council amounts to fault. This has caused avoidable frustration and has meant that Mrs X’s appeal to the SEND Tribunal has been slightly delayed. As Mrs X won her appeal, it might have been possible for B to attend his specialist school sooner.

Complaint (b)-failure to provide alternative education

27. Mrs X says that she tried hard to obtain alternative provision because she knew that the longer B was out of school, the more difficult it would be for him to return. Mrs X says that B had no interaction with his peers, and he became very withdrawn. She says that he is a bright pupil and missed being in education. Mrs X says that she had to approach a solicitor because the Council was not providing alternative education to B, despite her requests for this.
28. The Council says that it began to explore alternative provision (although it does not say when) as a way of supporting transition back into B’s school placement (School C). So, the exploring of alternative provision was to enhance the placement at School C rather than to replace it. The Council considered it was not required to provide alternative education from March 2021 (as I had provisionally suggested). The Council considered that B’s support needs could be met in mainstream school with a detailed EHC Plan and additional resources attached to it.
29. As from the end of July 2021, the Council accepts that it had a duty to provide what was detailed in B’s final EHC Plan. Most of the provision at section F of the EHC Plan relied upon specialist input from the school staff.
30. In September 2021, the Council commissioned two hours per day alternative education for B from an approved provider (provider D). The Council says that it was not in B’s interests to have full time education, and his attendance, up to October 2021 half-term, was only 56%. After October half term, his attendance was less, and Mrs X told the Council that B’s anxiety was preventing him from attending. In addition, providers of alternative education were experiencing staff absences due to Covid-19, at this time. The Council is satisfied that it has a good range of providers of alternative education.
31. Mrs X says that provider D was not an ASD specialist unit, so it did not have the expertise to deal with B. It only offered two hours adult interaction each day although B was very keen to have contact with his peers. He was offered equine therapy, where he could have mixed with his own age group, but this did not take place. Mrs X says that B had some contact with the youth services and attended this regularly. She considers that this shows that, with the right provision and peer involvement, B would have attended provider D more regularly.
32. In the Council’s complaint response of July 2021, the manager of the SEN team said that he could not comment on the education provided to B before the SEN team’s involvement. But he said “I share your concerns regarding [B’s] missed education and will give this my direct attention”.
33. In December 2021, the family moved to another council area. The Council passed responsibility to the new authority, including the SEND appeal. In February/March 2022, B started at a specialist ASD school and Mrs X says he is doing well.
34. We recently published a focus report about children missing education called ‘Out of school, out of sight? Ensuring children out of school get a good education’. As part of the report, we made several general recommendations for local authorities to help improve performance in this critical area. These recommendations included:

• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• consult all the professionals involved in a child’s education and welfare, and take 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 education.
• 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.

35. The Council was aware that B was out of school from January 2021. It says that it was not required to provide alternative education under s19 between January to July 2021 because it considered School C was a suitable placement with support from B’s EHC Plan. However, on the evidence available, I cannot see that the Council took any action to secure B’s return to School C, which it should have done, if it considered this a suitable placement, or ensured School C provided alternative education.
36. Therefore, I find that the Council should have considered whether it had a s19 duty to provide alternative education to B once it was aware that he had been out of school for 15 days and that, by early March 2021, it should have decided either to ensure B’s return to School C or it should have provided appropriate alternative education under s19. Its failure to do so amounts to fault and it caused injustice because B has missed out on receiving an education for the school months of March, May, June and July 2021.
37. In September 2021, the Council agreed to provide alternative education under s19 and commissioned provider D. It decided that B could only manage two hours per week although the Council has not provided the evidence of how it reached this view initially when commissioning provider D. That amounts to fault. Mrs X explains B’s reluctance to attend was because provider D did not have the expertise in dealing with ASD pupils or was able to provide B with peer interaction, which he wanted.
38. Two hours per day alternative education does not constitute full-time suitable education. But the Council says that B was not able to manage more, and there is some evidence to support the Council’s comments here. So, I cannot conclude B would have engaged with more education, if offered, although I recognise Mrs X will always be left wondering whether more suitable education would have resulted in better engagement by him.

How the Ombudsman remedies injustice caused by fault

39. The Ombudsman does not usually recommend that councils meet complainants’ legal costs. This is a matter for them and their choice. So, while I recognise Mrs X felt she had to seek legal assistance to ensure the EHC Plan was finalised, I consider that this was her decision.
40. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

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Agreed actions

41. Within one month of the final statement, the Council has agreed to:

• apologise and make a symbolic payment of £350.00 for the injustice caused by the faults identified in complaint (a);
• pay Mrs X £2,400 for B’s four months missed education to be used for his educational benefit;
• pay a symbolic payment to Mrs X of £300 to be used for B’s educational benefit for the injustice identified in complaint (b) (paragraph 36);
• the Council’s policy does not set out a timeframe by which it expects s19 decisions to be made. This means that cases of children being out of education can easily drift. The Council will consider adding a timetable to its policy for these decisions to be made.

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Final decision

42. I have found fault causing injustice. The Council has agreed the recommended actions. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman