The Ombudsman's final decision
Summary: There was a failure to provide suitable fulltime alternative education when a child was unable to attend school due to high levels of anxiety. This led the child to miss out on education, including special educational provision. The Council will apologise, make a symbolic payment and service improvements.
The complaint
Ms X complains about the Council’s handling of her child’s Education, Health and Care (EHC) Plan and their education while they were unable to attend school. I will refer to Ms X’s child as Y.
Ms X says that Y missed out on educational provision from Spring 2021 and she had to pay for provision herself.
Ms X also says the Council ignored her request for a personal budget during the EHC needs assessment.
Ms X says Y did not receive any of the special educational provisions set out in a final EHC plan issued in Winter 2021.
Ms X says the Council failed to obtain health advice to support the EHC needs assessment, so she paid for this herself. While the Council agreed to refund her costs, there was significant delay in doing so.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended.
We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation or provide a worthwhile outcome.
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)
How I considered this complaint
I have considered information provided by Ms X and the Council including: EHC Plan and special educational needs documents Documents about non-attendance Tribunal documents.
I have considered our Focus report on support Councils should offer to children unable to attend school and our Guidance on Remedies.
I have considered relevant law and statutory guidance including: The Children and Families Act 2014 (‘The Act’) • The Special Education and Disability Regulations 2014 (‘The Regulations’) • The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’ The Special Educational Needs (Personal Budgets) Regulations 2014.
I have spoken to Ms X by telephone.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Relevant law and guidance EHC Needs Assessment 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.
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 Regulations. 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 (unless certain specific circumstances apply).
As part of the assessment, councils must gather advice from relevant professionals (Regulation 6(1)). This includes: the child’s educational placement; medical advice and information from health care professionals involved with the child; psychological advice and information from an Educational Psychologist (EP); social care advice and information; advice and information from any person requested by the parent or young person, where the council considers it reasonable; and any other advice and information the council considers appropriate for a satisfactory assessment.
Those consulted have a maximum of six weeks to provide the advice.
The EHC Plan is set out in sections which include: Section B: Special educational needs.
Section C: Health needs related to the child or young person’s SEN.
Section D: Social care needs related to the child or young person’s Section F: The special educational provision needed by the child or the young person.
Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
Section I: The name and/or type of educational placement Section J: Details of any personal budget required to fund the provision in the EHC Plan.
Personal budgets and direct payments A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
Duty to secure provision in an EHC plan The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135) Appeals There is a right of appeal to the Tribunal against the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified.
The courts have established that if someone has appealed to the Tribunal, the Ombudsman cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: delays in the process before an appeal right started; where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) gives the Tribunal the power to regulate its own procedure and extensive case management powers.
Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) Alternative education 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 it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that 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, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) The Courts have found that it is a judgement for the council 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]) 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.
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.
What I have and have not investigated I have investigated if Y missed out on education between Spring 2021 and the issue of a second final EHC plan in early 2022.
I have investigated the EHC needs assessment process in 2021.
I have not investigated any failure or delay by the Council to obtain health advice in 2022 because: Ms X had a right of appeal in late 2021 and early 2022 against the contents of the final EHC Plan if she disagreed with the description of needs and provision in the Plan, or considered health advice was lacking. Ms X used the 2022 appeal right.
While Ms X obtained private health assessments in 2022, these were obtained after Ms X had begun her appeal. The Tribunal has extensive powers to regulate its own proceedings, including to consider the nature of expert evidence it requires and award costs. Ms X asked the Tribunal to consider health needs and provision as part of an extended appeal. The Ombudsman cannot trespass in any way of the role of the Tribunal or consider anything a complainant could have raised with the tribunal at any stage of the appeal or which the Tribunal could have made directions on. (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The Council has in any event reimbursed Ms X for private assessments, so even if this matter could be separated from the appeal, there is nothing further the Ombudsman could achieve.
I have not investigated the delay in obtaining social care advice as part of the EHC needs assessment. Ms X appealed the social care sections of the EHC Plan to Tribunal and I understand this led to an assessment being carried out. I cannot investigate when an alternative route of redress has been used.
I have investigated the Council’s handling of the personal budget request up to the date of the second final EHC Plan in early 2022, which Ms X appealed.
I have not investigated loss of education after the issue of this final Plan because Ms X has used an alternative legal remedy to the Tribunal for the same injustice and I do not consider the issue can be separated from the matters the Tribunal was asked to consider. I explain this further below.
What happened The following is a summary of key events. It does not include everything that happened.
S.19 Education / Request for Personal Budget Y stopped being able to attend school in Spring 2021 due to high levels of anxiety.
According to a chronology provided by Y’s school: No alternative provision was offered in Summer term 2021; The School advised Ms X to try music therapy which was funded by children in need funding and a top up per week by Ms X. Ms X has provided evidence of a £50 cost to her.
In Autumn term 2021 the School and Ms X agreed a ‘small steps approach’ where Y would attend for one or two short after school sessions per week and meet the new teacher. These lasted ten minutes. The School offered to fund weekly online mentoring sessions. A timetable for planned day visits was provided for the New Year.
In early 2022 Ms X requested a personal budget to fund a laptop and music therapy. The Council said it was for the School to provide a laptop.
In Spring term 2022, despite the planning for reintegration, Y was not able to return to school at all and did not engage with activities offered, which included online meetings and learning. The School emailed the Community Paediatrician asking for a letter to support school absence on medical grounds. The School told the Council in Summer 2022 it knew advice had been requested but did not know if the paediatrician had provided advice to the Council.
A General Practitioner provided a letter in early 2022 confirming severe anxiety was the medical cause why Y could not attend school.
The School requested the Council’s Inclusion Panel provide medical tuition. This was refused because the Community Paediatrician or Child and Mental Health Services (CAMHS) had not supported medical absence. The Council suggested the special educational needs (SEN) team could offer additional support. The SEN team suggested online learning, but Y was not able to engage with online learning at that point.
The mentoring ended at the end of the Spring term 2022.
No support was in place for the remainder of the school year in 2022, although online learning by school staff was again considered.
My understanding is Ms X’s personal budget request was discussed by the SEN panel which decided the School should be asked how it could use its SEN top-up funding to support a bespoke offer, however this decision was not fed back to Ms X at that time.
EHC needs assessment A request to carry out an EHC needs assessment was made in late Spring 2021 and the Council agreed to assess.
My understanding is the Council sought advice from CAMHS (Child and Adolescent Mental Health Services), speech therapy and occupational therapy but all declined to carry out new assessments. Y had previously been under the care of CAMHS but had been discharged. CAMHS told the Council it would need to seek advice from another health professional, but this professional also declined and said the Council would need to go back to CAMHS for advice. It does not appear any health advice was obtained in 2021 to support the EHC needs assessment.
A final Plan was issued in late 2021. The final Plan named Y’s current mainstream primary school as the placement Y should attend.
EHC needs assessments are supposed to be completed within a maximum of twenty weeks. Y’s final Plan was seven weeks late.
Amended proposed plans were issued and a further final Plan was issued in early 2022. This continued to name the current primary school but added the secondary placement the Council considered Y should attend from Autumn 2022.
Tribunal Appeal Ms X appealed the second final Plan but did not appeal the first final Plan. Ms X’s appeal included education, health, and care sections of the EHC Plan. Ms X wanted a special school to be named in Section I instead of the primary and secondary schools named by the Council.
Additional advice was obtained after the first final Plan was issued and during the period the appeal was pending. For example, social care advice was obtained in late Spring 2022. Ms X raised issues about missing / incomplete health and care advice with the Tribunal as part of her appeal. Ms X obtained private evidence including from speech and occupational therapy during the period between registering her appeal and the appeal being heard.
In Summer 2022 Ms X amended her appeal to request Education Otherwise than at School (EOTAS) instead of a special school. Ms X says this was because her preferred school had decided it could not meet Y’s needs. The Council and Ms X agreed the placement should be changed to EOTAS as part of the working document process prior to the final hearing.
The appeal was resolved via a hearing in Autumn 2022. The Tribunal ordered EOTAS with Ms X to receive direct payments to commission provision herself. This included a sum for speech and occupational therapy.
The Council told me it offered bespoke education options in 2021/22 but Ms X’s child was ‘too unwell’ to access it because his ‘mental health was not in the right place’. It said it had a responsibility to go through all the school options before EOTAS could be made.
Complaint handling Ms X raised a complaint in late Spring 2022. The main points of the complaint were: Loss of educational provision since Spring 2021.
Failure to provide the special educational provision in the 2021 final EHC Plan.
Emails requesting assistance from Ms X and the School had been ignored since the start of 2022, as had emails about the EHC process. Ms X provided evidence of emails sent with supporting evidence from the School and General Practitioner that Y was medically unfit to attend school.
Failure to hold a meeting during the EHC needs assessment, phase transfer review or after the final Plan was issued but not implemented.
Ignoring a request for a personal budget at draft plan stage and not feeding back after a panel meeting in early 2022.
Advising that a specific form was required to request a personal budget but when Ms X completed this it was ignored until late Spring 2022 when Ms X was advised the request was still being considered.
During the period of delay Ms X had paid for expenses which she had included in her personal budget request.
The Council agreed to obtain speech and occupational therapy assessments in Summer 2021. The occupational therapy advice was obtained in Autumn 2021 but too late to be included in the final EHC Plan and a speech therapy assessment was never set up. Ms X subsequently paid for an assessment she wanted reimbursed.
The Council responded to the complaint in Summer 2022. It acknowledged Y had not attended school since Spring 2021 and set out the actions the School had taken, as well as involvement from Council staff such as an Educational Psychologist. It said the School had funded music therapy and mentoring. It said medical tuition was declined due to the request not being supported by a CAMHS consultant. It said Y had not been able to engage with home learning or online learning. The Council said as part of a review it was looking at putting in a framework to support schools to provide suitable provision when students are unable to access school. The Council explained it had consulted schools and both the Council’s proposed secondary placement and Ms X’s preferred placement had now said they could not meet Y’s needs. The Council said it would now consider Ms X’s request for EOTAS and address this via the appeal.
The Council acknowledged problems with responding to communications and it had lacked staff to attend meetings but said it had increased capacity to address these issues.
The Council said an SEN panel in early 2022 had rejected the personal budget request as it expected the School to use delegated funding, but it would reconsider this when exploring an EOTAS package. It acknowledged it had not informed Ms X of the outcome at the time.
The Council accepted health assessments had not gone ahead. It said it was doing work to close this gap and Ms X’s reimbursement for speech therapy advice had been approved.
The Council said it had raised Ms X’s queries on the draft plan with the Educational Psychologist but accepted the quality of its Plans required improvement and additional staffing and training would assist with this.
Ms X was dissatisfied with this response and complained to the Ombudsman. As the Council had not completed its internal complaint process the complaint was redirected to the Council to do so. Ms X said the Council’s insistence on a CAMHS Consultant supporting medical absence was an impossible barrier as parents would need to fund a private report.
The Council provided a stage two response in late Spring 2023. It said it had not failed to provide suitable education because while Y stopped attending school there was no consultant referral to support medical tuition. From Autumn 2022 the Council had provided a direct payment in line with the Tribunal order. The Council agreed to reimburse Ms X’s private speech therapy report. It did not agree to refund other private provision to support Y’s mental health that Ms X had commissioned. It noted not all Ms X’s requests had been approved by the Tribunal.
Analysis S.19 Education Spring 2021 to Autumn 2021 Y stopped attending school regularly in Spring 2021. The Council, once aware, had a duty to consider if it needed to provide s.19 education. This duty applies even where a child is on roll unless the Council is satisfied the School can provide alternative education. There is no absolute legal deadline by which councils must arrange education for children with health needs, but statutory guidance says it should do so as soon as it is clear a child will be away from school for 15 days or more because of their health needs.
The Council received a request for statutory assessment in late Spring 2021. I am satisfied the Council must have been aware at that time that Y had been absent more than 15 days and the School was not providing suitable fulltime alternative education. The Council should have considered providing s.19 education at this time. Failure to do so was fault.
I acknowledge attempts were made, including via use of external professionals, to re-integrate Ms X’s child into school in Autumn 2021, but: These were unsuccessful, no progress was achieved; No medical evidence was obtained to support the Council’s view Ms X’s child could not have accessed education in an alternative setting such as the home; and There was evidence Ms X’s child was managing to access music sessions which suggests their mental health was not preventing any engagement with any activity as the Council now suggests.
Winter 2021/22 Ms X received a final EHC plan in late 2021 and then had a right of appeal if she was dissatisfied with the provision or school set out in the final Plan.
I consider it was reasonable for Ms X not to use the right of appeal at that time. Ms X was expecting the Council to obtain more assessments, although these were delayed. The EHC Plan would allow for additional support (and if appropriate funding) to be made available to the named school. The School had prepared a reintegration plan in Autumn 2021. It was reasonable to see whether, with additional resource, Y’s needs could be met in the School. The Council told me the Educational Psychologist and specialist autism advisor were both involved in attempts to get Ms X’s child to attend school at this time.
The reintegration plan only provided for visits to school, no education was provided to Y. I find the Council therefore continued to have a duty under s.19 Education Act to provide suitable alternative education so Y could access an appropriate standard of education, if necessary in the home or alternative setting during Winter 2021/22.
As Y now had a final EHC Plan the Council also had a duty to provide the special educational provision in Section F of the Plan to the extent this was possible given Y remained too anxious to attend school. No special educational provision was made available to Y except for mentoring sessions. This was fault.
Evidence from the School indicates Y did not return to school even for visits in 2022 and it considered the reintegration attempts to have failed. In early 2022 the School approached the Council to provide medical tuition.
The Council failed to do so because CAMHS advice was not available. The Council knew that Y had been discharged from CAMHS and that CAMHS had declined to provide advice during the recent EHC needs assessment. I agree with Ms X that by insisting on advice from CAMHS before medical tuition would be considered, when the Council knew CAMHS was unwilling to see Y and provide further advice, was an impossible barrier. The guidance is clear that where specific advice is not readily available, the Council still has to consider if it has a duty under s.19 based on the evidence that is available. The Council should consider advice from other medical practitioners and other evidence (for example from a school) to ensure suitable provision is made.
I find that if the Council had considered the evidence available it would, on the balance of probabilities, have decided s.19 education was required.
Period after final EHC plan issued early 2022 The Council issued an amended final EHC plan that continued to name the existing primary school until Summer 2022 and named a secondary school from Autumn 2022. Ms X appealed the wording in Sections B (needs), F (provision) and I (placement), initially requesting a special school, but later amending the appeal to request EOTAS.
Ms X’s grounds of appeal referred to the final EHC Plan failing to detail needs and provision for Y’s ‘anxiety-based school avoidance’.
The appeal was resolved by Tribunal order in Autumn 2022.
I cannot investigate loss of education for the period between the issue of the 2022 final Plan and the Tribunal decision because Ms X has used an alternative legal remedy. Ms X asked the Tribunal to amend the EHC Plan to make provision for Y’s anxiety-based school avoidance and to name a specialist school she considered suitable. Ms X’s position in Spring 2022 was that Y’s needs could be met in a specialist school. Therefore, the loss of education after issue of the final Plan in early 2022 was a consequence of the Council’s decision to name a mainstream school (which Ms X considered unsuitable), or a failure to name a suitable school. The Ombudsman has no jurisdiction to investigate a decision which has been appealed, or the consequences of a decision that has been appealed. The remedy Ms X sought from the Tribunal (to make provision for anxiety-based school avoidance) is essentially the same as the injustice Ms X is asking the Ombudsman to remedy.
For the reasons given above I cannot consider any financial expenses Ms X incurred on private educational provision after the issue of the early 2022 Plan or the impact on her as a carer.
Ms X applied to change her grounds of appeal at near the end of the Summer term 2022 to request EOTAS because the schools consulted stated they could not meet need. Ms X did not provide evidence Y was medically unfit to attend any school. The matter of whether EOTAS was suitable was then considered and decided by the Tribunal. I cannot comment on issues that were before the Tribunal.
EHC needs assessment The Council failed to obtain any health advice as part of the EHC needs assessment. Health advice is a mandatory part of an assessment. Failure to obtain this advice was fault. I acknowledge the difficulties the Council experienced in being passed between mental health professionals, however Councils and health partners are expected to have cross-agency arrangements in place for the provision of advice for EHC plans.
Ms X subsequently appealed the description of health needs and provision to the Tribunal as part of an extended appeal. Ms X has therefore obtained a remedy for any deficiency in the original EHC plan via her appeal. It was for the Tribunal, not the Ombudsman, to consider the nature of health advice required.
Personal budget The Council was obligated to consider a request for a personal budget and provide a written decision, with reasons, advising Ms X of a right to request a review if she disagreed with the decision. This did not happen. This was fault. The Council should have provided its rationale to Ms X in Autumn 2021 and Spring 2022 and provided her with a right of review.
If the Council had considered the request in Autumn 2021 then I consider it is likely, on the balance of probabilities, to have refused the request for the same reasons it gave subsequently, namely that the School should use the SEN funding provided via the new EHC Plan in this first instance.
The Council did fail to notify Ms X of its decision and reasons in Spring 2022, which was administrative fault.
When Ms X amended her appeal in Summer 2022 for EOTAS, the Council again considered a personal budget, this was then agreed via the appeal process.
Injustice In summary, while there were procedural failings and the Council has accepted its communication was often poor, many of Ms X’s complaints were resolved via the appeal process. The Ombudsman cannot therefore provide an additional remedy for the same fault.
I find that Y did miss out on education between late Spring 2021 and the issue of the final Plan in early 2022 and missed out on special educational provision after the issue of the first EHC Plan in late 2021 and the issue of the second final Plan in early 2022. Y received virtually no education during this period.
Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure takes account of factors such as: The severity of the child’s SEN as set out in their EHC plan.
Any educational provision – full time or part time, that was made during the period.
Y’s lack of education put additional care responsibilities on Ms X.
The Council’s failure to provide education during the above period also put Ms X to unnecessary time and trouble.
Agreed action
Within four weeks of my final decision: The Council will pay Ms X, on behalf of Y, £4000 to acknowledge the loss of educational provision between late Spring 2021 and the date of the second final Plan in 2022.
The Council will pay Ms X £500 to acknowledge the distress, time, trouble and inconvenience caused to her as a result of the fault.
The Council will pay Ms X £50 to refund music sessions in 2021.
The Council has already provided Ms X with an apology during its complaint process.
Within three months of my final decision: The Council will review its process for alternative education and amend any written policy or guidance restricting provision of s.19 education only when specified medical evidence is available. The Council must make a decision whether s.19 education applies in every case based on the evidence available. Decisions should be made in writing, with reasons. The Council should cross-reference its process against the statutory guidance provided for children with health needs referenced above as well as recent 2023 guidance issued for when mental health affects attendance.
The Council will ensure its process for considering personal budget requests for children with EHC plans are considered at the right time, with decisions given in writing, with reasons, and the right of review highlighted.
The Council will ensure that all EHC needs assessments comply with SEND Regulation 6 and the Council has a mechanism in place to address delays or disputes about the provision of advice.
The Council will provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. There was a failure to provide suitable fulltime alternative education when a child was unable to attend school due to high levels of anxiety. This led the child to miss out on education, including special educational provision. I consider the agreed actions set out above, in addition to actions already taken by the Council in response to the complaint, are a satisfactory remedy for the injustice caused. The complaint is upheld.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman