Summary: Ms X complained the Council failed to ensure her son, Y received an education and the specialist provision in line with his Education, Health and Care (EHC) Plan between September 2022 and May 2024 after he was excluded from school. The Council was at fault which caused Y to miss out on a significant amount of education and specialist provision during this period. The Council agreed to pay Ms X £8,500 to acknowledge Y’s loss of education and the distress and uncertainty caused.

The complaint

1. Ms X complained the Council failed to provide her son, Y, with an education since he was excluded from school in September 2022. She further complains the Council failed to provide provision in line with his EHC Plan from April 2023 onwards after it agreed an Education Other than at School package.
2. Ms X says the matter has had a significant impact on Y’s education and social development and has caused distress and uncertainty.

Back to top

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Although late, I have used my discretion to investigate events back to September 2022. This is because there is evidence of delay in the Council’s handling of Ms X’s complaint. On balance, had the Council dealt with the complaint without delay Ms X would have complained to us earlier and so there is good reason to investigate it now
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I spoke to Ms X’s representative, Mrs Z about the complaint and considered information provided.
8. I considered the Council’s response to my enquiry letter.
9. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Section 19 Duty

10. 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.
11. 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).
12. 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)).

EHC Plans

13. 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 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.
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).
15. 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.
16. There is a right of appeal to the Tribunal against 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.

What happened

17. Ms X has a child, Y who in 2022 attended a mainstream secondary school. Y had special educational needs but at the time did not have an EHC Plan in place, although an EHC needs assessment was ongoing.
18. Following an incident at school in September 2022, Y was permanently excluded. Y remained out of school without any form of education between September 2022 and May 2023.
19. In May 2023 the Council issued Y’s final EHC Plan naming Education other than at School (EOTAS) in section I. The EHC Plan outlined the specialist provision Y was entitled to which included:
• 1:1 home tuition
• Support with structure and routine
• Small group interventions
• Multi-sensory teaching
• Development of social and communication skills
• Small group work with emotional coaching
• Various mentoring sessions
20. Mrs Z complained to the Council on behalf of Ms X in June 2023 about the lack of education between September 2022 and April 2023. She also complained about the lack of EOTAS since it issued the final EHC Plan and the lack of a specialist placement for Y to attend.
21. Records show Y received three weeks of home tuition before the end of the academic year. This however was not renewed in September 2023 due to the Council failing to put finances in place. Y did not receive any other education or the specialist provision in line with his Plan between May and July 2023.
22. Y remained without any education between September and October 2023. In October 2023 the Council says it put the EOTAS package in place. However, this only consisted of the home tuition and Y did not receive any of the other specialist provision in the Plan.
23. The Council provided a stage one complaint response in November 2023. It said it was working to identify a placement for Y but confirmed that Y’s EOTAS tuition was now in place which included 15 hours a week of English and Maths.
24. Mrs Z escalated the complaint in January 2024. She said the Y was not receiving the specialist provision in the Plan and said the home tuition was not going well. The Council said to us Y did not consistently engage with home tuition and sometimes either reused to attend, arrived late or left halfway through.
25. Y’s tutoring remained in place until March 2024 when it was put on hold due to Y not engaging.
26. The Council responded to Mrs Z’s complaint in March 2024. It apologised that Y’s specialist provision had not been in place but said Y had received tuition since October 2023. The Council acknowledge its communication with Ms X had not been sufficient around finding a placement for Y. It said the specialist settings consulted did not have space. It offered Ms X £1200 in recognition of Y’s loss of provision and £400 to recognise the distress caused.
27. In May 2024 records show the Council put in place an alternative package of provision for Y which included the mentoring aspects of his EHC Plan. This package of provision has continued from September 2024 onwards and evidence indicates Y is engaging well.
28. Ms X remained unhappy and complained to us.

The Council’s response to us

29. The Council accepted it did not provide Y with any education between September 2022 and April 2023 after he was permanently excluded from school. It also accepted a delay in putting tuition in place as part of the EOTAS package following issuing Y’s EHC Plan. It offered £3900 in recognition of Y’s lost provision between September 2022 and November 2023.
30. The Council further accepted it did not provide Y with the mentoring provision in his EHC Plan between October 2023 and May 2024. It offered a further £1400 to acknowledge the injustice this caused.
31. It reiterated its offer of £400 to Ms X for the distress caused to her.

My findings

32. We welcome the Council has accepted elements of fault in this case and acknowledge the payments it has offered to recognise the injustice caused. However, the Council’s remedy does not fully recognise all of the injustice caused and so, in line with our guidance I have made further recommendations below which is explained along with my findings.

September 2022 – April 2023

33. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion. The Council was aware in September 2022 that Y was excluded and it was therefore under a duty from that point to arrange suitable education for them. The Council has accepted that it failed to do so which was fault. It meant Y did not receive any education at all between September 2022 and April 2023.

April 2023 – May 2024

34. Once the Council issued Y’s EHC Plan in April 2023 it was under a legal duty to provide the provision in section F, including the mentoring from that point. Other than a two week period in June where Y received some tuition, the Council did not put anything in place between April and November 2023 which was fault. This meant Y did not receive any education or the specialist provision in his Plan during this period.
35. The Council did arrange part of the EOTAS package from November 2023 in the form of home tuition. While some tuition was in place the Council acknowledge the specialist provision including mentoring was not. This remained the case until Ms X complained to us in May 2024. All of this was fault.
36. It appears Y has received a package of provision from May 2024 onwards which he is engaging with. However, it would be open for Ms X and Mrs Z to make a new complaint to the Council about any concerns from May 2024 onwards.

Complaint handling

37. The Council’s complaint handling in this case was poor. Mrs Z complained to the Council in July 2023 but it took five months to issue the stage one response. That was fault and caused frustration.

Injustice

38. Y went without a significant amount of education between 2022 and 2024 including large periods with nothing in place at all. Once Y had an EHC Plan in place he went over a whole academic year without receiving any of the specialist provision in the Plan. Had the Council put in place the specialist provision including mentoring and social aspects then Y may have been in a better place to engage fully with the home tuition. This impacted on Y’s education and social development and caused Ms X distress and uncertainty. As explained above, I have made recommendations below to recognise that injustice.
39. Following an Ofsted inspection in July 2023 the Council has an action and improvement plan in place around its SEND services. This includes
• Increasing its staffing capacity to improve overall service, including communication and complaint handling.
• Producing a communication and engagement strategy.
• Developing staff training around its delivery of SEND
• Improving its handling of EHC Plans.
40. We have also made several service improvement recommendations to this Council since the scope of this complaint around its SEND services. This includes
• Retaining oversight of the education of children not attending school.
• Maintaining oversight of EHC Plans for children not attending school.
41. Given the above, I have not made any further service improvement recommendations.

Back to top

Agreed action

42. Within one month of the final decision the Council agreed to carry out the following actions:
1. Apologise to Ms X and Y and pay her the £400 already offered to recognise the distress and uncertainty caused to her by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Ms X £3600 to acknowledge Y’s loss of education between September 2022 and April 2023. This amount equates to £1800 per term and includes the amount already offered by the Council.
3. Pay Ms X a total of £4500 to acknowledge Y’s loss of education and the specialist provision in his EHC Plan between April 2023 and May 2024. This amount equates to £1500 per term and includes the amount already offered by the Council.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman