• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: The complainant, Ms X, complained about the lack of suitable alternative provision provided for her son who has been out of education. She also complained about the Council's lack of communication. We find the Council was at fault. This caused significant stress to Ms X and her son was out of education. To address this injustice caused by fault, the Council has agreed to apologise, make symbolic payments and remind staff of the relevant guidance.

The complaint

1. The complainant, Ms X, complains about the lack of suitable alternative provision provided for her son who has been out of education. She also complains about the Councils lack of communication. She said this has caused her significant stress and she is concerned about the long-term effect this will have on her son.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
5. 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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.
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 spoke with Ms X about her complaint. I considered all the information provided by Ms X and the Council.
10. Ms X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care plans

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.

Arrangements for reviewing an EHC plan

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

17. 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.
18. 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)
19. If there is no suitable education available that is ‘reasonably practicable’ for the child, the council will be in breach of section 19. The courts have confirmed that it is the council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access.

What did happen?

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Ms X’s son, B, has an EHC plan. An annual review of the plan was carried out in September 2021. It said B was settling into a happy classroom environment.
22. In February 2022 B’s school contacted the Council. They said they had seen a significant decline in B’s behaviour. They asked to arrange a meeting with the Council to discuss this and said B had become aggressive. The minutes of this meeting stated they discussed the option of working online in school as this had worked before. Weekly meetings were agreed to check on B’s progress.
23. B’s draft EHC plan was issued in February 2022.
24. The school contacted the Council in the same month. They said following a challenging week, B had been taught online at home.
25. In March 2022 B’s school made the Council and Ms X aware it was no longer able to meet B’s needs and gave notice to end the placement. It was agreed B would remain on the schools roll until 7 April 2022.
26. B’s EHC plan was finalised in March 2022 naming his current school. But the Council began consulting with other school placements.
27. In June 2022 Ms X left the Council a voicemail. She asked if there was any progress on finding a school replacement. She said it had now been 8 weeks and no work had been provided for B.
28. In the following month, B’s father, Mr X attended the Councils office. He had concerns for B who he said had been out of school for months with no alternative provision (AP). The Council agreed to make enquiries and said it was working on finding suitable tuition provision.
29. Ms X provided the Council with dates B could do tutoring sessions. She also asked if B could have a laptop for online work as he had previously had to do it on Mr X’s phone.
30. The tuition started in July 2022. But the Councils notes stated Ms X stated in December 2022 she did not want the tuition to continue. Instead she wanted the package of two other APs. But said if one was unsuccessful, she wanted to revisit tuition in the new year. One of these AP’s was put in place from November 2022 to July 2023 where B attended twice a week. The Council said the other AP was declined by the provider due to concerns.
31. In January 2023 Ms X left the Council two voicemails. She asked for an update on B’s case.
32. An annual review was held in March 2023 and a draft EHC plan was issued in the same month.
33. The Council made an urgent referral for home tutoring in the same month and this was agreed to start.
34. Ms X contacted the Council in March 2023. She said she had contacted two different AP’s. She asked how she could request a personal budget through B’s EHC plan. The Council provided her with a link on how to do this. It also said it had consulted with further schools and asked for her school preference.
35. Following a voicemail from Ms X asking for an update in May 2023, the Council said it had consulted with several settings. But it said no schools had offered a place.
36. B’s EHC plan was finalised the following month naming a new school from September 2023.
37. The Council spoke with Ms X in June 2023. The notes stated the tutor provider was unable to find a tutor for B. The Council agreed to refer B to another tutoring provider.
38. In August 2023 the tutor told the Council it could no longer support B. They also said they could not find a suitable alternative.

Analysis – was there fault by the Council causing injustice?

39. We would not usually investigate complaints when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. In this case I think it would have been unreasonable to have expected Ms X to appeal the named school. This is because the Council was taking steps to resolve the disagreement by consulting with schools.
40. The Council consulted with schools in March and July 2022. These schools were either full or could not meet B’s needs. The Council then consulted with schools in October and November 2022. It consulted again in March and May 2023. We would expect the Council to consult schools promptly and concurrently. There is an unexplainable drift in B’s case which the Council cannot account for. Whilst I cannot say a school placement would have been available sooner if this fault had not occurred, this caused uncertainty to Ms X.
41. The school made the Council aware in March 2022 that it could no longer meet B’s needs. But the Council did not make arrangements for AP until July 2022. This was after Mr X attended the Councils office to raise concerns about the lack of provision for B. This is fault. The Council has acknowledged this delay and suggested a payment of £750 to recognise the missed education. In acknowledgement of missed education, we recommend a payment per school term. In this case I consider an appropriate figure to be £1500 between March and June 2022 as B received no education during this period.
42. Between November 2022 and July 2023 B attended AP twice a week. Home tuition was also provided. But the Councils notes stated Ms X cancelled this in December 2022 and this is detailed in paragraph 29. The courts have confirmed it is for the Council to decide what is suitable and the Council decided this AP was suitable. That is a decision it is entitled to take. It provided us with a list of AP providers for different areas of need which includes details of the AP provided for B. Therefore I cannot question the Councils decision to provide this AP.
43. As detailed in paragraph 29 Ms X made the Council aware she wanted to revisit tuition in the new year if one of the AP providers was unsuccessful. The AP was not successful. Ms X left the Council two voicemails in January 2023 asking for an update on B’s case. I have seen no evidence to suggest the Council responded to this. This is fault. An annual review was held in February 2023 and the Council made an urgent referral for a home tutor the following month which was agreed. On the balance of probabilities, if the Council had responded to Ms X in January 2023 it is likely that it would have made the referral sooner. This meant B went without the additional provision between January and March 2023.
44. After the tuition was put in place, Ms X said after two initial sessions the tutor cancelled in May 2023, and no alternative was sourced. Ms X said she spoke with the Council who said it had looked back at previous emails and said the tutor had made it aware. But the Council told us at that time emails had not been recorded properly.
45. The Council spoke with Ms X in June 2023. The notes stated the tutor service had not been able to find a tutor. It was noted the Council would refer to other tutoring providers. But there is no evidence to suggest it did. This is fault. On balance of probabilities, it is likely the Council was made aware the tutor had cancelled their service. We recognise B did receive some AP during that time until July 2023. But as the Council had agreed to look for another tutoring service, this implies it agreed additional tutoring was suitable. The initial request for tutoring was also an urgent referral. Because of this, Ms X privately arranged for tuition for B. This was between June and Sept 2023.
46. In June 2022 Ms X contacted the Council asking for an update on the progress of finding B a new placement. She also said he had been provided with no work whilst out of education. I have seen no evidence to suggest the Council responded to this. This is fault. This caused significant stress to Ms X and she spent unnecessary time and trouble in contacting the Council.
47. The Council has acknowledged that there was a delay in finalising B’s EHC plan and recommended a £200 remedy for Ms X to acknowledge the distress caused to her. After the annual review in September 2021, the plan was not finalised until March 2022 which is outside of the statutory timeframe. There is evidence of further fault. An annual review was held in February 2023 with the draft plan being issued the following month. The plan was finalised in June 2023. This is also outside of the statutory timeframe. This caused further distress to Ms X and delayed her rights of appeal.

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Agreed action

48. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
    • apologise to Ms X and B for the faults identified in this statement;
    • pay Ms X £500 for the avoidable distress, time and trouble caused by the Councils actions;
    • reimburse Ms X for the money she spent on B’s education between June and July 2023. This amounted to £236.30 for two one-hour sessions per week. This does not include August 2023 during the school holidays and September 2023 when B started school. This is because its unlikely the Council would have provided alternative provision during that time.
    • pay Ms X £2500 for the educational benefit of B, to recognise the impacts of its failings on B’s education. This is for the period between March and June 2022 where B received no education and between January and March 2023 when he went without the additional provision.
49. Within two months the Council should issue written reminders to relevant staff to ensure they are aware of:
    • The Councils duty to issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents;
    • the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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