Summary: The Council failed to provide alternative education when a child was unable to attend school for mental health reasons and took thirteen months, instead of twenty weeks, to issue a final EHC plan. This was fault and led to a child missing out on education and placed additional strain on their parent carer. The Council will apologise, make a financial payment and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains on her own behalf and on behalf of her child, whom I shall refer to as Y. Ms X complains the Council:
• Failed to provide suitable fulltime education when her child was unable to attend school and wrongly deflected responsibility on to the school to provide education.
• Stated there had been a breakdown in the relationship between herself and the school, when this was not the case; the school had stated it could not meet Y’s special educational and mental health needs.
• Refused medical tuition because medical evidence was not typed on letterhead paper.
• Only offered medical tuition on threat of a pre-action protocol letter before judicial review.
• Required Ms X to get medical evidence herself.
• Delayed issuing a final Education, Health and Care (EHC) plan, significantly exceeding the twenty-week statutory timescale.
• Failed to name a suitable school in the EHC plan.
• Failed to carry out a legally compliant EHC needs assessment including advice from social care. Social care also failed to carry out a child in need assessment or Parent Carer Needs Assessment (PCNA) despite Y being out of school for eighteen months.
2. Ms X says as a result of the alleged fault:
• Y missed out on education and could not move to a specialist placement without the EHC plan in place.
• She was signed off work with stress and when she returned to work in late January 2023, this was at reduced hours due to Y being at home fulltime and someone needing to be present when tutors attend.
• She has had to rely on help from family members to provide care and support with Y, and to allow her to work.
• The family has had no support from social care although she has had to provide additional care to Y.
• The family have been put to unnecessary time, trouble and 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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.
7. 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)
8. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
9. 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

10. I have considered information provided by Ms X and the Council.
11. I have considered relevant law and guidance including:
• Children Act 1989
• Children and Families Act 2014
• Education Act 1996
• Special Educational Needs and Disability (SEND) Regulations and Code of Practice (‘The Code’).
• Statutory guidance:
1. Children Missing Education
2. Alternative Education
3. Ensuring a good education for children who cannot attend school because of health needs.
4. Summary of responsibilities where a mental health Issue is affecting attendance
5. Working together to safeguard children
6. Working together to improve school attendance, Summary table of responsibilities for school attendance and Parent’s Guide on School Attendance.
• Ombudsman’s Focus Report: Out of School, Out of Sight.
• Ombudsman’s Guidance on Remedies.
12. I have spoken to Ms X by telephone.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
14. Ms X 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

Relevant law and guidance

Special Educational Needs

15. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.

16. The Code sets out the process for carrying out EHC assessments and producing EHC Plans. It says the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks.

Attendance

17. Parents are legally responsible for making sure their child gets a suitable fulltime education. This means ensuring a child of compulsory school age is in school each day unless the child is too ill to attend, or there is advance permission from the school for a leave of absence.
18. Where there is regular absence due to illness schools may ask parents to provide medical evidence. The Department of Education’s ‘Parent’s Guide on School Attendance’ says where parents are asked to provide this evidence ‘this does not have to be a letter from your doctor or consultant, and doctors will not usually provide such letters. It can, instead, be appointment cards, prescriptions, or notes of previous consultations… a lack of written evidence must not prevent the right support being put in place or the absence being authorised if you can demonstrate your child was, or is, unable to attend, or is awaiting treatment. If you are asked for evidence you cannot provide, a conversation between the school, child and parent can help to resolve the issue’.
19. Where there is long term illness the Guide says parents should be open and work with the school by sharing written information available.
20. Councils and schools have legal powers to take action to enforce attendance if they do not consider the child is too unwell to attend.

Alternative Education

21. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
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))
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. Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
25. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states councils ‘should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child’.
26. In new guidance Summary of responsibilities where a mental health issue is affecting attendance and Working together to improve school attendance the Government says professionals should provide cross-agency support through a ‘team around the family’ to alleviate a pupil’s concerns about barriers to attending school. Councils ‘must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education’. Councils ‘must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education’.
27. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a ‘precondition for alternative provision to be provided that parents have obtained a consultant’s report. There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority’. The Judge said it was clear from section 19(1) itself that the ‘responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision’.
28. Working together to improve school attendance and its Summary table of responsibilities for school attendance says parents are expected to notify schools when their child is unexpectedly absent, work with the school and council to help them understand their child’s barriers to attendance, and proactively engage with support offered to prevent the need for more formal support.
29. We have issued guidance on how we expect councils 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? published July 2022. We 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• 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.

30. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they must retain oversight and control to ensure duties are properly fulfilled.

Social care

31. Section 17 of Children Act 1989 requires local authorities to safeguard and promote the welfare of child who are in need in their area. Disabled children automatically meet the definition of a child in need, but it also includes any child who is unlikely to achieve a reasonable standard of health or development without support from the local authority. A ‘child in need’ assessment carried out by Childrens’ Social Care will identify the needs of the child to ensure they and their families are given appropriate support.
32. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a Parent Carer Needs Assessment (PCNA) is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.
33. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child’s social care needs. Where a child person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan.

Key events

34. The following is a summary of the main events, it does not include everything that happened. Details which might identify Y have been omitted.

EHC needs assessment

35. The Council agreed to carry out an EHC needs assessment (EHCNA) for Y in late September 2021. This should have been completed within twenty weeks (by February 2022).
36. The Council told me no social care advice was provided during the EHCNA. Social care just responded that Y was not known to the service in November 2021. The Council’s SEND team told me that social care will not routinely provide an assessment as part of an EHCNA if the family have not been referred to the service previously or if no current concerns are raised. It is a matter for social care to evaluate whether an assessment is necessary.
37. Ms X did self-refer to social care in November 2022 and was signposted to services available locally without a child in need assessment being completed.
38. Ms X says the Council completed most of the EHCNA process and issued a draft plan in March 2022, but this was not finalised until a year later.
39. The Council acknowledged to me there was delay in obtaining Educational Psychology (EP) and health evidence, which was not available until March 2022. The Council says this was due to staffing issues and a nationwide shortage of therapists and EP’s.
40. The Council says that Ms X was in part responsible for four months of the subsequent delay over Summer 2022 as she asked for amendments to the draft plan and new private evidence to be included. Ms X says the draft was not quantified and specified and so changes were required to make the plan suitable.
41. An amended draft was circulated in August 2022. The Council says it re-consulted the current school due to changes in the proposed plan. The Council says the school delayed responding to the consultation until October 2022, by which point it had changed its view that it could meet Y’s needs.
42. As the Council had intended to name the current school in Section I of the EHC plan it now needed to consult more schools. As it remained of the view Y’s needs could be met in mainstream school it consulted local schools, but no place was offered. Ms X also put forward a preference of school, but this school did not cater for Y’s age group.
43. In December 2022, in response to Ms X’s complaint about delay, the Council offered three options to finalise the plan:
• Naming the current school provided Ms X would commit to a reintegration plan;
• Naming Education Otherwise than at School (EOTAS) provision (home tutoring);
• Naming a type of school in Section I.
44. The Council did not issue a final EHC plan for a further three months. It says it needed to identify a school for Section I, although it had previously told Ms X it could name EOTAS or a type of school and leave Section I blank. Ms X asked for the Plan to be finalised in Autumn 2022, so as not to delay her right of appeal to the SEND Tribunal further.
45. In March 2023, the final EHC Plan named EOTAS in Section F with no school in Section I. Ms X had a right of appeal against this decision.

Absence from school / alternative education

46. Y has anxiety and emotional based school avoidance. The school says in 2021/22 Y’s anxiety was at a manageable level to access education but after the summer holidays, this worsened, and Y found it difficult to attend school and to separate from key adults.
47. In October 2022, Y was signed off as unwell to attend school by the General Practitioner (GP) and has not attended since.
48. The Council was aware of the absence from the first week in October 2022.
49. A meeting was held in October 2022 when Y was referred for ‘Gateway’ provision, which is education provided by the Council under s.19 Education Act 1996.
50. The Council refused the Gateway referral because the GP letter supporting medical absence was not on letterhead paper and it considered this was ‘not acceptable’ evidence.
51. The Council told me it did not put in place alternative education because Y was on the roll of a school and the school, not the Council, was responsible for providing education. It says it asked the school and parent for medical evidence and the school advised Y was too anxious to attend school.
52. There is no evidence stating Y was unable to manage EOTAS or could only manage part-time education.
53. In December 2022 the Council did take forward the Gateway referral and said it would consider providing ten hours tuition per week provided Ms X or another responsible adult could be present when the tutor attended. The Council told me home tutoring was Ms X’s preference and she did not state she could not support home tuition due to work commitments or ask for the level of tuition to be increased.
54. Ms X wrote to the Council in November 2022 stating she wanted the Council to find Y an alternative school place and home tutoring should be an interim measure.
55. In January 2023 the Council said to avoid Y missing more education it would ‘exceptionally agree to a short period of tutoring and to finalise the plan showing this tutoring in Section F’ but it still considered Y’s needs could be met in mainstream school. Ms X says this was disingenuous as the tutoring should already have been in place under s.19 and statutory guidance for children with health needs.
56. Ms X told me the tutor started in February 2023, but this was just building a relationship with Y, before tuition could take place. Ms X told me this situation is continuing and no actual tuition has started.
57. The March 2023 final EHC plan stated Y should receive EOTAS provision. Ms X told me she intended to appeal the final EHC plan.

What I have and have not investigated

58. I have not investigated the period after the issue of the final EHC plan in March 2023. Ms X had a right of appeal if she disagreed with the EOTAS provision in the Plan or with the decision not to name a school. It is reasonable to expect Ms X to use her appeal rights. Only the Council or Tribunal can change the placement or provision; this is not for the Ombudsman to consider.
59. I cannot investigate the actions of the school. Schools are not within our jurisdiction.

Analysis

Fault – EHC plan

60. The Council is required to issue a final EHC Plan within twenty weeks, it took eighteen months. This is excessive delay and is fault. I acknowledge the situation changed in October 2022, when Y stopped attending school, and Ms X did ask to make some changes. However, the twenty-week process allows for parental comments at draft stage. The Plan was already late before the first draft was issued in March 2022. The Council could have issued a final plan naming no school, or a type of school, or interim provision rather than delay Ms X’s appeal by thirteen months. The loss of an appeal right while Y was out of school for such a long period, and Ms X could not work, is a significant injustice.
61. I cannot consider the level of tuition set out in the March 2023 plan, or the failure to name a suitable school. Ms X had a right of appeal against the content of the Plan which it was reasonable for her to use if she was dissatisfied with the provision in the final plan.

Fault - Failure to provide s.19 education

62. The Council was aware Y was not attending school in early October 2022 but did not start home tutoring until February 2023. This is fault.
63. The Council, not the school, was responsible for ensuring Y received suitable fulltime education once it became aware Y had been absent more than fifteen days. The Courts have been clear that the s.19 duty lies with councils and cannot be delegated. Councils may ask schools to carry out its responsibilities in relation to s.19, but if schools fail to do so, the Council must intervene.
64. The Council had to decide whether Y was fit to attend school and either enforce attendance or provide s.19 education.
65. The Council did not take enforcement action.
66. I find the Council failed to provide suitable alternative education under s.19 between October 2022 and March 2023.
67. The Council may ask Ms X if she can provide medical evidence, and parents should co-operate and provide evidence in their possession. However, Councils cannot insist a parent obtains evidence that is not easily available. The law and guidance requires a Council to make a decision whether s.19 applies even where no medical evidence is available.
68. The Council was wrong to reject the Gateway referral because of the letterhead. The Council could have sought consent from Ms X to contact the GP direct if it wanted to check the authenticity of the evidence.
69. Where there is doubt about a child’s fitness to attend, we expect councils to act in the child’s best interests and put provision in place while more evidence is sought.

Fault – failure assess social care needs

70. Social care should have considered whether a child in need or PCNA was required, both during the EHCNA and subsequently, on the appearance of need. Failure to do so was fault. Given Y has been out of school since October 2022, Ms X’s ability to work was affected, and her caring responsibilities have increased, I would have expected to see some analysis of these needs before a decision was made a full assessment was not necessary.

Injustice

71. Y missed out on education between October 2022 and March 2023. Due to Y’s extended absence from education, when the tutor did start, they have had to concentrate on just building a relationship to re-engage Y, rather than providing tuition.
72. Our remedies guidance recommends a symbolic payment of between £900 and £2400 per term for loss of education depending on the amount of education provided, stage of education and whether the child has special educational needs.
73. Ms X was put to unnecessary time and trouble.
74. Ms X should have gained a right of appeal in February 2022 and did not gain one until March 2023. The inability to bring the matter before a Tribunal is an injustice.
75. Having Y at home fulltime put additional pressure on Ms X as a carer. However, as Y was unfit to attend school, it is speculative whether the situation would have been different even if the Council had acted sooner. The medical evidence is not sufficiently clear as to whether Y is unable to attend any school.
76. Whether Y could attend a different type of school, or whether the Council should provide a responsible adult to be present for tuition to allow Ms X to work, are matters Ms X would need to raise via an appeal to the SEND Tribunal. The Ombudsman cannot say what provision should be in an EHC plan. The Tribunal also has extended powers to consider social care provision.
77. I do consider that opportunities to consider a child in need assessment or PCNA were missed and therefore that Ms X and Y may have missed out on support such as short breaks or a buddy. This loss of opportunity is itself an injustice.

Others affected

78. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
79. This is the second complaint in recent months where we have found the Council has wrongly advised that it was the responsibility of a school to provide s.19 education and failed to intervene to arrange provision itself. That this has happened twice makes it likely that other families may have been similarly affected. In the other investigation we recommended service improvements including staff training on the Council’s s.19 duty, so I do not need to make the same recommendation again.

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Agreed action

80. The Ombudsman has the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 31 (2B)). I have set out below the actions the Council should take to remedy the injustice caused to Ms X and those people who are also caused an injustice by the Council’s fault. 

Within four weeks of my final decision

81. The Council will apologise to Ms X and Y for the faults identified in this decision statement.
82. The Council will pay Ms X, on behalf of Y, £3000 to acknowledge the failure to provide any education between October 2022 and February 2023. Ms X may use this payment as she sees fit for Y’s educational and social benefit.
83. The Council will pay Ms X a symbolic payment of £1000 to acknowledge the prolonged delay, distress and frustration caused to her, and for the lost opportunity to have her needs as a carer assessed.

Within two months of my final decision

84. Social care will reconsider whether a child in need or PCNA is required and provide Ms X with a decision, with reasons, in writing. A copy of the decision letter should be shared with the Ombudsman.
85. We have now identified two cases where a flawed legal understanding about s.19 responsibilities has led to children missing out on education. The Council should bring both cases to the attention of the relevant scrutiny committee(s) for children services and education, who can consider, with senior officers, what action is required. Evidence the systemic issue has been notified to the committee and any action plan developed should be shared with the Ombudsman.
86. The Council is due to provide updated training to all staff following a previous recommendation. It should use this opportunity to ask staff to notify senior officers of any other cases where families may have been similarly affected. Where this applies, the Council should seek to provide a remedy for lost provision itself, without the need for more families to refer their complaint to the Ombudsman.
87. The Council should inform schools through the next appropriate bulletin that errors in practice have been identified, provide clarification of the law, and explain what schools should do if they have children on roll who have missed more than fifteen days of school. The Council should signpost all schools to the new statutory guidance on attendance and mental health.
88. The Council should provide us with evidence it has complied with the above actions.

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Final decision

89. I have completed my investigation. There was a thirteen month delay by the Council in issuing a final EHC plan and a four month delay in providing medical tuition when a child was unable to attend school. This was fault and caused injustice. I am satisfied the agreed actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman