Summary: Miss X complained about the Council’s actions as her daughter had not received education for over a year. We found the Council at fault for not considering alternative provision sooner when it was aware her daughter was no longer attending school. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Miss X complains the Council has failed to secure education for her daughter since she stopped attending school in early 2022. This has caused significant distress and frustration, and a negative impact on their quality of life. She says her daughter is missing out on accessing education, and she struggles to manage her daughter at home.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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 have and have not investigated

7. During the time period and events covered in Miss X’s complaint, she lodged an appeal with the SEND Tribunal after the Council issued a final Education, Health and Care Plan in July 2022. From this point onwards, this period is outside of the Ombudsman’s jurisdiction. Paragraphs 4 and 14 refer to this, and the “Jurisdiction” section expands on this later.

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How I considered this complaint

8. I discussed the complaint with Miss X and considered her views.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plans (EHCP)

11. 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 which include:
• Section B: The child or young person’s special educational needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.
12. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. Parents 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
14. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Alternative provision

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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. The Council should attempt to arrange this alternative provision as soon as it is clear the child will be away from school for more than 15 school days.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children receive suitable full-time education.

Background

19. Prior to the events of this complaint, Miss X’s daughter (“D”) attended the “School”, a specialist school. D has Autism and complex learning difficulties. She has an Education, Health and Care Plan (“EHCP”).
20. Between September 2021 to January 2022, D’s attendance deteriorated. The School had been in regular contact with Miss X, providing support and resources such as work packs sent home for D.

Summary of key relevant events

21. In February 2022, the Council requested the School’s attendance figures for D. It was 0% since December 2021. Miss X wanted to withdraw D from the School and requested an early EHCP review. The Council agreed to arrange an emergency review. It also offered her a meeting with the SEND manager. Miss X declined. A month later, the Council discussed some of Miss X’s concerns about D’s education at a social care meeting.
22. In April, the School held the annual review. It had concerns about D’s significantly low attendance, and it could not meet her needs as she was no longer attending. D had difficulties transitioning from home into the taxi provided for her to take her to the School. It had tried various strategies, but this had not been effective. Miss X requested home tuition or a different placement at “School B”.
23. The Council discussed the case at an internal Panel. The Council deferred making a decision about home tuition for D to allow discussions with social care. The Council had not been able to find commissioned service providers to support D with morning routines to get her ready for school. The Council consulted with School B. School B later was not an available option.
24. In May, the Council issued a draft EHCP and Miss X made her comments.
25. At the start of July, the Council issued a final EHCP for D. It continued to name the School as it considered it a suitable placement for D. Miss X later appealed against the contents of Sections B (D’s Special Educational Needs), F (Special Educational Provision needed), and I (where provision was to be delivered).
26. Between August and September, Miss X paid for private SALT, Occupational Therapy (“OT”) Educational Psychologist (“EP”) reports to contribute towards the appeal and provide evidence for the Council about D’s needs.
27. In October 2022, Miss X formally complained to the Council. She said the reports supported that D required an Education Otherwise Than At School (“EOTAS”) package. She had paid for private weekly SALT sessions for D and some therapy, but she could no longer afford it.
28. The Council’s complaint response said it had agreed to continue to liaise with Miss X and the School to support D with strategies to help her return to an educational setting. It would not offer the SALT or other therapies she had provided as it did not agree D needed them. It said it would be addressed through the SEND Tribunal. The Council was also exploring the option of tutors for D.
29. In January 2023, Miss X escalated her complaint to Stage Two. In the Council’s response, it outlined the efforts it had made and difficulties in finding tutors for D due to her complex needs. It would continue its search.
30. In February, Miss X complained to us. We advised her to complete the Council’s complaints process before we would consider her complaint.
31. In March, Miss X escalated her complaint to Stage Three with the Council. At this time, the Council discussed the case internally and acknowledged the attempts to reintegrate D back into the School had failed. It agreed to move forward with an alternative provision package with education and social care.
32. In May, the Council’s final response to Miss X’s complaint said it had now agreed to EOTAS for D and work was still in progress to put it together.
33. In response to my enquiries, the Council said the EOTAS package of provision has been in place for D since mid-September 2023. The SEND tribunal would be heard at the end of October.
34. I do not know the outcome of the SEND Tribunal; however, this is not relevant in my consideration of this complaint. In response to my draft decision, Miss X said the EOTAS package has not worked smoothly so far. These are new matters since she complained to us, which the Council has not had an opportunity to respond to. Miss X can raise a new complaint with the Council if she wishes to about this. If she is dissatisfied after completing the Council’s complaint process, she can return to us.

Analysis

Jurisdiction

35. Miss X appealed against the July 2022 final EHCP as she disagreed with Sections B, F, and I. This is the correct way to challenge decisions the Council makes about the content of EHCPs. This point onwards is outside of the Ombudsman’s jurisdiction to consider, as explained in Paragraphs 4 and 14. While the Council later agreed with Miss X’s request for EOTAS provision, the Council did not formally concede. I am unable to investigate the period from this date because the appeal was ongoing.
36. Miss X said she paid for private professional reports for the SEND tribunal and also funded SALT and other therapy sessions to provide support to D herself as the Council did not. This was after Miss X had formal appeal rights. As these matters are inextricably linked to disagreements with the EHCP which she appealed against, this is also outside our jurisdiction to consider.

Alternative provision

37. I can consider the period between February (when the Council was aware of D’s non-attendance at the School) and the start of July 2022 (before Miss X had formal appeal rights).
38. Councils have a section 19 duty to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness, or otherwise may not receive a suitable education unless the council arranges it for them.
39. Between February and July 2022, the Council were aware of the School’s efforts focussed on getting D into the School. It had been ongoing for months and these strategies did not work and this on its own, was not enough. The Council did not consider or conclude D was unable to have education at all. It did not request or review if there were medical reasons or evidence for her non-attendance or assess the suitability of what the School had been providing for D.
40. In my view, it did not properly consider or make enquiries to satisfy itself of its section 19 duty. During this period, while the Council could not find social care support to help D in the mornings, I consider this meant it was clear the School was not accessible for D.
41. The ultimate responsibility lies with the Council for providing suitable alternative education without delay. She had been absent for more than 15 days so we would have expected the Council to have proactively acted to put in place alternative provision or considered other options sooner. This lack of robust action from an educational perspective is fault. This caused injustice to D as it impacted her ability to make progress as she was without suitable full-time (or equivalent) education during this period. It also caused Miss X distress and uncertainty at trying to manage the situation.

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Agreed action

42. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
43. Within one month of the final decision:
• Apologise to Miss X in writing for the lack of alternative provision for D between February and July 2022;
• Pay Miss X a symbolic payment of £150 to recognise her frustration and distress caused during the above period; and
• Pay Miss X £2,000 to recognise the impact of D’s missed education for the above period. This can be used for D’s educational benefit.
44. Within three months of the final decision:
• The Council should send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act when it is made aware a child is not attending school to ensure it considers action to put alternative provision in place without delay.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I found fault with the Council which caused injustice to Miss X and D. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman