Summary: Mrs X complained that the Council failed to provide appropriate education for her son, who has an Education, Health and Care Plan. We find fault by the Council causing an injustice. We have recommended ways to remedy this, which the Council has accepted.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council failed, since January 2021, to provide her son, Child B, with suitable education since he started to refuse to attend the secondary special school named in his Education, Health and Care (EHC) Plan.
2. As a result, Mrs X says that Child B has become very isolated and academically behind and has missed out on the required therapies. The complainant has had to care for her son at home, making her also very isolated, and distressed. Mrs X says it has been a very stressful time for her family.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome.
4. 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.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
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. Parents/carers can appeal to the SEND Tribunal where a council refuses to assess or issue an EHC plan, and where there are concerns about the content of the EHC plan.
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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What I have and have not investigated

8. The complainant should have complained to us within 12 months of realising something had gone wrong. But, given her difficult personal circumstances, I have decided to exercise the Ombudsman’s discretion to look at events from January 2021.
9. In August 2023, the Council issued a final amended EHC Plan naming Education Than Otherwise At School (EOTAS) as the named provision. Mrs X had a right of appeal to the SEND Tribunal if dissatisfied with this Plan. The Ombudsman cannot consider any complaints about the current EHC Plan, since this date, because Mrs X had this alternative remedy.

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How I considered this complaint

10. I have discussed the complaint with Mrs X and made enquiries of the Council. Mrs X has commented on what the Council has said.
11. I issued a draft decision statement to Mrs X and the Council. I have taken into account their further comments when reaching my final decision.
12. 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.

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What I found

Legal and administrative arrangements

13. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
14. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC plan sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the SEN provision and Section I names the suitable placement.
15. A council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
16. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.

Annual reviews

17. Councils oversee delivery of EHC plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
18. EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.

Children out of school because of medical needs

19. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
20. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
21. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
22. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Case law regarding section 19 alternative educational provision

23. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

24. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
25. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.
26. In (R(R) v Kent County Council [2007] EWHC 2135 (Admin)), a parent removed their child from school because of bullying. The Council refused to arrange alternative provision, as it felt the child was able to attend school, given the steps that had been taken to prevent bullying, and based on evidence it gathered from professionals involved with the child. The Council decided that the education offered was “reasonably available and accessible” to the child, despite the parents’ objections, and so did not arrange alternative provision. The Court agreed with the Council’s decision.
27. In July 2022, the Ombudsman issued a Focus Report: Out of school, out of mind?
28. We made a number of recommendations. The most relevant to Mrs X’s complaint are that councils should consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence- (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll.
29. And, where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.

Key facts

30. Child B is now a young teenager. He has had an EHC Plan since 2015 when in primary school. He has a diagnosis of autism, global developmental delay, delays in speech and language, sensory difficulties and requires help with personal care. Child B has no awareness of danger and requires constant supervision.
31. Mrs X has a large family and has older children with disabilities living at home.
32. Child B has not attended his named secondary special school (School C) since February 2020 due to an incident when a fire alarm went off accidentally. The Child and Adolescent Mental Health Services (CAMHS) has said that this has caused a significant impact on Child B being able to attend his current education setting.
33. Child B did not attend school during the Covid-19 lockdown period (starting March 2020). The Council says that schools did not fully reopen until March 2021. Mrs X says that Child B tried to go into school once. But he could not manage. Child B did not return after this. It was noted his anxiety had significantly increased since lockdown, along with being unable to cope with any fire drills.
34. The Council says that, in June 2021, it asked School C about Child B’s attendance and it was told he was not attending. It is recorded at the annual review of June 2021 that both the parents and School C were requesting a change of placement. The Council says that it recommended a further review for the end of the year. This was to give time to see whether the proposed additional support to be provided would help to reintegrate Child B.
35. Mrs X says that this support consisted of CAMHS working with Child B to help him with his significant anxieties.
36. The Council says that there was a further review of the EHC Plan in November 2021. The Council says that it was agreed that it would look at other placements. But it says none were able to accept Child B.
37. Mrs X says that she was not told of these consultations at the time and learnt at a later date about the approaches the Council had made to other schools and their refusal to admit Child B.
38. The Council says it issued an amended EHC Plan in June 2022. This, I understand, continued to name School C. Mrs X says she does not recall receiving this amended EHC Plan.
39. School C arranged for some alternative provision funded by the Council. Mrs X says it was a couple of hours per week to help Child B with his social skills. But, in November 2022, after the annual review, the Council told School C that it should provide more. Mrs X says that the most Child B received was 9 hours per week. But this too was to build up Child B’s social skills. He did not receive any education.
40. In February 2023, the Council accepted that it should provide alternative education under s19. The Council provided a tutor to work on Child B’s social skills.
41. The Council was required in February 2023 to amend the EHC Plan given it agreed School C was not suitable.
42. In April 2023, the Council consulted an alternative special school. But this school was unable to meet need.
43. In August 2023, the Council issued a final amended EHC Plan, naming Education Otherwise Than At School (EOTAS). This is some six months after it was agreed the EHC Plan needed to be amended.
44. Mrs X says that individual education started in September 2023 and Child B has responded very well to this. Mrs X says that, had this education support been provided much sooner, Child B would not be so far behind academically as he is.
45. The Council says that it recognised that Child B had received limited education and it acknowledged it could have been more proactive in allocating provision. The Council says that, had it worked more closely to understand Child B’s anxiety and trauma, and worked with CAMHS and the family more closely, it might have accepted it had a duty to provide alternative education from December 2022.

Analysis

46. The key issue is whether the Council should have provided alternative education under s19 sooner than it did. The acid test is whether there was ‘reasonably available and accessible’ education for Child B.
47. I can understand why, after the end of the Covid-19 lockdown, (March 2021) the Council wanted to see whether the CAMHS input would help Child B and enable him to return to School C. However, by November 2021, School C was saying it could not meet Child B’s needs. And the parents were asking for an alternative special school. The Council agreed to look for other specialist placements.
48. I consider that the Council decided in November 2021 that School C was not reasonably available and accessible to Child B. At this point, I find that the Council’s duty to provide s19 alternative provision was triggered. Failure to do this amounts to fault.
49. So, I consider Child B has missed out on suitable education from January 2022 (giving the Council time from November 2021 to arrange this) to when the Council accepted its duty to provide alternative education in February 2023.
50. When considering a remedy for this, I have taken into account that some support has been provided to build up Child B’s social skills since November 2021.
51. I also consider that there was an avoidable delay in amending Child B’s EHC Plan to name EOTAS. It took six months for the Council to amend the Plan and start the EOTAS.
52. I recognise that it can take time to find suitable tutors and to consider the suitability of EOTAS. But, I consider that the amended final EHC Plan could have been issued by early June 2023. The delay in doing this amounts to fault.

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Agreed action

The Ombudsman’s guidance on remedies (2022)

53. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
54. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
55. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
56. Our guidance on remedies also 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 educational 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. Within one month of the final statement, the Council will:
1. make a payment of £6,000 to Mrs X for the missed education during 2022, ie £2,000 per term, which she should use to Child B’s benefit;
2. make a payment of £1,000 to Mrs X for the lost education between January to February 2023, again for the benefit of Child B;
3. make a payment of £500 for the delay in amending the EHC Plan and arranging the EOTAS, and for its failure to work more closely with CAMHS and the family;
4. apologise in writing to Mrs X and make a symbolic payment of £500 for her avoidable distress and frustration; and
5. the Council has already agreed to review its s19 alternative education in a previous complaint closed in September 2023 (22 004 908). I understand the Council has completed this review. It would be helpful if the Council can tell us the outcome of this review, and if any changes have been made to practice.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found fault causing injustice. The Council has agreed the findings and the recommendations. I have therefore completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman