Summary: Ms X complained about the lack of education and provision provided for her child when they were not attending school. We found the Council at fault for a lack of robust action at some points. The Council has agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Ms X complains the Council has failed to ensure the delivery of provision in her child’s Education, Health and Care (“EHC”) Plan, failed to provide alternative provision to them, and delays with annual reviews. This has caused significant frustration and distress and has negatively impacted her child’s education and welfare.

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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 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)
5. This means that if a child 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.
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. Ms X complains about events since 2022, including the late outcome of an annual review. This is too far back for us to investigate (see Paragraph 3), and I am satisfied Ms X could have complained about this earlier period sooner. I refer to some of these events for relevant background.
10. I have investigated from October 2023 (12 months prior to her complaint to us) and June 2024 (when Ms X had an appeal right with a final issued EHC Plan). This point onwards is outside the scope of my investigation as the restrictions in Paragraphs 4-6 apply here. The “Jurisdiction” section expands on this later.

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How I considered this complaint

11. I discussed the complaint with Ms X and considered her views.
12. I made enquiries of the Council, considered its written responses and information it provided, as well as relevant law, policy and guidance.
13. 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

14. A child 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. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision has been made and sent to the parent or a final EHC Plan has been issued.
15. 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. (Children and Families Act 2014, section 42)
16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. A review meeting must take place. The process is only complete when the council issues a decision about the review.

Alternative provision

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. We issued a focus report “Out of school, out of sight?" issued in July 2022, updated in August 2023. This highlighted 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.

Background

19. Ms X’s child (“Y”) previously attended “the School”, a special school.
20. In January 2023, Y’s attendance declined due to their mental health. The School told the Council it reduced hours for Y to try and support their return and wellbeing. The School said Ms X wanted Y at a different school.
21. In February 2023, Ms X contacted the Council. Y could not access the School, and she wanted support while waiting for alternative provision, such as a tutor. The Council replied it chased the School about a tutor. It asked if she received the final EHC Plan on the Hub issued in January 2023. This was from an annual review meeting in November 2022.
22. Between June and July 2023, the Council asked the School about progress with arranging alternative provision as Ms X had been in contact. The School said it continued its search for a suitable tutor.

What happened – summary of key relevant events

23. In September 2023, Y began twice weekly sessions at a mentoring provider. This reduced to one session a week at Y’s request. Y also had twice weekly face to face home tutoring sessions. In November 2023, Y stopped engaging with this. Ms X said Y was not in the right frame of mind for tutoring.
24. In mid-January 2024, the Council sent Ms X a decision letter to the previous 2022 annual review. Ms X rang the School as Y’s annual review was overdue.
25. In late February 2024, the School carried out the annual review. Ms X wanted a change of placement, and school consultations were being carried out. Ms X said the EHC Plan needed updating. She agreed with the School for Y to attend once every other week for a few hours from March 2024 so it could gather current information to update the EHC Plan. Y attended until the start of June 2024, and this increased to two days a week.
26. In mid-June 2024, the Council issued a final EHC Plan for Y and outlined Ms X’s appeal rights. It named the School as Y’s educational placement.
27. In late June 2024, after an incident, Y stopped attending. The School contacted Ms X stating it could no longer meet Y’s needs. At the start of July 2024, the Council rang Ms X to discuss alternative provision.
28. In early September 2024, Ms X emailed a formal complaint to the School, copying in the Council. This described many incidents from 2022 onwards relating to Y’s education and attendance. Relevant to this complaint about the Council’s actions, she was dissatisfied with the alternative provision offered, Y had not received provision as set out in their EHC Plan, and the delayed annual review.
29. The Council replied at Stage One. It said it could not investigate matters over 12 months ago or about the School. It apologised for the late annual review, and the School would confirm the date of the next one, due in early 2025.
30. Ms X escalated her complaint as it did not address the lack of provision for Y. The Council did not accept her request due to time limits. Ms X then complained to us.
31. I spoke to Ms X about her complaint; she said she did not appeal the June 2024 final EHC Plan naming the School. She had capacity to appeal but felt stuck as she did not know where she wanted Y to attend.

The Council’s response to my enquiries

32. The Council accepted it should have investigated elements of Ms X’s complaint at Stage Two. It offered to carry one out now.
33. The Council said it was satisfied it met its Section 19 duty. It said Section F provision as written in Y’s EHC Plan would have been provided by a school or suitable alternative provision placement. It also said it consulted 22 different settings between April and December 2024 without success. Some were not suitable, some could not meet Y’s needs, and some were full.

Analysis

34. The investigation is limited to considering the role of the Council. We cannot consider the School as it is outside our jurisdiction to investigate.

2024 annual review

35. The School held an annual review in February 2024 and the Council completed the previous one in January 2023. This is not a significant delay, and the Council apologised for the late 2024 one. This is appropriate and I will not add further to this.

Jurisdiction

36. Throughout the events of the complaint, Ms X wanted Y at a different placement, not the School. Ms X did not appeal the June 2024 EHC Plan. Where appeal rights exist, we normally expect them to be used (see Paragraphs 4-6). Given Ms X’s previous disagreements with the School, it was reasonable for her to appeal this to go towards formally resolving Y’s placement issue. We do not consider matters where an alternative remedy is available by way of an appeal. Therefore, I am not investigating from June 2024 onwards.

Alternative provision

37. I can consider the period between October 2023 and June 2024.
38. Between September and November 2023, the School arranged some tutoring for Y. I cannot see evidence the Council reviewed the number of hours, the suitability of it, and whether this constituted full time education. This is fault. However, given Y’s engagement with this declined in this short period, on balance, Y is unlikely to have taken part in additional provision at this time.
39. Between November 2023 and March 2024, I cannot see evidence the Council took clear steps to progress with finding provision for Y. The Council let the case drift in this period; this is fault. This caused injustice to Y with a lack of learning and social opportunities for over a school term.
40. From March to June 2024, Y attended the School on an infrequent basis. The School facilitated this with Ms X’s agreement and informed the Council. Again, I cannot see evidence the Council reviewed or monitored this at the time; whether it decided this was enough for Y or if it needed to arrange anything further. This is fault. This creates some uncertainty with a lack of proper decision making by the Council on Y’s education at this point. However, I note evidence shows Y engaged with learning, made positive progress, and was meeting expected targets during this period. This limits the injustice here.
41. There have been noted efforts by the Council to find an alternative placement for Y with numerous school consultations. However, alongside this, the Council appeared to accept it had a Section 19 duty to Y. The ultimate responsibility for education and provision lies with the Council. While I recognise at points Y did not always engage or there was limited success, overall, as stated above, I am not satisfied the Council took robust action to fulfil this duty throughout the period I am considering. This also meant a lack of Section F provision at times for Y without a suitable placement or provision.

Complaint handling

42. Ms X included events in her complaint which were under a year old, but the Council still declined to consider it further because of time limits. This unnecessary barrier restricted Ms X’s right to a Stage Two investigation to review the matters sooner. This put her to additional time and trouble with the Council’s complaint handling.
43. I welcome the Council accepted fault and offered to carry out a Stage Two investigation now. However, given the time passed since her complaint, I did not consider it proportionate to refer it back to the Council at this late stage.

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Action

44. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Ms X and Y for the injustice caused by the faults identified;
• Pay Ms X a symbolic payment of £900 to recognise the impact to Y for the lack of education and provision between November 2023 and March 2024. This can be used for Y’s educational benefit; and
• Pay Ms X a symbolic payment of £200 for uncertainty and time and trouble with complaint handling.
45. The Council should provide us with evidence it has complied with the above actions.
46. In response to a recent decision about alternative provision, the Council provided an updated decision making process for when children are unable to access suitable, full-time education. This includes how the Council should record its decisions, communicate with parents/schools and how the Council should consider the suitability of alternative provision. Therefore, I have not made any further service recommendations.

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Decision

47. I find fault causing injustice. The Council agreed to my recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman