Summary: Mrs X complained the Council failed to put suitable alternative provision in place for her child, Z, when they stopped attending school in September 2022. We cannot investigate some parts of Mrs X’s complaint and the Council was not at fault in the remaining part we can consider.

The complaint

1. Mrs X complained the Council failed to put suitable alternative provision in place for her child, Z, when they stopped attending school in September 2022. Mrs X also complained the Council decided Z could attend a mainstream school instead of agreeing they should receive Education Otherwise Than At School.
2. Mrs X said this meant she had to pay for private tuition and therapies. She said the issues caused the whole family distress.

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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. 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)
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)

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How I considered this complaint

5. I have considered:
• all the information Mrs X provided and offered to discuss the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. 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. EHC Plans are set out in sections. The council names the school or type of school the child or young person will attend in section I.
8. 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.
9. 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 the child or young person will attend or that no school or other placement is specified.
10. The law says we cannot investigate a complaint when someone has used a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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)
12. 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.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Education Otherwise Than At School (EOTAS)

14. Councils may arrange EOTAS for children unable to attend any school setting. The child’s EOTAS package varies depending on their needs, but can include tutoring, online education, therapies and activity groups.
15. When a council agrees a child with an EHC Plan needs EOTAS, it leaves section I of the Plan blank. It then states in section F that the special educational provision will be delivered through EOTAS.

Elective home education

16. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend.

Alternative provision

17. 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.

What happened

18. Z stopped attending school in September 2022. Sometime later, the Council began assessing Z for an EHC Plan. It also arranged for Z to attend an alternative provision provider focused on helping children transition back into school.
19. In mid-March 2023, Mrs X withdrew Z from the alternative provision and told the Council she wanted to electively home educate them. The Council offered to continue to fund the alternative provision alongside Mrs X’s home education and other support. It said it would assess a tutor Mrs X had been paying for privately to decide if they were suitable. If they were, the Council said it would pay for the tutor to continue teaching Z. Mrs X refused the offers, and re-confirmed her desire to home educate Z.
20. In early May, Mrs X told the Council she wanted it to name EOTAS in Z’s EHC Plan. In the meantime, she continued to home educate Z.
21. The Council issued Z’s first EHC Plan in August 2023, naming a mainstream school in section I. Mrs X was unhappy and appealed to the SEND Tribunal to have Z’s EHC Plan amended to state EOTAS in section F and for section I to be blank.
22. Mrs X complained to the Ombudsman in May 2024.
23. The SEND Tribunal issued an order on Mrs X’s appeal in late May, stating Z’s EHC Plan should be amended to name EOTAS.

Findings

24. We cannot investigate a matter where someone has used their right of appeal on that matter. Mrs X complained to the Ombudsman that the Council decided Z could go to a mainstream school, instead of arranging EOTAS. However, Mrs X appealed to the SEND Tribunal to challenge the Council’s decision. Therefore I cannot consider that part of her complaint.
25. As set out in paragraph four, we cannot investigate late complaints unless there are good reasons. Mrs X complained Z has not had full-time education since they stopped attending school in September 2022. However, Mrs X did not complain to the Ombudsman until May 2024. Therefore, the period from September 2022 to May 2023 is late. I have seen no good reason for Mrs X not complaining sooner so I have considered from May 2023 to May 2024.
26. We also cannot investigate matters linked to those that have been appealed. This restriction applies from the date of the appealable decision, to the date when the SEND Tribunal comes to its decision. From August 2023 onwards, Z did not receive a full-time education because they did not attend the mainstream school named in their Plan. Mrs X’s complaint about missing education was closely connected to her appeal to have the mainstream school removed from section I of Z’s EHC Plan and EOTAS included in section F instead. I therefore cannot investigate that issue between August 2023, when the Council issued Z’s EHC Plan, and May 2024, when the SEND Tribunal issued its decision.
27. The only part of Mrs X’s complaint that I can investigate is that the Council did not arrange alternative provision when Z was out of school; between May and August 2023. Mrs X told the Council she wanted to electively home educate Z in March 2023 and that did not change before August 2023. The Council gave Mrs X options other than solely electively home educating, but she refused. When a parent chooses to home educate their child, they agree to provide a suitable education for that child. There is no duty on the council to arrange alternative provision in those cases, so the Council was not at fault.

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Final decision

28. I have completed my investigation. I cannot investigate parts of Mrs X’s complaint and in the remaining part, the Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman