Summary: The Council was at fault. It provided Mrs X’s child ,Y, with intermittent alternative provision and did not provide all the special educational provision to which they were entitled. Y’s father, Mr X was caused frustration supporting Y. The Council will apologise and pay £1,250 to Mrs X to acknowledge Y’s missed education and provision and make a symbolic payment of £300 to Mr X. The Council has already put in place actions to improve its service.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable education since July 2022 when Y stopped attending school. She said Y was not provided enough tuition and was not provided their special educational provision in their Education, Health and Care (EHC) Plan. She also said the Council communicated poorly and did not reimburse all their travel costs. Mrs X said it meant she had to reduce her working hours and it affected her mental health. She said it affected Y’s behaviour and anxiety and it affected the whole family.

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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. 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)
4. 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.
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. 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. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council should take to remedy the injustice those people who are also caused an injustice by the Council’s fault.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. As explained in paragraph three above we cannot investigate late complaints unless we decide there are good reasons. Mrs X complained to the Ombudsman in early January 2025 about events starting in July 2022. The period between July 2022 and January 2024 is late and there are no good reasons to exercise discretion to investigate the entire late period because Mrs X could reasonably have complained to us earlier.
12. Mrs X had a right of appeal to the special educational needs and disabilities (SEND) tribunal when Y’s final amended Education, Health and Care (EHC) Plan was issued in 2022, a right she exercised. The tribunal ended in late November 2023.
13. The courts have established that if someone has appealed to the SEND 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)
14. 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.
15. 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.
16. The appeal was linked to Mrs X’s complaint about Y missing out on education and special educational provision. Therefore, I cannot consider Mrs X’s complaint about those matters during the appeal period. This was from July 2022 to November 2023.
17. I have chosen to investigate the period from late November 2023 when the tribunal issued its order concluding the appeal because the tribunal order was relevant to the subsequent events that are not late. I have used my discretion to investigate to January 2025 after the Council issued its stage two response because this is when it had undertaken the actions set out in the stage two response. The investigation period also covers the period when Mrs X had a further right of appeal to the tribunal in February 2024, after the Council issued its decision to keep Y’s EHC Plan unchanged. In line with paragraph five above I have used my discretion to consider that period as it was not reasonable for Mrs X to appeal about Y’s provision when the Council had separately agreed to provide the provision she wanted; two to one support for Y.

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How I considered this complaint

18. I considered evidence provided by the Council and Mrs X and spoke to her and her husband, Mr X, on the telephone. I also considered relevant law, policy and guidance and our guidance on remedies.
19. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

20. 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. Section B sets out the child’s special educational needs. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Appeal rights to the SEND tribunal

21. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
22. Section 44 (e) of the special educational needs and disabilities (SEND) Regulations 2014 requires councils to amend the special educational provision specified in an EHC Plan, the council will issue the amended EHC Plan within five weeks of the tribunal order being made.

Maintaining the EHC Plan

23. 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).
24. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in Section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil its legal duty. At a minimum we expect it to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Section 19 duty

25. Council’s 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 provision.
26. 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’).
27. 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. We made recommendations which included that 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;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

28. Y has special educational needs and autistic spectrum disorder (ASD). Y suffers from school-based anxiety following an incident at school several years ago.

Background

29. Y first had an Education, Health and Care (EHC) Plan several years ago. Y started to attend a special school, School 1, in 2021 and stopped attending in summer 2022 due to school based anxiety but Y remained on School 1’s roll. Y’s amended EHC Plan was issued by the Council and in October 2022 Mrs X appealed to the special educational needs and disabilities (SEND) tribunal on Sections F and I. She wanted Y to have an Education Otherwise Than At School (EOTAS) package instead of attending School 1. EOTAS is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision. In March 2023 the Council put in place an alternative provision package for Y. The SEND tribunal hearing took place in early November 2023.

Late November 2023 onwards

30. In late November 2023 the SEND tribunal issued an order which said Y was to remain on roll at School 1 and an alternative provision package provided by School 1 would be the best option for Y to begin to transition back to the school.
31. The Council records showed in November and December 2023 Y received the following full-time alternative educational provision, within Y’s home with a one to one tutor and at offsite venues with Y’s one to one tutor:
• core subjects including Maths and English daily within the family home with a one to one tutor;
• Speech and Language Therapy (SALT);
• Occupational Therapy (OT) weekly in the family home or offsite in the community; and
• enrichment or life skill sessions off the School 1 site with similar aged children, with Y’s one to one tutor.
32. The Council issued Y’s final amended EHC Plan in late December 2023 and continued to name School 1 in Section I and included the following key Section F provisions:
• SALT up to 30 minutes one to one with an adult or up to 20 minutes in small group activities, two to three times a week;
• Lego therapy and access to ‘Attention Autism’ activities, one to one or in a small group twice weekly;
• environmental adaptions such as ear defenders, weighted blankets or ‘chew’ toys and any further provisions advised by an occupational therapist;
• access to an environment physically secure with appropriate levels of supervision to keep Y safe, in one to one or small group sessions; and
• support to develop Y’s social skills through access to small groups where they could interact with peers.
33. The Council said Y’s alternative provision package was initially successful. However issues with Y’s behaviour increased in January 2024. The Council records showed Y’s alternative provision package for January to March 2024 included:
• daily one to one alternative provision in the morning at home with Y’s one to one tutor for seven hours per week;
• enrichment/life skills in the afternoon six hours per week;
• SALT sessions for one hour per week; and
• OT sessions for one hour per week.
34. In late January 2024 School 1 held Y’s annual review. The annual review record noted:
• details of Y’s alternative provision package explaining Y had transitioned well and included Y’s progress towards their EHC Plan outcomes; and
• School 1 and Y’s father Mr X felt additional adult support was needed for Y. The annual review recommended Y’s EHC Plan was maintained but with changes to Y’s key stages and a request for two to one support, so Y could access learning outside of the family home daily.
35. Four days later School 1 submitted the annual review paperwork to the Council and a costing form for 31 hours per week for two to one support, including travelling time.
36. At the end of January 2024 there was an incident between Y and their one to one tutor. School 1 advised the Council all Y’s provision needed to take place with two members of staff and provided the Council with timetables for Y’s provision both with and without two to one provision. The timetable showed 31 hours including travel with two to one provision. School 1 also sent an email to the Council and Mr X giving an update on how it would put in place two to one support for Y, using other members of staff. Mr X was a second adult when needed so Y did not miss out on activities. School 1 stressed that asking Mr X to supplement Y’s support could put stress on his well-being and relationship with Y. Mrs X said Y was not receiving educational provision or their Section F provision between January and April 2024.
37. In early February 2024 a meeting took place which the Council attended. This discussed the need for Y to receive two to one provision.
38. In late February 2024 the Council agreed to funding two to one support for Y. School 1 emailed Y’s EHC co-ordinator and advised they would need to recruit staff to provide the additional support for Y.
39. At the end of February 2024 the Council issued a decision letter to Mr and Mrs X explaining it was maintaining Y’s EHC Plan. The Council also set out Mrs X’s appeal rights but she did not appeal to the SEND tribunal. The Council said the changes suggested to Y’s EHC Plan relating to change in key stage and the need for two to one support were not significant enough to require an update to Y’s EHC Plan.
40. In late March 2024 Mr and Mrs X emailed the Council about the education and support Y was receiving and said it was unpredictable, which was leading to difficulties in the family home and affecting Y’s behaviour. In response, the Council agreed Y would receive sports provision and that it would be kept in place until School 1 had recruited staff to provide two to one support. School 1 and the Council also agreed the continuation of Y’s weekly SALT and OT sessions.
41. In mid-April 2024 Y started the sports provision. The Council asked School 1 about the recruitment of staff to support Y. Mrs X told me Y received sports provision for two days a week for two and a half hours per session between April and May 2024. She said Y missed OT sessions, being around peers, getting out of the house and other Section F provision.
42. In June 2024 Y’s sports provision increased to three days a week. Mr X continued to spend time and money transporting Y to their educational provision.
43. In early June 2024 the Council asked School 1 for an update on the staff recruitment and Y’s provision. In mid-June 2024 School 1 responded and said it had recruited a new member of staff and was awaiting the ‘onboarding process’. School 1 confirmed it had put in place SALT one day a week, sports provision three days a week and OT one day a week with two to one support. It also noted Mr X had helped with transport when the support staff had been unwell. The same day the Council asked School 1 for confirmation when the new staff member would be in place and said if the recruitment process was ongoing agency staff may be needed to support Y.
44. In July 2024 School 1 confirmed two support workers would be in place from September 2024 to support Y. School 1 also confirmed it would refund Mr and Mrs X’s travel costs. It said Mr X had supported taking Y to their alternative provision, OT and SALT sessions due to a second person not being in place.
45. In mid-July 2024 Mrs X complained to the Council and said Y received no education between January 2024 and May 2024 and Y received inadequate education between May 2024- July 2024.
46. In mid-August 2024 the Council responded and said School 1 had been resourced to provide Y with a suitable education since January 2024. It said Y’s EHC co-ordinator had been in constant communication with School 1 about the support Y should be receiving and advised School 1 of the funding it made available. It said School 1 confirmed it would reimburse the travel costs to the family.
47. Mrs X remained unhappy and two days later escalated her complaint to stage two of the Councils complaint process.
48. Council records from August 2024 noted ‘School 1 sporadically provided Y’s outreach support detailed at the tribunal hearing, and that had primarily been down to staff resourcing’.
49. In early September 2024 Mrs X said Y had two tutors and the provision was in place four days a week for four and a half hours per day and Y received OT for one hour one day a week. Mrs X said this initially worked well. In mid-September 2024 Mr X contacted the Council and said one of Y’s tutors had left the role on medical grounds and it would cause Y distress if Mr X was the second adult. The same day the Council contacted School 1 and asked what was in place to replace the tutor. School 1 responded confirming the tutor had not been replaced and Y would continue to receive sports provision, SALT and OT. In late September 2024 Mr X complained to School 1 about inconsistencies with Y’s sports provision impacting on their mental health and educational provision. School 1 said it was working to resolve the situation.
50. In mid-October 2024 the Council sent its stage two response and said it was not in breach of its Section 42 duties and Y was receiving provision and it had good ongoing communication with School 1. It set out two actions including:
• Action 1 – within one month of the stage two response Y’s EHC Co-ordinator would contact School 1 to request it holds an early annual review meeting.
• Action 2 - within one month of the stage two response Y’s EHC coordinator would contact School 1 to arrange a meeting with the SEN service to discuss what provision was provided to Y.
51. In mid-October 2024 School 1 emailed the Council with Y’s new timetable and said it had recruited a new second teacher for Y.
52. In late November 2024 the Council contacted School 1 to request an early annual review and to arrange a meeting specifically to discuss Y’s Section F provision. The Council acknowledged this was not within one month of the stage two response. School 1 arranged Y’s annual review in January 2025 which noted it was delivering Y’s alternative provision package including SALT, OT and two to one support. School 1 said Y was responding well to the new alternative provision team.

Enquiries

53. When I spoke to Mr and Mrs X they also complained about poor Council communication and said their email had been blocked by the Council and emails were not responded to. The Council said it had not blocked Mr or Mrs X’s email address and had provided clear communication with Mr and Mrs X.

My findings

Section 19 and Section 42 provision

54. In line with the tribunal order, the Council issued Y’s amended final EHC Plan within the five-week statutory timescale in late December 2023 naming School 1. It also implemented a transition plan for Y and decided on a suitable alternative provision package for Y until they could attend School 1. The alternative provision started well and Y received one to one tutoring, SALT, OT and enrichment/life skills between late November 2023 and January 2024. This provided much of the Section F provision in their EHC Plan. However, there is no evidence Y received Lego therapy or autism activities in this period or until the end of the period I have investigated; January 2025. This was fault.
55. The Council kept Y’s alternative provision under review in January 2024 through the annual review process. As a result of the annual review, the Council agreed Y needed two to one support in late February 2024. The Council nonetheless decided to keep Y’s EHC Plan unchanged.
56. However, despite agreeing Y needed two to one support in order to engage in education and receive the Section F provision in their EHC Plan, the Council failed to ensure Y always had that support. The Council did have good oversight but did not act to secure that two to one support when it heard repeatedly that School 1 had not arranged it, or when it later stopped because the additional member of staff left in September 2024. That was fault.
57. The faults caused an injustice to Y because they did not receive full alternative provision or Section F provision to which they were entitled. The impact of not having the two to one support was mitigated in part when at times Mr X acted as the second adult, but this caused an injustice to him. Consistency in Y’s provision could have also provided a more stable transition back to School 1, as intended by Y’s EHC Plan.

Travel costs

58. The Council and School 1 agreed School 1 would reimburse the family money for their travel expenses. It reimbursed some expenses but not the amount Mr and Mrs X expected. However, Y’s EHC Plan does not state the Council would cover any travel costs for Y’s parents. It is therefore not under a duty to reimburse the families travel costs and any outstanding concerns could be raised with School 1.

Communication

59. Mr and Mrs X raised concerns their email address had been blocked by the Council and said it communicated poorly. The Council confirmed their emails had not been blocked. From the evidence seen the Council’s communication has been good enough. When Mr and Mrs X raised issues in January, March and September 2024 the Council acted on those concerns and its response did not amount to fault.

Stage two actions

60. In the Council’s stage two response it agreed within a month, by mid-November 2024, it would contact School 1 about an early annual review and arrange a meeting about Y’s Section F provision. There was some delay with these actions but evidence shows that by the time of the annual review in January 2025, Y’s alternative provision package was working well so the slight delay did not cause them a significant personal injustice.

Service Improvements

61. The Ombudsman has already made service recommendations to this Council on similar alternative provision cases. These service improvements have been made during and since the events in this investigation. On this basis no further recommendations were needed.

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Action

62. Within one month of the final decision the Council will:
1. apologise and pay Mrs X a symbolic payment of £1,250 to acknowledge the impact of Y’s lost provision between late November 2023 and mid-October 2024. This remedy was calculated at £500 per term which is below the Ombudsman’s guidance on remedies because Y received some provision in this period but intermittently. 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; and
2. apologise and pay Mr X £300 for the frustration he felt when he had to act as a second adult so Y could attend their alternative provision sessions.
63. The Council will provide us with evidence it has complied with the above actions.

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Decision

64. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already taken actions to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman