Summary: Miss X complained about the Council’s failure to ensure suitable education for her daughter (B) when she was out of school. We found fault in the way the Council discharged its Section 19 duty towards B. The Council’s fault caused injustice to Miss X as she paid for some provision for B and was distressed at the lack of the Council’s support. The Council has agreed to apologise and make payments to refund Miss X’s cost of arranging educational provision for B between March and June 2024 and to recognise her distress. In recent complaints we have recommended relevant service improvements, which we will monitor.

The complaint

1. Miss X says the Council failed to provide her two children, who have Education Health and Care (EHC) Plans with full time education. This meant they missed much learning and their development was affected. The Council’s failings also impacted the whole family as Miss X had to stay at home to support her children and could not undergo a surgery. Her caring role affected her mental health and well-being.

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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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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.
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
8. 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)
9. 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

10. Miss X complained about the Council’s failure to provide suitable education for her two children. This decision considers Miss X’s complaint about her daughter, B. I have investigated Miss X’s complaint about her son’s (A) education under the reference number 24 012 298.
11. I have decided to investigate what happened from the end of April 2023 even though Miss X came to us in October 2024 and we would normally investigate only the last 12 months. This is because the Council significantly delayed considering Miss X’s complaint. She should not bear negative consequences of the Council’s failings. Besides due to having three children with special educational needs and her own specific needs, which affect her ability to deal with administrative tasks, it has been more difficult for Miss X to challenge the Council.
12. I have not investigated the suitability for B of School 2 named in Section I of her EHC Plan from September 2024. This is because Miss X could have appealed Section I of B’s EHC Plan and it would be reasonable for her to do so.

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How I considered this complaint

13. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
14. Miss 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

Legal and administrative framework

Alternative provision

15. 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.
16. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
17. 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)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Delivery of special educational provision

19. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
20. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
21. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

What happened

Background

22. B is autistic and has a profile of pathological demand avoidance. From the early age she has found it difficult to separate from her mother.
23. From September 2021 B had a place in a mainstream primary school. Meeting notes from an Annual Review of B’s EHC Plan in June 2022 include the information that although a thorough support plan had been put in place to support B to engage with school and separate from her parent, attending even for an hour at a time had proven too much.
24. At the end of November 2022 the Council issued a final amended EHC Plan for B naming a mainstream school with targeted special educational needs and disabilities (SEND) provision in Section I.
25. In February 2023 the Council agreed for B to move to a different mainstream school with targeted SEND provision (School 1) where B’s brother was on roll. An Educational Psychologist (EP) was involved in preparing a transition plan.
26. B’s final EHC Plan with School 1 in Section I was issued at the end of March 2023.

B’s education from April 2023 to June 2024

27. From April 2023 the Council funded weekly Speech and Language therapy (SLT) sessions for B which took place at home.
28. In summer term 2023 School 1 applied to the Council for exceptional funding for B to secure out of school provision for ten hours a week with a specific alternative provider (Provider 1). The Council did not agree. The Council offered funding for a full-time teaching assistant to support B and her brother.
29. From September 2023 an advanced teaching assistant (ATA) worked with B two mornings a week for an hour and a half. The sessions at home consisted mainly of cooking and doing craft. One of the sessions took place in a local village hall. B continued SLT sessions.
30. In December 2023 the Council carried out an Annual Review of B’s EHC Plan. Her school non-attendance was discussed. B’s sessions with ATA would increase to three mornings a week from January 2024. Two sessions were to take place at home and one session in the village hall. After Christmas 2023 B did not want to attend sessions in the village hall.
31. At the end of January 2024 there was an incident at home between B and her brother after which the ATA stopped providing tutoring.
32. School 1 arranged a part-time timetable for B from February 2024 but B could not engage with it.
33. At the end of January 2024 the Council issued B’s final amended EHC Plan with School 1 in Section I.
34. The Council continued discussions with Miss X about further amendments to B’s EHC Plan and issued another final amended EHC Plan in mid-March 2024. The plan specified that B was refusing to engage in learning tasks.
35. In the spring term of 2024 School 1 applied again for extra funding to secure Provider 1 for B and liaised with the Council. School 1 stated that B had engaged with ATA for three hours a week but had not made any progress as she had refused any educational activities. B was also attending a village hall with ATA and SLT once a week but after Christmas refused to go there.
36. In March 2024 School 1 special educational needs coordinator (SENCo) and the EP set up remote sessions for B and her brother.
37. The EP observed B at the alternative provider arranged by her parents (Provider 2) and prepared her advice to support B’s transition to a special school.
38. From the second week of April up to mid-June 2024 B received eight tutoring sessions at home delivered by a tutor who had supported B before September 2022. Each session consisted of two hours. The cost of this provision amounted to £720. B continued attending Provider 2 for the afternoon sessions. Miss X paid £70-£80 for each half-term, depending on its length.
39. At the end of May 2024 the Council offered B a place in a special school (School 2) from September 2024 and two weeks later issued an amended plan with School 2 in Section I from September 2024.

Complaint

40. Miss X complained about the inadequate education for A and B at the end of February 2024.
41. Three months later the Council sent its response to Miss X. It apologised for the delay and partly upheld her complaint. It said that although both children were on School 1’s roll this might not be appropriate to meet their needs.
42. Two weeks later Miss X asked for her complaint to be considered at stage two.
43. At the end of August 2024 the Council told Miss X a senior officer who would be investigating her complaint was away but they should respond by the end of the following week. After further correspondence with the Council Miss X brought her complaint to us in mid-October 2024.
44. In the second part of January 2025 the Council sent its stage two response to Miss X. It established A and B had been on School 1’s roll and this arrangement remained after the review of their EHC Plans in March and June respectively. The Council was aware the children did not attend School 1, but did not have any evidence it was due to their medical needs. The Council offered B a place in another special school (School 2) from September 2024. Although Miss X remained concerned about the proposed arrangements as both children needed her help to get to their educational settings, the Council was confident it could secure the arrangements to overcome these difficulties. The Council offered Miss X £250 for her time and trouble.

Analysis

Our jurisdiction when appeal rights are engaged

45. We would generally not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. Besides, the courts have found we cannot investigate any matter closely linked to the matters that could have been appealed.
46. If a person disagrees with the placement named in an EHC Plan we would generally not remedy a loss of education after the date the right of appeal could have been engaged.

B’s education from April 2023 up to June 2024

47. When a council finds out a child is not attending school or is on a part-time timetable for a long time because of exclusion, illness or for other reasons it should:
1. consider whether the child is receiving suitable education;
2. if the child is not receiving suitable education, make arrangements for such education to be provided.
48. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023 which clarifies our expectations for councils in relation to their Section 19 duty. We expect councils to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increase;.
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
49. At the end of March 2023 the Council issued B’s final amended EHC Plan with School 1 named in Section I. An EP was involved in preparing a transition plan for B. From April 2023 B was receiving weekly SLT sessions. In view of B’s inability to access education at School 1 the Council agreed for School 1 to arrange for ATA to deliver some sessions for B at home from September 2023.
50. After reviewing B’s EHC Plan the Council issued her final amended EHC Plans in January and March 2024. Although Miss X could have appealed, in the circumstances I do not consider it would be reasonable for her to do so. This is because the Council continued discussions with Miss X and School 1 about B’s education and sought professional advice which led to the change of the Council’s position on a school placement suitable for B. I could, therefore, investigate what happened from January to June 2024.
51. The ATA sessions continued until the end January 2024. After ATA stopped delivering educational provision for B at home, in February 2024 School 1 prepared a part-time timetable for B but she did not manage to re-engage with the school.
52. I did not find fault with the Council in its Section 19 duty towards B from April 2023 up to March 2024. This is because:
• after naming a new school with targeted provision at the end of March 2023 it was reasonable for the Council to allow some time to see whether B would engage with School 1;
• in June 2023 the Council considered B’s school non-attendance and agreed to make arrangements for alternative provision for her. It did not agree Provider 1 but confirmed School 1 would provide ATA to deliver some sessions at home for B. The Council can find more financially viable options when supporting children’s education;
• the Council continued funding weekly SLT sessions for B.
53. To decide whether the Council made arrangements for suitable education for B I considered B’s special educational needs and what the Council put in place for her. B’s EHC Plan of March 2024 noted B was refusing to engage in any educational activities and she struggled to engage with any new adults. After Christmas she refused to attend sessions in the village hall. The Council continued its involvement through reviews of B’s EHC Plan and arranging for an EP to advise on B’s educational needs. At the Annual Review of B’s EHC Plan in December 2023 the Council was planning to increase B’s sessions with ATA to three times a week. B was receiving weekly SLT sessions.
54. I consider, therefore, that up to March 2024 the Council made every effort to provide suitable education for B when she was out of school and complied with its Section 19 duty.
55. I have seen no evidence the Council tried to make alternative arrangements after B failed to engage with School 1 in February and March 2024. The Council continued exploring what educational arrangements would be appropriate for B and agreed she needed to attend a special school but failed to ensure B received suitable education from March to June 2024. This is fault which caused injustice to B and Miss X.
56. Because of the Council’s failure to secure education for B after the unsuccessful attempt to re-engage her with School 1 in February 2024, Miss X arranged individual tutoring for her. B also continued attending Provider 2. The Council’s failure to arrange alternative provision for B after February 2024 meant Miss X had extra costs. She was also distressed by the lack of the Council’s support for B’s education.

B’s education from June 2024 up to October 2024

57. The Council reviewed B’s school placement in spring term 2024 and decided she needed a special school. School 2 was named in Section I of B’s EHC Plan issued in June 2024 from September 2024. If Miss X was not satisfied with School 2 it would have been reasonable for her to appeal the EHC Plan issued in June 2024.
58. Because B’s school non-attendance was linked to her special educational needs, as explained in paragraphs 45 and 46 we would not look at the Council’s actions regarding its section 19 duty from the date when B’s final EHC Plan was issued in June 2024 as this is when the plan could have been appealed.

Complaint handling

59. Miss X raised concerns about her children A and B in one complaint. I have investigated the Council’s complaint handling under the reference number 24 012 298.

Service improvement

60. In recent complaints against the Council where we found similar failings we have recommended some service improvements. The Council agreed to:
• remind relevant officers and managers to make and store clear and accurate records of Education Act 1996 section 19 decision making in relation to arranging suitable education for pupils who are out of school;
• remind officers that they should consider if the Council has a duty under section 19 of the Education Act 1996 to provide alternative education provision when a child is not attending school for a period of time and strategies to reintegrate them have been unsuccessful;
• emphasise to staff that they must consider whether the Council should arrange alternative provision for a child, even when it is trying to find a new school place for that child. The duty is not automatically discharged by the Council providing standard or exceptional funding to schools for a child's education;
• review its alternative education policy to ensure the Council recognises its responsibility to retain overall responsibility for alternative education for pupils out of school;
• consider what steps it can take to reduce the backlog of complaint responses and report back to the Ombudsman with the steps the Council is taking to address this.
61. We recognise it will take some time for the Council to address its failings. Through our casework we will be monitoring the effectiveness of the Council’s actions following agreed recommendations.

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Action

62. To remedy the injustice caused by the fault identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X for the injustice caused to her by the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Miss X £945 as a refund of the costs of education arranged for B from March up to mid-June 2024;
• pay Miss X £200 to recognise her distress.

The Council will pay Miss X £1,145 in total.

The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman