Summary: Ms X complained her child was out of school since April 2022 and received no education. The Council upheld her complaint, and we found it offered a suitable remedy. The Council also said it would put alternative provision in place. We found the Council failed to do so, but it has agreed to provide a further remedy for the additional missed education.

The complaint

1. Ms X complained her child, who I will call Y, has been out of school since April 2022 and received no education. The Council upheld her complaint in March 2024 and said it would put alternative provision in place, but failed to do so.
2. Ms X also complained the Educational Psychology (EP) assessment for Y’s Education, Health and Care (EHC) Plan is out of date and this is stopping Y from securing a suitable school placement.

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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. 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)
5. 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 have and have not investigated

6. I investigated Y’s missed education and the Council’s actions around alternative provision.
7. I did not investigate whether the EP assessment for Y’s EHC Plan is out of date, and whether schools the Council consulted are suitable. Ms X intended to ask the Council for a review and the Council should consider things before the Ombudsman investigates.

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Ms X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and 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.

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What I found

Education, Health and Care Plans

11. 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. 
12. 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)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative Provision

14. 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 (AP).
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)
16. 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))
17. 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)
18. 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’)
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

20. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
21. Ms X complained on 17 July 2023. She said Y had been out of school for 15 months. The school tried to find AP, but failed. Y only accessed three hours education each week. Ms X worried about uncertainty surrounding Y’s transition to secondary school in September 2024. She said Y’s EHC Plan was not up-to-date but the Council refused to review it. She wanted suitable provision for Y, details of secondary schools the Council consulted, and an updated EP assessment.
22. The Council sent its stage one complaint response on 29 August 2023. It confirmed Y stopped attending school in April 2022 but remained on roll. Y had three hours’ provision a week, plus therapeutic horse riding for 90 minutes a week. It said it had not identified a different school placement yet. It agreed it should look into more AP, and it would explore this with Y’s school. It said this could include support from the Council’s Access to Education service. It apologised for not referring Y earlier, but said the school was arranging it.
23. The Council listed nine schools it consulted, who were either unable to meet Y’s needs or had no places available. One school had not yet responded.
24. The Council said it issued a draft amended EHC Plan in May 2023, when Ms X asked for an updated EP assessment (as the original one took place in 2021). The Council recognised it failed to consider this request and said it would look into it.
25. The Council said it would contact Ms X to discuss Y’s transfer to secondary school. It also said it would refer Y to its Access to Education service and work with the school on other AP. Last, it said it would consider Ms X’s request for an updated EP assessment.
26. The Council contacted Y’s school in October 2023, asking if Y’s AP package is full-time or part-time.
27. The school said Y was hardly accessing any AP. It set up several interventions but Y either went once and refused to go again, or changed her mind. The only provision Y attended was with an autism support service, once a week, but this was becoming less frequent. The school hoped the Access to Education referral would support the issue.
28. The school updated the Council in November 2023. It said the situation was much the same. Y only attended the autism support service once a week. The school set up other provision, including an education support service for children disengaged from school. It also tried arranging swimming, a nurture farm, and a horse and pony centre. In addition, Ms X set up art and music. Unfortunately, none of these provisions worked.
29. A report from the autism support service in November 2023 stated that, while Y made progress in some areas, they only attended three out of twelve sessions. Y did not attend after November 2023.
30. Y’s school report from January 2024 states it has been historically difficult for Y to engage in AP. They hoped Y would attend Occupational Therapy (OT) sessions and planned to make a referral to a local educational hub.
31. Ms X remained dissatisfied with Y’s lack of education provision. She complained to the Ombudsman in January 2024. We referred the complaint back to the Council to complete its complaint procedure.
32. The Council sent its final complaint response on 18 March 2024. It said it first learned Y was not attending school, due to anxiety following an incident in a taxi, in May 2022. As Y was struggling to access education, the Council’s travel assistance team offered an escort. The Council then agreed to consider a change of placement in September 2022. This was agreed in April 2023, and the Council started consulting schools. In January 2024, Ms X’s preferred school offered Y a place for September 2024.
33. The Council agreed it should have considered what further AP could be offered, under its section 19 duty, when it knew Y was not accessing an appropriate level of education.
34. The Council recommended its children’s education service consider offering Ms X a financial remedy for her time and trouble, and for Y’s missed education. It also recommended the service ensure Y has an appropriate level of education until the end of July 2024.
35. The Council wrote to Ms X on 8 April 2024, apologising and offering to pay £7,700. £7,200 for Y’s missed education, and £500 for Ms X’s time and trouble.
36. The Council contacted Y’s school on 10 April, asking for details of the provision Y received. It was aware Y had sessions at the secondary school where she was due to start in September, but asked what other education Y received.
37. The school said there was nothing else in place. It set up sessions with a local education hub and external OT, but Y did not want to do either of them. The school said Ms X cancelled this provision and wanted to focus on the sessions at Y’s secondary school.

My Investigation

38. Ms X told me Y had a school placement for September 2024. However, students at the school are self-reliant and Y did not like it. Y was upset each time Ms X picked them up from trial days. Ms X thought the placement would fail as it focuses on worksheet learning and not therapy.
39. Ms X said Y’s EP assessment is outdated, as Y was in mainstream school at the time but not attending. The schools the Council consulted therefore had incorrect information and believe Y will cope.
40. Ms X told me she is going to ask the Council for an emergency review and new EP report.
41. Ms X said the Council’s response to her complaint included providing Y with AP from March 2024, but this did not happen. Y had some AP, but it only lasted weeks.
42. The Council told me it acknowledged Y missed a significant amount of education between May 2022 and February 2024 and appropriately remedied this.
43. The Council said it did not agree to provide AP as the school endeavoured to do so. It said the school set up sessions of AP and OT, but Y did not engage, and Ms X cancelled them to focus on Y’s integration to secondary school.

Analysis

44. I did not investigate the suitability of the school the Council named in Y’s EHC Plan. This came with appeal rights, and Ms X’s concerns are new, and the Council has not yet considered them. I also did not investigate whether the EP assessment is outdated. Ms X said she was asking the Council for a review, which would cover both these issues.
45. In its complaint response, the Council recognised it should have considered what further AP it could offer when the school’s attempts failed. Unfortunately, on the evidence seen, this remained the case. While the Council did liaise with the school about AP in April, the school told the Council Y was not receiving any. I have seen no evidence the Council took further action or considered its responsibilities further.
46. I found Y continued to be without AP between April and July 2024. The only provision Y had in that time were taster days, once a week, at the secondary school they were due to start in September.
47. The Council’s final complaint response recommended its service ensure Y received an appropriate level of education until the end of July 2024. I have seen no evidence Y’s provision changed or increased after the complaint response, and it appears Y was still not receiving suitable education to meet their SEN. The school made an initial effort to offer more AP, which was unsuccessful. The Council was aware of this in April 2024, but I have not seen evidence the Council acted on this or made further attempts to secure more provision for Y. That was fault.
48. I found the Council relied on Y’s school to put AP in place, and took no further action when Y did not engage with the AP on offer. However, the final duty and responsibility rests with the Council. The Council was aware the school’s attempts at putting AP in place failed and it has not shown me evidence it intervened or acted to comply with its duty under section 19 of the Education Act.
49. The Council paid Ms X £7,200 for Y’s missed education between May 2022 and February 2024. I found this amount is in line with the Ombudsman’s remedy guidance and I therefore cannot criticise it.
50. However, despite the school trying to put more AP in place after the Council’s final complaint response, it was unsuccessful, and the situation did not change. Y again missed education between April and July 2024. This amounts to a full term of missed provision and the Council should offer a remedy for this.
51. Where fault results in loss of educational provision, we usually recommend a remedy payment starting at £900 per term to acknowledge the impact of this loss, but we can recommend up to £2,400 a term. The figure we recommend is based on factors like the child’s SEN, any educational provision received during the relevant time, and whether recommending additional provision now can remedy some of the loss.
52. Y was attending secondary school taster days, but only one day a week, and the Council’s complaint response acknowledged this did not represent suitable education.
53. The Council’s remedy of £7,200, for roughly five terms of missed provision, works out at £1,440 a term. It should therefore provide this amount for the additional term Y missed.

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Agreed action

54. Within four weeks of my final decision, the Council will:
• Apologise for failing to secure suitable educational provision for Y following its complaint response, as it said it would.
• Pay £1,440 to recognise Y’s loss of educational provision between April and July 2024.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I completed my investigation. I found the Council offered a suitable remedy Y’s missed education between May 2022 and February 2024. However, it failed to meet its duty to provide alternative education provision between April and July 2024 and it agreed to provide a further remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman