Summary: Miss X complained the Council has failed to offer a suitable alternative education for her son. She said her son has been unable to attend school due to the school not meeting his needs. We find the Council was at fault for failing to properly explain its decision to Miss X. This caused her significant distress. To remedy this injustice caused by fault, the Council has agreed to apologise and make a symbolic payment.

The complaint

1. The complainant, Miss X, complains the Council has failed to offer suitable alternative education for her son. She said her son has been unable to attend school due to the school not meeting his needs.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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.
6. 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)
7. 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.
8. 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.
9. 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.
10. 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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What I have and have not investigated

11. I have investigated matters between October 2023 and March 2024 when Miss X’s appeal rights arose, which she exercised. Miss X appealed against sections B, F and I. But the appeal against section I was in relation to the secondary school and not the current school.
12. I have not investigated matters after March 2024. This is because Miss X had the right of appeal against the current school. Miss X could have raised this as part of her appeal to the Tribunal.
13. As Miss X had the right of appeal against the current school, we cannot consider any lack of education as detailed in paragraph 7.

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How I considered this complaint

14. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
15. Miss X and the Council had an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

EHC Plan

16. 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. 

General section 19 duty

17. 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.
18. 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)

Educational provision- available and accessible

19. 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)

Summary of the key events

20. In September 2023, Miss X’s son, B’s school completed a support plan. It included types of challenging behaviour and strategies for positive behaviour. It also detailed targets which included engagement with a teacher upon entering the school.
21. In October 2023, B’s school provided the Council with a report it had carried out. It was noted that:
• B had struggled with transition to year six. The school had simplified the work and reduced the demand;
• the school had completed a team around the child meeting and produced a support plan; and
• B required movement breaks throughout the day with strength activities.
22. The team around the child meeting notes stated the support in place or had taken place included:
• social care to early help;
• occupational therapy referral and assessment with recommendations; and
• 12 weeks of play therapy.
23. The notes included actions the school would take. This included:
• the teaching assistant to do nurturing activities with B twice a week;
• staff to use the playful, acceptance, curiosity and empathy approach; and
• staff were to check in with B throughout the day to encourage him to talk to teachers about anything had not gone well.
24. Following Miss X’s request for an EHC needs assessment, the Council agreed to carry one out in December 2023.
25. In the following month, a SEND supported report was completed with B. It was noted:
• B found school anxiety inducing with problems managing social relationships and engaging in school work;
• B was currently in school for two hours each morning. His attendance was not consistent;
• B’s transition from home and time in school would need to continue to be carefully co-planned with the school and Miss X working together;
• any increase of time spent in school must be gradual with B prepared in advance; and
• it was important for school to regularly monitor and evaluate his progress to assess the effectiveness of the modifications and interventions in meeting his needs.
26. Miss X later asked the Council to arrange alternative provision for B as he was unable to attend school. She said he had been on a reduced timetable for at least 6 weeks and did not know when he would be back in full time. She said he had been absent for over 15 days.
27. Miss X asked for an update in February 2024. She said B was not being supported by school and said he was receiving no education.
28. The Council apologised for the delays in processing the EHC needs assessment. It said the educational psychologist (EP) report was due to be sent to it soon. It said it could then make a decision.
29. The EP report stated:
• B finds school difficult and over a period of time has reduced his engagement in education;
• additional adult support should be available; and
• staff at school were to continue to complete regular sensory audits of the environment in order to address B’s sensory processing needs.
30. The Council confirmed it would issue a draft EHC Plan which was issued on the 29 February 2024. Miss X asked what B should do in the meantime as he did not want to return to school.
31. Following Miss X raising further concerns around the lack of education in March 2024, the Council said whilst B was on roll at his current school, the school should be supporting his education until another setting was named on his EHC Plan. The Council advised her to engage with the school.
32. The EHC Plan was finalised on the 21 March 2024 naming his current school with a new secondary school from September 2024. But Miss X appealed the secondary school named to the tribunal.
33. In March 2024, the Council agreed to work with the school to create a package of support for B. This consisted of some alternative provision.
34. Miss X asked the school when they would send work home for B. She also said she had not received any free school meals in the time that B had been off school. In response the school said Miss X had previously advised she did not want B doing work at home. But they said the work would soon be ready. They also told Miss X she could request the school meals daily as she previously had done.
35. The EHC Plan was amended in April 2024 naming Miss X’s preferred secondary school from September 2024.
36. In May 2024 Miss X asked the Council why B was not receiving the interventions in his EHC Plan. She also said the 4.75 hours of alternative provision was not fulltime. She asked for a tutor to be provided or more alternative provision. She also said the work being sent home by school was too hard.
37. The Council contacted the school and asked if they could send other work home for B that he could access. It also asked if the school could offer any support regarding the interventions.
38. The Council advised Miss X to engage with the school and access the package of support that had been put in place. The Council said the school could deliver the provision in section F.

Complaint to the Council

39. Miss X complained about the lack of education provided for B. She requested alternative provision for full time hours.
40. In response the Council said:
• B’s current school could meet his needs and it was available for him to attend. In recognition of him finding it difficult to attend full time, the Council and school had put a package of alternative provision in place to help him to reintegrate to school;
• the package was not intended to replace school provision, but to be short-term intervention; and
• the school and Council had done as much as possible to provide B with a suitable education.

Analysis- was there fault by the Council causing injustice?

41. The school completed a report in September and October 2023. The October report stated B’s attendance was not consistent. It stated he was attending school two hours a day and the school had put a support plan in place. There was a further SEND supported report in January 2024 which is detailed in paragraph 25.
42. In January 2024, Miss X asked the Council to arrange alternative provision as she said B remained out of education. She asked again in February 2024. But the Council told Miss X in March 2023 the school should be supporting B as he remained on roll. It advised Miss X to engage with the school.
43. The general section 19 duty applies to all children of compulsory school age, whether or not they are on the roll of a school. But 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. The courts have determined that it is for councils to consider whether the education is available and accessible to the child.
44. In this case the Council told us at all times the school and the Council felt B could attend the setting. In deciding this, it considered the reports provided by the school as part of the needs assessment. It therefore said it considered the section 19 duty did not apply. It also said a GP letter provided in February 2024 was not considered to be sufficient evidence to warrant triggering its section 19 duties.
45. Whilst it is for councils to decide whether an education setting is suitable, we would expect the Council to have promptly communicated this decision to the parents. But I have not seen any evidence to suggest the Council did in this case. This is fault.
46. However, I cannot say, even on balance, that had the Council acted without fault, it would have arranged alternative provision. This is because it is for the Council to decide when a child needs alternative provision and how to meet that need. As stated in paragraph 44 the Council considered its section 19 duty did not apply. The Ombudsman can only look at whether the Council made its decision properly. However, the fault identified did cause Miss X significant distress which the Council should remedy.

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Agreed action

47. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation; and
• pay Miss X £300 in acknowledgement of the distress caused to her by the fault identified.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman