Summary: The Council was not at fault in how it decided it did not owe Ms X’s child, W, the duty to arrange alternative education provision when W stopped attending school. This means it was also not at fault in how it secured the special educational provision in W’s Education, Health and Care Plan. We cannot investigate the other matters Ms X complained about.

The complaint

1. Ms X complained the Council:
• Failed to arrange suitable alternative education provision when her child, W, stopped attending school in April 2024;
• Failed to secure the special educational provision in W’s Education, Health and Care (EHC) Plan;
• Took too long to obtain Educational Psychologist (EP) advice to inform W’s EHC Plan amendments; and
• Refused to name Ms X’s preferred school for W in their EHC Plan.
2. Ms X said this caused her and W significant distress and meant she had to go to the trouble of contacting the Council repeatedly.

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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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. 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

Alternative provision

7. 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 provision.
8. 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)

Education, Health and Care Plans

9. A child or young person with special educational needs may have an 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 which include:
• Section B: The child’s special educational needs;
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.
10. 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.
11. There is a right of appeal to the Tribunal about several decisions councils make in relation to EHC Plans. This includes the council’s decision on what to include in sections B, F and I of a child’s EHC Plan.

Annual reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan.

Special educational provision

13. The council has a duty to “secure” 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)
14. Where the special educational provision is intended to be delivered wholly within a school setting, councils meet their duty by funding a school place for that child, providing the school remains available and accessible to them.

What happened

15. W stopped attending the school (school A) named in their EHC Plan in April 2024, due to anxiety. Ms X told the Council shortly after. Ms X feels school A is too large for W, which is causing their anxiety. She believes W should attend a small specialist school.
16. In early May, school A held W’s annual review meeting. Following the meeting, the Council decided to amend W’s Plan. It issued the amended Plan in late-June, which continued to name school A in section I.
17. Ms X appealed sections B, F and I of the June 2024 EHC Plan.
18. Ms X later found a school (school B) she felt was suitable for W, which confirmed it could offer them a school place starting in late 2024. The Council did not amend W’s EHC Plan to name school B.
19. In late 2024, the Council agreed to seek new EP advice to make sure the special educational provision in W’s EHC Plan was right for them.
20. The Tribunal has not heard Ms X’s appeal yet.

Findings

21. The law says we cannot investigate a complaint when someone has used their right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
22. 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)
23. Ms X has used her right of appeal to the Tribunal to try and change what school the Council names in section I. Her complaint to the Ombudsman that the Council had not named her preferred school in section I is the same matter. As such we cannot investigate it.
24. Ms X’s complaint that the Council delayed seeking EP advice for W is connected to her appeal on sections B and F of W’s EHC Plan. This is because the updated advice is intended to inform changes to sections B and F. The Tribunal can order a council to obtain specialist advice, including from an EP, if it agrees that advice is necessary. Because the complaint about the EP advice is connected to Ms X’s appeal, we cannot investigate it.
25. The restrictions set out in paragraphs 21 and 22 also mean 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.
26. 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.
27. From the date of the late-June 2024 EHC Plan, Ms X’s complaint that W did not have a suitable education and did not receive the special educational provision in their EHC Plan while they were not attending school occurred as a consequence of the Council’s decision to name the school in their EHC Plan. Therefore, I cannot investigate that part of Ms X’s complaint from late-June 2024 onwards. The period we cannot investigate will end on the date the Tribunal makes its decision. I can, however, investigate the period between mid-April and late-June 2024.
28. The Ombudsman cannot question a council’s decision if it is made without fault. Ms X says W stopped attending school A in mid-April 2024 because it was not suitable for their needs anymore. School A was named in W’s EHC Plan so the Council acted appropriately to Ms X’s concerns by considering the suitability of the school as part of the annual review. The Council concluded the school was still right for W, as evidenced by the fact it issued the amended Plan in June 2024, naming school A. This means the Council had decided school A remained available and accessible to W and therefore, that it did not need to arrange alternative provision. The Council was not at fault in how it came to that decision so I cannot question it.
29. Because the Council had decided school A remained available and accessible to W, it had met its duty to secure the special educational provision in their EHC Plan by funding their place at school A. The Council was not at fault.

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Decision

30. I find no fault in the parts of Ms X’s complaint we are able to investigate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman