Summary: There was excessive delay by the Council in issuing an Education, Health and Care Plan. There was also a failure to provide alternative (s.19) education when a child was unable to attend school and a more suitable placement could not be identified. This caused loss of education, inconvenience, and distress. The Council will apologise, make a financial payment and service improvements. The complaint is upheld.

The complaint

1. Ms X complains her child, whom I shall refer to as Y, has been out of fulltime education since October 2021 and has not received the provision in their Education, Health and Care (EHC) plan.
2. Ms X complains:
• The Council delayed naming a school in the EHC Plan.
• The Council failed to provide fulltime education from Autumn 2021.
• There was poor communication from the Council.
• Ms X requested reasonable adjustments around communication, but the Council declined.
• Ms X lost earnings and incurred education expenses while Y was out of school.
• The current school cannot meet need and so is unsuitable.
3. Ms X says because of the alleged fault Y has missed out on education and the family has suffered inconvenience, distress and financial difficulty. Ms X says also says the situation has had an adverse impact on her mental health and affected her ability to work.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
7. 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.
8. 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

9. I have considered information provided by Ms X and the Council.
10. I have considered relevant law and guidance including:
• The Children Act 1989
• The Children and Families Act 2014
• Education Act 1996
• Special Educational Needs and Disability (SEND) Regulations and Code of Practice
• Statutory guidance: Children Missing Education, Alternative Education.
• Ombudsman’s Focus Report: Out of School, Out of Sight.
• Ombudsman’s Guidance on Remedies.
11. I have spoken to Ms X by telephone.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
13. 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

Education, Health and Care plans

14. 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.
15. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Education when a child cannot attend school

16. 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. The provision generally should be full-time unless this is not in the child’s interests due to their physical or mental helath. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. 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))
18. 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 say 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.

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

Social care

20. Statutory guidance Working Together to Safeguard Children sets out the concept of an ‘Early Help’ assessment. This can be undertaken by a range of professionals where there are low level needs that do not merit a child in need assessment by social care.
21. 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.
22. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs. Where a child/young 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

Reasonable Adjustments

23. Under the Equality Act 2010 public bodies have to make changes to their approach or provision to ensure services are accessible to disabled people. For people with learning difficulties this could mean provide simple, clear explanations of decisions.

Key Facts

24. Y was attending primary school in 2021. The Council refused a request to assess Y for an EHC Plan in July 2021. Records show Ms X may have applied for EHC assessment six or seven times. The Council decided the primary school was meeting need without an EHC Plan and could support transition to secondary school.
25. Soon after starting Year 7 at the new school, Y received a fixed term exclusion for a behaviour incident. Y had received 1:1 support at primary school but it is apparent the secondary school felt unprepared for Y’s level of need. Ms X says Y was inappropriately restrained in school.
26. The secondary school placed Y on a part-time timetable while it sought advice from the Council’s specialist teaching team and health and safety team so Y, staff and other pupils could be kept safe. The timetable was stated to be for two hours per day in the school’s flexible learning centre with 1:1 support.
27. The School initiated an Early Help assessment at Ms X’s request. Ms X stated challenging behaviours also occurred at home and impacted siblings.
28. The School also applied for an EHC needs assessment in early October 2021. This time the Council agreed to assess, although it took two months to make this decision.
29. The Council’s specialist teaching team went into school in mid-October and was therefore aware of the part-time timetable. It recorded that Ms X was keeping Y off school because of concerns the School was not implementing advice and had restrained Y. The service noted Ms X did not want Y to attend the school and was exploring alternative settings.
30. In November 2021, a mediation meeting was held and attended by a Council representative. Minutes state Y had not been in school since early October, and ‘There was some discussion around other possible provisions including the Home Tutoring Service, specialist/resourced/alternative provisions. However, it was acknowledged by all that there are significant difficulties in accessing these types of provision without an EHCP… Ms X is really struggling to do any sort of one to one learning with Y. Is there a possibility that a neutral environment could be used to deliver some teaching?’
31. No alternative education was provided and from the records I have seen Y continued not to attend school.
32. A report by an Educational Psychologist dated January 2022 noted Y was not attending school and Ms X was concerned about the practicalities of a reintegration to school as, due to care of her other children, it was difficult for her to transport Y to and from school for reduced portions of the day. Ms X told me that transport support was not offered to support reintegration.
33. Following statutory assessment, the Council agreed Y required an EHC Plan. It issued a draft plan in April 2022, twenty-four weeks after it received the request to assess. The draft plan states Y was not attending school as Ms X could not transport Y, but she was willing for school to make phone calls as a starting point to rebuild trust. The Plan states both that Y is attending the flexible learning centre and that Y has not attended since October 2021.
34. Early Help minutes of a meeting with the School in January 2022 confirms Y was not attending at that time and recommended just phone calls be tried initially to re-engage Y.
35. The Council consulted schools in April, May and July 2022 and then again in February and May 2023, but no school offered a place.
36. The current school was consulted and confirmed in May 2022 it could not meet needs and it had been unable to secure a visit for Y to return to school or access any type of education.
37. Ms X complained to the Council about delay.
38. The Council’s stage two complaint response in early December 2022 acknowledged Y had not attended school since the exclusion but said the absence was being recorded as ‘unauthorised’. It placed responsibility for Y’s education on the School, referring to attempts to reintegrate Y and offers of remote learning and tutoring opportunities and alternative provision on the school site. The letter goes on to say Y was now attending school twice a week in the school’s flexible learning centre, but Ms X had expressed concern about increasing time in school too quickly, which was why attendance was part-time. The Council’s complaint response denied Y had missed education due to its failure to provide s.19 education.
39. In December 2022 Ms X self-referred to social care complaining Y had no school place and no social interaction. A further Early Help assessment was completed. This refers to education being the main issue but led to Ms X being allocated funding to employ a personal assistant to allow Ms X to spend time with her other children and Y to access social opportunities. The assessment states an agreement for Y to attend school for longer days so Ms X could collect her other children as a temporary measure until a school was identified. This suggests Y had started to attend the flexible learning centre.
40. When I spoke to Ms X I asked her when Y attended the learning centre. Ms X told me Y had attended on no more than ten occasions since October 2021.
41. In late January 2023 the Council issued a final EHC Plan naming the current school to provide Ms X with an appeal right to the SEND Tribunal. The EHC needs assessment had taken fifteen months in total.
42. Ms X told me she has now found a school herself, but the Council has failed to consult her preferred school. Ms X says she is continuing to face problems getting the Council to communicate with her.
43. The Council accepted in its response to me it had not kept to the statutory timescale for completing the EHC needs assessment and said this delay was due to staffing. It told me it would offer Ms X £250 for the impact of this delay. It has also previously accepted there were staffing issues in 2021 but told Ms X these had been resolved.
44. The Council considers it has done all it can to find Y a suitable alternative school and that this has not been possible is not within its control. It said when a school could not be found it issued a final plan so Ms X could appeal.
45. The Council said Ms X had never raised concerns about losing earnings or incurring private education costs with the Council or asked the Council to make reasonable adjustments for her. It says the 2021 early help referral was made by the School and the School, not Council staff, oversaw the early help assessment.
46. Documents provided to me show Ms X did raise concerns in May 2022 that she struggled to ‘take things in’ and she needed ‘longer to digest things’ and that she wasn’t getting help. In Ms X’s complaint she referred to spending money trying to home educate Y.
47. Ms X has not registered an appeal.

Analysis

What I have and have not investigated

48. I have investigated the period from September 2021 to January 2023.
49. I have not investigated the period after January 2023 when the final EHC Plan was issued. Ms X had a right of appeal in January 2023 which I consider it was reasonable for her to use if she was dissatisfied with the school named in the EHC plan. Ms X will get a new right of appeal when the next review of the Plan is due. If there is delay in completing the next review Ms X can raise this as a new complaint.
50. I have not investigated whether the school named on the EHC Plan is suitable. Only the Council or Tribunal can change the named school; this would be a matter for Ms X to raise via an appeal.

Fault

51. The EHC needs assessment should have been completed within a maximum of twenty weeks and took fifteen months. This is excessive delay and is fault.
52. The EHC Plan was issued in January 2023 naming the current school which had stated it could not meet need. The Council acknowledged this was done to give Ms X a right of appeal to the Tribunal and did not mean it is the eventual school Y would attend. Any loss of education or failure to implement the EHC Plan after January 2023 arose from the Council’s decision to name a school Ms X considered unsuitable. The law says the Ombudsman cannot investigate the consequence of a decision if the decision is outside its jurisdiction. As I have found it was reasonable for Ms X to appeal the decision about naming the school, I cannot investigate that decision or the consequences of that decision. This means we cannot look at the period from January 2023 until the next review is due. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
53. There were delay consulting schools. Despite the urgency of finding a new placement, the Council did not start consulting schools until April 2022, six months after the School had requested an EHC needs assessment and consideration of a change in placement. There was then a gap between May and July 2022 when no schools were consulted, and then nothing further appears to have happened until February 2023, around the time Ms X brought her complaint to the Ombudsman.
54. The Council should have consulted a wider range of schools earlier. The Council is also required to consult Ms X’s preference of school. It is not possible to say with certainty that earlier consultation would have identified a school place.
55. The Council, not the School, was responsible for ensuring Y received suitable fulltime education once it became aware of the situation in October 2021. The Council did not take action to enforce attendance and also did not provide alternative education. The situation was more complex than the Council implied in its complaint response. While Ms X had concerns about Y attending the named school, the School also had health and safety concerns about Y attending. It was the School that issued a fixed term exclusion and initiated the part-time timetable. When Y did not return to school and reintegration was not successful in 2021, the Council should have intervened when it was clear Y was not accessing the provision offered by the School. Work was sent home, but the Council knew in October / November 2021 Ms X could not get Y to complete it. The discussions at the mediation meeting wrongly focused on needing an EHC plan to access s.19 education. This was not correct. Councils must provide education under s.19 whether or not a child has an EHC Plan. The Council representative at the meeting should have been aware of this.
56. I find the Council should have provided s.19 education from November 2021 and kept this under regular review. There was no medical evidence Y could not manage fulltime education on health grounds.
57. Documents, including the EHC Plan, clearly show Y did not return to school and was not receiving two hours per day in the flexible learning unit. Y did not attend school at all after October 2021. Fresh attempts at reintegration appear to have restarted only in late 2022.
58. I find that Y missed out on suitable fulltime education between October 2021 and January 2023.
59. It is lawful for early help assessments to be conducted by professionals other than social workers. However, when an EHC needs assessment was instigated, social care should have revisited the situation as to whether Y was a child in need or Ms X required support as a parent carer. The situation had changed from October 2021, because it was now clear Y was not going to return to school imminently. If a child in need or PCNA had been carried out as part of the EHC needs assessment, support such as a personal assistant may have been offered earlier.
60. Ms X has explained she struggles with paperwork, and this may explain why she has not issued an appeal. While Ms X did alert the Council to finding paperwork difficult, she did not request any specific adjustments. The Council should have responded by asking Ms X if she needed it to make adjustments to the way it communicated with her.
61. I have not seen evidence Ms X advised the Council she had lost earnings. This is a matter which would have been revealed had a PCNA taken place. Ms X has provided me with evidence she paid for courses with a view to starting her own business, but says she was unable to proceed with this.

Injustice

62. For the reasons set out above I can only consider injustice for the period October 2021 to January 2023.
63. Y missed out on education throughout during this period, although Ms X did attempt some home education.
64. Our Guidance on Remedies recommends a payment of between £900 and £2400 a term to acknowledge loss of education.
65. The school absence will have had an impact on Ms X who had an additional child at home requiring supervision and support. Ms X also lost out on opportunities for her own work or leisure.
66. The delay in the EHC Plan and the missed education has caused Ms X additional time and trouble. I also find that opportunities to find a school place and provide social care support earlier were missed. This loss of opportunity is itself an injustice.

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Agreed action

67. Within one month of my final decision:
• The Council will discuss with Ms X any further schools she wants it to consult and ensures that consultations are sent out and chased.
• The Council will apologise to Ms X and Y for the fault identified in this decision statement.
• The Council will discuss with Ms X her request for reasonable adjustments and agree with her how it will communicate with her in future.
• The Council will pay Ms X £8000 as a symbolic payment to acknowledge the loss of education to Y and expenses incurred between November 2021 and January 2023.
• The Council will pay Ms X £500 for the impact on her of the fault on her as a carer, including her time and trouble bringing the complaint.
68. Within three months of my final decision, the Council will review its practice to ensure:
• All relevant officers are aware that responsibility for s.19 education lies with the Council whether or not the child is on a school roll or an EHC plan is in place.
• It always carries out regular reviews of s.19 education for pupils that require it, including consideration of whether provision can be increased for any pupil receiving less than fulltime provision.
• It responds on the appearance of need to the impact on parent carers of children being out of school for extended periods and offers child in need assessments and PCNA’s.
• It keeps to EHC timescales and provides a right of appeal at the earliest opportunity.
• It consults a wide range of schools, including out of area and independent schools, as soon it is apparent that needs cannot be met locally.
• It provides regular updates to parents when delays occur, including when a school place cannot be identified.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. There was excessive delay in issuing an EHC plan and a failure to provide s.19 education when a child was unable to attend school and a more suitable placement could not be identified. This caused loss of education. I consider that the above recommendations represent a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman