Summary: Mrs X complains the Council failed to provide alternative education for her son Y when he could not attend school. We find fault with the Council for failing to provide appropriate full-time education for Y, causing frustration and distress to Mrs X. We have agreed financial remedies and service improvements to ensure this does not happen again.

The complaint

1. Mrs X complains the Council failed to provide alternative education and provision for her son Y from January 2022.
2. This caused frustration and distress to Mrs X with the financial impact of having to provide evidence from an Educational Psychologist for Y.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), 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. I have not investigated this complaint from January 2022 to September 2022 as Mrs X appealed Y’s Education Health and Care Plan at Tribunal so it is out of our jurisdiction (see paragraph five).
8. I have investigated from September 2022.

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How I considered this complaint

9. I spoke with Mrs X and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. Mrs X 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

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
13. 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.

Alternative provision

14. Councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
16. 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 19 subsections 3A and 3AA)

Delivery of Special Educational Provision

17. 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)
18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Appeal right

19. 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.

EOTAS

20. Education other than at school (EOTAS) is a package of education which is council-funded and is detailed in section F of the EHCP.

What happened

21. Mrs X has a son Y, who is Autistic and has anxiety and dyslexia.
22. The Council issued Y’s first EHCP in February 2022 which was his final year of primary school. Mrs X appealed this as she wanted a specialist school named in the EHCP rather than a mainstream one.
23. The final EHCP in June 2022 named a specialist school for Y to start in September. The Council did not oppose the appeal.
24. Y attended the school in September with transition support. Over this term his attendance began to decline because of his anxiety.
25. Mrs X emailed the Council at the end of September saying Y was struggling to attend and the Education Welfare Officer suggested meeting with the school to look at an adapted timetable.
26. The Educational Psychologist (EP) suggested a project that supports children into getting back to school (Project X). Mrs X told the Council she would like more information about this on 1st October.
27. Mrs X had a meeting with the school and they agreed a two-week transition plan giving Y a reduced timetable. She wrote to the Council on 1 October saying Y was still not managing to access school, even with the reduced timetable.
28. Mrs X requested an annual review (AR) from the school in November, as she said Y was not getting any education. She also sought updated evidence from an EP.
29. The Council said the school does not commission EP services so Mrs X paid privately for an EP report herself. This report said Y moved to a secondary school in September 2022 and needs a new support package to reintegrate into school.
30. The Council said in January 2023 the AR will take place in February.
31. At the end of January Mrs X asked the Council for Y to have EOTAS whilst working on his reintegration back into school.
32. The AR took place at the beginning of February which took the EP report Mrs X provided into consideration, saying Y had “separation anxiety and does not feel safe at school. He is currently unable to attend school at all.”
33. Both the school and Mrs X felt Y needed a new EHCP as the provision in Section F was generic rather than specific to him.
34. On 14 February Mrs X made a complaint to the Council saying Y had no education since getting his EHCP. The transition plan for September was limited and Y struggled to attend.
35. The Council responded in March saying it recognised Y was struggling with the transition to school in the mornings because of his separation anxiety. It said it considered a change of placement but Y needed further work to engage back into school. School offered online learning but Y could not access it because of his dyslexia. It said the school and Council will continue to work to get Y back into school.
36. At the end of March a report from a Doctor for Y said “any attempt to enforce attendance at school could be detrimental. As treatment continues Y could expect to restart school in a planned phased manner. This will be kept under review and updated every three months.”
37. Mrs X was not happy with the stage one response from the Council so she raised a stage two complaint in April. She said, among other things, the Council had not given a response to the failings in delivering Y’s EHCP, and it had not provided any alternative education, failing its Section 19 duties.
38. The Council’s response in June said:
• A SEND officer suggested a change of placement to a SEND specific school but Mrs X did not feel it was suitable for Y.
• Mrs X sought an early review in November but the Council have no evidence of this. The responsibility for the AR is delegated to the school, and there is no evidence that an AR was requested before February 2023. The Council consider the previous provision was correct and the AR was brought forward based on new advice.
• The SEND officer contacted the school on 14 February 2023 saying they had contacted the EP service about Project X, and said Mrs X wanted a further EP assessment. The school responded on the same day saying Mrs X did not want a further assessment but did want all the professional reports to be reviewed to update the provision set out in section F of the EHCP. Therefore there was no request for an updated EP assessment, however the Council has recommended that it would be best practice to clarify any request. If a request is made to seek advice from professionals, it is the school’s responsibility to commission them, not the Council’s.
• The school has offered to adapt their provision in the form of a meet and greet, and have also offered online learning for Y. However Mrs X confirmed these alternatives have not been suitable due to Y’s diagnosed SEN and disability. There is no evidence to suggest the EHCP was unsuitable following the final plan being issued, or that a request was made in November for the AR to be brought forward. The SEND team consider the school could meet the provisions, however your son could not attend.
39. Mrs X was not happy with this response so she brought her complaint to the Ombudsman.
40. In response to our enquiries Mrs X sent screenshots of her email to the school on 19 November 2022, seeking a review and further EP advice. The Council say Mrs X did not provide this evidence with her complaint.
41. Mrs X says she refused the further assessment by an EP before the AR in March 2023 as she already had a report and did not want Y to go through the assessment again.
42. In response to our enquiries the Council said there was an emergency AR held in April 2023 after receipt of new advice and reports detailing Y’s mental health needs. The Council issued the new EHCP in July 2023.
43. Since July the Council and Mrs X have agreed an EOTAS package for Y to start in September 2023.

Analysis

44. The complaint response from the Council to Mrs X (see paragraph 38) is misleading in its wording. It may delegate the duty to arrange the AR and commission professional reports, but the Council remains responsible for ensuring these are carried out (see paragraph 17). This is fault by the Council causing frustration to Mrs X. The Ombudsman welcomes the Council’s response that this is an opportunity to learn in respect of wording moving forward.
45. The Council told Mrs X the school do not commission EP reports which was wrong. This caused frustration to Mrs X.
46. The Council said in January it would arrange the AR for February. From September to February the Council allowed time for the school to make attempts to overcome Y’s difficulties in attending and accessing education, which is what we would expect. However by the time of the AR in February the Council was aware the measures the school were taking were not suitable for Y so it should have explored other ways of supporting him in the interim (see paragraphs 14 - 16). This is fault, causing Mrs X frustration and distress and meant Y was without appropriate full-time education.
47. Mrs X sought information about Project X in October 2022. The SEND officer did not contact the school about this until February 2023. This is delay and fault by the Council, causing distress and frustration to Mrs X.

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Agreed action

48. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration.
49. Where there has been a loss of education, the Ombudsman recommends between £900 to £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
50. I recommend that, within one month of the Ombudsman’s final decision, the Council:
• write a personal apology to Mrs X for the faults identified above;
• pay Mrs X £1500 made up of:
• £150 to acknowledge her avoidable distress, frustration and uncertainty; and
• £1350 (£900 per term x 1.5 terms) to remedy the failure to provide Y with full time alternative education from February 2023 to July 2023.
51. I also recommend that, within three months of the Ombudsman’s final decision, the Council should:
• issue written reminders to relevant staff to ensure officers know that it is the Council’s responsibility, not the school’s, to arrange annual reviews and commission professional reports for a child with an EHCP;
• tell us how it will ensure better communication between the Council and schools when setting up annual reviews and arranging professional reports.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I find fault with the Council for delay, failing to provide appropriate full-time education for Mrs X’s son and for giving incorrect information in its complaint response. We have agreed financial remedies and service improvements to ensure this does not happen again.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman