Summary: Ms D complained the Council delayed issuing her son J’s EHC plan, failed to communicate with her and failed to ensure he had a suitable education. The Council has accepted the statutory deadline was missed and that there were poor communications, causing distress. We found it failed to properly consider whether J was receiving a suitable education. But I do not find fault caused J to miss out on education. The Council has agreed apologise to Ms D and J and make a payment to remedy the distress and uncertainty caused.

The complaint

1. Ms D complains that the Council:
• Delayed issuing her son’s EHC plan after November 2021.
• Failed to communicate with her.
• Failed to ensure her son had a suitable education from November 2021 to September 2022.
2. As a result, her son has missed out on education to which he was entitled, affecting his behaviour, and she has been caused significant distress.

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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 law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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)
7. 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

8. I spoke to Ms D about her complaint and considered the Council’s response to my enquiries and the SEND Code of Practice.
9. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

10. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

13. The Code says councils must review a child’s EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
14. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
15. Councils must give the child's parent or the young person 15 days to comment on a draft EHC plan. The council then consults with the school(s), allowing 15 days to respond.

Alternative educational provision

16. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
17. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
18. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
19. 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)
20. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. It also says that where a pupil is not attending school and remains on the school's roll, the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
21. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
22. If a council is not satisfied that parents are providing a suitable education they can serve a notice on the parent and issue a School Attendance Order. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

What happened

23. Ms D’s son, J, has emotional and behavioural problems that affect his learning, hearing loss, hypermobility, and some difficulties with oral communication. He is awaiting an assessment for ADHD.
24. J’s EHC plan issued in June 2021 named a mainstream secondary school from September 2021, although the plan said J could attend Ms D’s preferred school (School 1) if she paid for transport. Ms D had a right of appeal to the SEND Tribunal at this point.
25. J started in Year 7 of School 1 but he struggled to attend. The School offered a reduced timetable, but J stopped going altogether in mid-October.
26. An early annual review was held on 18 November. Ms D said she and J wanted him to attend School 2. School 1 submitted the annual review report to the Council, requesting a change of placement. On 2 December the Council agreed to amend the EHC plan. School 1 provided some work for J to do at home and made regular welfare calls. There were discussions at team around the school meetings and the Council’s family intervention service was involved, but I have seen no evidence of support being provided to J.
27. The Council issued an amendment notice on 7 December 2021. It then consulted School 2. School 2 had some concerns about being able to meet J’s needs and discussed the matter with the Council in January 2022. It is unclear whether School 2 then agreed to offer J a place.
28. The High Court judgment means that at this point a final EHC plan naming a school or type of school should have been issued.
29. On 23 February 2022 the Council agreed to provide additional funding to support J at School 1 and from September 2022 at School 2. At the end of March 2022, Ms D told the Council she no longer wanted J to attend School 2. She considered he would need a specialist placement.
30. The Council then issued a new amendment notice on 4 April 2022 and consulted with School 3. School 3 offered J a place from September 2022. The Council issued the final EHC plan naming School 3 on 29 June 2022.

Ms D’ s complaint

31. Ms D complained on 20 July 2022 about the delay in issuing the final EHC plan and about poor communication from the Council.
32. The Council responded on 8 August. It apologised that the EHC plan had been issued late and for poor communication. It said J had remained on the roll of School 1 and the Council considered he should have continued to attend.
33. Ms D asked for her complaint to be escalated to the next stage. The Council’s final response said new staff were being recruited and there had been training on communications with families.
34. Ms D came to the Ombudsman. She said it had not been possible for her to get J to School 1 as he was refusing; she could not physically force him into the car. She said after he stopped attending, School 1 provided a couple of pieces of work and the key worker called, but J received no education or support. Ms D said it had been extremely stressful and there had been very poor communication by the Council, with her having to constantly chase responses.

My findings

Issuing of the 2022 EHC plan

35. The Council has accepted it failed to meet the statutory deadlines for issuing the final EHC plan. Following the November 2021 annual review, the final EHC plan should have been issued by 18 February 2022. The Council issued it on 29 June. This is fault.
36. The Code is clear about when final EHC plans should be issued. Councils should avoid delays because this delays not only the right of appeal but also, where an appeal is lodged, the eventual decision on what provision must be provided.
37. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
38. If the EHC plan had been issued in February naming School 2, J could have started attending School 2 from then. However, I must take into account that in March Ms D and J said he no longer wished to attend School 2. I therefore consider it likely she would have appealed to the SEND Tribunal. As parents have two months to register an appeal and Tribunals usually take 16 weeks from when the person appeals to issuing their decision, it is likely the Tribunal would have been making an order in August 2022. J may then have started at School 3 in September 2022, which is what happened in any case. So, I cannot say on balance that the late EHC plan caused J to miss out on education or SEN provision.
39. However, Ms D lost an opportunity to appeal and they were caused distress because the plans for his education were unclear from February to July 2022. This was exacerbated by the poor communications which the Council has already apologised for.

Alternative provision

40. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. This means that once the Council was alerted to J's absence it needed to consider its legal duties and take action where appropriate.
41. Firstly, the Council should support the school to work with J to reintegrate him. It was therefore appropriate for the Council to give School 1 time to take steps to try to reintegrate J into school. Although the family intervention service became involved, I have seen no evidence the Council provided support to J to help him reintegrate. This was fault which causes uncertainty to Ms D and J as they cannot know whether, with some support, he may have been able to return to School 1.
42. Once it was apparent from November 2021 that J would be absent from School 1, the Council should have considered whether he was receiving a suitable education, for example if the school was providing work for J to do at home. Even if the school had been sending work home for J, Government guidance says this may not be a suitable education. I have seen no evidence the Council considered whether any education was being provided at home, what J's educational needs were, or how these were being met. As a result, the Council failed to develop a plan for J's education, either at School 1 or elsewhere. This was fault.
43. The Courts have found that councils are entitled to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. I have seen no evidence the Council requested or considered whether there was medical evidence. Nor have I seen evidence it properly considered the acid test of whether School 1 was “available and accessible” to J. This was fault.
44. The Council’s response to Ms D’s complaint implies that it had concluded that School 1 was accessible but J was not attending. In which case, it needed to involve its education welfare officer and consider whether attendance should be enforced. I have seen no evidence it did so.
45. I have carefully considered what impact these faults had on J and Ms D. I have not seen medical or other professionals’ evidence that J was unable to attend school. And the Council’s view in its complaint response was that School 1 was accessible to J. Therefore, on the balance of probability, I find that if the Council had set out its thinking in early 2022, it is likely it would have decided that School 1 was reasonably available and accessible to J. In which case, there would have been no duty to put alternative provision in place. I therefore do not find, on the balance of probability, that the fault caused J to miss out on alternative provision.
46. However, I have found that fault has caused distress and uncertainty to Ms D and J. This is injustice.
47. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. The Ombudsman’s guidance says that where fault has resulted in distress, a moderate remedy payment of up to £300 may be appropriate.

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Agreed action

48. Within a month of my final decision, the Council has agreed to apologise to Ms D and J and pay Ms D £300 to acknowledge the distress caused by fault.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman