Summary: Mrs X complained the Council failed to provide her child, F with the provision set out in their Education, Health and Care Plan since September 2018. Mrs X also complained the Council failed to provide F with alternative provision when they did not attend School between December 2018 and July 2019 for health reasons. The Council was at fault. It failed to provide the educational provision for F or meet their special educational needs between January and July 2019. It further failed to provide F with alternative provision during the same period. The Council agreed to pay Mrs X £1600 to use for the benefit of F’s education. It also agreed to reimburse Mrs X £720 for the private tuition fees she paid during that period.

The complaint

1. Mrs X complains the Council failed to provide her child, F, with the provision set out in their Education, Health and Care Plan (EHC Plan) between September 2018 and July 2019. Mrs X also complains the Council failed to provide F with alternative educational provision when they did not attend school between December 2018 and July 2019 because of health reasons. Mrs X said the failings have caused F a loss of educational opportunity and social development.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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

7. I spoke to Mrs X about her complaint.
8. I considered the Council’s response to my enquiry letter.
9. I considered:
• The ‘Alternative Provision’ statutory guidance for Local Authorities.
• The ‘Ensuring a good education for children who cannot attend school because of health needs’ statutory guidance for Local Authorities.
• The Special Educational Needs and Disabilities Code of Practice.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

The law and guidance

11. Section 19 of the Education Act 1996 says Councils must arrange suitable full-time education, or education adapted to the student’s ability and needs, for pupils who cannot attend school because of illness.
12. The Department for Education issued guidance entitled ‘Alternative Provision’. This guidance says ‘Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made’.
13. The Department for Education issued guidance entitled “Ensuring a good education for children who cannot attend school because of health needs”. This guidance says:
• Councils should provide alternative education when it is clear the child will be away from school for 15 days or more whether that is consecutive or cumulative. The guidance applies to all schools including independent schools and academies.
• The government does not expect councils to act where the child receives suitable education provided by the school during their illness unless:
1. The education provided is not suitable;
2. The education is suitable but is not full-time or for the number of hours the child could benefit from without adversely affecting their health.
• Children unable to attend school because of health needs should be able to access suitable and flexible education appropriate for their needs. The nature of the provision must be responsive to the demands of what may be a changing health status.
• The Council should review the provision offered to ensure it continues to be appropriate for the child and that it is providing suitable education.

Education, Health and Care Plan (EHC Plan)

14. Children with complex needs may require an Education, Health and Care Plan EHC Plan). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
15. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
16. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.
17. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. The local health care provider will have the duty to deliver the health care provision.
18. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, nor can it investigate the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).
19. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
20. Councils must review an EHC Plan every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Special Educational Needs and Disability Code of Practice says reviews are generally most effective when led by the school. The council must be invited to attend a review meeting.
21. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
22. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened

23. Mrs X has a child, F, who has autism. In January 2017, the Council issued F a final EHC Plan. It amended the plan in September 2017, when F started in year 7 at the ‘the School’. The School was named in the EHC Plan and gave F access to the enhanced facility for pupils with social communication difficulties. F’s EHC Plan included specific provisions for F to develop their social communication and said they required a member of staff experienced in teaching pupils with autism. The EHC Plan remained unchanged when F started in year 8 in September 2018.
24. Mrs X said F started to struggle at the School from September 2018. Mrs X said F began refusing to attend the School and needed incentives and encouragement to attend. In November 2018, Mrs X met with the School’s Special Educational Needs Coordinator (SENCO) to discuss F’s progress at the School. The SENCO told Mrs X that it was only providing F with the minimum support and said the School did not have the funds to deliver the provision set out in F’s EHC Plan.
25. The School held F’s EHC plan annual review in December 2018. The SENCO said the School had the provision in place, however the School could not deliver the provision as the appropriate support was not in place. Mrs X told those present at the meeting that the School was failing to meet F’s needs. The School agreed to carry out a follow up meeting to discuss amendments to F’s EHC Plan.
26. Following the annual review meeting, Mrs X notified the School and the Council that F would not be returning to the School. Mrs X said F saw the doctor about their anxiety who advised Mrs X to keep them away from School. Mrs X said she would keep F at home until the Council arranged an alternative provision. Mrs X formally complained to the Council about its failure to make the provision set out in F’s EHC Plan.
27. In January 2019, Mrs X reiterated to the Council that F would not return and attend the School. The Council’s records note that Mrs X had not supplied any medical evidence to the School to support her assertion that F was unable to attend School for medical reasons.
28. The Council responded to Mrs X’s complaint in January 2019. It acknowledged F was unable to access the School and said it would arrange a further review of their EHC Plan. The Council said it would arrange for an Educational Psychologist (EP) to visit F. The EP visited F in February 2019. The EP noted in their report that F did not feel emotionally safe at the School.
29. Between January 2019 and March 2019, the School offered to send some work home for F. This work was accessible online via a virtual classroom. The School reiterated its offer in March 2019 and offered a tailored online learning experience. Mrs X said that was not appropriate for F. She said F had tried accessing the work, but it was inconsistent, and F now refused to engage with it any further.
30. In April 2019, the Council held a further EHC Plan review meeting with the focus of amending the Plan to better support F’s needs and to seek an alternative educational provision. Mrs X discussed the lack of provision at the meeting. Mrs X said she was paying for private tuition for F at a cost of £60 per week. The Council said it needed medical evidence to support F’s absence from the School before it would provide home tuition.
31. Following the meeting the Council acknowledged Mrs X was still unhappy with the Council’s handling of the complaint. It said it would carry out an independent stage 2 investigation. It apologised that the stage 1 response had not explained how she could progress her complaint.
32. Mrs X provided the School with medical evidence from F’s doctor to support their absence from the School due to anxiety. The School confirmed it had recorded F’s absence prior to this as unauthorised. The Council said it would fund some interim tuition for F at home to demonstrate its ongoing commitment to support F. That tuition started in June 2019.
33. In July 2019, the Council sent Mrs X a copy of F’s amended final EHC Plan. The Council issued the plan and said it was without a named educational provision until it could identify a long-term placement able to meet F’s needs.
34. In July 2019, the Council completed its stage 2 investigation. The report concluded that there were lapses in communication between the School, Mrs X and the Council, and the annual reviews did not clearly identify timelines or actions. It said the home tuition for F would continue until it could identify an alternative provision.
35. Mrs X remained unhappy and complained to the Ombudsman.

My findings

36. The evidence shows the School were unable to provide the provision set out in F’s EHC Plan. The School did not have the support staff to enable F to access the provision. While there is evidence to show F did not receive the provision from September 2018 onwards, there is no evidence to show the Council were aware of this until December 2018. Therefore, I cannot find the Council at fault for F not receiving the provision prior to December 2018, and the Ombudsman cannot investigate the actions of the School.
37. Mrs X told the Council F would not go back to the School in December 2018 due to their anxiety. It said ‘suitable’ education was available at the School between December 2018 and July 2019 and it remained the School’s responsibility to provide suitable education in the absence of medical evidence. However, the records show the School did not have adequate support in place to deliver the provision. The Council acknowledged the provision at the School was not working, and therefore it was not making the provision for F in line with their EHC Plan. So, although F remained on roll at the School, it was not ‘suitable’ because the provision in the EHC Plan was not available at the time because the School could not deliver it. There is an absolute duty on the Council to provide the provision stated in the EHC Plan. Ultimately, the School did not have the resources to do this, but it was still the Council’s responsibility. The Council failed to meet the educational provision as laid out in EHC Plan between January 2019 and July 2019. That was fault
38. The Council said that as Mrs X had provided no medical evidence to support F’s anxiety, it would not provide alternative provision. The statutory guidance says the Council is responsible for arranging suitable education for pupils who cannot attend school because of illness or other reasons. F’s EHC Plan contained information about difficulties with their emotional development and the support required to manage their anxiety. The EP also noted F ‘did not feel emotionally safe at the School'. There is no evidence to show how the Council considered those factors as contributing to F’s illness, and no evidence it considered F’s absence from School under ‘other reasons’. That was fault.
39. Although the School offered some education in the form of a virtual classroom, the content of F’s EHC Plan showed online lessons were unlikely to meet their needs. F’s EHC Plan said they required a member of staff experienced in autism, and a range of opportunities to engage in social activities. Instead Mrs X paid for a private tutor between January and June 2019, at a total cost of £720. Had the Council accepted F’s absence from School either for illness or ‘other reasons’, it could have started to provide home tuition from January 2019 onwards. The Council failed to provide F with alternative provision between January 2019 and July 2019. That was fault.
40. The Council were aware in December 2018 that the School was unable to meet F’s needs and it acknowledged F’s placement at the School was unsuccessful. The Council has a duty to meet F’s needs as set out in the EHC Plan but has still not identified an alternative suitable school. Because of this, some of F’s needs identified in the EHC Plan are not being met. This delay in identifying an alternative suitable setting to meet F’s needs is fault.
41. Following F’s annual review meetings in March and April 2019 the Council issued an amended draft EHC Plan for F in August 2019 which did not name a specific provision. The records show the Council identified a new provision for F in August 2019 but did not issue F’s final EHC Plan until October 2019. That was outside the statutory timescales and the delay is fault. However, I cannot say the delay itself has caused F further injustice. That is because the evidence shows it was unlikely F would have had access to an alternative placement during that time to access the provision in the plan. However, the delays did cause Mrs X frustration.
42. The Council responded to Mrs X’s complaint at stage 1 in January 2019 but it did not explain how Mrs X could further escalate the complaint. That was fault. That meant its stage 2 investigation was delayed and not complete until August 2019. That was fault. Those faults caused Mrs X frustration and time and trouble.

Injustice to F

43. F lost out on the provision within their EHC Plan for two school terms, and that has continued into the current school year. The Council failed to meet F’s identified needs during that period. Although the Council has provided some tuition since July 2019, this does not meet all the provision laid out in the EHC Plan. F has lost out on opportunities to develop emotionally and socially. F is already disadvantaged because of their learning difficulties and has now been further disadvantaged because of the Council’s faults.
44. Had it not been for the Council’s faults, F could have received the provision in line with their EHC Plan and could have started an alternative school placement. That could have reduced the overall impact on F’s educational opportunity and left them in a stronger position than they are now.
45. In deciding the recommended action below, I have consulted the Ombudsman’s guidance on remedies. Any agreed payments are outside of any provision allocated for F’s EHC Plan.

Agreed action

46. To remedy the injustice caused by fault, the Council agreed, within one month of the final decision to:
• pay Mrs X a total of £1600 to recognise the failure to deliver the provision set out in F’s EHC plan and loss of educational opportunity between January 2019 and July 2019. The payment should be used for F’s educational benefit;
• upon production of relevant invoices or receipts reimburse Mrs X a total of £720 paid for private tuition for F between February 2019 and July 2019;
• pay Mrs X £150 for the frustration and time and trouble caused by the Council’s handling of her complaint and its delay in issuing F’s final EHC Plan.
47. The recommended payments for F should be outside of any provision allocated in their EHC Plan.

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Final decision

48. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman