Summary: the Council failed to ensure G received a suitable education when she was too ill to attend school. The Council took too long to issue her Education, Health and Care (EHC) plan and delayed arranging the provision. I have recommended a remedy for the injustice this caused.

The complaint

1. Mrs M complains about her daughter G’s education. In particular, Mrs M complains the Council did not make alternative arrangements for G’s education when she became too ill to attend school in October 2021. Mrs M complains about delay by the Council issuing G’s Education, Health and Care (EHC) Plan and arranging the provision in the Plan. She was unhappy with the final Plan which she says did not reflect her discussions with the Council.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. Once 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)

Back to top

How I considered this complaint

6. I have considered information provided by Mrs M and information provided by the Council. I invited Mrs M and the Council to comment on my draft decision.

Back to top

What I found

7. Mrs M’s daughter, G, attended a local secondary school. The school is an Academy. Problems arose and G’s attendance started to decline from the beginning of September 2021. She attended for the last time on 5 October 2021.
8. Mrs M asked the Council for help on 15 October 2021. She says the Council told her it was the school’s responsibility to make alternative arrangements for G’s education.
9. At first the school sent work home. Mrs M says she reduced her work hours to support G at home, and they visited the school’s SEN department once a week.
10. On 25 November 2021, Mrs M asked the Council to undertake an EHC needs assessment. On 7 January 2022, the Council agreed. The Council subsequently decided to issue an EHC Plan.
11. Concerned that things were not going well at home, Mrs M engaged an English tutor in February 2022 and a maths tutor in March 2022. She asked the Council again for help. Again, the Council said G’s education was the school’s responsibility.
12. The Council sent a draft EHC Plan to Mrs M for comments on 11 March 2022.
13. G’s mental health took a turn for the worse in March 2022 and Mrs M says G reached ‘rock bottom’. Mrs M and the Council agreed a short delay while Mrs M consulted CAMHS for advice. G was accepted by CAMHS, but there was an extremely long waiting list. Mrs G and the Council decided to press on with G’s EHC Plan. It appears a return to school was no longer a realistic short-term goal, and Mrs M proposed what she termed an ‘EOTAS (education other than at school) recovery package’ instead.
14. Mrs M says that 31 March 2022 was G’s ‘last day at school’ as everyone agreed she was not making progress and the school was contributing to her anxiety. Mrs M left her job to support G at home.
15. In April 2022, Mrs M asked the Council to fund tutors to provide education while G’s EHC Plan was finalised. The Council declined and said G’s education remained the school’s responsibility. The school declined to pay for tuition.
16. Mrs M emailed the Council at the beginning of June 2022 to say she had to return to work and the family was under a great deal of stress.
17. Frustrated by the lack of progress, Mrs M instructed solicitors who threatened the Council with legal action. In response, the Council issued G’s final EHC Plan on 14 October 2022. Mrs M was unhappy with the Plan because she did not feel it reflected the discussions she had been having with the Council since the Council issued the draft Plan in March 2022.
18. Despite issuing the final Plan, it appears the Council had not made the necessary arrangements to fund the provision it had agreed to provide. G received tuition from an online school from 5 December 2022 once funding was agreed.
19. Unhappy with the Plan, Mrs M appealed to the Tribunal. Mrs M and the Council continued to work on the Plan, and eventually resolved their disagreement. The Tribunal issued a Consent Order approving the amended Plan on 13 March 2023.

G’s education from 15 October 2021 to 5 December 2022

20. Mrs M says she told the Council G was unable to attend school and was not receiving a suitable education on 15 October 2021. She says the Council told her it was the school’s responsibility to make alternative arrangements.

Education for children who do not attend school

21. Councils must “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.” (Education Act 1996, section 19(1))
22. 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)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
23. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
24. The Local Government Ombudsman has 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. (Out of school… out of sight? Ensuring children out of school a good education, published in July 2022)
25. The Ombudsman made six recommendations. 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to require attendance at school 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.

Findings: G’s education from 15 October 2021 to 5 December 2022

26. The Council told Mrs M that G’s school was responsible for her education when she stopped attending in October 2021.
27. This is only partly true. The Council has a duty, outlined above, to arrange suitable education, at school or otherwise, for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
28. I asked the Council how it would identify a child who needed it to make arrangements for her education. I asked how the Council satisfied itself G’s school was making suitable arrangements when Mrs M reported problems. I asked what evidence the Council considered and how it recorded its decision.
29. The Council said G remained on roll at the school until 13 October 2022 and the school was responsible for her education. The Council said it made suitable arrangements once it issued her EHC Plan.
30. The Council’s response did not answer my questions.
31. The Council has a duty to make arrangements if a child would not otherwise receive suitable education. This means it must have processes in place to identify those children to whom it owes this duty. This in turn means the Council must have a way of evaluating the current arrangements for the child’s education to decide whether they are suitable. And, of course, the Council must record its decisions.
32. The Council has not provided evidence it undertook any of these steps. This is fault.
33. In contrast, Mrs M has provided evidence she repeatedly asked the Council for help: in October 2021 when she reported G was too ill to attend school, in March 2022 when she asked the Council to fund tutors, in April 2022 when she left work to support G at home, and in June 2022 when she told the Council she had to return to work.
34. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
35. The Council had a duty to arrange suitable full-time education, or as much education as G could cope with, if she would not otherwise have received suitable education. The problem now is that because the Council failed to evaluate the arrangements made by G’s school and consider its duty on the numerous occasions Mrs M asked the Council for help, we cannot say what would have happened if it had.
36. In its response to my enquiries, the Council referred me to Government guidance which says schools are initially responsible for arranging provision for children who are too ill to attend. The guidance also says that councils should arrange provision as soon as it is clear that an absence will last for more than 15 days, and provision should start as soon as possible.
37. Mrs M told the Council G was absent from school from 15 October 2021. She had been absent for 15 school days by early November (allowing for a half-term holiday). I consider the Council should have been involved by this time. The Council should have checked the arrangements made by G’s school were suitable and if not, made alternative arrangements itself.
38. This means there were three terms between November 2021 and December 2022, when the Council finally arranged the provision in G’s EHC Plan, when the Council should have ensured G received a suitable education.
39. G received some tuition during this time. Initially, the school sent work home. Mrs M arranged tutors. G’s health then worsened and she became less able to engage with education.
40. I will recommend a remedy for the injustice caused by the Council’s failure to ensure G received a suitable education when she was too ill to attend school. My recommendations are at the end of this statement.

G’s EHC Plan

41. Mrs M complains about delay issuing G’s EHC Plan and delay securing the provision specified in the Plan.

Education, Health and Care Plans: the law

42. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
43. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
44. The Council must complete the process and issue a Plan within 20 weeks.
45. 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 Education, Health and Care Plan.
46. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
47. The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance when considering requests for, and issuing, Plans, and arranged for provision to be made. We cannot make decisions about a child’s special educational needs or the school they attend. Only the SEND Tribunal can do this.

Findings: G’s EHC Plan

48. Mrs M asked the Council to assess G’s EHC needs on 25 November 2021. Having agreed to issue an EHC Plan, the Council should have issued the final Plan by 14 April 2022. Mrs M and the Council agreed a three-week delay during which Mrs M hoped to receive advice from CAMHS. Taking account of the agreed delay, the Council should have issued the final Plan by 5 May 2022. The Council issued the final Plan on 14 October 2022. This was 23 weeks late.
49. G did not start the online tuition specified in the Plan until 5 December 2022. This was a further delay of 7 weeks and 3 days. The delay is fault.
50. But for the fault, G could potentially have started the tuition, or otherwise received the support of her EHC Plan, 30 weeks earlier from 5 May 2022.
51. I will recommend a remedy for the injustice caused by the Council’s delay issuing G’s EHC Plan and arranging the provision. My recommendations are at the end of this statement.

G’s education from 5 December 2022

52. Mrs M was unhappy with the final EHC Plan issued by the Council and appealed to the SEND Tribunal. Mrs M and the Council resolved their disagreement before the final hearing, and the Tribunal issued a Consent Order on 13 April 2023 approving the amended Plan. Mrs M tells me the agreed Plan was very similar to the package she had proposed to the Council many months earlier. She complains about the inconvenience and expense she incurred, and the provision in the amended Plan G missed out on, during the tribunal.
53. The Ombudsman cannot consider Mrs M’s complaints about these matters. We cannot consider her complaint about the 14 October 2022 EHC Plan because she has used her right of appeal to the Tribunal. The inconvenience and expense she incurred, and the provision in the amended Plan G missed out on during the appeal, are a consequence of the appeal so we cannot consider these matters.

Back to top

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. When this is not possible, as in the case of Mrs M and G, we may recommend the Council makes a symbolic payment.
55. I recommend the Council makes a symbolic payment of £5,000 to acknowledge its failure to ensure G received a suitable education when she was too ill to attend school, and the delay issuing her EHC Plan and arranging provision.
56. My recommendation takes account of the limited work sent home by G’s school, the fact she was ill, her special educational needs, and the significant delay to Mrs M’s right of appeal to the Tribunal. It is intended to acknowledge the significant lengths Mrs M went to in her efforts to secure support for G, including arranging provision herself.
57. I recommend the Council apologises to Mrs M for the faults identified above.
58. We can also make recommendations to ensure similar faults do not happen in the future.
59. We have, however, made recommendations before. In August 2022, the Council agreed to review its policies and procedures. This followed a series of complaints to us where the Council had wrongly said schools were responsible for children’s education when they were too ill to attend. Regrettably, the Council gave the same response to my enquires about Mrs M’s complaint some ten months later.
60. I recommend, therefore, the Council develops an action plan to address what appear to be systemic problems with the Council’s response to children out of education for health reasons. The Council should explain how it will involve the relevant scrutiny committee to review progress and ensure that improvements are embedded. The Council may use our findings as evidence and should pay particular attention to the points in paragraph 31 of this statement.
61. I recommend the Council makes the payment and offers the apology within one month of my final decision. I recommend the Council develops the action plan within three months.
62. The Council should provide us with evidence it has complied with the above actions.
63. The Council accepted my recommendations.

Back to top

Final decision

64. I have completed my investigation as the Council accepts my recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman