Summary: Ms D complained the Council failed to provide her son with a full-time education when he stopped attending school. We find the Council was at fault for its delay in providing Ms D’s son with alternative provision. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms D complained the Council failed to provide her son (E) with a full-time education when he stopped attending school.
2. Ms D says the Council’s failures have had a detrimental impact on E and the wider family.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. 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)
7. 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

8. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
9. Ms D 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

Special educational needs

10. A child or young person with special educational needs may have an Education, Health and Care (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. 

Alternative provision

11. Under section 19 of the Education Act 1996 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.
12. 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))
13. 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)

What happened

14. E has special educational needs and an EHC Plan. He started attending school less regularly in the autumn term of 2022 because of his anxiety. It was his last year of primary school. The school set up a personalised support plan for E. This included later start times, one to one support from his support worker and help during lunch times.
15. Ms D contacted the Council in November and said E was struggling to attend school. She said he was only doing part time hours. The Council responded and said it had asked for an urgent meeting with the school to discuss E’s options. It also said it would consider holding an early annual review of E’s EHC Plan.
16. The Council arranged an annual review in December. The school said E was experiencing high levels of anxiety. It said it had put in place a support plan and E was attending most days, but he was still reluctant to go into the classroom and he was relying on his support worker. The school agreed to review the support plan by February half term (2023).
17. Ms D emailed the Council and the school in early February 2023 and said E’s anxiety was getting worse.
18. The Council responded and said it had tried to get in contact with E’s school to discuss holding a review of his EHC Plan. Ms D responded and said it was best to hold the annual review later in the year.
19. The Council issued E’s final Plan and named two schools in Section I; the primary school E was attending and then a secondary school from September onwards.
20. Ms D continued to raise concerns about E’s attendance at school. The Council said it needed to hold an emergency annual review so the school could show it could not meet E’s needs before it made a referral for medical provision.
21. Ms D sent the Council a formal complaint in early March about its failure to provide E with alternative provision. Ms D’s MP also contacted the Council about the matter.
22. The Council officer that had been dealing with E’s case emailed Ms D at the beginning of April. She said she had been away from work for a few weeks. She said she had received supporting documentation from the school and therefore she would make a referral to the Council’s medical education service for E to receive alternative provision.
23. The Council responded to Ms D’s MP. It said it had been in regular communication with the school about E’s attendance. It said the school had put in place strategies and some online support, but they were no longer working. It said it had referred E’s case to its medical education service.
24. E started receiving four hours per week of home tuition in May. The Council said it would review the matter after a few weeks and increase it to 10 hours per day. E also attended online sessions at his school, and some induction sessions at his new secondary school.
25. E started secondary school in September.

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Analysis

26. We would usually expect a complainant to use their appeal right unless we consider it was unreasonable for them to do so. Ms D could have appealed to the SEND Tribunal about the Council’s decision to name E’s primary school in his EHC Plan. Ms D has explained E was in his final year of primary school and therefore it was not reasonable to move him. She also says because of the SEND Tribunal’s long waiting times, the issue would not have been resolved before he started secondary school. I consider these are reasonable reasons for Ms D to not have appealed, and therefore I have exercised discretion to investigate her complaint.
27. The Council contacted E’s school when it first became aware he was having difficulties attending. It arranged a review meeting so it could understand the support the school was putting in place. The school explained it would review the support plan by February 2023. The Council was satisfied with the steps the school was taking. It was entitled to allow the school further time to implement its support plan and to see whether its strategies would work.
28. However, by February 2023, it was clear the school’s strategies were not working. Ms D sent several emails explaining the difficulties she was having getting E to attend. E was only attending school for a few hours per week, and he received limited online support. Towards the end of the spring term, he did not attend for nearly two weeks. Therefore, the Council should have considered its duties under section 19 of the Education Act 1996. The Council told Ms D it had to hold an annual review before it could make a referral for medical provision. This is the wrong information and is fault. The law does not state councils must hold an annual review before they can provide alternative provision. The Council did eventually make a referral, but there was a delay doing so. This meant E did not receive any home tuition until May.
29. The Council’s delay caused Ms D distress, frustration and upset. It also caused D a significant injustice as he did not have access to the education he was entitled to. Children have a right to an effective education and time they miss is difficult to replace later.
30. Ms D says when the Council eventually intervened, it only provided E with a part-time education. The agreement was for the Council to initially provide E with four hours home tuition per week, and it would gradually increase this to 10 hours. When the Council responded to my enquiries it said alongside home tuition, E also accessed online sessions and some face to-face group sessions at school. It said E did not receive more than four hours per week of home tuition because his anxiety was impacting on his engagement. It also said it considered E’s needs and it was satisfied the education it was providing was suitable for him.
31. The Education Act 1996 says education provided by a council must be full-time unless they determine full-time education would not be in the child’s best interests. I have read a copy of the report from the home tuition provider. This states E attended 10 out of his 15 allocated sessions. Of the 10 lessons, E could only fully attend two for the full two hours. This was due to his anxiety and his engagement. The teacher noted there were some occasions E struggled to process lengthy instructions and he needed regular breaks. This evidence shows it is unlikely E could have coped with a full-time education and therefore I do not consider the Council was at fault for providing him with a part-time education.

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Agreed action

32. By 26 March 2024 the Council has agreed to:

• Apologise to Ms D.
• Pay Ms D £150 for the frustration, distress and upset caused.
• Pay Ms D £700 to remedy E’s missed education from February to May 2023. We recommend Ms D uses this for E’s educational benefit.

33. By 23 April 2024 the Council has agreed to:

• Issue written reminders to relevant staff to ensure they are aware of their duties to arrange alternative provision for children who are unable to attend school as quickly as possible and with minimal delay.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault by the Council, which caused Ms D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman