Summary: Mrs X complained the Council failed to meet the special educational needs of her child. We upheld the complaint, finding the Council agreed to make alternative provision for the child’s education but then failed to do so, or else refund Mrs X for arrangements she made. This caused a quantifiable financial loss. The Council has accepted this finding and at the end of this statement we set out the action it has agreed to remedy this injustice and make service improvements.

The complaint

1. The complainant, ‘Mrs X’, says that between April 2023 and March 2024, the Council failed to meet the education needs of her child ‘Y’, who has special educational needs.
2. Mrs X says as a result Y missed education. While she and her husband went on to make some alternative provision, this was at their own expense. Mrs X has also been unable to work during the events covered by this complaint because of time spent by Y at home.

Back to top

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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 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)
5. We cannot investigate most complaints about what happens in schools (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended). This is unless the complaint relates to special educational needs provision when schools act on behalf of the council to secure educational provision set out in Section F of the young person’s Education, Health and Care Plan.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. Under an information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

10. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Mrs X and the Council about the matters covered by the complaint, which pre-dated our investigation;
• information provided to me by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council policy referred to in the text below;
• guidance published by the Ombudsman, including our Guidance on Remedies Guidance on remedies - Local Government and Social Care Ombudsman.

11. I also gave Mrs X and the Council opportunity to comment on a draft version of this decision statement. I took account of any comments received before finalising the statement.

Back to top

What I found

Key law, guidance and policy considerations

Law and guidance around special educational needs provision

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements made to meet them.
13. A parent can appeal to the SEND Tribunal about various matters. These include how the Plan describes their child’s SEN, the special educational provision specified and the school or placement named (or if the Plan does not name a school or other placement).
14. Caselaw says if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. So, when we receive complaints where a child or young person is not attending (or has not attended) school, we will consider the reason for non-attendance. If linked to, or as a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

Law and guidance around alternative provision

16. 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.
17. 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)
18. The courts have considered the circumstances when the section 19 duty applies. Caselaw says 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 them 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)

Law and guidance around school attendance

19. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.

The Council’s complaint procedure

20. The Council has a corporate complaints procedure. It has two stages. The second stage involves consideration by a Corporate Director. The Council says that they will aim to reply to stage two complaints within 17 working days of receipt.

Chronology of key facts

21. Mrs X and Y moved to the Council’s area in December 2022. Y has special educational needs. The Council began an education, health and care needs assessment for Y in January 2023.
22. Mrs X did not consider Y’s primary school did enough to meet their needs. Y’s attendance at the school was around 30%. Other times they would not attend the school because of anxiety. In March 2023, Mrs X asked the Council if Y could remain on the school roll but attend an alternative provision setting (‘AP1’).
23. In April 2023 the Council issued a draft EHC Plan for Y. This named their mainstream primary school. Mrs X made comments and asked the Council to instead name EOTAS provision (education other than at school). Mrs X wanted AP1 consulted before the Council issued Y’s final plan. But the Council said it could not do this as the Department of Education has not registered AP1.
24. So, the Council did not agree to EOTAS provision and in May 2023 issued a final EHC Plan, naming the mainstream primary school.
25. On the same day the Council issued the final plan, Mr X attended a ‘non-attendance meeting’ held at Y’s primary school. Also attending this meeting were school representatives, an officer from the Council’s Special Educational Needs and Disability (SEND) team and an Education Welfare Officer. During this meeting the Council says it discussed the potential for enforcement action if Y did not attend school. A minute of the meeting refers to an “action plan” where Mr and Mrs X would bring Y to school for short visits and remain positive about school. This minute also contains details about potential enforcement action for non-attendance.
26. In June 2023, Y’s GP sent a letter to the Council, explaining Y was “extremely anxious at the thought of school and suffering panic attacks”. It said that it “sounds like” Y could not attend school for the next three to four weeks because of their anxiety levels.
27. A second ‘non-attendance’ meeting followed soon afterwards attended by Mrs X. In this the Council recorded that Y had yet to attend school again but it said Mrs X was “hopeful” they would.
28. Mrs X appealed Y’s EHC Plan, in part because the Council named the mainstream school in Y’s EHC Plan.
29. While the appeal remained outstanding, in July 2023, Y’s school contacted the Council to say it no longer considered it could meet their needs. At first the Council maintained that Y could attend the school, but at the end of August, following a meeting with Mr and Mrs X, the Council agreed the school no longer suitable. The meeting recorded the Council would try and put in place “interim education arrangements” for Y with alternative provision. However, it said it could not consider AP1 as this was not an alternative provider registered with it. When Mrs X explained her understanding other children from the Council’s area attended AP1, it agreed to make enquiries.
30. The notes of the August 2023 meeting mention three different alternative providers. The Council provides a record of an email sent to one of these providers which replied saying it could not meet Y’s needs. There is no record of it contacting the others. It says that it verbally discussed another of the alternative providers with Mr and Mrs X but they did not want to consider it, preferring ‘AP1’.
31. Between September 2023 and March 2024, the Council had various contacts with AP1. It established that it had supported a child to use this service but says this pre-dated the current arrangements it has for registering alternative education providers. It also identified other children from North Somerset schools using the service. The Council says in these instances their schools arranged for AP1 to deliver provision and oversaw the suitability of provision. The Council contacted Ofsted, because of concerns the provision might not be suitable. Ofsted replied in February 2024.
32. Following that response, in March 2024, the Council agreed with Mr and Mrs X that it would amend Y’s EHC Plan to an EOTAS provision. It would fund Y’s placement at AP1. It backdated payment of the AP1 provision to February 2024, when it received the reply from Ofsted.
33. Subsequently, the SEND Tribunal issued a consent order as Mr and Mrs X and the Council had agreed this and other changes to Y’s Plan.

Mrs X’s complaint

34. Mr and Mrs X made a complaint in June 2023. They said Y’s primary school had failed to meet their needs. So, they had enrolled Y at AP1. They wanted the Council to pay for that provision. They were unhappy also with how the Council’s SEND officer had dealt with their comments during the needs assessment. They complained at delays in replies to enquiries. They also complained at receiving ‘threatening letters’ about potential court proceedings.
35. In reply the Council said that it considered Y’s mainstream school could meet their needs. It had given it more advice on how to do this.
36. In July 2023 Mr and Mrs X escalated their complaint to stage two of the Council’s corporate complaint procedure. They said the Council had not listened to them when drawing up Y’s EHC Plan. They continued to want Y to attend AP1. They continued to think Y’s primary school unsuitable.
37. The Council sent its response in September 2023, following its meeting with Mr and Mrs X at the end of August. In this letter the Council said that Y’s attendance at the primary school “could not be sustained”, but also that it could not support Y’s attendance at AP1 (for reasons see paragraph 29).

My findings

My approach to Mrs X’s complaint and the Ombudsman’s jurisdiction

38. The term jurisdiction refers to our legal powers to investigate a complaint. I have decided that I cannot investigate the following because to do so would be outside our jurisdiction.

• First, any complaint about the education provision Y received before May 2023 when the Council issued a final EHC Plan. Up to that point Y did not have a plan which said how their needs should be met, which the school would then be expected to deliver on behalf of the Council. Therefore, any complaint the provision Y received was unsuitable, falls outside our powers to investigate as a complaint about the school (see paragraph 5).
• Second, any communications sent by the school concerning Y’s non-attendance as this too would be a complaint about the school (see paragraph 5).
• Third, the Council’s decision to name the mainstream primary school on Y’s EHC Plan. I understand Mrs X disagreed with this, but she used her right of appeal to the SEND Tribunal to challenge this. Consequently, I have no discretion to investigate this matter (see paragraphs 6 and 14).

39. I have considered if it should follow that I also should not investigate any provision made to Y while Mrs X’s appeal remained outstanding. Y’s non-attendance at the mainstream school began when Mr and Mrs X disagreed the school could meet their needs. They kept to this position following the issue of the EHC Plan. So, Y’s non-attendance matched the circumstances set out in paragraph 15 above.
40. However, I consider this only applied until the end of August 2023. By that time there were two key developments. First, in July, the primary school said it could no longer meet Y’s needs. Second, at the end of August the Council agreed that it was not “sustainable” for Y to attend there. The Council placed no expectation on Mr and Mrs X that they should send Y to the school. Instead, the Council now said it had a duty to try and arrange interim education provision for Y. In which case the ‘disagreement’ about whether Y could attend the mainstream school was at an end.

Findings on the substance of the complaint

41. At its crux therefore, this complaint comes down to the arrangements made for Y’s education between September 2023 and January 2024.
42. Once the Council agreed to provide alternative provision for Y, it had the duty to arrange this. I can understand why it reserved judgment about AP1. The Council has an approved list of providers for good reason, to ensure itself of the quality of the provision. I am satisfied for the reasons it has given there was no conflict between it making checks of AP1 and the knowledge other pupils from its area attended the provision. I also give the Council credit that it did not fetter its discretion and ultimately agreed payments to AP1.
43. However, I cannot see that while it made those checks it offered any choice about where Y could receive alternative provision. Its meeting in August referred to different alternative providers, but I only saw a record that it contacted one of these. That provider said in turn that it could not meet Y’s needs.
44. The Council has also said it spoke to Mr and Mrs X about another alternative provider. But there is no record of any conversations it had with them, nor with the provider. So, I have insufficient evidence to find the Council made a viable offer of a different alternative provider to them.
45. I must therefore find fault because the Council failed to make a suitable offer or secure, alternative provision for Y between September and January 2024.
46. The injustice this causes is not a loss of provision to Y, as Mr and Mrs X ensured they had access to AP1. But they could only do this at their own expense. So, the injustice is therefore that of a quantifiable loss to them to the value of those fees.
47. In considering how the Council should remedy this injustice, I note that it later satisfied itself of AP1’s suitability and agreed to make funding for the provision from February 2024 onward. There is no reason for me to find the placement only became suitable then. This is a relevant consideration when it comes to thinking about the appropriate remedy for Mrs X’s injustice, which is set out below.
48. Before that, I have also considered if the Council was at fault for not making alternative provision for Y before it issued the EHC Plan (i.e., before May 2023). I note that Y’s GP wrote a letter on their behalf, but this was not before June. Further that letter was ambiguous about whether Y was medically unfit for school. However, the letter confirms Y’s absences were closely linked to their special educational needs.
49. In these circumstances I do not consider the Council was under a duty to make alternative provision for Y. They had a school place available and the school said it could meet their needs. Further, it understood the school made efforts to facilitate Y’s attendance taking account of their special educational needs. I accept Mrs X disagrees the efforts made by the school were enough. But I am satisfied the Council could, at that time, consider Y had schooling “reasonably practicable” to attend.
50. I appreciate the distress caused to Mr and Mrs X resulting from the non-attendance meetings and associated correspondence. The Council warned them in person and in writing about potential sanctions for parents who do not ensure their child’s attendance at school. However, I cannot see the communications sent by the Council went beyond an informative notice. I cannot find it at fault for this and note it did not begin enforcement proceedings. I note in their complaint, Mr and Mrs X said they had received ‘threatening letters’, suggesting the school may also have written separately. But that is not something I can investigate for the reasons explained earlier in this decision (see paragraph 37).
51. In their initial complaint, Mr and Mrs X also raised concerns about some of the customer service they received from the Council SEND Team. I did not find any delay in answering enquiries that I would find fault with. I accepted that Mr and Mrs X sometimes disagreed with the SEND officer, for example about the proposed or actual content of Y’s EHC Plan. But disagreement is not evidence of fault, and Mrs X had the right to appeal the content of Y’s Plan.
52. This leaves me finally to consider the Council’s complaint handling. I have noted there was a delay in answering the complaint at stage two, which took around three times longer than the aspirational target set by the Council. However, I do not consider in this case I could fault that. I find the reason for the delay lay in the Council’s decision to meet first with Mr and Mrs X and try to resolve some of their concerns around the content of the EHC Plan.
53. An alternative approach would have been for the Council to issue a short response to the complaint, and left the matters raised by Mr and Mrs X for the SEND Tribunal. I could not have criticised that. But this approach would not have benefited Mr and Mrs X. Meeting with the Council helped establish the agreed position that Y could not return to mainstream school. So, it potentially worked to Mr and Mrs X’s advantage.

Back to top

Agreed action

54. In paragraph 46 I set out where fault by the Council caused injustice to Mr and Mrs X. To remedy that injustice, the Council has agreed that within 20 working days of this decision, it will:
1. provide a written apology to Mr and Mrs X accepting the findings of this investigation and in line with our guidance on remedies at section 3.2;
2. agree to reimburse Mr and Mrs X for the cost of AP1 provision between September 2023 and January 2024. The Council should set out what details it needs to make such a payment (such as proof of cost and bank details). It will make that payment within 20 working days of receiving that information.
55. In addition, also within 20 working days, the Council has agreed to improve its service as a result of this complaint. It will issue advice to officers that where it has agreed to provide alternative provision that it ensures it makes the necessary enquiries and documents this. The Council can do this in writing or in person (such as a team meeting or training session) as it sees fit.
56. The Council will send us evidence to confirm it has complied with the above actions.

Back to top

Final decision

57. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs X. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman