This is a judgment in a judicial review handed down in January 2019.

  • This is an appeal brought by a local authority against a decision of a magistrates court that parents had a defence to the claim that they had failed to ensure the regular attendance at the school of their son – that defence being reasons of ill-health.
  • The local authority were appealing the magistrates decision on the basis that parents did not have written medical evidence of ill-health for ALL of the absences
  • The administrative court dismissed the LAs appeal on the basis that written medical evidence wasn’t necessary and the oral evidence of parents and other documentary evidence was sufficient to demonstrate ill-health on the balance of probabilities.


No absolute requirement to specify a school or institution in EHC Plans

Derbyshire County Council v EM & DM [2019] UKUT 240 (AAC)

The Upper Tribunal held that there is no absolute requirement that all EHC Plans must specify a school or other institution (or type of either) in Section I of an EHC Plan. The Upper Tribunal found that if the local authority thinks that no school or other institution (or type of either) would be appropriate for the child, the ‘naming’ duty under these sections and thus in Section I of the EHC Plan cannot as a matter of law arise.

LGO: Distressed Leeds girl left without proper education for months

  • Leeds City Council left a young girl without proper education for nine months after she started refusing to go to her primary school because of anxiety, the Local Government and Social Care Ombudsman has found.
  • The girl, who was 10 when the events started, became increasingly anxious about going to school until the school asked her mother to take her home because she was so distressed.
  • Over the next nine months, the girl was given little education – and at one point her mother had to fund an alternative education placement.
  • When the girl eventually started engaging with the Children and Adolescent Mental Health Services (CAMHS) it suggested she had sensory processing difficulties and recommended gathering information for diagnostic tests.

LGO 18 015 122: Failure to provide alternative education when out of school due to anxiety

Leicestershire County Council

The Council failed to provide suitable alternative education Mrs B’s daughter, C, when she was unable to attend school due to anxiety. The Council also failed to support C and her family, arrange a multi-agency meeting or make a referral to Autism Outreach. The Council accepts these failings and has offered to apologise to the family, make a payment, and undertake a review of its policies and procedures. The Ombudsman considers this to be a satisfactory remedy for the injustice caused.

LGO 16 014 604: Failure to arrange alternative educational provision when out of school.

Gloucestershire County Council

Mrs M complained the Council had failed to put in place alternative educational provision when her son was out of school. There is evidence of fault and the Council has been asked to apologise, make a payment and change its procedures.

LGO 18 013 496: Failure to arrange suitable provision for anxious child unable to attend school

Norfolk County Council 

The Council expected the school to continue to meet the need and put the provision specified in the EHC plan in place until a suitable placement was found even once they have told the Council they cannot meet need. This is not acceptable. The duty is on the Council to secure the provision is made. Once it is on notice that the school is not making the provision then the Council must arrange the provision. 

There is a further issue in that the Council was on notice that Y was not attending school because of her anxiety. Where a child cannot attend school because of illness the Council must arrange suitable full-time education. I have seen nothing to show the Council had any regard to its duties to Y in this respect.

LGO 18 015 698: Derby LA fined over EHCP delay left an autistic girl without education

Derby LA fined over £8000 after 18 months of EHCP delays left an autistic girl without education. The girl was too anxious to attend her mainstream school, but Derby failed to provide sufficient alternative education.

LGO 17 001 324: Failure to communicate EHCP decision and provide Alternative Education

Stoke-on-Trent City Council 

The Council delayed communicating a decision not to issue an EHC Plan for a child (B) following statutory assessment. The Council failed to put in place Alternative Education for B when this was justified. The Ombudsman recommended and the Council agreed to apologise in writing to Mr and Mrs C, pay B £1,500 to acknowledge lost educational provision, pay Mr and Mrs C £500 to acknowledge distress caused by failure to issue a timely decision on whether to make an EHC Plan, and finalise and publish policy on Alternative Education.

LGO 16 009 116: Delay in finalising EHCP and failure to provide Alternative Education

Dorset County Council

The Council was at fault for failing to ensure Z received a suitable education. The Council also took too long to finalise Z’s Education, Health and Care Plan. The Council has agreed to make a financial payment to remedy the injustice it has caused Z and to make procedural changes.