Summary: Miss X complained the Council failed to provide her child with alternative education when he was unable to attend school. The Council is at fault and this resulted in a loss of provision for 11 weeks. The Council has agreed to remedy the injustice this caused.

The complaint

1. The complainant, Miss X, complains the Council failed to provide her child, Y, with alternative education when he was unable to attend school.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. Miss X advised me that the Council has not provided Y with any Speech and Language therapy and Occupational therapy as outlined in his EHC Plan since July 2023. I am unable to investigate matters that occurred after 25 January 2024 because the law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. The complaint I have, focusses on events relating to Y’s education from September 2023 to November 2023.
7. My investigation has focused on the period from September 2023 to when Y’s amended final EHC Plan was issued, on 25 January 2024.
8. As of 25 January 2024, the Council agreed to name EOTAS (Education Other Than At School) in Y’s EHC Plan. Miss X can request a personal budget from the Council if she so wishes. The Council will then consider this application.
9. If it was agreed that the Council would arrange the SaLT and OT for Y from 25 January 2024 and it has failed to do so, Miss X can use the Council’s complaints process to address this matter. If the matter is unresolved after pursuing this course of action, Miss X can bring her complaint regarding this specific matter to the Ombudsman.

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How I considered this complaint

10. I considered Miss X’s complaint and the information she provided.
11. I considered the information I received from the Council in response to my enquiries.
12. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Alternative education

13. 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.
14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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. 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
20. 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;

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What happened

21. Miss X has a child, Y, who has an education, health and care (EHC) Plan maintained by the Council. Y was on roll at a school named in his EHC Plan but he stopped attending due to incidents of bullying and Miss X becoming concerned for his welfare at school.
22. Miss X complained to the school about its failure to safeguard Y while he was at school.
23. In September 2023, an emergency annual review of Y’s EHC Plan was held at Miss X’s request.
24. In October 2023, Miss X complained to the Council that it should have arranged alternative education for Y from 21 September 2023.

The Council’s Stage 1 response to Miss X’s complaint

25. The Council sent its Stage 1 response to Miss X’s complaint in November 2023. It said it had contacted the school who had advised they had offered an alternative education provision package that consisted of daily English and Math tuition. The school also advised they could provide additional support and they had tried to make contact with Miss X to discuss these options but she had not responded to their contacts, so the school were unable to put a package of support in place.
26. The school also offered weekly mentoring sessions with Y in a neighbouring community centre should Y not wish to attend the school building. The school also offered fortnightly small group provision with the speech and language therapist to ensure Y is included in social time with his peers and that this would be fully supervised.
27. The Council highlighted that the school maintained a responsibility to Y and were eager to hear from Miss X to discuss a suitable package of support. The Council also reminded Miss X that Y’s school placement remained open to him should he wish to return.
28. The Council was also consulting with special schools and reviewing Miss X’s request for alternative provision. Miss X had declined an offer of an assessment from School 2 and School 3 had offered Y a place. The Council said it was awaiting feedback from Miss X regarding the place at School 3.
29. Whilst the consultations were ongoing, the Council offered Y support from the Councils commissioned tuition provider. Miss X declined this intervention in favour of a different provider which the Council was in the process of considering. It said it would advise Miss X of an outcome to this as soon as possible.
30. The Council ended its Stage 1 response to Miss X by saying that there were several options available to Y and the school and the Council had made several suggestions. It said it could implement any of the proposed alternative packages with urgency if Miss X accepted any of them.

Miss X’s Stage 2 escalation of her complaint

31. Miss X was unhappy with the Council’s Stage 1 response because it contained inaccuracies. Miss X said Y was offered 1 hour of English and Math per week and she challenged this offer in the annual review meeting. Miss X was of the view that Y was entitled to 25 hours per week and that the Council’s offer was inadequate.
32. Miss X said she did not decline the offer of an assessment by School 2. Y had a trial session at School 2 and it became apparent that the setting was not appropriate for him. Miss X said she had sent her views on School 3 some weeks ago. She did not believe it was a suitable setting for Y.
33. Miss X reinforced her view that School 1 was unable to safeguard Y and he would not be returning. The offer of support from the Council’s commissioned tuition provider was made on 30 October 2023. Miss X was of the view that the Council did not implement this alternative provision at the earliest opportunity.

The Council’s Stage 2 response to Miss X’s complaint

34. The Council sent its Stage 2 complaint response in January 2024. It apologised for the delay in sending the response. The Council accepted Miss X’s views that 1 hour of Maths and English was not sufficient for Y. Although the Council’s Panel did not agree to a personal budget in November 2023 because School 1 was offering alternative provision, it had now agreed to 25 hours per week of provision through the provider Miss X had requested. The Council said this would be funded through the EOTAS programme until Summer 2024, when it would be reviewed. The Council said it was expected that all provision in Section F of Y’s EHC Plan would be delivered by the provider as part of their programme.
35. The Council’s Panel had also awarded a one-off personal budget of £500 for a laptop for Y.
36. The Council said the SaLT provision outlined in Y’s EHC Plan would be commissioned when the amended EHC Plan is issued. It also advised Miss X the amended EHC Plan will name EOTAS as the education placement in Section I.

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Analysis

Alternative education

37. The Council became aware at the beginning of the academic year in September 2023 that Y was not attending School 1. Miss X says she informed the Council Y was not attending school in July 2023 and her correspondence was ignored.
38. An emergency annual review meeting was held in September 2023 where it was discussed that Y would no longer attend School 1, a new placement would need to be found but, in the meantime, School 1 would put in place alternative provision.
39. Miss X says that in this this meeting she advised the Council of its responsibility to provide alternative provision to Y and what the school were offering was not appropriate.
40. Miss X says Y did not receive any provision from the alternative provision provider and the school says that Miss X did not respond to their communication to set up the alternative provision. I understand Miss X was unhappy with the amount of education the provider was proposing, 1 hour of Maths and 1 hour of English per week with mentoring on Fridays. The Council did not make any attempt to determine how much alternative provision the school would provide Y and how it was going to deliver the provision outlined in Section F of his EHC Plan.
41. I acknowledge School 1 had some difficulty in getting in touch with Miss X to arrange the alternative provision but where councils arrange for schools to carry out functions on their behalf, the Council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled. There is not enough evidence the Council properly considered:
• whether the provision was suitable for Y’s age, ability, aptitude, and SEN. Y received none of the support from their latest EHC Plan; and
• the number of hours of provision Y should receive, and whether this was equivalent to a full-time education, or in line with what Y could cope with at the time.
42. Council’s failure to properly consider what alternative education Y should receive, was fault. The Council’s failure to ensure Y received the SEN provision set out in their latest EHC Plan during this time, was further fault.
43. The Council should remedy the injustice caused to Y by any loss of education from September 2023. I understand that alternative provision of 25 hours per week began in November 2023 but I have not seen any evidence that Y received the SaLT and OT provision as outlined in his EHC Plan from September 2023.
44. Although there is not a total loss of provision in the period from September 2023 to 25 January 2024 because Miss X arranged some provision for the first 11 weeks and then a package of 25 hours per week began in November 2023, I have not seen evidence that Y received SaLT and OT provision as outlined in Section F of his EHC Plan. The Council says it provided funding to School 1 to provide the SaLT but the fact remains that Y did not receive this provision. This is fault.
45. I have considered the provision Y received when calculating an adequate remedy for the injustice this caused.
46. I have found further fault with the Council for the delay in providing Miss X £500 for a laptop for Y. Miss X was advised of this payment in January 2024 but the Council did not provide her with the payment until October 2024, on receipt of a draft of this decision. This delay is fault.

Sourcing a new educational setting for Y

47. At the emergency annual review meeting in September 2023, it was discussed that Y would no longer attend School 1 and a new setting would need to be found. The evidence shows that two days after this review meeting the Council began consulting with special schools for a placement for Y. The evidence also shows the Council consulted with several settings between September and December 2023. I have not found any evidence of fault with the Council’s actions in trying to find a suitable setting for Y.
48. Miss X and the Council decided on EOTAS and a finalised EHC Plan has been issued to reflect this.

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Agreed action

49. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision it will:
• Provide a written apology to Miss X for the faults identified above;
• Pay Miss X £150 to acknowledge the avoidable distress caused;
• Pay Miss X £500 for the period Y did not receive Speech and Language therapy as outlined in his EHC Plan;
• Pay Miss X £500 for the period Y did not receive Occupational Therapy as outlined in his EHC Plan; and
• Pay Miss X £761.53, to be used for Y’s benefit, to recognise that suitable education was not provided for a period of 11 weeks.
50. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by the fault. I have now closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman