Summary: Miss X complained the Council failed to secure suitable education provision for her son from late 2022 to mid-2024. She said the Council had not addressed her concerns, or adapted the provision to meet her son's needs. We have found the Council at fault for failing to properly consider its section 19 duty between October 2022 and January 2023. However, on a balance of probabilities, we find this did not cause an injustice. Other parts of Miss X’s complaint, about later time periods, concern matters which are part of, connected to, or could have been part of, an appeal to the SEND Tribunal. We cannot investigate these matters. We explain why in our decision statement.

The complaint

1. Miss X complained the Council failed to secure suitable education provision for her son from late 2022. Miss X said the Council had not addressed her concerns about the provision in place. It had also not assessed or adapted the provision to meet her son’s needs.
2. Miss X said the Council’s faults impacted her son’s educational attainment, health and wellbeing. It also caused Miss X avoidable frustration, 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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How I considered this complaint

7. I discussed the complaint with Miss X and considered information she provided.
8. I considered information the Council provided about the complaint.
9. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
10. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) 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. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

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.
15. 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))
16. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. (Statutory guidance, ‘Arranging education for children who cannot attend school because of health needs’)
17. 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’)
18. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. 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. 
19. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
20. 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.

Appeal rights and the Ombudsman’s jurisdiction

21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was 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)
22. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is 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.
23. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
24. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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What I found

Key events

25. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
26. Miss X’s child, referred to as Y in this statement, is a young person with special educational needs.
27. In September 2022, the Council issued Y’s EHC Plan. Section I named School J as the setting. Section F of the plan comprised mainly of strategies staff at School J should use to help support Y’s learning, engagement and wellbeing in an educational setting. These were based on assessments by medical practitioners from mid-2022.
28. On 10 October 2022, School J held a review of Y’s EHC Plan. Paperwork from the meeting showed:
1. Y had been educated offsite since the previous week, following an incident where he left the school site by himself. School J had concerns it could not keep Y safe. Y’s parents said even if School J could mitigate these risks, preventing Y from leaving would make him feel trapped and heighten his anxiety. Y did not wish to return to School J and his parents did not wish to make him, given concerns for his wellbeing.
2. It was agreed that Y’s parents would explore possible specialist educational settings for Y. There would be a further review in November 2022, where Miss X could ask the Council to change the educational setting named in Y’s EHC Plan from School J to an identified specialist setting. School J would also ask the Council for additional resources to help support Y. Y would be educated off site pending the Council’s agreement, with School J providing access to schoolwork and lessons in ways Y could hopefully engage with.
29. On 28 November 2022, School J held another review of Y’s EHC Plan. Paperwork from this meeting showed:
1. Y was being educated at home, though struggled to engage with remote learning.
2. Those present at the meeting would recommend that Y’s EHC Plan be amended, with the setting being changed to a specialist placement Miss X had identified. Those present felt a move to specialist provision at the earliest opportunity would help Y prepare for the rest of his academic career. It was not felt that a mainstream setting could meet Y’s needs.
3. School J would also seek more resources to support Y and provide interim provision.
30. The Council said it considered these requests at a panel hearing in early 2023. It decided specialist provision would not be suitable for Y at the time and did not agree to a change in setting. It believed the provision detailed in Y’s recently issued EHC Plan would be able to meet his needs, if given time. It did agree to provide additional resources to School J.
31. The Council wrote to Miss X with its decision on 16 January 2023. It provided Miss X with the right to appeal its decision to the SEND Tribunal.
32. In February 2023, Miss X wrote to the Council. She said she was unhappy with its decision and wished to appeal against it. She said Y remained on a reduced timetable, refusing to attend class-based lessons without support and not engaging with certain lessons. Miss X said School J was doing its best, but mainstream provision was not suitable for Y. In response, the Council said it had provided Miss X with the right of appeal in its previous letter. It said it would provide School J with additional resources. The Council said Miss X could request a specialist setting again following a further review of the EHC Plan later in the year.
33. A further review took place on 9 June 2023. Paperwork from this meeting showed:
1. Y was on a reduced timetable and not regularly attending school. Since the review in November 2022, School J and Y’s parents had worked to increase Y’s time in school. Y had been engaging well with some subjects and there had been an increase in Y’s hours in recent months. However, this had recently been reduced again, to two hours per day, to meet Y’s presenting needs. School J had agreed with Y’s parents to reduce Y’s timetable to help lower Y’s overall anxiety, and make sure any time spent in a school setting was as positive as possible.
2. Y’s parents wanted the Council to amend Y’s EHC Plan and for Y to attend a specialist setting. Those present agreed to ask for this amendment. Those present also agreed an alternative provision course Y could attend in the meantime.
34. The Council wrote to Miss X. It said it would consult with Miss X’s preferred setting as parental preference, but it did not support a change in placement. It said it had agreed further additional resources for School J. Miss X told the Council Y was becoming isolated and she was concerned about the impact of the situation on him.
35. On 3 July 2023, Miss X asked the Council to confirm whether it would amend Y’s EHC Plan in time to meet the statutory timescales for this decision. On the same day, Miss X complained to the Council. Summarised:
1. Miss X complained the Council was failing Y in his education. She said Y was on a reduced timetable. She said the Council had not consulted with her preferred schools, instead just increasing School J’s resources.
2. Miss X said School J could not keep Y safe and Y was refusing to attend. She wanted Y to get the education and support he was entitled to.
36. The Council told Miss X it would be unlikely to confirm its decision within statutory timescales, because it was waiting for Miss X’s preferred setting to respond. On 6 July 2023, to meet the deadline, the Council wrote to Miss X to say it would not agree to amend Y’s EHC Plan. It noted though it was still waiting for a response from Miss X’s preferred setting. It said it would write to Miss X again once it received a response. The Council provided Miss X with the right to appeal its decision not to amend the EHC Plan to the SEND Tribunal.
37. Miss X’s preferred setting told the Council it could not accommodate Y, as it was oversubscribed. The Council updated Miss X.
38. On 14 July 2023, Miss X appealed to the SEND Tribunal.
39. On 17 July 2023, the Council responded to Miss X’s complaint. Summarised:
1. The Council reiterated its consideration and decisions about Y’s educational setting. It said Miss X could appeal against its decision.
2. The Council said it would be for School J to address Miss X’s concerns about Y’s support and academic planning for the following year.
3. The Council did not uphold the complaint. However, it recognised Y could not access his educational setting, despite School J having additional resources allocated. The Council said it would work with School J and Miss X to find a way forward.
40. The Council asked School J to arrange a meeting for the autumn term. The Council said this was due to take place on 20 September 2023.
41. Y started at an alternative provision setting in September 2023, attending two days per week, for two hours per day.
42. On 23 November 2023, Miss X wrote to the Council and asked whether it would agree to consult with another potential specialist setting she had identified. She highlighted that Y was receiving only four hours of alternative provision per week, and that Y had not received full-time education for over a year. The Council said there would be a further review of Y’s EHC Plan in December 2023, which would allow Miss X to request a change in setting.
43. On 15 December 2023, there was a review of Y’s EHC Plan. The paperwork from this review showed:
1. Y was making some progress towards the goals in his EHC Plan while attending alternative provision, but his overall attendance remained low. It was noted Y had not received a full-time education for some time.
2. Y’s timetable was being reviewed every two weeks to account for his needs and wellbeing.
44. In January 2024, Miss X complained to the Council. Miss X said Y had been out of school since July 2023 and had been on a reduced timetable for the entire school year. This had affected Y’s wellbeing and confidence.
45. In February 2024, the Council responded to Miss X’s complaint. Summarised:
1. The Council set out the circumstances that had led to the complaint. The Council said it was aware School J had struggled to find a suitable tutor for Y. It said there was a shortage of tutors approved by the Council. It understood Y had settled at his alternative provision setting, but recognised he wanted more opportunities to learn.
2. The Council confirmed it had secured a place at Miss X’s suggested specialist setting. It said this would commence from September 2024, but could start sooner if staff availability allowed.
3. The Council partially upheld Miss X’s complaint.
46. On 18 March 2024, the SEND Tribunal confirmed Miss X’s appeal as withdrawn, due to the agreed-upon new setting.
47. On 25 March 2024, the Council issued Y’s amended final EHC Plan, naming the agreed-upon setting.
48. Miss X said Y began part-time in the new setting in April 2024, attending full-time from June 2024.

Analysis

October 2022 to January 2023

49. I asked the Council when it became aware Y was not attending School J and how it considered whether it owed Y a section 19 duty. The Council told me School J confirmed in October 2022 that Y was on a reduced timetable, attending less than five hours per week. The Council said it was not clear what hours and subjects Y had attended for. It said it delegated its section 19 duty to the relevant school.
50. While it can delegate its duty, the Council remains responsible for ensuring the education arrangements in place are suitable and for considering its section 19 duty. The Council had notice from October 2022 that Y was not attending School J and would not be attending for more than 15 days. At this point, it should have considered whether it owed Y a section 19 duty and decided whether the education arrangements in place for Y at the time were suitable. It did not do so.
51. I have found the Council at fault for failing to turn its mind to this question at the correct time. I have also found the Council at fault for its general lack of oversight of Y’s educational arrangements.
52. However, this did not cause Y an injustice. Had the Council properly considered its duty, I believe, on a balance of probabilities, it would have decided the arrangements agreed at the October 2022 review meeting were suitable in the short term. This is because the review paperwork showed School J and Miss X agreed that a reduced timetable, with elements of home learning, would be suitable as a short-term measure for Y, until the Council decided whether to agree to specialist provision. I believe it is unlikely the Council would have disagreed with these proposed arrangements, given the consensus between Miss X and School J, and the intended short-term nature of the arrangements in place.
53. While I do not believe the Council’s fault caused Y an injustice here, the Council failing to properly consider its section 19 duty at the correct time could cause injustice to others in the future. I have addressed this elsewhere in this statement.

January 2023 to June 2023

54. Miss X identified a specialist setting and, through the November 2022 review, asked the Council to change Y’s setting. The Council considered Miss X’s request in early 2023. While the Council agreed to increase School J’s resources, it did not agree to change the setting named in Y’s EHC Plan. The Council wrote to Miss X to confirm its decision in January 2023. It provided Miss X with a right to challenge this decision via an appeal to the SEND Tribunal.
55. Paragraphs 4 and 21-24 set out the Ombudsman’s powers and jurisdiction to investigate when an appeal right exists. The fact of an appeal right being available removes the Ombudsman’s jurisdiction to consider any matters that are part of, connected to, or which could have been part of, an appeal to the tribunal. The Ombudsman cannot investigate unless we consider it was unreasonable for the individual to appeal in the circumstances.
56. I have considered whether the appeal right available to Miss X was about the same matters raised in her complaint. In substance, Miss X’s complaint is that Y was not receiving a suitable education, as a consequence of the setting he attended (School J) being unable to meet his needs. Miss X could appeal the Council’s decision not to change the setting named in Y’s EHC Plan from School J to a specialist setting. Whether Y would receive a suitable education if he remained at School J is the matter the SEND Tribunal would have considered, had Miss X appealed. The right of appeal therefore addressed the crux of Miss X’s complaint.
57. I have considered whether it would have been reasonable for Miss X to exercise this right of appeal. In doing so, I have considered whether the Council clearly communicated its decision and highlighted the right of appeal. I have also considered whether the Council gave Miss X any reason to expect it would resolve the matter to her satisfaction, if she did not appeal.
58. In this case, the Council clearly communicated its decision and Miss X’s right to appeal. Based on the evidence I have seen, the Council gave no indication it would act to resolve the matter to Miss X’s satisfaction if she waited for another review. It said Miss X could ask for a change in setting at the next annual review meeting, but did not commit to agreeing a change in placement if this happened. Given the Council’s lack of commitment to changing Y’s setting, it would not have been unreasonable for Miss X to have appealed.
59. For the reasons above, I consider there was a relevant right of appeal available, and it would be considered reasonable for Miss X to have used it. I have not therefore investigated this part of Miss X’s complaint.

July 2023 to March 2024

60. Following the annual review in June 2023, the Council provided Miss X with a right of appeal on 6 July 2023. Miss X confirmed she exercised this right of appeal on 18 July 2023. Miss X confirmed this appeal was later withdrawn on 18 March 2024, following agreement between Miss X and the Council about a different suitable setting for Y.
61. The period of appeal therefore ran from 6 July 2023, when the appeal right arose, to 18 March 2024, when the appeal was withdrawn by agreement.
62. The restrictions set out in paragraphs 4 and 21-24 again apply. Miss X complained the Council had failed to secure suitable alternative provision for Y. This alternative provision was necessary because of a disagreement about whether the setting named in Y’s EHC Plan, School J, was suitable for Y’s needs. The SEND Tribunal would have considered this question as part of Miss X’s appeal.
63. Because of this, I cannot consider how the Council applied its duty to secure suitable alternative provision during the period of appeal. To do so would infringe on the jurisdiction of the SEND Tribunal and matters it could have considered.
64. I cannot therefore investigate Miss X’s complaint about the alternative provision in place from 6 July 2023, the point an appeal right arose.

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Recommendations

65. The Ombudsman has made several recommendations to the Council about alternative provision within the last 12 months. These recommendations have concerned areas such as:
1. Staff training;
2. The procedures in place to review provision for children unable to regularly attend school; and
3. The availability of suitable alternative provision settings and tutors.
66. Many of these recommendations address the potential injustice the faults identified in this investigation could cause for others. The Council is in the process of complying with some of these recommendations currently.
67. Given this, I have not made repeat recommendations here. The Ombudsman will seek evidence of the Council’s compliance with our recommendations, demonstrating the Council’s actions to improve its services.

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Final decision

68. I have completed my investigation with a finding of fault by the Council. However, this fault did not cause an injustice. Parts of Miss X’s complaint are about matters which are part of, connected to, or could have been part of, an appeal to the SEND Tribunal. I cannot investigate these matters.

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Investigator's decision on behalf of the Ombudsman