Summary: Ms X complained the Council failed to arrange suitable alternative provision and all the special educational needs provision in her child, Y’s, Education, Health and Care Plan. Ms X said this distressed her, caused her financial difficulty and Y missed education and provision. There was fault in the way the Council did not ensure Y received education and plan provision. Y missed education and plan provision for one academic term. The Council has agreed to apologise, make a financial payment and issue guidance to its staff.

The complaint

1. Ms X complained the Council failed to arrange suitable alternative provision and all the special educational needs provision in her child, Y’s, Education, Health and Care (EHC) Plan. Ms X said this distressed her, caused her financial difficulty and Y missed education and provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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. 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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How I considered this complaint

5. I read Ms X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

Background information

8. 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. 
9. 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)  
10. 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 their legal duty. At a minimum we expect them 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. 

11. There is a right of appeal to the Tribunal against a council’s:

• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

12. 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)
13. 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.
14. 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.
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
16. 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.
17. 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)
18. 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)
19. 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

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Y has additional needs and an EHC Plan setting out the support they need. Ms X communicated her concerns about Y during 2023. Y’s attendance became a concern for Ms X. Y stopped attending school. In November 2023, Ms X asked the Council for alternative provision. The Council contacted the school to ask it to bring the annual review meeting forward if possible.
22. In January 2024, the school confirmed Y could still attend a horse riding club until further notice.
23. Ms X asked the Council for alternative provision again in February 2024. She said the Council ignored her original request.
24. Ms X complained to the Council in March 2024. She complained Y was missing education and EHC Plan provision. Ms X said she had asked for alternative provision under section 19 of the Education Act, but the Council ignored the requests. The school held the annual review after Ms X’s complaint.
25. The Council wrote to Ms X at the end of March 2024. The Council said the process for considering Y’s education was through the annual review. The Council stated the school felt it could meet Y’s needs. Ms X repeated the school had not provided any education or plan provision while Y could not attend. The Council recorded it would acknowledge Ms X’s complaint but delay a response. Ms X withdrew her complaint and said she would take legal action against the Council.
26. The Council decided to amend Y’s plan at the start of April 2024. It wrote to Ms X, saying this carried a right of appeal. Ms X’s legal representative complained to the Council the same day. The Council started consulting with other schools after this complaint.
27. The Council responded to Ms X’s legal representative in April 2024. The Council accepted it had not provided a suitable education for Y and was discussing Y’s education.
28. The school removed Y from its roll at the end of April 2024.
29. The Council informed Ms X it had agreed to fund one day per week at an alternative provision placement. Ms X repeated her concerns Y had not had education or plan provision.
30. The Council issued Y’s updated EHC Plan in June 2024.
31. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise, make a financial payment for the lack of education and provision and for her time and trouble, and to ensure this does not happen again.
32. In response to my enquiries the Council stated it felt a Tribunal appeal better suited this matter. The Council stated Y was on roll at the school and it was responsible for the education and plan provision.

My findings

33. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school full time from November 2023. The Council also has a duty to ensure Y received the provision in the EHC Plan.
34. The Council response to the Ombudsman says Y was on roll at the school. It felt the annual review could deal with this issue. Ms X asked the Council for alternative education in November 2023, but the school held the annual review in March 2024. There is no evidence it considered its responsibility to ensure Y received an education and plan provision between these dates. Y was out of school after the annual review. The Council has not shown it considered its responsibilities after the annual review either. The Council must consider if it needed to provide Y with education or plan provision. It did not. This is fault.
35. The Council, in its response to Ms X’s legal representative, admitted it had “not provided suitable education pursuant to Section 19 of the Education Act 1996”. Paragraphs nine and 16 set out the Council must provide education and ensure a child received EHC Plan provision if they are out of school. The Council’s failure to ensure Y received education provision from November 2023 to June 2024 is fault. Y has missed education and plan provision since November 2023.
36. The Council issued the final EHC Plan in June 2024, giving an appeal right. Once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education or plan provision until the Council issued the Final EHC Plan in June 2024. I therefore cannot recommend any remedy for missed education or provision beyond this date. Y missed education and provision between November 2023 and June 2024. Ms X has shown the time Y missed, totalling one academic term. I would usually make service improvement recommendations in a case such as this, but I can see other Ombudsman investigations made these. The Ombudsman is actively monitoring the Council’s learning from these recommendations.

Complaint handling

37. The Council has not evidenced a complaint response. It provided communication in response to Ms X’s request for alternative provision. This does not give a right to escalate the concerns. I do not consider this a complaint response.
38. I have also seen an internal Council email where it noted the Tribunal and Ombudsman’s jurisdiction. The Council said it would acknowledge the complaint, but “leave the complaints door open until after proceedings have finished”. The Council policy does not show this was usual practice. The Council should not use a Tribunal appeal right as a reason for not investigating complaints.
39. The Council also stated Ms X had an appealable decision after it issued a decision to amend the plan in April 2024. The decision does not carry a right of appeal. This letter would only carry a right of appeal if the Council refused to amend the plan. The only appealable decision was after the Council issued the final EHC Plan in June 2024. I am not satisfied Ms X had an appealable decision at this time. Even if she did, the Council should investigate complaints.
40. The Council appears to have confused its interpretation of law and guidance, and its own policies when considering this matter. I cannot say this caused an injustice to Ms X, as she chose to withdraw her complaint to take legal action. However, it did raise further concerns of the Council’s understanding of the law.

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Agreed action

41. To remedy the outstanding injustice caused to Ms X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms X and Y for not ensuring Y received the education and EHC Plan provision for one academic term. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Ms X £1,200 for the missed education and plan provision for one academic term. This money should be used for Y’s benefit.
• Remind relevant staff what the appealable decisions to the Tribunal are.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I have completed my investigation. I have found fault by the Council, which caused injustice to Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman