Summary: Miss X complained the Council failed to ensure her child D received a suitable alternative education while out of school or had their special educational needs met. The Council accepted it was at fault because it failed to ensure suitable alternative education was in place. This meant D missed education and support for their special educational needs. This also caused avoidable distress for D and their parents, and avoidable time and trouble for Miss X. The Council agreed to pay a financial remedy, review relevant procedures, and issue reminders to its staff.

The complaint

1. Miss X complains the Council failed to provide suitable education and special educational needs (SEN) support for her child, D, when they stopped attending school in 2021. She says the Council accepted D’s mainstream school placement was not suitable but failed to provide a suitable placement at a special school. She also says the Council did not respond properly or in good time when she raised these issues.
2. Because of this Miss X says:
• D missed over 15 months of education, SEN support, social and emotional support, and social interaction with their peers;
• D’s father, Mr Y, had to care for D while working, which caused stress and placed a strain on the family. This also meant Mr Y had to turn down some work and catch up on this when Miss X was off work, so the family never had time when they were all together; and
• the whole family, including D’s younger sibling, faced emotional strain and it impacted their mental health. D hurt themself because of the frustration and upset caused.
3. Miss X wants the Council to:
• find D a suitable school placement;
• ensure D receives suitable education and SEN support; and
• compensate the family for the missed education and distress caused.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5), section 34(B)6))
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I considered:
• information provided by Miss X and discussed the complaint with her;
• the Council’s response to Miss X’s complaint;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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

Education Health and Care (EHC) plans

12. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them. The Council is responsible for making sure the arrangements specified in the EHC plan are put in place.
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. Parent(s)/guardian(s) have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the Council issues a final plan. (SEND Regulations 2014 section 32)
14. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)

Alternative educational provision for a child out of school

15. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
16. 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)
17. 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))
18. The education provided by a council must be full-time unless the council determines 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)
19. The law does not define full-time education but children 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 Human Rights Act

20. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
21. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
22. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

The Council’s complaints procedure

23. The Council’s complaints procedure says the following.
1. At Stage 1, it will aim to provide a response within 20 working days. If not it will explain the reasons it will take longer and when the complainant should expect a response.
2. If someone is not satisfied with the Stage 1 response, they can escalate their complaint to Stage 2 within 25 days. The Council may decide it should not progress the complaint to Stage 2 and direct the complainant to the Ombudsman.
3. If the Council considers the complaint at Stage 2, it aims to respond within 25 working days and will explain why if it will take longer. It will issue a final response within a maximum of 65 working days.

What happened

24. D has special educational needs and has had an Education, Health, and Care (EHC) plan since early primary school. In September 2021, D started year 5 at a mainstream school, School A. The school suspended D multiple times throughout the first term. After October 2021, D did not attend School A again as it said they could not return. However, D remained on roll at School A.
25. In April 2022, Miss X complained to the Council that D had been out of school for seven months and it had not identified a suitable alternative placement. The Council told Miss X it was consulting special schools to find D a new placement. It then also said it would look at arranging alternative education while they were out of school.
26. In September 2022, D should have started year 6 but was still out of school. A month later, School A arranged for D to attend Organisation B, which supports children who are out of education through work with animals. D attended Organisation B for two weeks but then could not return due to an injury.
27. In November 2022, Miss X came to the Ombudsman. The Council told us it had not responded to Miss X at the final stage of its complaints procedure, so we allowed it to do so.
28. In February 2023, the Council said it was still considering Miss X’s complaint and would respond within the next month. Shortly afterwards, the Council issued an amended final EHC plan for D naming School C, a special school, as their new placement from September 2023 onwards. It also arranged alternative education for D for two days a week which included direct tuition.
29. In April 2023, Miss X told us she had not received a final complaint response from the Council and D still did not have full time education in place. We chased the Council about its complaint response, but it did not respond in good time, so we decided to investigate Miss X’s complaint.
30. In June 2023, while our investigation was ongoing, the Council issued its final response to Miss X’s complaint. The Council:
• accepted there were periods where D did not receive a suitable education. It apologised for this and upheld Miss X’s complaint;
• said the alternative education D was accessing had now increased to four days a week;
• offered a financial remedy of £400 per academic month from January to September 2022, and November 2022 to April 2023, for the education D missed. It offered a reduced amount of £200 for October 2022 when D was attending Organisation B;
• offered Miss X £150 to acknowledge the time and trouble she spent pursuing the complaint; and
• confirmed it had issued an amended final EHC plan in February 2023, naming School C as D’s placement from September 2023 onwards.
31. At the time of our decision Miss X had not accepted the financial remedy offered by the Council as she did not think it was suitable. She also told us she did not consider School C was suitable for D and said the Council had agreed to find a different placement for the 2023/2024 school year. The Council told us it had considered Miss X’s preferences about what school should be named in D’s EHC plan, and consulted other schools, but there were no other suitable schools with places available. It considered School C, named in D’s February 2023 final EHC plan, to be a suitable placement for D. It did not plan to amend the school named in D’s latest EHC plan.

My findings

The period I investigated

32. Miss X complained about the Council’s actions from September 2021 onwards, when D stopped attending school. The law says we cannot investigate events which happened more than 12 months before somebody complains to us, unless we decide there are good reasons to do so. Miss X complained to the Council in April 2022 and first came to the Ombudsman in November 2022. I decided there were good reasons to consider events from September 2021 onwards because there were significant delays in the Council responding to Miss X’s complaint.

Suitable education and SEN support

33. D was out of full-time education from September 2021, after School A repeatedly suspended them then said they could not return. The Council accepted it was at fault because it was aware D was out of school but did not ensure suitable alternative education was in place. It said D received alternative education through remote learning from School A from September to December 2021, so only offered a financial remedy for missed education from January 2022 onwards. Miss X said the remote learning available in the first term of the 2021/2022 school year was not suitable for D’s ability, aptitude, and special educational needs. On the balance of probabilities, I do not consider suitable education was in place for D which was “reasonably practicable” for them to access, from September 2021 onwards. I consider the Council should provide a remedy for the injustice caused from the point D stopped attending school in September 2021.
34. The Council offered a reduced financial remedy for October 2022 because it said D accessed support from Organisation B during this month. Miss X said D accessed six days of support from Organisation B over a two-week period. Based on what Miss X told me about the support D received from Organisation B, I am not satisfied this provided educational provision. My view is the Council should not have offered a reduced financial remedy for this period. There was no evidence Organisation B provided D with educational provision, or that this was suitable for their age, ability, aptitude, and SEN.
35. The Council put in place alternative education for D for four days a week from May 2023 onwards. This included one-to-one tuition, so I consider it was equivalent to full-time education. However, the Council did not consider whether it was suitable for D’s age, ability, aptitude and SEN. There was no evidence it ensured the provision set out in D’s EHC plan was in place while accessing this alternative education. This was fault. I cannot be satisfied the alternative provision was suitable for D’s SEN. I consider the Council should provide a remedy to recognise D has still not received the support set out in their EHC plan since this alternative education has been in place.
36. Based on our Guidance on Remedies, I do not consider the payment offered by the Council to recognise the education and SEN support D missed is enough and have recommended it goes further. My view is the Council should also remedy the distress caused to the family by D being out of school.
37. School A told the Council early in the 2021/2022 school year that D could not attend the school again. However, School A did not consider it should permanently exclude D, so they remained on roll. The Council had powers to require School A to allow D to attend but did not do so. Therefore, I consider the Council accepted D’s mainstream school placement was not suitable for them. However, it took over a year for the Council to name a new school in D’s EHC plan. I consider the Council was at fault because it failed to identify a new placement for D in good time.

The Human Rights Act

38. I am not satisfied the Council had due regard to D’s human rights under The First Protocol, Article 2, which entitles them to an effective education. It did not properly meet its duties to ensure they had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

Complaint handling

39. The Council took 36 working days to respond to Miss X’s complaint at Stage 1, which is longer than it says this should take. I am not satisfied it properly explained the reasons for this delay or told Miss X when she should expect a response. This was fault.
40. Over five months later, when Miss X came to the Ombudsman, the Council told us Miss X had not asked to escalate her complaint to Stage 2 of its procedure. I do not agree with the Council’s position about this. Miss X expressed dissatisfaction with the Council’s Stage 1 response the same day she received this, and it said it would contact her to discuss this. There was no evidence it did so. The Council’s failure to properly consider Miss X’s dissatisfaction as a request for escalation of her complaint, was fault.
41. After Miss X came to the Ombudsman, the Council said it would consider her complaint at Stage 2. Had it considered this when it should have, within the timescales set out in its procedure, Miss X would have received a final response by mid-September 2022 at the latest. Instead, she received a response in June 2023, only after chasing from the Ombudsman and Miss X’s MP. This delay was fault.
42. The Council offered Miss X a financial remedy for the avoidable time and trouble she spent pursuing her complaint. Based on our Guidance on Remedies, I do not consider the payment offered by the Council sufficiently remedies the injustice caused to Miss X and have recommended it goes further.

D’s February 2023 EHC plan and school placement

43. When Miss X first brought her complaint to the Ombudsman, the Council had not yet named a special school placement in D’s EHC plan. In February 2023, the Council then issued a final amended plan naming School C as D’s placement for September 2023 onwards. As described at paragraph 31, Miss X told us she did not consider School C to be suitable for D. The Council told us it considered School C was suitable and it did not plan to name a different school.
44. As described at paragraph 6, we cannot investigate a complaint unless the Council has had reasonable opportunity to respond to it first. The complaint I have considered was about the Council’s failure to:
• name a new school in D’s EHC plan in good time after it accepted School A was not suitable; and
• ensure D received suitable alternative education while they were out of school because they did not yet have a suitable placement.
45. The Council has now found D a school placement which it considers to be suitable. As described at paragraphs 13 and 14, Miss X had a right of appeal to the SEND Tribunal about the Council’s decision to name School C in D’s February 2023 final amended EHC plan. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter, unless we consider it would be unreasonable to expect them to have appealed.
46. We will only consider a complaint from Mrs X about the Council’s decision to name School C in the February 2023 EHC plan for the 2023/2024 school year, if:
• Mrs X complains to the Council about this first, then makes a new complaint to us, and we consider the Council has had reasonable opportunity to respond; and
• we consider there are good reasons why it would be unreasonable to expect Miss X to have appealed the decision to the SEND Tribunal.

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Agreed action

47. As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. I consider D missed suitable education from September 2021 to April 2023 inclusive, and SEN support from May 2023 to the end of the 2022/2023 school year.
48. I consider a remedy of £1,800 for each term of missed education from September 2021 to April 2023 to be appropriate. In deciding an appropriate financial payment for this period, I considered the following.
• During this period, D was in years 5 and 6 of primary school. We do not consider this to be a particularly significant period in a child’s school career, as we would say for the first year of primary or secondary school.
• My view is D received no suitable alternative education at all from September 2021 to April 2023.
• D would have been able to engage with full-time education throughout this period if it had been available to them.
• The Council did not take steps to ensure D received the provision set out in their EHC plan during this period. The plan specified some interaction with peers each day, which D missed out on. However, the type of support outlined in the plan was in-class changes to how D’s education should be delivered, rather than any additional specific therapies such as Occupational Therapy or Speech and Language Therapy.
49. I consider a remedy of £500 for each term of missed SEN support from May 2023 to the end of the 2022/2023 school year to be appropriate. Again, I considered the type of support outlined in D’s EHC plan in making this decision.
50. Within one month of our final decision, the Council should pay the family a total of £12,200 comprising of:
• £9,500 to recognise the over 5 terms of suitable education D missed, from September 2021 to April 2023;
• £300 to recognise the less than one term of SEN support D missed from May 2023 to the end of the 2022/2023 school year;
• £1,600 to recognise the avoidable distress caused to Miss X and Mr Y;
• £600 to recognise the avoidable distress caused to D; and
• £200 to recognise the avoidable time and trouble Miss X spent pursuing the complaint because of delays by the Council.
51. Within three months of our final decision, the Council should:
1. review its processes for arranging alternative education for children out of school, and issue reminders to relevant staff, to ensure it:
1. arranges suitable alternative education without delay, in line with statutory timescales;
2. properly considers and records whether the alternative education arranged is suitable for the child’s age, ability, aptitude, and SEN; and
3. ensures the child receives the provision set out in their EHC plan while accessing the alternative education.
2. issue reminders to complaints staff that:
1. complaints should be responded to in line with the timescales set out in its complaints procedure; and
2. where a complainant expresses dissatisfaction with the Council’s Stage 1 complaints response, this should be considered and responded to as a request to escalate the complaint to Stage 2.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. There was fault by the Council which meant D did not have suitable education in place and did not receive support for their special educational needs. It also caused avoidable distress for D, Miss X, and Mr Y, and avoidable time and trouble for Miss X. The Council agreed to remedy this injustice, review relevant procedures, and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman