Summary: Mrs X complained about the Council’s handling of her son’s Education, Health and Care Plan. She says the Council wrongly transferred the Plan to another Council and failed to provide suitable education after he stopped attending school. We have found fault in the Council’s actions. The Council agreed to apologise, pay Mrs X and Mr S financial remedies and issue reminders to its staff.

The complaint

1. Mrs X complaints the Council failed to provide:
• Her son, Mr S, with suitable alternative provision when he began struggling to attend school in September 2022;
• the Special Education Needs provision named in section F of S’s EHC Plan; and
• a suitable remedy for the education Mr S missed after it upheld Mrs X’ complaint.
2. Mrs X said this caused her and Mr S avoidable distress and frustration.
3. Mrs X would like the Council to ensure that it implements a process to identify when another Council is responsible the EHC Plan Needs Assessment and to increase the remedy it offered to her for the education that Mr S missed in 2023.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. 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)

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Alternative Provision of education for children

10. 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))
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
12. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
13. The education provided by a council must be full-time unless a 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)
14. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
15. 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 (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;
• decide, 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.
16. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
17. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly or have missed ten school days or more without permission.” This applies to all schools, including academies.
18. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
19. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

20. In September 2021 Mr S was due to attend his secondary school. Mrs X met with the school prior to his to make sure that it could meet his needs. Despite this, Mr S struggled to attend his school, and in October 2021 he stopped attending altogether.
21. Mrs X asked the Council to assess Mr S for an EHC Plan in early March 2022. At the time, the Council believed that Mrs X lived in the Council’s area, but Mr S’s father lived in another Council’s area (Council 2). Mr S’s caseworker contacted his manager to check which Council should process Mr S’s EHC Needs Assessment. The manager told the caseworker that Mr S would be considered as ordinarily resident at one of the two addresses, and this was the address that the Council should use for the EHC Needs Assessment. However, as Mr S attend a school in the Council’s area it would make sense for it to take the lead on this.
22. By mid-March 2022 Mrs X told the Council that she was receiving child benefit for Mr S, and based on this the Council decided it was responsible for Mr S’s EHC Plan assessment. Around this time, she also told the Council that she had concerns about Mr S’s school being suitable to meet his needs. The Council did not respond to the concerns she raised.
23. In April 2022 the Council took Mr S’s case to Panel, and the reports prepared by Mr S’s caseworker show that he had not been attending school since October 2021.
24. In early September 2022 the Council issued Mr S’s final EHC Plan. The final EHC Plan named Mr S’s school that he failed to attend since October 2021. The provision in section F of the Plan included daily math interventions, 1:1 time to support Mr S with managing his emotions and a daily literacy programme.
25. In May 2023 Mrs X told the Council again that Mr S was unable to attend his school, and he was not getting any education or the provisions from his September 2022 EHC Plan. This was despite the school putting in place interventions to increase his attendance. The Council once again did not respond to Mrs X’s concerns about Mr S’s school and the lack of provision.
26. The Council held an annual review of Mr S’s EHC Plan in June 2023. The Council got the annual review report in August 2023. The Council did not chase the report following the review meeting. Following the meeting the Council decided it would amend Mr S’s EHC Plan. It sent a daft EHC Plan for Mrs X to comment on in mid-September 2023. At the time Mr S’s attendance was at 35.5%. In September 2023 the Council consulted with three special schools to check if they would be able to meet Mr S’s needs.
27. In October 2023 the Council hired new officers to the SEND Team, and the newly allocated officer questioned if it should have been Council 2 that manages Mr S’s EHC Plan, as the home address on the system was in area of Council 2.
28. In early November the Council transferred Mr S’s EHC Plan to Council 2. At the end of the month, Council 2 contacted Mrs X and told her that both her and Mr S’s dad’s address were in the Council’s 2 area.
29. Mrs X complained to the Council, and it responded in May 2024. It told her that it should have been the Council 2 that assessed Mr S in 2022, and because of this it had transferred Mr S’s EHC Plan to Council 2. It had offered her £600 for the education Mr S missed between July 2023 and October 2023.
30. Mrs X was unhappy and asked the Council to consider her complaint further. She considered the remedy the Council offered was not suitable.
31. In early June 2024 the Council responded to Mrs X’s complaint and said:
• it should have not carried out Mr S’s EHC Needs Assessment and Council 2 should have done this instead;
• in September 2023 the Council tried to put alternative provision for S in place through tuition and an independent provider;
• it reviewed the findings of stage one response to her complaint and found them to be true; and
• it would increase the remedy offer to £900 for the loss of provision between July 2023 when it became aware that Mr S’s provision was unsuitable and October 2023 before it transferred his EHC Plan to Council 2.
32. Mrs X was unhappy about the Council’s response and in June 2024 she asked the Ombudsman to consider her complaint.

Analysis

Alternative provision and provision from section F of EHC Plan

33. The Council’s said that it was aware that Mr S was not accessing full-time education during his EHC Needs Assessment in 2022. This is mentioned in the report the Council presented to its Panel in April 2022. The report also says at the time the school had already engaged in a graduated response, which means that it had attempted to increase Mr S’s attendance, but it had not worked.
34. We have not seen any documents to show the Council at the time considered its duties under section 19 to ensure that Mr S had access to a full-time education suitable to his needs and aptitude. This is fault.
35. The Council told Mrs X that it was only responsible for providing Mr S with alternative provision between July 2023 and October 2023. It said, this was because it was only in July 2023 that the Council decided Mr S’s school was not suitable to meet his needs. We disagree.
36. On balance we consider its likely that the Council would have found Mr S’s school not suitable to meet his needs much sooner than summer 2023, had it considered its section 19 duties appropriately. This is because:
• Mr S had been struggling with attendance since October 2021;
• Mrs X raised her concerns about his school in March 2022 and May 2023; and
• once the Council assessed its section 19 duties in summer 2023 it decided the school was not suitable to meet Mr S’s needs. This decision was based on information the Council had available as early as April 2022.
37. We consider the Council was responsible for securing Mr S’s educational provision since at least November 2022. By then, the Council had sufficient information to arrive at a decision about the lack of success of the strategies the school had put in place for Mr S since September 2021.
38. Between November 2022 and September 2023, the Council Mr S did not receive full-time education and struggled with attendance. The Council was aware of this, but did not contact any other providers to attempt engage Mr S in other educational activities. In September 2023 the Council consulted with three special schools to see if they could accommodate Mr S and put some tuition in place for him. However, we have not seen how the Council decided on what provision it should secure to meet Mr S’s needs and how many hours he would have access to. This is fault.
39. The fact that Mr S has an EHC Plan means that he needs special educational support to be able to interact and achieve an education to the best of his abilities. The delay has caused an injustice to Mr S, as it is likely that he missed education, and the additional support identified in his EHC Plan.
40. The Council is responsible for making sure that arrangements set out in the EHC plan are secured. The duty is absolute.
41. Mr S’s EHC plan stated he should receive daily math interventions, 1:1 time to support Mr S with managing his emotions and a daily literacy programme.
42. Between November 2022 and November 2023 when the Council transferred his EHC Plan to Council 2, Mr S did not receive the provision listed in his EHC Plan. Based on the evidence we have seen so far, this is not in line with his EHC plan and is fault.
43. The Council’s faults resulted in:
• Mr S missing out on education and SEN provision for three school terms; and
• avoidable uncertainty and distress Mrs X and Mr S experienced.

Back to top

Agreed action

44. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mrs X and Mr S for the faults we have identified. The Council should ensure that its apology to Mr S is in a format suitable for his needs;
• pay Mrs X £200 to recognise the distress and uncertainty the Council’s fault has caused him and Mr S;
• pay Mrs X £6,600 in recognition of the education and SEN provision that Mr S missed between November 2022 and November 2023. The payment should be used for the benefit of Mr S’s education; and
• remind officers of the Council’s responsibility, under Section 19 of the Education Act 1996, to ensure children out of school receive full-time education provision, or the provision that is assessed to be in the child’s best interests. The Council should continue to review its decision about whether it owes a section 19 duties to make sure it steps in as soon as the duties are engaged.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. The Council was at fault for not checking if its section 19 duties to provide Mr S with access to full time education were engaged, and as a result it failed to provide Mr S with suitable alternative provision between November 2022 and November 2023. This caused Mrs X avoidable stress and uncertainty and meant that Mr X missed out on three terms of provision. The Council will apologise, pay a financial remedy to Mrs X and Mr S and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman