Summary: Mrs X complained the Council failed to provide a suitable education for her child when they were unable to attend school due to bullying. Mrs X also said the Council incorrectly decided not to consider a complaint about this. We have found the Council at fault for failing to consider Mrs X’s complaint through its complaints procedure. We have also found the Council at fault for failing to properly consider its section 19 duty, or document its decision-making. We cannot say the Council’s response would have been different, but for these faults. The Council has agreed to apologise and pay a symbolic financial remedy in recognition of the avoidable uncertainty caused. The Council also agreed to provide guidance to its officers.

The complaint

1. Mrs X complained the Council did not provide suitable education for her child when they could not attend school. Mrs X also said the Council failed to consider a complaint about this, citing an ongoing appeal to the SEND Tribunal. Mrs X says the matters complained of were unrelated to the appeal and the Council could have addressed them.
2. Mrs X said the Council’s faults led to her child missing suitable education provision for six months. This affected their educational attainment and overall wellbeing. It also caused Mrs X and other family members avoidable 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. 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.
5. 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)
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 considered information Mrs X provided about the complaint.
8. I considered information the Council provided about the complaint.
9. Both Mrs 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.
12. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

13. 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.
14. 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)

Appeal rights and the Ombudsman’s jurisdiction

15. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a 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.
16. 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)
17. 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.
18. 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.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.

Alternative provision/section 19 duty

20. 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.
21. 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’)
22. 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)
23. Existing case law provides that if a council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education because the child is not taking advantage of the existing facility. (G v Westminster City Council [2004] EWCA Civ 45 and DS v Wolverhampton City Council [2017] EWHC 1660). Case law has also held that the duty to make alternative provision does not apply because parents or a child have objections to attending the school. The council has to decide if the education offered is reasonably available and accessible to the child. (R (R) v Kent County Council [2007] EWHC 2135 (Admin))
24. 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)
25. 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.
26. 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.

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What I found

Key events

27. 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.
28. In September 2022, the Council issued an EHC Plan for Mrs X’s child, who is referred to in this statement as Z.
29. I understand Mrs X and Z had concerns about the EHC Plan soon after the Council issued it. Mrs X sought mediation with the Council over the plan in October 2022. I understand mediation did not take place. Mrs X told the Ombudsman the Council withdrew from these proceedings at a late stage.
30. Mrs X was able to submit a late appeal to the SEND Tribunal in February 2023. Mrs X’s appeal concerned the wording of Sections B and F of the plan. Mrs X also sought the removal of a transport condition attached to Section I, which named School J as the setting.
31. Z continued to attend School J after the Council issued the EHC Plan in September 2022. Z also continued to attend School J after Mrs X appealed to the SEND Tribunal.
32. In July 2023, the SEND Tribunal decided School J may not be able to meet Z’s needs. The Tribunal sought an updated assessment of Z’s needs. It adjourned its consideration until 2024, to allow these assessments to take place.
33. In September 2023, Z stopped attending School J, due to incidents of bullying. Mrs X complained to School J. Mrs X said she had raised concerns in the past, but the most recent incidents were serious. Mrs X said she was unhappy about School J’s response to this, and its proposal to keep Z separated from the alleged perpetrators throughout periods during the school day.
34. On 6 October 2023, Mrs X wrote to the Council:
1. Mrs X said Z had not attended School J since 20 September 2023. She said Z was entitled to receive a full-time education and asked what arrangements could be made to meet those needs.
2. Mrs X also said she felt a meeting between all parties would be beneficial.
3. Mrs X said School J had agreed to provide some online learning for Z, but Z had been unable to access this.
35. On 11 October 2023, Mrs X complained to the Council:
1. Mrs X said Z could not attend School J. She asked the Council to arrange suitable alternative provision under section 19 of the Education Act 1996.
2. Mrs X said Z could not attend School J due to being bullied and feeling unsafe, Mrs X provided copies of her complaint to School J, as well as copies of reports made to the Police about some of the recent incidents.
3. Mrs X also noted School J was unable to meet Z’s SEN needs.
36. On 13 October 2023, the Council wrote to Mrs X:
1. The Council noted the ongoing appeal. It said it had not yet decided School J was unable to meet Z’s needs.
2. The Council said Z should continue to attend School J, which could offer support. It set out some possible options for support to help Z attend.
3. The Council said it would be happy to attend a meeting with all parties. It asked School J to arrange this and sought contributions from Z’s Educational Psychologist (EP).
37. On 16 October 2023, the Council responded to Mrs X’s complaint. The Council said Mrs X‘s complaint was excluded from its complaints procedure. The Council said the SEND Tribunal was considering the matter of Z’s school placement. It said it was for School J to address attendance concerns. It said it would refer Mrs X back to these parties. The Council reiterated it would attend a meeting with Mrs X and School J.
38. Following this, Mrs X and the Council exchanged further correspondence. Summarised:
1. The Council said it could not consider concerns about the school placement, due to the ongoing appeal. It said it would ask School J to arrange an interim package of reintegration and support. The Council said there was guidance School J could follow and the Council would also involve Z’s EP.
2. Mrs X reiterated the reason for Z’s non-attendance. She agreed a meeting would be helpful. The Council asked School J to arrange the meeting. It said Z remained on the roll at School J, so School J was responsible for Z’s education and welfare.
3. Mrs X said she understood School J had made some online learning available for Z, but Z could not take advantage of this.
39. On 7 November 2023, the Council met with School J and Mrs X. In a summary compiled after the meeting, Mrs X said the focus had been identifying ways to support Z while they potentially awaited a change in setting. The Council told the Ombudsman there was a clear expectation School J would implement a reintegration plan to encourage and support Z’s return to the setting. This would involve a specialist service that supported children to reintegrate with education, as well as some tutoring.
40. In November 2023, Mrs X sought an update. The reintegration support service started shortly after this. Mrs X also asked for some additional provision that would have therapeutic benefits for Z, which the Council agreed School J could commission. I understand around this time, the reintegration and support measures for Z totalled around 10 hours per week.
41. In late November 2023, Mrs X sought an increase in the support and tuition provided for Z. She said she did not receive a response.
42. In January 2024, Mrs X said she followed up on her request for an increase in provision. Mrs X said the Council agreed to increase the hours offered by the support service, as well as introduce sessions of online tuition with a new provider.
43. In late January 2024, the SEND Tribunal issued its decision. In late February 2024, Z began preparing to attend School Q, the setting named in the amended final EHC Plan. The Council issued the amended final EHC Plan on 4 March 2024. Z began attending School Q full-time by the end of March 2024.

Analysis

44. When it responded to Mrs X’s complaint, the Council conflated Z’s non-attendance at School J due to bullying, and Mrs X’s request for alternative provision, with the SEND Tribunal’s consideration of matters at appeal. However, I find these matters were separable. Mrs X appealed Z’s EHC Plan in February 2023, having expressed reservations about the plan for many months before this. Z continued to attend School J both before and after Mrs X appealed, despite these reservations. Z only stopped attending following incidents of bullying in September 2023. The matters that caused Z to stop attending were unrelated to the Tribunal’s already ongoing consideration of Z’s SEN needs.
45. I find the Council wrongly conflated these matters in its complaint response. In doing so, it failed to address Mrs X’s concerns through its complaints procedure. I have found the Council at fault for this. This caused Mrs X avoidable time and trouble, which is an injustice.
46. Mrs X told the Council Z stopped attending School J because of bullying. Mrs X contended this meant the Council had to arrange alternative provision, under section 19 of the Education Act 1996. As paragraph 23 sets out, case law has held a council’s section 19 duty is not necessarily engaged when a parent or child objects to attendance at a particular school in these circumstances. In cases involving bullying, the courts have held this is a question to be considered objectively, rather than with reference to the parents’ view of the facts. The Council must decide whether the education on offer is reasonably available and accessible to the child.
47. In this case, the Council told Mrs X it was for School J to address attendance concerns. It told the Ombudsman the specific concerns raised around bullying and attendance were not under its remit to address. The Council therefore did not clearly consider whether it owed Z a section 19 duty, considering the individual circumstances of the case. It did not communicate a decision about this to Mrs X in clear terms. It also did not keep this decision under regular review. I have found the Council at fault for this. This fault causes a lack of clarity over the Council’s decision-making and the reasons for its actions over time.
48. I have sought to establish whether, but for this fault, the Council’s response would have been different, on the balance of probabilities. I asked the Council if it considered Z could still attend School J, and whether it considered the education provision was available and accessible. This is the test councils should apply when deciding whether they owe a section 19 duty. The Council told me:
1. It was involved in discussions with School J and Mrs X to support Z’s attendance at school, alongside agreeing an interim package of support and reintegration.
2. It met with all parties in November 2023, following which there was a clear expectation School J would implement a reintegration plan to encourage and support Z’s return to the setting. This would consist of a specialist service that supported children to reintegrate with education. Part of the plan would involve some tutoring.
3. It agreed with Mrs X’s request in November 2023 for extra provision that would provide Z with some therapeutic benefits.
4. The Council said it involved relevant professionals by seeking the EP’s views as part of the meeting in November 2023, where the action plan for Z was agreed.
49. I note that in October 2023, the Council told Mrs X it would expect Z to continue attending School J, while options to address Z’s difficulties were explored. On the balance of probabilities, we can say the Council’s view in October 2023 was the education at School J remained available and accessible, provided Z was supported to reintegrate into the setting. The Council would only likely conclude the education was not available and accessible if reintegration measures were unsuccessful. The Council’s communications and actions from the time support this. Therefore, had the Council properly turned its mind to the question, it is likely it would have concluded it did not then owe Z a section 19 duty. Its response would not therefore have been different between October 2023 and December 2024. Given this, the Council’s failure to properly consider whether it owed Z a section 19 duty did not cause an injustice during this period.
50. Mrs X said the Council increased the support and provision available for Z in January 2024, in response to a request Mrs X made in November 2024. Why the Council approved this increase is unclear. The Council said the integration plan would always involve an element of tutoring. However, it is unclear whether this increase in provision was part of the reintegration plan, or whether the Council decided the reintegration plan was not meeting Z’s needs and it needed to secure alternative provision instead. All parties agree Z did receive some education provision and support during this period, though Mrs X contends this was insufficient. We do not know how the Council decided the increase in provision met Z’s needs, accounting for the guidance set out in paragraphs 20 and 21.
51. The Council’s rationale for its actions in January 2024 is unclear, because it did not properly keep its section 19 duties under review, or document its decision-making. Because of this, we cannot say, even on the balance of probabilities, whether the Council would have done things differently, even if it had properly considered its section 19 duty. This uncertainty is an injustice to Mrs X and Z. This injustice extends up to 27 February 2024, when Z began to prepare for a move into School Q.
52. If the Council fails to properly consider its section 19 duty, or document its decisions and reasons in other cases, this could cause injustice to others in the future.

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Action

53. Within four weeks of the final decision being issued, I propose the Council should:
1. Provide a written apology to Mrs X and Z for the faults and injustice identified in this statement, including not properly considering Mrs X’s complaint. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay £300 in recognition of the uncertainty caused by the Council’s failure to properly consider its section 19 duty and keep this under review.
3. Share a copy of this decision and the Ombudsman’s Focus Report “Out of school, out of sight?” with relevant officers, to highlight good practice and identify wider points of learning.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation with a finding of fault, causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman