Summary: Ms X complained the Council failed to provide her daughter with suitable education provision while she was unable to attend school and delayed providing subsequently agreed provision. Ms X says her daughter missed out on education and suffered avoidable distress. We have found fault in the delay in issuing a new Education, Health and Care Plan and in providing the agreed provision. I consider the agreed action of a symbolic payment to recognise both uncertainty and loss of education provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to provide her daughter, B, with suitable education provision while she was unable to attend school from Easter 2022 and failed to ensure subsequent provision for education other than at school was put in place until January 2023.
2. Ms X says because of the Council’s fault, B missed out on education and suffered avoidable distress and she spent unnecessary time and trouble in trying to resolve the matter.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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.
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 read the papers provided by Ms X and discussed the complaint with her. I have also considered some information from the Council. I have explained my draft decision to Ms X and the Council and considered the comments received before reaching my final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Background and legislation

Special educational needs

10. 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.
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘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 SEN Regulations 2014.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
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

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. 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)
15. 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)
16. The Courts have found that it is a judgement for the council to decide 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])
17. The education provided by the council must be full-time unless the council determines that 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)
18. 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’)
19. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
20. Section 61 of the Children and Families Act 2014 provides for local authorities to consent to education being delivered elsewhere such as in the home for those children for whom education in any school setting would be inappropriate. This is known as Education otherwise than at school (EOTAS).

Key events

21. The following is a summary of key events. It does not include everything that happened.
22. Ms X’s daughter, B, has a diagnosis of autism spectrum disorder (ASD). Ms X says B had longstanding difficulties attending school and had been referred to the Council’s Access to Education (A2E) service in January 2021. Ms X says this service had been good at building B back up to start school again in September 2021 through a combination of mentoring, face to face and virtual lessons and school visits.
23. A plan was agreed at a review meeting in July which noted B’s diagnosis of ASD and that a EHCP application had been made. It was also confirmed that A2E support would continue until the October half-term subject to review.
24. B’s parents confirmed to the school and A2E in early September the initial transition back to school had started well.
25. B had a final EHCP from November 2021. This named school A which was the mainstream school B was on roll with.
26. The Council received a formal referral from the school to its Inclusion Service about B’s non-attendance in January 2022. A school attendance action plan was completed in February. The school arranged a phased return to school with a bespoke package through its Step-by-Step programme which involved part-time (mornings only) provision.
27. The school contacted the Council in March to say B was no longer engaging with the Step-by-Step programme. B’s attendance was being marked as unauthorised. A reintegration plan to support B’s reattendance was produced in conjunction with the Council’s education inclusion service. There is also evidence of contact between the Council and school about supporting attendance. During this period the Council considered the placement remained appropriate and accessible to B and B should be supported to attend.
28. Ms X sought a review of B’s EHCP in May. Ms X also contacted the school and explained she wanted an EOTAS package as she did not consider B could sustain any school attendance.
29. A review meeting took place in mid-June. It was agreed at this meeting that the school would look into the possibility of online tuition for the remaining weeks of the academic year. The school confirmed the online provision was put in place from the following day.
30. The Council contacted Ms X in July to confirm an EOTAS tuition package would be provided and advising its intention to amend B’s EHCP to reflect the change in provision.
31. An amended EHCP was finalised in mid-October 2022. This set out an EOTAS package of 15 hours tutoring a week. The Council has accepted in its complaint correspondence with Ms X that it did not meet the statutory timescale for the review of B’s EHCP. The amended EHCP should have been issued in early September.
32. The Council contacted a tutoring service in mid-November about the EOTAS tuition package. The Council provided a completed referral form to the company in early January 2023 for 15 hours of tuition each week which would be a mix of face to face and online tuition although both English and Maths needed to be delivered face to face.
33. The company met with B and her family in mid-January and agreed a schedule of tuition and identified the relevant tutors. However, the company contacted the Council towards the end of January to say the English and Maths tutor was no longer available and were unable to secure an alternative at that time. The remaining tutoring started during February.
34. B is now also receiving 2 hours tutoring with a different company for Maths and English. The Council says Ms X has asked to fully change over to this company as B is not engaging with the first company and missing lessons as they are all online. The alternative company are able to give face to face lessons which is better for B and the Council has confirmed this is being arranged.
35. The Council has accepted the start of this provision was delayed and provided an apology for this. The Council says once a package of EOTAS was agreed there were and still remain challenges in putting this into place due to the shortage of tutors. The Council has worked with various tutors and the family to broker this with mixed success. The Council notes the tuition can be delivered flexibly and any shortfalls made up during holidays.

My consideration

36. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The Council issued B’s original final EHC plan in November 2021. At that point, it was open to Mss C to appeal the content of the EHC plan. For the reasons set out at paragraphs 5 to 6 above this element did not form part of the scope of my investigation.

37. Based on the information provided, I do not consider the Council’s section 19 duties applied before June 2022. Firstly, I have noted B’s attendance was marked as unauthorised, and so there was no duty to provide alternative provision on medical grounds, given that B was not being marked down as medically unfit for school. However, the duty can also apply where a child is ‘otherwise’ unable to attend school. The test the Council should apply here is whether the school place is available and accessible to the child. In this case, there was a clear reintegration plan to support B’s reattendance, which was produced in conjunction with the Council’s education inclusion service, and there is good evidence of contact between the Council and school about supporting attendance. This would support the Council’s view that it considered the school place to be accessible to B up until June 2022. On balance, I see no fault in the Council’s approach here.
38. However, at the review meeting in June the Council proposed the EHCP was changed to include EOTAS. At this point, I consider it should have reviewed whether it remained a reasonable expectation for B to attend her current school. I also note that the inclusion team withdrew its involvement at this time, on the basis that EOTAS would be arranged. On balance, I consider there was a degree of uncertainty that suitable arrangements were made for B’s education from Mid-June to end-July 22 even with the school offer of online provision.
39. The Council has already accepted delay in issuing the updated EHCP which should have been issued in early September. I also consider there was a clear failure to secure suitable education for B from September 2022 until the tuition arrangements were put in place and available in February 2023. I consider the delay in issuing the new plan was fault and there was service failure in arranging the tuition after the plan was issued. I am satisfied this has caused an injustice to B even with the possibility that some of the missed provision can be made up given the flexible nature of the tuition package. I have taken into account the fact additional provision now could remedy some of the loss in my remedy recommendation below.

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Agreed action

40. The Council has agreed the following action to provide a suitable remedy within one month of my final decision:

• provide a symbolic payment of £1,000 to Ms X to recognise both the impact of the education missed between September 2022 to February 2023 and for the uncertainty surrounding the provision between mid-June to end July 2022.

41. The Council should provide us with evidence it has complied with the above action.

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Final decision

42. I have completed my investigation as I have found fault by the Council but consider the agreed action above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman