Summary: Miss Y complains the Council failed to make suitable education provision for her son, D, who has had limited school attendance since March 2022. We find the Council failed to make suitable alternative provision available for D despite being aware of his long-term absence from school. The Council also delayed significantly when amending and issuing D’s Education Health and Care Plan (EHCP). This caused injustice to Miss Y and D because the Council failed in its statutory duty to ensure D received satisfactory education. The Council will undertake the actions set out at the end of this statement.

The complaint

1. Miss Y complains the Council has failed in its statutory duty to ensure her son, D, receives an education which is suitable for his needs.
2. Miss Y also complains about delays in the EHC process which have further impacted on D’s access to education and frustrated her right of appeal to tribunal.
3. The Council declined to investigate Miss Y’s complaint for jurisdictional reasons. Miss Y says this approach is incorrect and caused her distress and additional solicitor’s fees.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SENDIST Tribunal in this decision statement.
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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What I have and have not investigated

9. I have not investigated matters which occurred between October 2021 and March 2022 because more than one year has passed since the matters complained about. I have considered Miss Y’s explanation about why she did not complain sooner, but the reasons given do not persuade me to exercise our discretion.
10. From March 2022 Miss Y exercised her right of appeal against the Council’s decision to maintain D’s EHCP. She attended mediation in April. This period is therefore outside of the LGSCO’s jurisdiction.
11. I have investigated matters from 13 July 2022. This is because the Council agreed during mediation on 27 April to amend D’s EHCP. The Council should have issued the final amended plan within 11 weeks of that agreement.
12. The Council issued D’s final EHCP on 18 January 2023 and Miss Y exercised her right of appeal. I have no jurisdiction to investigate matters subject to that appeal.

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How I considered this complaint

13. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
14. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance which I have referred to in this statement.
15. Miss Y and the Council 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

Legal and administrative background

Special educational needs

16. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
17. The Government publishes statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’). The Code sets out the procedure for carrying out EHC assessments and producing EHC plans. The guidance follows the law contained in the Children and Families Act 2014 and the SEN Regulations 2014.
18. There are rights of appeal to the SENDIST Tribunal if the Council:
• decides not to carry out an EHC needs assessment; or
• decides after an assessment, a child does not need an EHC plan; or
• issues a final EHC plan and the parent disagrees with the content of that.
19. We cannot investigate where someone has appealed to the SEND Tribunal about any of the decisions listed above. In addition, the courts have established that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. For example, if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for the lack of education after the date the appeal was submitted 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

20. 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 should usually 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.
21. 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)
22. The education provided by the council must be full-time unless the council decides 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).
23. The law does not define full-time education but children with health needs should have provision 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, because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
24. 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.
25. We recommended councils should:
• consider the individual circumstances of each case. They may need to act whatever cause of the absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it I a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible

Summary of key background events

26. In July 2021 the Council issued a final EHCP naming a mainstream primary school to be attended by D on a full-time basis until 1 September 2022 when D would transition to a mainstream secondary school.
27. The primary school received funding to meet D’s special educational needs and to deliver the provision named in Part F of his EHCP.
28. The Council became aware in March 2022 that D was not regularly attending his named primary school. An Annual Review of D’s EHCP took place on 17 March. D’s school said he was struggling to attend.
29. On 25 March the Council decided to maintain D’s EHCP. Miss Y challenged the Council’s decision and attended mediation. Following mediation, the Council decided on 27 April to amend D’s EHCP and it consulted 12 potential schools.
30. On 10 June Miss Y told the Council that D was unable to attend the primary school due to his anxiety. The Council notified the Children and Adolescent Mental Health Service (CAMHS) of its decision to re-open D’s case.
31. The Council attended a transition meeting with D’s named secondary school on 15 June ahead of his anticipated start date in September.
32. Around this time the Council arranged and funded some alternative provision, in the form of tuition, for three hours each week to support D during the final weeks of his summer term at primary school.
33. On 29 September, D’s secondary school contacted the Council seeking a review of D’s plan. The review took place on 15 November. The school told the Council that D could only engage with some aspects of school.
34. The Council agreed to present D’s case to panel on 25 November. The panel decided to maintain D’s tuition of three hours per week, to make a referral to a specialist team in the Council and to involve the Education Welfare Officer (EWO) regarding D’s non-attendance at school.
35. The Council also emailed D’s school to say: “[D] is entitled to 25 hours of alternative provision each week, though only 15 hours can be undertaken with one provider, so two or more different APs [alternative providers] may be required”.
36. The Council reiterated its view in an email dated 1 December. It asked the school to advise of any plans to increase D’s alternative provision. The Council sent forms to the school to apply for additional funding.
37. The Council’s EWO wrote to Miss Y on 22 December to outline concerns about D’s non-attendance at school. The EWO invited Miss Y to contact the Council if she wanted support from the ‘Early Help’ service.
38. On 18 January 2023 the Council issued a final EHCP naming the mainstream school already attended by D. Miss Y submitted an appeal.
39. The Council continued to ask D’s school to provide full time alternative provision.
40. In the meantime, Miss Y submitted a formal complaint to the Council in February which the Council declined to respond to in March. Miss Y then approached the LGSCO.
41. On 20 June the Council conceded Miss Y’s appeal and agreed to name the specialist independent placement requested by Miss Y. This was confirmed in a SENDIST consent order dated 23 June.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

42. The term jurisdiction refers to our legal powers to investigate a complaint. For the jurisdictional reasons explained in paragraphs 9 to 12, I have only investigated matters from July 2022 because this is when the Council should have issued D’s revised plan following the mediation agreement in April.
43. Throughout July, D remained on roll at the mainstream primary school named in his EHCP. The Council was aware from March that D’s attendance was poor. The records show the Council put measures in place to support D’s upcoming transition to secondary school. This included three hours of tuition each week, which D engaged well with.
44. When D started secondary school in September, it became apparent that he was struggling to attend due to his anxiety, which is one of the diagnoses named in the EHCP. As the reasons for D’s non-attendance were linked to his special needs provision, it may have been reasonable for Miss Y to appeal against the decision to name the secondary school once she considered it could not meet D's needs. However, Miss Y’s right to appeal lapsed eight weeks after D’s final plan was issued in July 2021. We have therefore investigated this period because Miss Y did not have a right of appeal available to her when D started secondary school.
45. D’s school implemented a part time flexible timetable to support his attendance. The school also held weekly meetings to help D integrate. These measures were not successful, and the Council attended an interim review in November following concerns raised by the school. At this point, D’s attendance was just over 7%.
46. The Council discussed D’s plan at panel but decided to maintain the named provision. There is no evidence to show Miss Y received formal notification of this decision and she had no right of appeal against the Council’s decision not to amend D’s EHCP. The matters complained about in this period therefore remain in the LGSCO’s jurisdiction.
47. Although D was not regularly attending school during the autumn term, the school had an integration plan in place with a clear objective to help reduce some of D’s anxieties around school and to increase his attendance. In my view, it was appropriate for the Council and the school to work together in the first instance to support D’s attendance. However, once the Council was aware that this plan had failed, and that D had been absent for more than 15 days, it had a duty under Section 19 of the Education Act to provide a suitable education.
48. It is not within the LGSCO’s remit to say what constitutes a suitable education. However, we would expect the provision to be full-time or equivalent, unless there are documented reasons to show why this is not in the child’s best interests. In this case, the records show the Council thought D should receive full-time alternative provision. In emails sent to D’s school on 25 November and 1 December, the Council made clear its view that D needed 25 hours of alternative provision each week. The Council said this needed to be delivered by more than one provider and asked the school to make the arrangements. But the legal duty to ensure that D received a suitable education lay with the Council, not the school.
49. In my view, the Council’s Section 19 duty was engaged from 15 November when the school confirmed the integration plan had failed and that D had only 7% attendance with more than 15 days of absence. Our jurisdiction ends from 18 January 2023 because the Council issued a final EHCP which Miss Y appealed against. Therefore, the period affected by fault which falls within our jurisdiction amounts to 14 months, or three and a half school terms.
50. In addition to the fault in making appropriate provision available for D, the Council significantly exceeded the statutory timescales outlined in regulation 44 of the Special Educational Needs and Disability Regulations 2014. Following the mediation agreement on 27 April 2022 the Council had five weeks to issue a draft version of D’s amended plan and 11 weeks to issue the final plan. Instead, the Council issued the final plan 38 weeks after the mediation agreement; this amounts to 27 weeks of delay.
51. This fault caused injustice to both Miss Y and D. Miss Y’s right of appeal was significantly delayed. The Council conceded the appeal and agreed to name the specialist independent provision sought by Miss Y. This provision could have been in place significantly sooner had the Council acted without delay.

Complaint handling

52. Miss Y complains about the Council’s decision to reject her complaint in March 2023. I have considered the Council’s ‘Corporate Complaints Procedure’ which says it will not consider complaints if, “… you have, or had, a right to appeal or take legal action, and we think it is reasonable for you to have done so. This might be to a tribunal (such as the Special Educational Needs Tribunal)”.
53. I appreciate the Council’s decision likely caused Miss Y some frustration, however it was entitled to refuse to consider her complaint under its procedures because she had already submitted an appeal to SENDIST. It is my view there was crossover between Miss Y’s complaint and the matters being appealed.
54. Furthermore, the Council’s decision did not cause any significant injustice because Miss Y approached the LGSCO soon after receiving the Council’s response and we impartially investigated her concerns.

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Agreed action

55. Within four weeks of our final decision, the Council has agreed to undertake the following actions to remedy the injustice caused by fault:
1. apologise to Miss Y in line with our published guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment of £400 to Miss Y. This is in recognition of her time and trouble, distress and frustrated appeal rights.
3. make a symbolic payment of £4,860 to recognise the lack of provision to D. This should be paid to Miss Y and used for D’s educational benefit.
56. The calculation of the sum at 55c) takes account of our guidance on remedies. This says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special education needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

57. In this case I noted that:

• the period concerned was a transition year for D (academic year 7);
• D has special education needs which necessitate an EHC plan;
• during the period investigated, D received a maximum of three hours of alternative provision per week against the Council’s recommendation of 25 hours; and
• that additional provision cannot now remedy some or all of D’s loss.

58. Taking account of these factors I consider it is appropriate to make a mid to high range payment of £1,800 for each of the three and a half school terms impacted by the fault. I have deducted 10% in recognition of the small amount of alternative provision which D received during that period.
59. Within eight weeks of our final decision, the Council has also agreed to:
• issue guidance to officers on the application of its Section 19 duties. This could be in the form of staff training, a briefing paper or a revised policy or guidance document.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. In my view, the agreed actions listed in the section above will provide an appropriate remedy for Miss Y and D’s injustice.

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Investigator's decision on behalf of the Ombudsman