Summary: The Council failed to ensure Y received suitable fulltime education, either by supplementing provision when Y was put on an extended part-time timetable by the school, or when Y became unable to attend school due to medical needs. This was fault and caused loss of education, distress, created additional caring responsibilities and caused unnecessary time and trouble. The Council will apologise, make a symbolic financial payment, and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council failed to put in place appropriate alternative education provision when her child, Y’s, school place broke down.
2. Ms X says Y’s education and welfare suffered, and the Council has caused distress and uncertainty.

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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)

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What I have and have not investigated

7. I have investigated the period from when Y started to attend School X to date. However, Ms X gained a new right of appeal in Spring 2024 when the Council issued an amended EHC Plan. I consider it is reasonable for Ms X to have used her right of appeal if she was dissatisfied with the provision within it. I have therefore not investigated whether the provision within that amended final Plan is suitable, although I have investigated whether the provision in the Plan has been delivered.

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How I considered this complaint

8. I have considered information provided by Ms X and the Council including information about Y’s EHC Plan and alternative provision.
9. I have considered relevant law and statutory guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Relevant law and guidance

12. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. 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
14. 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)
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. The Department for Education non-statutory guidance (School Attendance: guidance for schools, August 2020) states in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

17. 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)

18. 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
19. We made six recommendations. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

20. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  

21. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
22. A child’s parent or the young person has the right to request a Personal Budget during a statutory review of an existing EHC Plan.

23. If the Council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Key events

24. The following is a summary of key events. It does not include everything that happened.
25. Y was out of school from Summer 2021 until early 2023. This period is not within the scope of this investigation.
26. Y started at School X in early 2023 after their Education, Health and Care (EHC) Plan was updated in late 2022. The Council says this was Ms X’s choice of school. The Council acknowledges there was a gradual transition to school and says it is usual for there to be a gradual increase in hours when a child has been out of school for a significant period. It says it expects schools to agree the transition arrangements with parents.
27. The Council says it was funding a fulltime placement at School X but was aware School X’s intention was to build up to fulltime over two full terms.
28. In early Spring 2023, Ms X complained to the Council about School X’s intention to keep Y on a two day per week part-time timetable for four months. Ms X considered this gave Y the wrong impression they did not need to go to school fulltime. Ms X wanted alternative provision on the other three days. Y had attended an alternative provider previously. School X said this needed to be agreed with the Council. Ms X requested an emergency review of the EHC Plan.
29. At the review, School X said Ms X’s child was attending for two days and building up to three days, but when in school could not access the classrooms, only quiet areas. Ms X again asked to make the provision up to fulltime with alternative provision. The Council said it would ‘investigate’ two days alternative provision and the option of 1:1 support in school. It was noted speech therapy was not in place.
30. Ms X and the Council both told me the Council advised the school it should make arrangements for the days Y was not in school. The School told the Council it did not do this unless fulltime 1:1 was funded and the teaching assistant could attend the alternative provision with the child. The Council told me it expected the School to make appropriate arrangements but the School declined to do so.
31. The Council’s decision after the review was to maintain the EHC Plan without amendment. School X said it could meet need. The Council says the decision was not made within four weeks, which was due to delay by the school in preparing the paperwork.
32. Ms X made a formal complaint to the Council in Summer 2023. The Council accepted it had taken too long to find a school, but School X had been agreed and funded since early 2023. It said Ms X had agreed a part-time timetable with the school. The Council said as it had funded a fulltime place it did not consider it was at fault in failing to secure fulltime education or all the provision in the EHC Plan, although it accepted the school had not employed a speech therapist and Ms X’s child had not attended fulltime. The Council offered Ms X £200 to acknowledge it had not completed the emergency review within the statutory timeframe.
33. The Council’s panel did consider alternative provision in Summer 2023 but decided as a fulltime place was funded at School X it would not fund additional education. It said School X had increased the timetable and offered fulltime provision. The panel was aware speech therapy was not in place as the school was still recruiting.
34. In Autumn 2023, Ms X told the Council that due to medical needs Y was currently unable to access transport so could not attend school.
35. On receipt of health advice, the Council then agreed to source alternative provision as it now accepted Y was unable to access the named setting. A request for four hours per week tuition and mentoring was approved two months later. The Council says the provision was to “re-acclimatise Ms X’s child to the idea of being in education”. The Council says its intention at that point was for Y to return to a school setting so seven weeks provision was approved.
36. In early 2024 the Council decided tutoring at home was the best solution longer term given Y’s medical needs. It agreed to increase tuition to fifteen hours per week. To date this has been focussed on rapport building and engaging Y in positive activities. The Council concedes this does not meet all the provision in Section F of the EHC Plan. The Council says Y would need to be in school to receive all the provision.
37. Y remained on roll at School X until Spring 2024.
38. Ms X told me in April 2024 Y was receiving approximately six hours of the fifteen hours tuition that had been agreed due to resource issues, but the Council had agreed to increase this and to introduce academic teaching. Ms X says the Council told her it would not fund a direct payment for her to source private speech therapy and Ms X had to pursue a referral through the NHS.
39. An annual review of the EHC Plan was held at the end of 2023. The Council says it was agreed that an educational psychologist (EP) would become involved, but due to shortages of EP’s this did not happen, although an appointment has now been offered. The Council says this annual review was completed two weeks late, partly due to the Christmas holiday period.
40. The Council issued an amended final EHC Plan in late Spring 2024. This provided Ms X with a new right of appeal if she disagreed with the fifteen hours of home tuition allocated.
41. I asked the Council if it had considered providing support to Y as a child in need or Ms X as a parent carer. It told me there had been a request for social care assessment in late Spring 2023 which it now realises it failed to action. It said it will now offer the assessment.
42. The Council also confirmed it did not provide Ms X with a right to review of its decision not to award a personal budget.

Analysis

43. While part-time timetables can be used as a temporary measure, for example to reintegrate a child into school, their use should be agreed with parents and kept under regular review.
44. It is apparent Ms X did not agree with the extended part-time timetable. The Council was aware of this as Ms X complained to it about the length of time Y was being kept on a part-time timetable and Ms X asked the Council to hold an emergency review. It was fault for the Council to make a finding Ms X had agreed when she had not.
45. No health reason or advice has been provided to explain why Y could not attend school fulltime in Spring / Summer 2023. The issue appears to be Y was unable to access the classrooms and so needed to be taught separately. Resource issues are not reasons for a child to be prevented from attending school fulltime.
46. The Council was aware Y was only attending two days per week, later increasing to three. The Council may have expected School X to make alternative provision for the other days, but when it did not do so, the Council had a legal duty under s.19 Education Act to intervene. Councils cannot delegate the legal duty for s.19 Education.
47. I find Y failed to receive suitable fulltime education between starting School X and the end of the school year. This was fault and caused loss of education, further disengagement from education and put additional pressure on Ms X as a parent carer.
48. Ms X asked for help from social care, but this was not actioned. This is fault. As no assessment took place I cannot speculate as to whether Y or Ms X would have been entitled to support from social care, but the uncertainty whether support was lost is an injustice.
49. When medical needs changed in Autumn 2023, the Council agreed to put in place temporary alternative provision. However, this was only four hours per week and the Council took two months to arrange this. This was not equivalent to fulltime education and the delay was fault.
50. The Council then increased the tuition in 2024 to fifteen hours per week, but again it did not implement this. Ms X told me in late April only six hours per week was in place but in June this was increased to 7.5 hours per week. It was only in June 2024 that the tutor intended to start some academic learning. Ms X said previously the provision had been to take Y for walks and talking with Y.
51. I find Y did not receive suitable fulltime education on a par with what would be expected if Y had been able to attend school. This is fault.
52. The Council also had a legal duty to secure the special educational provision in Y’s EHC Plan as far as was possible at home. It failed to secure therapies, although Ms X could have sourced these externally. This was fault. The Council also failed to advise Ms X she had a right of review against the refusal of her direct payment. This was fault.
53. There were also delays in the processing of reviews and arranging EP input. The Council offered Ms X a symbolic payment for the delay after the Spring 2023 review.
54. As a result of the above faults Y has not suitable received fulltime education for five terms. This has caused significant injustice to Y and had an adverse impact on Ms X’s role as a parent carer.

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Agreed action

55. The Ombudsman’s Guidance on Remedies recommends a payment for the benefit of the child of between £900 and £2400 per term for lost education depending on whether the child has SEND, how much educational provision was in place and whether additional provision can now remedy some or all of the loss.

Within four weeks of my final decision

56. The Council will apologise to Ms X and Y for the fault identified in this decision statement.
57. The Council will offer Ms X and Y a social care assessment.
58. The Council will offer to review the decision not to provide a direct payment for therapy.
59. The Council will pay Ms X, on behalf of Y, £2000 for the loss of education in the Spring and Summer terms of 2023. This acknowledges that while a gradual reintegration into school is permissible, it continued too long, without Ms X’s agreement, and was not kept under regular review.
60. The Council will pay Ms X, on behalf of Y, £4000 for loss of education in the school year 2023/4. This recognises that it would have taken time to ascertain Y’s medical needs so provision would not have started until October / November 2023. However, provision equivalent to fulltime education appropriate to Y’s age, aptitude and SEN should then have been in place, including as much of the provision in the EHC plan that could be delivered outside of a school, including therapies. The payment recognises the level of provision that was made, but that this did not include any academic learning or therapies and was not the fifteen hours agreed.
61. The Council will pay Ms X £1000 for the impact on her of Y not receiving suitable education, the time and trouble this has caused her, and the uncertainty whether if a social care assessment had been completed more support would have been provided.
62. If the Council has not already done so the Council will pay Ms X the £200 it offered her during the local complaint process for its delay in processing the emergency review.

Within two months of my final decision:

63. The Ombudsman has made at least nine recommendations to the Council in the last eighteen months about alternative provision, including recommendations for staff training. I do not intend to repeat previous recommendations, as these should have already been implemented.
64. The Council will review whether it has sufficient supply of alternative provision and tutors given it has been unable to provide the full amount of intended provision to Y.
65. The Council will ensure it has robust processes in place to review provision delivered for children unable to attend school on a regular basis, and to ensure this includes academic teaching and special educational provision including therapies unless there is clear professional advice this would not be in the interests of the child.
66. The Council will ensure staff signpost to other support than may be available when a pupil is out of school for an extended period, including to social care for child in need and parent carer needs assessments.
67. The Council will ensure staff are aware of the legal duty to provide all the provision in Section F, the Council may ask the NHS to deliver provision but where it does not do so, or there will be a delay, the legal duty remains with the Council.
68. The Council will report to the Ombudsman the steps it has taken in light of the above recommendations.

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Final decision

69. I have completed my investigation. The Council failed to ensure Y received suitable fulltime education, either by supplementing provision when Y was put on an extended part-time timetable by the school, or when Y became unable to attend school due to medical needs. This was fault and caused loss of education, distress, placed additional caring responsibilities on parents, and caused

70. unnecessary time and trouble. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman