Summary: Miss X complained the Council failed to secure the provision set out in her son, Y’s Education, Health and Care Plan, and failed to make alternative provision available for him once he was excluded from school. We find the Council at fault for failing to secure Y’s Education, Health and Care Plan provision, for failing to consider alternative provision for him, and for failing to keep complete contact notes. The Council has agreed to apologise, make a payment to recognise the injustice caused by the fault, review Y’s Education, Health and Care Plan and act to prevent recurrence.

The complaint

1. Miss X complains the Council failed to secure the provision set out in Y’s Education, Health and Care (EHC) Plan or make alternative provision available for him after he was excluded from school in September 2022. Miss X says this is having an impact on Y’s educational progress and his mental well-being.

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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. 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)
4. 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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How I considered this complaint

5. I spoke to Miss X about her complaint and considered information she provided. I also considered information received from the Council.
6. Miss 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

Duty to secure EHC Plan provision

7. A child or young person with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
8. Councils have a duty to secure the named special educational provision in an EHC Plan for a child or young person. The Courts have said councils owe the duty to arrange provision personally to the child and this 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)

Alternative provision

9. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
10. 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)).
11. 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 3A and 3AA).
12. 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 “Out of school, out of sight?” published July 2022. We made recommendations 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 (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 if 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
13. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
14. Government guidance on a council’s Section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
15. The courts have considered the circumstances where the Section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under Section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

16. Y has SEN and his education is supported by an EHC Plan. In the school year 2022/23 Y was in year seven. Y’s EHC Plan named School A and provided for small group teaching, 1:1 weekly mentoring for an hour a week, a key adult to provide daily support, and weekly social group sessions.
17. Y started at School A in September 2022 but was permanently excluded later that month.
18. School A agreed to withdraw the permanent exclusion if a place could be agreed at a pupil referral unit, School B. A place was agreed at School B in October 2022.
19. The Council held a review of Y’s EHC Plan on 31 October 2022 and agreed to consult with specialist schools. In the meantime, Y’s place at School B remained.
20. The Council issued a new EHC Plan for Y on 15 November 2022. This still named School A and mirrored the provision from the previous plan. Y continued to attend School B at this time.
21. In January 2023, Miss X withdrew Y from School B and informed the Council she did not feel it was suitable for him and was affecting his mental and physical wellbeing.
22. In February 2023, the Council consulted with two specialist schools to see if they could meet the provision set out in Y’s EHC Plan. One school said it could not meet Y’s needs, but the other offered him a place. The Council considered this, but as its OFSTED rating was inadequate, it decided to consult with further schools.
23. In March 2023, School B told the Council that Y would engage better with education on a modified timetable of two and a half hours a day if he were to continue there. However, it also said this was not a long-term solution and Y would need specialist provision named going forward.
24. The Council consulted three other schools in March 2023. Two of these said they could not meet Y’s needs, and one did not respond.
25. In September 2023, the Council agreed to consult with further schools.
26. To date the Council has not secured a new school setting for Y.

Analysis

27. At the start of the 2022/23 school year, Y started attending School A, as named on his EHC Plan. I find no fault with the Council at this point as the provision named in Y’s EHC Plan was secured and available for him.
28. However, Y was excluded from School A almost immediately, meaning the named provision was no longer available for him. The Council then secured Y a place at School B to ensure he was receiving some education while it considered how best to proceed.
29. While the Council acted to ensure Y was not out of school completely, it has not explained how it made sure School B was able to meet the provision set out in Y’s EHC Plan. I find the Council at fault here as it has not been able to demonstrate Y’s named EHC provision was secured from him
30. The Council was aware from January 2023 that Y was no longer attending School B, not accessing full-time education and had a prolonged absence from school. From March 2023, School B had told the Council it was not a suitable long-term option for Y.
31. Councils are under a Section 19 duty to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise and must put this provision in place without delay. Alternatively, if councils believe children are well enough to attend school, there are a range of measures they can take to enforce attendance.
32. The Council did not explore whether it should enforce attendance for Y or provide alternative provision for him. This is fault and meant Y received limited education and socialising, which is injustice.
33. The Council had multiple opportunities to consider its Section 19 duty, including each of the times it consulted with alternative educational settings and when School B informed it Y needed a specialist setting. Not doing so is fault, and meant the injustice continued for roughly four school terms in the period I have investigated.
34. We cannot know with certainty what education would have been suitable for Y during this time, however, Y and Miss X have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve his educational outcomes during this period had it acted without these faults. This is injustice.
35. From the information the Council has provided, it appears to have consulted with various schools during 2023 but did not find a suitable setting for Y and allowed the situation to drift. This is fault and has caused further uncertainty for Y and Miss X which is injustice.
36. Miss X has said she had to frequently chase the Council to try and reach a resolution to her complaint. The notes the Council has provided does not contain details of all communication between Miss X and itself. However, there is a note from Y’s EHC co-ordinator that says they often do not have time to make logs of calls.
37. Failure to keep complete and accurate records and notes of communication is fault. This means it is not possible to get a full picture of what has happened since September 2022 and has created uncertainty which is injustice.

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Agreed action

38. To remedy the injustice caused by the faults identified above, the Council has agreed to:
39. Within one month of the date of this decision:
• Apologise to Miss X and Y for the injustice caused by the identified faults;
• Pay Miss X £250 to recognise the distress and uncertainty caused by the delays in securing a new educational setting for Y and the failure to keep contact notes;
• Pay Miss X £4,000 to recognise the impact on Y’s education of the lack of suitable education and socialisation from September 2022 to present;
• Remind staff dealing with these cases that where they are aware a child is not attending school, it should consider each individual case and its Section 19 duty in accordance with relevant law and guidance: and
• Remind Y’s EHC co-ordinator of the importance of keeping complete and accurate notes of contact with service users.
40. Within three months of the date of this decision:
• Review Y’s EHC Plan and issue a new final plan, naming an educational setting, with appeal rights explained.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find the Council at fault for failing to secure EHC provision for Y, for failing to explore its Section 19 duty to make alternative provision available, for allowing the situation to drift when consulting alternative educational settings and for failing to keep accurate and complete contact notes. The Council accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman