Summary: Miss X complained the Council failed to provide her son with alternative provision while he was unable to attend school. We found the Council’s failure to ensure Y receive a suitable full time education or alternative provision from September to November 2024 is fault. This fault meant Y received a very limited education between September and November 2024, which was a key stage in his school career. The Council will apologise and make payments to Miss X and Y.

The complaint

1. Miss X complained the Council failed to provide her son with alternative provision while he was unable to attend school. Miss X asserts alternative provision should have been in place by 1 May 2024 but her son had still not received any education when they left the Council’s area in December 2024.

Back to top

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 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)
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 Tribunal in this decision statement.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans

9. 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 council can do this.
10. Statutory guidance 'Special educational needs and disability code of practice: 0 to 25 years' ('the Code') sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Alternative provision

11. 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.
12. 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)
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
14. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened here

15. Miss X and her family moved to the Council’s area in January 2024. She then left the Council’s area in December 2024. Miss X complains the Council failed to provide her son, Y with an appropriate education for the entire time she lived in its area.
16. This is Miss X’s second complaint to us about the Council’s failure to provide alternative education provision for Y. We did not investigate Miss X’s initial complaint as she had appealed to the SEND Tribunal regarding the Council’s decision not to issue an EHC plan. Y had been given a place at a mainstream primary school but Miss X did not consider his needs could be met in a mainstream education placement.
17. 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)
18. 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.
19. These restrictions on our jurisdiction also apply to our consideration of this complaint.
20. The SEND tribunal issued a consent order on 23 July 2024 directing the Council to secure an EHC Plan for Y.
21. Miss X chased the Council in late July 2024 as she was concerned Y was due to transition to secondary school in September and she did not know which school he would be attending.
22. The Council confirmed Y had been allocated a place at School 1 and told Miss X that School 1 would be able to support Y during the transition. Miss X did not consider Y would be physically able to attend School 1 due to his sensory needs. She told the Council School 1 would not be able to meet Y’s needs and asked the Council not to name it in Y’s EHC Plan. Miss X confirmed her preferred school was an independent specialist school.
23. The Council issued a draft EHC Plan on 6 August 2024 and invited Miss X’s comments. Miss X provided her comments on 11 August 2024.
24. Miss X chased the Council for school consultation responses and in early September 2024 told the Council Y was not attending School 1. Miss X also said the Council had agreed to provide alternative provision in June 2024, but nothing had been put in place yet.
25. School 1 also contacted the Council on 11 September 2024 to advise that Y was on roll but not attending. The Council asked it to arrange a multi-agency meeting to discuss the support Y needed.
26. The Council then responded to Miss X’s complaint on 13 September 2024. It apologised for the delay in responding. It also acknowledged the Council had not been as responsive as it would have liked in this situation. The Council said it was in the final stages of the EHC Plan process and was awaiting consultation responses.
27. In relation to Y’s current education, the Council noted Y was on roll at School 1. It said an officer would contact Miss X to arrange a meeting to discuss any support it could provide until the EHC Plan was finalised. If alternative provision was required, the Council would do everything it could to assist.
28. School 1 contacted the Council in late September 2024 regarding a possible reduced timetable of two hours a day. It also arranged a multi-agency meeting for 8 October 2024. The Council’s records show the education wellbeing advisor was unable to attend due to illness. Miss X confirmed Y had started attending school for art and computer science but had no provision for English or maths.
29. There was a further planning meeting on 17 October 2024, which the school did not attend. Miss X told the Council Y had refused to go to school and had been anxious all weekend. The records show a Council officer then met with School 1 on 11 November 2024 to discuss a funding request for alternative provision provided by the school.
30. Miss X continued to chase the Council for the consultation responses and an update on Y’s EHC Plan. On 29 November 2024 Miss X told the Council the family would be moving out of area the following week.
31. The Council issued a final EHC Plan on 2 December 2024 naming a type of placement. It subsequently transferred the Plan to Miss X’s new council.
32. Miss X has asked us to investigate her concerns. She says she has upheld every part of the s19 agreement but has continuously been let down by the Council. Miss X says Y was on a significantly reduced timetable at School 1. Some weeks he would go in for two hours, other weeks it would be for just an hour. And there were weeks when Y would not go in at all. As a result Miss X had not been able to return to work. She said this impacted the whole family financially.
33. In response to our enquiries the Council says that although it accepted a duty to provide alternative provision on 18 June 2024, due to staff sickness and a lack of capacity it was unable to put anything in place before the summer holidays.
34. The Council says that due to changes to its s19 offer parameters over the summer, from September 2024 Y no longer met the criteria for s19 support as there was no medical evidence. It says he was deemed to be a SEND need and was handed over to that team.

Analysis

35. Y did not attend school full time at all in 2024 and has not received any alternative provision. As set out above, we are unable to consider any missed educational provision until after the tribunal decision on 23 July 2024. This in effect means, we can only consider any missed provision for the Autumn term, until Miss X and her family moved away.
36. The Council was aware of Y’s difficulties in transitioning to School 1. And that he was placed on a reduced timetable of just two hours a day, which he could not always manage. The records show that although alterative provision was discussed on several occasions, this was not put in place. The Council’s failure to ensure Y receive a suitable full time education or alternative provision from September to November 2024 is fault.
37. The Council’s records suggests the delay in arranging alternative provision may in part have been due to restrictions on funding until the EHC Plan was finalised.
38. The Council’s failure to complete the EHC Plan process and issue a final EHC Plan in accordance with the statutory timeframes is fault. The whole process should be completed within 11 weeks of the tribunal order. In this case the Council took over 19 weeks. The Council should have issued a final Plan by 8 October 2024 but did not do so until 2 December 2024. Delays of this nature are both concerning and clearly unacceptable.
39. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
40. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. These payments would be between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
41. In the circumstances I consider a payment of £1,500 for the failure to provide a suitable education between September and November 2024 would be appropriate. Y received a very limited education between September and November 2024, which was a key stage in his school career.
42. The delay in the EHC Plan process caused Miss X distress and frustration. It also delayed her ability to exercise their right of appeal to the SEND tribunal in relation to the setting and/or content of the plan. I consider the Council should make a symbolic payment to recognise the frustration and distress Miss X has experienced.
43. I do not consider it necessary to make recommendations for service improvements as the Council’s wider SEND transformation plan includes actions on the issues identified.

Back to top

Action

44. The Council has agreed to:
• apologise to Miss X and Y for not providing a suitable full-time education between September and November 2024, and for the delay in completing the EHC Plan process and in issuing a Final Plan. 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 Miss X £1,500 in recognition of Y’s missed education between September and November 2024. Miss X should use this for Y’s educational benefit as she sees fit.
• pay Miss X £250 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
45. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

Back to top

Decision

46. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman