Summary: Mr and Mrs X complain the Council failed to ensure appropriate education was provided to meet their son’s, Y’s, needs as set out in his Education, Health, and Care Plan. The Ombudsman finds the Council at fault for not properly considering its duties to provide alternative education. The Council will apologise to Mr and Mrs X and make a payment to reflect the injustice. The Council will also make improvements to its service.

The complaint

1. Mr and Mrs X complain the Council failed to ensure appropriate education was provided to meet their son’s Y’s needs as set out in his Education Health Care Plan, from December 2020 onwards.
2. Mr and Mrs X say, as a result of the Council’s failings Y has missed out on education and therapy and this has impacted the whole family.

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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. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.

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

6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

7. If we are satisfied with a council’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

8. I considered the complaint and the information provided by Mr and Mrs X. We spoke to Mr X and made enquiries of the Council. I have considered the Council’s comments and information it provided.
9. Mr and Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered all comments before making this final decision.

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What I found

Special Educational Needs

10. A child with SEN may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for making sure these arrangements are put into place and the child’s needs are met.
11. The Council has an absolute non-delegable duty to secure provisions inserted in section F of the EHC Plan. Paragraph 9.76 of the Code says that ‘in cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements).’
12. The SEND Code or Practice issued by the Department of Education provides statutory guidance for councils.

Alternative educational provision

13. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
14. The guidance also says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
15. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
16. The courts have ruled that what is ‘suitable education’ is a matter for the Council to decide. Whether an alternative placement is ‘suitable’ is not based on the parent or child’s view but upon objective consideration of whether the education is reasonably possible or reasonably practicable for the child to access.

Case law

17. In R (R) v Kent County Council [2007] EWHC 2135 (Admin) the Court stated that, “..the question is not whether the parents or [the child] have reasonable objections to attending the school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question…”.

The Special Educational Needs and Disability Tribunal

18. Parents who are unhappy with the content of the child’s EHCP, or about a placement made in it at Section I, may appeal to the Tribunal. The law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal. This means the Ombudsman cannot investigate a complaint when the issues it raises can be dealt with through an appeal to the Tribunal.

Background

19. Y is 13 years old and has been diagnosed with autism and sensory processing disorder (SPD). He has a final EHCP, which was issued in November 2020. Y was attending School B, an independent school.
20. The EHCP sets out that Y should receive weekly Speech and Language Therapy (SALT) and one to one Occupational Therapy (OT), delivered as either one-hour sessions or two thirty-minute sessions.

What happened

21. I have set out a summary of the key events. It is not meant to show everything that happened.
22. School B’s attendance records show authorised absence for three weeks from 9 November 2021.
23. An annual review of Y’s EHCP was completed on 30 November 2021 and recorded that Y’s school attendance was 98.4% during the summer term. The review stated that Y was “being provided with OT and SALT support in developing his language and communication and supporting future independence”. Around the same time Mr and Mrs X raised concerns about open windows and arrangements in place for the Covid-19 pandemic.
24. Y returned to school B on a part-time basis from 7 December 2020.
25. On 9 December 2020 the Council responded to an email from Mr and Mrs X and noted their concerns about the lack of SALT and OT provision for Y. The Council said Mr and Mrs X should liaise with School B and confirm when Y would return. The Council said it would contact the School to confirm that they were able to deliver the provision on Y’s return.
26. The Council sent a further email to Mr and Mrs X on 16 December 2020. It said School B confirmed Y had received SALT and OT provision as planned for all sessions that year prior to his recent period of absence. It said it was not possible or appropriate to try to schedule all Y’s OT and SALT sessions as he was attending school part-time. The Council said provision in line with the EHCP would resume when Y returned to a full-time timetable.
27. On 18 December 2020, a parent network acting on behalf of Mr and Mrs X, requested an update from the Council on various matters including how the issue of provision in Y’s EHCP not being implemented in full was being dealt with.
28. Mr X says that Y was signed off with stress by his GP. Y’s last day at school was 18 December 2020.
29. On 1 January 2021 Mr X told School B that he was worried about Y returning to school as Covid-19 cases were rising and asked what alternative education was available to Y. School B confirmed that remote learning would be available.
30. The Council has confirmed that on 6 January 2021 School B wrote to Mr and Mrs X stating that Y would be removed from its register on 19 February 2021.
31. On the same day Mrs X sent an email to the Council and said their preferred school could not accommodate Y and asked the Council to consult with School C.
32. On 11 January 2021, Mr X sent an email to School B and the Council stating School B had failed to provide remote learning. Mr X said Y was still enrolled at School B and it had a responsibility to provide education to meet his needs.
33. School B told the Council that Y had not attended school since the beginning of term and work was being provided for him at home as part of an agreed plan. The school said it had sought an online meeting with Mr and Mrs X to discuss the arrangements, but they failed to confirm their availability and therefore a meeting did not take place.
34. On 8 February 2021 the Council received notification that Mr and Mrs X had appealed to the Tribunal. The next day the Council sent an email to Mr and Mrs X stating they would issue a working document for the tribunal proceedings and intended to name School C as a suitable placement for Y. The Council confirmed that School C could meet Y’s needs and had a place available. It said that it would liaise with School C regarding an appropriate start date, immediately after half-term and that transport for Y could be arranged.
35. On 9 February 2021 Mr and Mrs X asked the Council for a meeting to discuss Y’s education and therapy. The next day they made a formal complaint to School B and the Council about how the school was treating them since they had raised concerns about Y’s educational provision and environment.
36. School B responded and said Y had consistently been supported with work being sent home and online learning. It said Mr and Mrs X had chosen to keep Y at home. The school said it had offered Mr and Mrs X a meeting to discuss and support Y’s education at home and had made every effort to maintain provision in line with Y’s EHCP.
37. On 18 February 2021 Mr and Mrs X complained to the Council about their request for a meeting to discuss the lack of educational provision for Y anticipated from 22 February 2021.
38. On 22 February 2021 Mrs X sent the Council an email stating that Y was not receiving any education or therapy. She requested specific alternative provision for Y’s OT and SALT sessions. Mrs X said she would pay for some OT sessions while awaiting a reply but was having to do this because the Council had failed to provide alternative education and therapy despite being aware that Y was out of school. Mrs X also said:

• the Council had failed to respond to her request for a meeting to discuss how and when School C could be introduced;
• they hadn’t been provided with any information about the transport arrangements to and from School C;
• the Council should be working with them to provide what was legally required; and
• School C said it would need time to make sure things were in place for Y and this could be as far away as Easter.

39. The Council responded to Mrs X on 5 March 2021. It said a placement for Y at School C had been agreed after February half term and therefore there was no gap in education. The Council said it would review the request for alternative provision for OT and SALT sessions and arrange a meeting if necessary. The Council acknowledged Mrs X’s request for a meeting and confirmed it had logged a formal complaint.
40. On 19 March 2021 the Council held a meeting with Mr and Mrs X and School C. Mr and Mrs X’s advocate also attended the meeting. Discussions took place about Y’s transition to School C including transport arrangements. The Council acknowledged there had been a delay in Y starting at School C due to half term and transport arrangements. The Council agreed to work with School C to review and provide missed therapy as a result of the delays.
41. The Council told Mr and Mrs X that it would not investigate their complaint about Y’s placement at School C, as this was being progressed through the tribunal process. The Council confirmed that a placement for Y at school C would be available from 13 April 2021 and transport had been arranged.
42. On 1 April 2021 Mr and Mrs X complained again to the Council about the Council’s failure to respond to their stage one complaint about its failure to provide Y with a suitable education and therapy. Mr and Mrs X said the Council:

• was aware that the school intended to cease Y’s placement on 19 February 2021 and Y has not been on roll at any school since;
• failed to provide Y with alternative provision despite numerous requests;
• failed to provide Y with any provision as detailed in his EHCP;
• should provide Y with suitable alternative education whilst School C was being disputed and appealed.

43. The Council responded to Mr and Mrs X and said:

• the issues raised were being considered through the tribunal process;
• School C could provide a suitable education for Y and had offered a start date of 22 February 2021. This was delayed due to half term and arranging appropriate transport;
• it had already confirmed that it would work with School C to identify any therapy that had not been delivered and would put this in place which included the possibility of commissioning an appropriate occupational therapist;
• it would not be considering their complaint as they had exercised their right to challenge at tribunal.

44. Mr and Mrs X remained unsatisfied and complained to the Ombudsman.

Analysis

45. The law is clear that councils must intervene and provide education under their Section 19 Education Act Duty if no suitable educational provision has been made by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
46. This means that once the Council was alerted to Y’s absence it needed to consider its legal duties and take appropriate action, including offering interim education provision.
47. The Council considered School B available and accessible to Y. From 27 November 2020 it was clear that Y would meet or exceed the 15 days of absence that should trigger the Council’s consideration of whether to make alternative provision. It is not clear if School B informed the Council of Y’s absence, but I consider the Council should have at least been aware at the time of completing the annual review. Y had missed 16 days of school by 30 November 2020.
48. The Council was aware of School B’s attempt to integrate Y back into school from 7 December 2020, on a part-time basis. During week commencing 14 December 2020 Y attended school full-time for four days. Y’s last day at school was 18 December 2020 and he was on roll at School B until 19 February 2021. During this latter period School B was closed for two weeks for half-term; one week for inset and an enforced closure for one week due to Covid-19, during which Y attended school for two days. It is also noted that Mr and Mrs X exercised their right to appeal to the SEND Tribunal on 8 February 2021.
49. I have seen no evidence the Council considered whether alternative provision should be made for Y given the likelihood of his absence for 15 or more days, from 30 November and then again in January 2021.
50. Furthermore, I have seen no evidence the Council considered whether any education was being provided at home until Mr X made contact on 11 January 2021. Even then it appears the Council was content to let School B deal with the matter rather than examine the reasons for Y’s absence, his educational needs while at home and how these were being met. This is fault.
51. School B decided it could still contribute to meeting Y’s needs on a part-time basis. The Council has provided no evidence showing how it satisfied itself the part-time provision was suitable and sufficient. This is fault.
52. School B said it was not possible or appropriate to try to schedule all Y’s SALT and OT sessions as Y was attending school part-time. Again, what I would expect to see is evidence the Council looked more deeply into the allegations that Y was not receiving sufficient therapy provision. Failure to do so is fault. It is clear that provision was missed because the Council said it would work with School C to identify any therapy that had not been delivered and would put this in place, including the possibility of commissioning an appropriate occupational therapist.
53. It is clear the Council took the view that it was School B’s responsibility to provide education for Y because he was on its roll and the School and had not said it could not meet his needs. As a result, the Council failed to develop a plan for Y’s education, either at school or elsewhere. This is fault.
54. What I would expect to see is some proof that the Council had satisfied itself that School B was providing the provision named in Y’s EHCP. Without this proof the Council did not have a clear understanding as to whether Y was receiving a suitable education and provision in accordance with his EHCP, considering his physical or mental needs at the time.
55. In addition to this, the Coronavirus Act stated that councils had to carry out a risk assessment with children who had a EHCP to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
56. There is no evidence the Council carried out a risk assessment in respect of Y and there is no evidence the Council took any action to discuss Y’s EHCP support at this time. This is not in line with the legislation and is fault.
57. There was a loss of full-time educational provision for Y from 30 November to 19 February 2021. Considering the dates mentioned in paragraph 44 above, this is about five school weeks, including a forced closure due to Covid-19.
58. The Council has acknowledged that therapy provision was missed during this period. However, there is not enough evidence to say, on the balance of probabilities that the Council would have found it necessary to intervene to ensure Y received alternative provision during this period. This is because the School had implemented a part-time timetable and was sending work home and the Council could have decided the provision was suitable for Y until he could attend school full-time, taking into account his mental and physical needs at the time. Whilst, the Council did say provision in line with the EHCP would resume when Y returned to a full-time timetable, it has not been able to evidence how it reached this decision.
59. For the same reasons, there is not enough evidence to say, on the balance of probabilities what, if any, additional support the Council could have provided when Mr X said he was concerned about sending Y to School due to Covid-19 and for the period of forced closure in February 2021.
60. Therefore, the consequential injustice here is uncertainty about how the provision might have been different, if the Council had taken the necessary steps to explore the reasons for Y’s absence, Y’s GP letter and whether there were medical reasons for non-attendance as Mr and Mrs X claimed. Nor did it consider whether there were grounds to arrange alternative education on the basis of Y being ‘otherwise’ unable to attend school.
61. Given the circumstances of this case I consider an appropriate figure for the uncertainty to be £500 for the five school weeks. In reaching this figure I have taken account that Y has special educational needs.
62. I cannot consider Y’s continued absence from school after this period and whether the Council should have arranged alternative provision. This is because Mr and Mrs X exercised their right of appeal to the Tribunal on 8 February 2021. Where the period of education coincides with an appeal, the period from the date the right of appeal is engaged until the appeal is heard is usually outside the Ombudsman’s jurisdiction and we cannot find fault.
63. I appreciate that Mr X disagrees with this. But at the time Mr and Mrs X started tribunal proceedings Y was still on roll at School B. The Council then confirmed it would be naming School C as a suitable placement for Y and a place was available from 19 February 2021, with no gap in provision. It is Mr and Mrs X’s view that School C could not meet Y’s needs and expressed concerns about distance and travel. But the Council considered School C to be suitable and available to Y. It confirmed that SALT was available, an independent OT would be commissioned to provide provision set out in the EHCP and transport would be arranged.
64. As explained in paragraphs 16 and 17, the courts have ruled that it is for the Council to decide what is suitable. Mr and Mrs X exercised their choice not to send Y to School C and therefore I find the Council had discharged its duties. Mr and Mrs X have exercised their right to appeal which is an alternative remedy via the SEND Tribunal, even though the Tribunal has no power to provide remedy for the lost education.

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Agreed action

65. Within one month of this final decision the Council has agreed to:
1. Apologise to Mr and Mrs X for the faults identified in this statement;
2. Pay Mr and Mrs X £500 for the uncertainty surrounding provision for his education as stated in paragraph 60, to be used for the benefit of Y’s education.
3. Pay Mr and Mrs X £150 for their time and trouble in pursuing their complaint;
66. Within two months of this final decision the Council has agreed to:
1. Consider how it assesses how much education children can access if they are out of school. Its assessments should clearly show what children are receiving and how much more education can be provided.

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Final decision

67. There is fault by the Council causing an injustice to Mr and Mrs X and also to Y. The Council has agreed to the remedy the injustice caused. I have now completed my investigation.

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Parts of the complaint that I did not investigate

68. I did not investigate Mr and Mrs X’s complaint that the Council failed to provide alternative provision for Y from 19 February 2021. I have explained my reasons for this in paragraphs 62-64 above.

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Investigator's decision on behalf of the Ombudsman