Summary: Mrs X complains the Council failed to provide her son, B, with suitable educational provision while he was unable to attend school. We find the Council at fault, which caused B to miss out on certain educational provision and Mrs X was caused stress and distress. To remedy this, the Council has agreed to apologise to B and Mrs X, make them several payments and make a number of service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs X, complains the Council failed to provide her son, B, with a suitable education between January and end of July 2021. She complains the Council also failed to arrange the special educational provision in B’s Education, Health and Care Plan during this period.
2. Mrs X says, because of the above, B missed out on suitable educational provision while he was at a key stage of his education.
3. Mrs X says she and her family were caused stress and distress. Mrs X said B’s lack of education and remaining at home affected her anxiety. She says B remaining at home affected her ability to work and their family relationships.

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What I have investigated

4. I have investigated the time period between January and end of July 2021.
5. The last section of this decision explains the reasons why I have decided not to investigate matters complained of dating back to January 2020.

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The Ombudsman’s role and powers

6. 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)
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)

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How I considered this complaint

8. I spoke with Mrs X about her complaint. I considered the documents and information the Council and Mrs X sent to me.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
10. 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.

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What I found

Legal and administrative background

Education, Health and Care Plans

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision - General section 19 duty

14. 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.
15. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should generally be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health. (Education Act 1996, section 19) We refer to this as section 19 or alternative provision.
16. 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.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

19. Mrs X’s son, B, has an Education, Health and Care Plan (EHC Plan). During the time period investigated, B was in Year 8 at school. An academy, Academy One, was named as the placement in B’s Plan for the 2020/21 academic year.
20. In July 2021, Mrs X complained to the Council. She said B was unable to attend school as the school named in his Plan was unable to meet his needs. She complained that, since February 2021, the alternative provision arranged by the Council for B was unsuitable. Mrs X said the provision did not cover B’s curriculum and he was not mixing with his peers, which was causing B to fall behind both academically and socially. She said the provision was made up of:

• two 45-minute sessions per week of maths and English tuition; and
• six hours per week provision with an organisation that provides support to children with social, emotional and developmental needs. This organisation provided activities to encourage positive social interaction in the community, and support the development of life skills.

21. A few days later, the Council replied to check it had correctly understood Mrs X’s complaint.
22. Mrs X replied to confirm the Council’s understanding. She said the situation with B’s education had caused her family significant stress. Mrs X gave the Council the details of an independent special school, Independent Special School Two, which she requested B attend from September 2021.
23. A few days later, Mrs X chased the Council for an update on B’s annual review. She said the Council had not sent an amended Plan naming B’s placement from September 2021.
24. In August, the Council sent Mrs X its stage one complaint response. It said:

• in November 2020, the Council issued B’s first EHC Plan. It accepted, however, that the Council failed to consider its section 19 duty between November 2020 and February 2021. It accepted it had failed to provide the special educational provision (SEP) in B’s Plan during this time. It said that Council officers had focused on finding B a suitable long-term placement and failed to turn their minds to the duty to make suitable educational provision for B while he was out of school. The Council offered Mrs X a payment of £764 for the 12 weeks (excluding school holidays) that B missed out on educational provision. It apologised to B for the fault it had accepted. The Council said it would remind staff about the need to promptly act when they become aware of children missing out on education; and
• it could not investigate Mrs X’s concerns about the action of educational welfare officers (EWOs). This was because Academy One had purchased the EWO service from a private company. It told Mrs X that she may wish to consider making a complaint to B’s school instead.

25. The Council sent Mrs X a final EHC Plan. This named Independent Special School Two as B’s placement from September 2021. The Plan states “Child and Adolescent Mental Health Service (CAMHS) report that anxiety is limiting [B’s] engagement”.
26. In September, Mrs X asked the Council to escalate her complaint. She said the Council had failed to sufficiently respond to her complaint, including that the Council had failed to provide suitable education from February 2021 as well.
27. The Council considered Mrs X’s complaint to be a new complaint. It sent a further stage one complaint response in October. The Council did not uphold Mrs X’s complaint concerning educational provision from February 2021. It said:

• as part of a reintegration package, Academy One and the Council’s Special Educational Needs (SEN) team had arranged tuition in maths and Science for B from February 2021. This was with a view to assisting with his return to mainstream education at the Academy. These were two 45-minute long sessions per week;
• as B was progressing well with the tuition, Academy One and the Council’s SEN team arranged an extra 45-minutes session per week in English after the school break in mid-April 2021;
• on Fridays, Academy One and the Council’s SEN team arranged activities with the organisation that provided support to children with social, emotional and developmental needs. However, B struggled to engage with these sessions. The organisation continued to try to work with B;
• the Council maintained contact with Academy One and met regularly with the Academy and Mrs X to monitor B’s progress. The Council said Academy One had provided a comprehensive and clear reintegration plan with strategies to help B return to attending the academy;
• the Council said it was satisfied the Council officers had worked with Mrs X, B and Academy One to support B’s reintegration to mainstream school. It said there was ongoing consideration of how much education B was able to access and the type of education that best met his needs;
• However, from 24 May 2021, following a review of B’s Plan, it was noted that B’s anxiety levels had increased and Mrs X confirmed B did not want to return to Academy One. The Council said the recommendation from this meeting, which was attended by a Council SEN Caseworker, was that reintegration to mainstream education was no longer possible and alternative provision should be arranged for B.

28. Mrs X replied to ask the Council to escalate her complaint. She said that she disagreed that the provision was suitable to B’s age.
29. In December, the Council sent Mrs X its stage two complaint response and a copy of its independent investigator’s report from November. It said it did not uphold Mrs X’s complaint that the Council failed to provide suitable educational provision for B between February and July 2021. The Council said it accepted the findings in the independent investigator’s report, which are summarised as follows:

• between February and July 2021, the Council focused on securing B a specialist placement. This placement, Independent Special School Two, was later named in B’s Plan in August 2021;
• the tuition and support sessions were funded through B’s EHC Plan. The report said this meant it was Academy One’s responsibility to make sure B’s needs were met through this;
• the tuition met the outcomes in B’s Plan to engage B in education to prepare for reintegration to an educational setting. The sessions were built up with time, which ensured the tuition provider could build trust and get to know B;
• reviews of the provision were held in February, March and May 2021, which Mrs X attended and B attended with the exception of one meeting. However, the report found records of the meetings lacked sufficient detail about the discussions, decisions made and actions agreed during the meetings;
• B’s placement at Academy One was located outside the Council’s authority area. Until B attended Academy One, there was no previous connection between the Council and the Academy. The report found that their respective roles and responsibilities were not clearly identified between the organisations;
• following the national lockdown due to COVID-19 in January 2021, the report noted that B’s anxiety levels increased during this time and the direct impact of the lockdown was such that B’s face-to-face tuition sessions could not progress as planned. The report suggested B’s increased anxiety levels provided a legitimate reason for his non-attendance at school.

30. The Council said its Statutory SEN Service had accepted all recommendations in the report. It said it would:

• remind all staff members of the Statutory SEN Service that robust records should be made of all meetings that review a child’s educational provision. This should include a detailed record of the discussion at the meeting, views of the child/young person and parents/carers, and any agreed actions;
• ensure the roles and responsibilities of its Statutory SEN Service are clearly communicated to schools outside the Council’s area and any discussions with such schools are clearly recorded; and,
• make sure relevant staff make a clear plan as to how alternative provision will change over time (with details of who is responsible for reviewing the provision) for children/young people with EHC Plans where the Council has a duty to provide alternative provision.

31. In January 2022, Mrs X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

32. Mrs X complains the Council failed to provide her son, B, with a suitable education between January and end of July 2021. She complains the Council also failed to arrange the special educational provision in B’s Education, Health and Care Plan (EHC Plan) during this period.
33. In the Council’s stage one complaint response, it accepted that it had failed to consider its section 19 duty from January until February 2021. The Council told me it accepted B did not receive a suitable education during this time. This is fault.
34. I recommend the Council makes a payment of £550 for this time period. This is in line with the Ombudsman’s guidance on remedies, which states: where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 to £600 per month. It is my understanding that, during the four week period in January 2021, B missed out educational provision, including the special educational provision in his EHC Plan. I have taken this into consideration, as well as the fact B was at an important phase of his education – the year before beginning studies towards his GCSEs – when recommending a payment at the higher end of the payment range. This remedy is instead of the £254.67 the Council offered Mrs X to remedy the injustice B experienced during this four-week period.
35. Based on the evidence I have seen, in February 2021, it is my understanding that B had access to the following:

• online tuition in maths and Science (one 45-minute session of each subject each week). This was with a view to assisting with his return to mainstream education at Academy One. An extra 45-minutes session per week in English was introduced after the school break in mid-April 2021;
• on Fridays, B had access to activities arranged by an organisation that provided support to children with social, emotional and developmental needs; and,
• a reintegration programme at Academy One. This included: on-site alternative provision at Academy One’s provider (which provided small group work with high support), sensory breaks, reduced timetable while building relationships with key staff, ongoing “Team Around Me” meetings to support B’s engagement with school and monitor progress.

36. I do not find the Council at fault during this time. While the educational provision was limited during this time, the Council has explained this was intended to provide a gradual build up of tuition for B to assist with his return to education. The reintegration programme was in line with B’s EHC Plan from November 2020. I do not find the Council at fault here.
37. During the annual review of B’s EHC Plan in early March, it was noted that “[B] was not currently accessing the provision at [Academy One] … Other professionals such as CAMHS and representatives from … [the] Council have stated that they have seen an increase in his anxiety which currently means that the provision at [Academy One] would not be able to meet these needs.”
38. However, I am not satisfied the Council sufficiently considered its section 19 duty from this point onwards. This is fault. On balance, I find this meant B missed out on certain educational provision from March 2021 until end of summer term 2021. This is based on the following:

• from March 2021, the Council was aware that B was not accessing any of the provision at Academy One, which I understand included the reintegration programme. This was likely connected with health or medical needs as both CAMHS and representatives from the Council stated that they had seen an increase in B’s anxiety, which was affecting his engagement. The Council’s independent investigator’s report also said B’s anxiety levels likely provided a legitimate reason for his non-attendance. However, I find the Council failed to consider whether its section 19 duty was triggered at this point. In these circumstances, I would have expected to see a clear record of how the Council had assessed its section 19 duty and considered what alternative provision it could arrange for B that was suitable to the B’s age, ability and aptitude and any special educational needs. Rather, as explained in the independent investigator’s report, the Council’s focus continued to be on securing B a specialist placement without sufficiently considering the alternative provision it should arrange in the meantime;
• the Council’s independent investigator’s report states the tuition and support sessions were funded through B’s EHC Plan. The report said this meant it was Academy One’s responsibility to make sure B’s needs were met through this. However, as explained above, the duty was on the Council to arrange suitable education at school or elsewhere for B who was out of school because of illness. In my view, the Council failed to consider this and demonstrate how it had assessed whether the provision and support activities offered were suitable for B given he was not accessing the alternative provision arranged by Academy One;
• B’s EHC Plan from November 2020 provides detailed special educational provision (SEP) that the Council should have arranged for B. This included: socially thinking or similarly trained adults to work with B; staff working with B should be trained in strategies suitable for autism; consideration of the learning environment (e.g. noise levels, overcrowding) whereby an environmental audit could help to identify changes and considerations that may need to be made for B; and teaching of social rules and socially appropriate behaviour aiding the development and frequency of positive interactions with his peers. Based on the evidence I have seen, limited SEP was provided through the support activities arranged for Fridays and an expectation that the tuition providers should work on getting to know B. However, I find the Council failed to consider how any alternative provision sufficiently provided for the SEP detailed in B’s Plan; and,
• towards the end of May, following a review of B’s provision, which was attended by Mrs X, B and the Council as well as Academy One, the Council decided that B’s reintegration to mainstream education was not possible. Instead, alternative provision should be provided. The delay in considering its section 19 duties here is fault. I have seen no evidence that the Council quickly considered and put in place a package of alternative provision from this point either.

39. I find this meant B missed out on educational provision between March and end of the summer term 2021. Based on the above, I have recommended the Council make a monthly payment of £400 to remedy the injustice to B during this time. When recommending this, I have taken into consideration the fact B did have access to some provision in the form of some tuition and support activities.
40. During the time periods that B missed out on educational provision, I find this caused Mrs X significant stress and distress. She went to time and trouble trying to get the Council to put in place suitable educational provision for B.

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Agreed action

41. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to B and Mrs X for the fault causing injustice;
2. make Mrs X a payment of £300 for the significant stress and distress caused by the fault identified;
3. make Mrs X a payment, on behalf of B, of £550 for the missed educational provision during four weeks of January 2021. This is instead of the £254.67 the Council offered Mrs X to remedy the injustice B experienced during this four-week period. If Mrs X has already received this payment, the Council should pay the difference between the two sums (£295.33); and,
4. make Mrs X a payment, on behalf of B, of £400 per month for the missed educational provision between March and late July 2021 (approximately four school months and four weeks after deducting school holidays). This comes to a total of £1955 (made up of £1600 for the four months and £355 for the four weeks). This payment and payment c) above should be used for B’s educational benefit.
42. These payments are in line with the Ombudsman’s published guidance on remedies.
43. Within four weeks of my final decision, the Council has also agreed to:

• send a reminder to relevant staff of the need to promptly decide whether its section 19 duty has been triggered when a child is not accessing education due to health or medical reasons, including when it becomes clear the child is unable to access a reintegration programme for these reasons. Where the duty is triggered, staff should clearly record how they have assessed whether any educational provision is suitable to the child’s age, ability and aptitude and any special educational needs they may have; and
• share this decision with relevant staff.

44. The Ombudsman will need to see evidence that these actions have been completed by the Council.

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Final decision

45. I have completed my investigation.
46. I have decided to uphold Mrs X’s complaint. This is because there is evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this.

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Parts of the complaint that I did not investigate

47. The law says 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
48. Mrs X complained to the Ombudsman at the end of January 2022. This means we not normally investigate matters before January 2021.
49. Mrs X complained about matters dating back to January 2020. She explained to me the reasons why she did not complain to the Ombudsman sooner and I have considered these.
50. In Mrs X’s case, I think that she could have complained sooner if she had wished to pursue matters from January 2020. I have, therefore, decided an investigation from January 2021 is fair and proportionate.

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Investigator's decision on behalf of the Ombudsman