Summary: Ms X complained about the way the Council dealt with her son’s education. The Council was at fault for failing to properly consider its section 19 duties and its delay in issuing Y’s education, health and care plan. This caused distress, frustration and uncertainty to Ms X and Y. The Council will make a payment to recognise this and make service improvements.

The complaint

1. Ms X complains the Council:

• failed to issue an education, health and care (EHC) plan for her son, Y, within statutory time limits; and
• failed to provide any education for Y between January 2022 and April 2024.

2. Ms X says this has caused Y and their family great distress. She also says that this has caused significant financial stress as she has had to pay for services which would usually have been provided through school. Ms X also says that being out of education has negatively impacted on Y’s development and wellbeing.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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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What I have and have not investigated

7. I have exercised discretion to investigate matters going back to June 2022. This is because the Council’s decision-making process relating to this complaint goes back to this time period.
8. I have not investigated events that happened before June 2022. This is because it would have been reasonable for Ms X to have complained about these matters to the Ombudsman sooner.

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How I considered this complaint

9. I have considered the information Ms X and the Council provided.
10. Ms X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

Education, health and care plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.

Access to suitable, full-time education

13. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘section 19’ or ‘alternative’ provision.
14. When a council is considering whether to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
15. If specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. It is up to a 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])
17. When a child’s non-attendance may be because of mental health difficulties, a council must not follow an inflexible policy of requiring medical evidence before making its decision about alternative education. It must look at the evidence for each individual case, even when there is no medical evidence, and make a decision. (Government guidance, ‘Summary of responsibilities where a mental health issue is affecting attendance’)
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide alternative provision. (‘Out of school, out of sight?’ published July 2022)
19. We recommend that councils:
• consider the individual circumstances of each case and be aware that they 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; and
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision.

Summary of key events

20. Ms X says Y has been out of full-time education since January 2022.
21. In June 2022, Y’s school sent details of a medical form that had been completed by a GP surgery to the Council. The school told the Council that this form showed that emotional based school avoidance was not supported by the GP surgery, however, the school also considered the document to be contradictory. The school said the medical form said:

• at the time of completing the form, Y’s diagnosis did stop him accessing mainstream school on a full-time and reduced timetable;
• Y was not unwell, but his diagnosis of autism spectrum disorder (ASD) prevented him in engaging with education in a typical way;
• Y will require ongoing support with emotional regulation, anxiety, sensory processing and staying focused; and
• in line with other children with ASD, Y’s educational environment should be tailored to his individual needs.

22. Following mediation, the Council decided to complete an EHC needs assessment for Y in September 2022.
23. Council records from early May 2023 showed that Y was not attending school but was receiving home tuition for two hours a week which was organised and funded by Y’s school. Ms X says that before this and since January 2022, Y was not receiving any education.
24. Ms X approached the Council on many occasions to say that Y could not attend school due to anxiety and she asked for alternative provision.
25. Towards the end of May, Ms X made a complaint to the Council. She complained the Council had failed to issue the final EHC plan within the required 20 weeks.
26. The Council responded two weeks later and agreed that Y’s assessment was significantly overdue. The Council said it would provide a response to her by the end of June.
27. At the end of May, the Council held a meeting with Y’s school. The school said that Y was still not attending. They discussed what adaptations and additional provision could be made to enable Y to transition back into school. School agreed to look at alternative provision packages that may engage Y in learning.
28. Council records from the beginning of August show that multi agency meetings had taken place to establish a need for additional support while the delayed EHC needs assessment was taking place.
29. At this time, the Council recorded that once a provision was identified after the EHC plan was finalised, it would tell Y’s parents that they would be required to engage with the provision. The Council said that any further non-engagement could be regarded as an attendance issue and dealt with accordingly.
30. The Council issued Y’s final EHC plan mid-August.
31. The Council responded to Ms X’s complaint the day after. The response acknowledged there had been delays in issuing Y’s EHC plan and upheld the complaint. The Council apologised and said the delays were the result of staffing pressures. The Council said it was undergoing a recruitment campaign in response to this.
32. Ms X disagreed with the stage one complaint response. Her representative, a solicitor, submitted a stage two complaint on her behalf in mid-September. The complaint said:

• Y had been out of education since January 2022 due to his significant special educational needs;
• the Council issued the EHC plan 26 weeks late; and
• Ms X had repeatedly requested alternative educational support for Y which they never received.

33. In mid-September, Council records provided an update on Y’s education which included an extract of an email from Y’s school and home tutor. Y’s home tutor said that Y had become increasingly anxious and overwhelmed by the lessons he received at home and had disengaged. The tutor suggested that Y may benefit from alternative computer-based tuition.
34. Shortly after this, the Council held a section 19 provision meeting. The school said that Y had a 3% attendance. However, Ms X says at this point, his attendance was 0%. The Council also noted the parents said that Y’s anxiety was so high, attending school would be harmful to his health.
35. The school and Council staff held another meeting during mid-October. The school noted that Y’s parents said Y was not medically fit to attend school, however, the parents did not provide any supporting medical evidence when asked to do so. The school said, at that moment in time, Y was not accessing any kind of education.
36. The Council responded to Ms X’s stage two complaint on 27 October. Init’s response, the Council:

• apologised for the distress and financial strain caused by the delay in completing Y’s EHC needs assessment;
• stated that records show the EHC assessment identified a special educational provision within a mainstream setting was suitable for Y;
• said there was no evidence to suggest that medical professionals identified that Y was medically unfit to attend a mainstream school; and
• stated whilst records showed the school raised concerns that it might not be able to meet Y’s needs in October 2023, the SEND team said there was no medical evidence for this. It did not uphold this part of the complaint.

37. Ms X has provided evidence to show that she sent several documents to the Council’s tribunal team on 27 November. One of these documents was a letter from Y’s GP, dated 26 October 2023, this said:

• Y has ASD, anxiety and a sleep disorder;
• the GP said it understood Y was not attending school and was unable to return to school to receive mainstream schooling;
• the GP believes Y had experienced nightmares, extreme anxiety at the mention of school and had lost weight;
• the GP wrote, given the nature of Y’s conditions, it seems clear that Y will not be able to make a successful return to mainstream school, which is supported by reports Ms X has provided to the Council; and
• the GP recommended alternative approaches to Y’s education and said they were happy to discuss the matter further with the Council.

38. Another one of these documents was a letter from a psychotherapist that was dated 19 September 2023 and addressed to Y’s school. This said:

• Y was referred to the psychotherapist in February 2023 as he had symptoms of trauma, generalised anxiety disorder and autistic burnout;
• it was the psychotherapists professional opinion that any attempt to return to school would cause Y unacceptable regression; and
• the letter said that trauma and generalised anxiety disorder are classed as medical conditions and under the department of education guidelines, this letter should be sufficient evidence of illness.

39. As of June 2024, and following Ms X submitting an appeal, Y started to attend an alternative provision, which Ms X says is working well.
40. In response to my enquiries, the Council said the delays in issuing the EHC plan were due to a lack of capacity with the SEND team. The Council said that due to its financial position, there was a delay in vacant posts being agreed to recruit to. The Council confirmed that it had now completed the recruitment and 12 members of staff were joining the SEND team in September 2024 which would bring extra capacity. 

Analysis

EHC plan timeframe

41. We expect councils to follow the statutory timeframes set out in the law and the Code.
42. The Council should have issued the final EHC plan by the beginning of February 2023. However, the Council did not issue this until mid-August 2023. This created a delay of over six months. This is not in line with the statutory timeframes, and this is fault.
43. This has caused frustration and distress to Ms X and Y. The Council apologised to Ms X and Y for the delay, however I do not consider this to be a suitable remedy and so I have made further recommendations.
44. The Council also said this delay was due to staffing issues, which it has addressed through a recruitment campaign. I do not consider it necessary to make any further service improvements related to this.

Section 19 alternative provision

45. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
46. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against decisions, or seek to replace its judgement with our own. If a council has made a decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
47. What that means in this case, is that it is not for me to make my own judgement about whether Y should have been provided with an alternative provision. However, I can decide whether the Council properly considered if they had a duty to deliver such provision to Y, who was out of school.
48. Ms X, the school, Y’s home tutor, a GP and a psychotherapist told the Council on many occasions that Y may not have been able to access and wasn’t accessing full time education from January 2022. They all said this was because of Y’s anxiety and other medical reasons.
49. In mid-2022, the school shared with the Council a form from a GP surgery. Having considered this form, the Council decided (and said on several occasions) that it did not consider it had a duty under section 19 as there was no evidence that Y had a medical need preventing him from attending school. The Council evidenced it properly considered this specific evidence in making this decision.
50. However, Ms X also provided evidence that she sent two further letters to the Council’s tribunal team at the end of November 2023, one from a GP and another from Y’s psychotherapist.
51. In response to my enquiries, the Council said it has no record of these letters on Y’s file and so it was unable to tell me if it had considered these in relation to section 19 duties.
52. These letters, both clearly said that Y had medical conditions which affected his attendance at mainstream school. The Council should have included these letters as part of its consideration of its section 19 duties and there is no evidence that it did so.
53. It is true that Ms X sent these letters to the Council’s tribunal team, however, she still provided them to the Council, and she is not responsible for the fact that it was not shared between the tribunal and SEND teams. The Council should have considered this information in relation to its section 19 duties. It was at fault for not doing so.
54. This caused Y an injustice. Although I cannot say what the outcome would have been had the Council considered its section 19 duty properly. Its failure to do so has caused uncertainty as it is unclear whether Y had suitable education available and accessible to him between September/October 2023 (the dates of the psychotherapist and GP letters) and June 2024 when Y started at an alternative provision.
55. The Council should provide personal remedies to Ms X and Y to recognise their injustice. It should also take steps to improve its service.

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Agreed action

56. Within a month of the date of my final decision, the Council will:
• make a payment of £700 to Ms X, on behalf of Y, for the delay in issuing the final EHC plan. This equates to £100 per month from the date the EHC plan should have been issued until August 2023 when the Council issued the final EHC plan. This is to acknowledge the frustration and distress caused by the delay in issuing the final plan;

• apologise to Ms X and Y for the uncertainty caused by its failure to consider its section 19 duties. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
• make a payment of £1,000 to Ms X, on behalf of Y, to recognise its failure to properly consider whether Y should receive alternative educational provision while he was out of school. This is to acknowledge the distress and uncertainty caused by the Council’s failure to consider its duties properly. This is higher than the usual recommended scale of payment set out in our guidance on remedies, to reflect the significant injustice caused and Y’s vulnerability.

57. Within two months of the date of my final decision, the Council should send us an action plan which sets out how, in future, it will avoid similar failures to consider its section 19 duties to children out of school.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. Subject to further comments by Ms X and the Council, I intend to complete my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman