Summary: Mrs K complains the Council failed to provide her daughter (Child A), who has special educational needs, a suitable full-time education when she was out of school. We found evidence that supports that Child A was unable to attend school due to her complex needs, and the Council failed to exercise its legal duty to provide alternative education provision. This caused harm to Child A’s educational development and wellbeing and serious distress and uncertainty to Mrs K. Both Child A and Mrs K have suffered an injustice because of the fault identified and the Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mrs K, is complaining on behalf of her daughter (Child A) who has special educational needs (SEN). Mrs K says the Council has failed to provide Child A with full-time and suitable education since September 2020. She says this has adversely impacted on Child A’s educational development and wellbeing. Further, Mrs K says she has had to personally fund specialist education for Child A which has caused her financial loss.
2. As a desired outcome, Mrs K wants the Council to apologise for not providing Child A suitable education. Mrs K also wants the Council to provide compensation to reimburse her losses and to acknowledge the damage to Child A’s education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We cannot question a council’s decision simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).
6. 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).
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
8. 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.
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended).

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How I considered this complaint

10. I have read Mrs K’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mrs K and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

11. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

12. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and health care plan (EHCP)

13. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
14. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at a delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
15. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
16. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
17. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
18. The Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration restricts what we can investigate. It found that if someone has made an appeal to the SEND Tribunal, we cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with an EHCP annual review outcome, we cannot seek a remedy for a loss of education or any other consequences after the date the appeal was made.

EHCP annual review

19. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
20. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review).
21. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

Elective home education

22. Parents have a right to educate their children at home (Section 7 of the Education Act 1996). This can include the use of tutors or parental support groups. Some children may continue to receive some of their provision in a school in what is sometimes called a ‘flexi-schooling’ arrangement. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to electively educate a child at home, the parents take on full financial responsibility for any costs involved, including examination costs.

Unregistered independent schools

23. An ‘independent school’ is defined as a school that is not maintained by a local authority or is not a non-maintained special school, and at which full-time education is provided (a) for five or more pupils of compulsory school age or (b) for at least one pupil of that age who is looked after by a local authority (within the meaning of Section 22 of the Children Act 1989) or has a statement of special educational needs or an EHCP.
24. Independent schools in England must be registered by the Secretary of State for Education before operating. It is a criminal offence to conduct an independent school that is not registered. If convicted, a person could be subject to an unlimited fine and/or imprisonment up to six months.
25. Local authorities have an overarching responsibility for safeguarding and promoting the welfare of all children and young people, regardless of the types of educational settings they attend (including those who are home educated and attend no outside educational setting). Where a child is attending an out of school setting, local authorities owe a duty to take steps to understand the range of activity and take appropriate and proportionate steps to ensure that children attending such settings are properly safeguarded.

Chronology of events

26. In September 2020, Child A, who has autism and other complex educational needs, started her year seven academic year at a mainstream secondary school. Child was placed on a restricted part-time timetable due to her SEN. Mrs K says Child A was struggling to manage the hours at this mainstream school placement.
27. In March 2021, Child stopped attending her mainstream secondary school altogether. Mrs H says this was due to her SEN and that Child A required a specialist school placement in order to receive a suitable education. This is supported by medical school reports conducted at the time.
28. In April 2021, the Council received a request for Child A to be assessed for an EHCP. The Council declined the request as it considered Child A’s needs could be met in a mainstream school without an EHCP. The same month, Mrs K decided to send Child A to an alternative education provider to support her SEN while she was not receiving full-time education. Mrs K says Child A attended for one week on a part-time basis before the Council terminated the arrangements. This was fully funded by Mrs K.
29. In May 2021, Mrs K says the Council agreed Child A could attend the alternative education provider. Mrs K therefore paid for Child A to attend for two more months on a part-time basis.
30. In July 2021, Mrs K made an appeal to the SEND Tribunal against the Council’s decision to assess Child A for an EHCP. The Council conceded to Mrs K’s appeal and it commenced the EHCP assessment process in September 2021. At this time, the Council also agreed to take on the funding for Child A to attend her alternative education placement. It agreed to fund the placement on a part-time basis from September 2021 onwards.
31. In September 2021, the Council funded Child A’s attendance at an alternative education provider. It also sought to make arrangements for Child A to attend another mainstream secondary school which she could transition into.
32. In November 2021, the mainstream school identified by the Council told its officers that it could not meet Child A’s needs.
33. In December 2021, the Council issued a final EHCP for Child A. The Council said it considered Child A’s needs could be met at a mainstream educational setting. It therefore named a mainstream placement for her to attend in the EHCP.
34. In mid-January 2022, the Council issued an amended EHCP for Child A following an annual review. This identified an alternative mainstream education placement for Child A to attend which Mrs K did not agree with.
35. In February 2022, Mrs K appealed the contents of the amended EHCP (including the identified educational placement) to the SEND Tribunal. Both Mrs K and the Council resolved the dispute by consenting that Child A would attend an independent specialist placement which could meet her SEN.

My assessment

SEND Tribunal

36. I cannot by law investigate a loss of education in circumstances where the subject matter of a complaint is inextricably linked to any matter which could reasonably be appealed to a statutory tribunal. I am absolutely prevented, without exception, to investigate where the complainant has already exercised their right of appeal.
37. In brief, Mrs K complains the Council identified an educational placement in Child A’s EHCP which was not suitable for her needs. She believes that since the Council has maintained an EHCP for Child A, a specialist school should have been identified. Consequently, Mrs K contends Child A did not receive a suitable full-time education. The question of which educational placement Child A should attend is materially connected to a whether she received a suitable education.
38. The Council issued a final EHCP for Child A in mid-December 2021 which identified a mainstream placement for Child A to attend. Mrs K disagreed with the named placement and therefore exercised her right of appeal to the SEND Tribunal. Further, the Council issued an amended final EHCP for Child A in January 2022 which carries a further right of appeal to the SEND Tribunal. Any dispute as regards to the amended final EHCP could be reasonably appealed to the SEND Tribunal, as evidenced by Mrs K’s past appeals. To be clear as to my remit and jurisdiction, I cannot investigate or remedy any matter which is inextricably linked to the issues which could have been appealed since December 2021. This includes any allegation that Child A did not receive a suitable education by reason of the identified placement named in her EHCP.
39. I cannot investigate or remedy any alleged loss of education since the date the Council issued a final EHCP for Child A (mid-December 2021). The restriction I outline at Paragraph 6 (above) applies.

Duty to provide alternative education

40. By law, the Council is required to provide full-time alternative education (under s19 of the Education Act 1996) to children within its area who cannot attend school by reason of illness or otherwise. This duty applies irrespective of whether the Council maintains an EHCP for a child, or not. The legal duty applies and alternative arrangements made as soon as it is clear a child or young person will be absent for health reasons for more than 15 days. Mrs K says Child A stopped attending school completely in mid-March 2021. She adds that Child A was placed on a restricted timetable and only received part-time education between September 2020 and March 2021. In summary, Mrs K complains the Council breached its duty to provide full-time education to Child A since September 2020.
41. I will not investigate the question of whether Child A received a suitable education when she was attending school from September 2020 to mid-March 2021. This is because Child A was attending school (albeit on a part-time basis). In order to reach a conclusion on whether the education was suitable would require me to investigate the teaching and support provided by the school during that period. I have no jurisdiction to investigate what happens in schools and the restriction I outline at Paragraph 9 (above) applies.
42. For the reasons outlined above, the scope of my investigation is whether the Council made alternative education provision available for Child A from mid-March 2021 to mid-December 2021, a period of nine months. As to this period, the Council has told me it did not owe a duty to provide Child A with alternative education provision in accordance with s19 of the Education Act 1996.
43. Importantly, I cannot question the merits of the Council’s decision absent a finding of fault. This is because decisions are best made by those exercising professional judgement. If the Council properly considered the issue of whether Child A could attend her mainstream school in light of her health at the time, then I have no legal jurisdiction to question its decision to not provide alternative education provision. I must therefore resolve this issue in the first instance.

Council’s consideration of illness

44. The central issue concerning the applicability of the Council’s duty to provide alternative education provision rests of whether it considered Child A could still attend school, regardless of her health at the time. It is perfectly legitimate for the Council to refuse alternative education provision if it considered Child A could still attend her mainstream school, regardless of her health and needs. As the Council told me, adjustments could have been made at the mainstream school to help support Child A and her health which would have facilitated her attendance. My role is to therefore assess whether the Council properly made its decision (considering all relevant factors) that Child A could still attend school. If the Council did not, then I have jurisdiction to question the merits of the decision and make a finding of fault, where it is appropriate to do so.
45. The Council’s position is that though Child A was suffering with anxiety, this does not mean she was too ill to attend school. It also makes the point that Mrs K’s decision to remove Child A from school prevented dialogue around making adjustments which would have facilitated her attendance. In support of its position, the Council has provided me with medical advice received in respect of Child A suffering from anxiety. The advice stated that some support seemed appropriate given Child A’s anxiety which appears in the context of school and related autism traits. The NHS Trust providing the advice recommended Mrs K seek the support of the school. The Council told me this provides evidence that Child A could still attend school with added support from its staff.
46. In addition, the Could told me there was no evidence at the time that Child A was unable to access mainstream provision. It explains that prior to September 2020, Child A was attending her mainstream school and achieving. Further, the Council said there were no underlying issues with Child A attending mainstream school, nor evidence to suggest she required specialist provision.
47. Firstly, I do not accept that the medical advice the Council received in relation to Child A suggests she could continue to attend mainstream school, despite her health difficulties. The advice serves only to state that Child A was struggling within her school environment on account of her health. I accept the advice recommended Mrs K seeking support from the school, but the NHS Trust providing the advice were not aware that much support had already been provided by the school and without success. Adjustments had already been made in helping to support Child A and the mainstream school reported to the Council that these had not had the intended impact. The mainstream school also told the Council that if Child A were to continue at the school, significant adjustments would need to be made which would not be practical. I see no evidence the Council considered these fundamental points.
48. Second, I take serious issue with the Council’s position as outlined in Paragraph 47 (above). I have reviewed the request made by the mainstream school to the Council in April 2021 for Child A to receive an assessment for an EHCP. This outlines that the mainstream school considered it was unable to meet Child A’s needs and that she was failing to make academic progress at the setting. It also adds that a full-time education at the school would not support Child A’s development and emotional well-being. I do not accept therefore the Council was unaware of any underlying issues concerning Child A’s attendance at the mainstream school. The school’s rationale for the EHCP assessment request is inconsistent with the Council’s position.
49. I would also refer the Council to Child A’s School Nursing Report, produced in April 2021. I understand the Council is in receipt of the report. The report was produced following a one-to-one consultation between Child A and the medical assessor. Mrs K was not present for the consultation. In particular, the report notes that attendance at the mainstream school was Child A’s main experienced difficulty which caused her anxiety and difficulty sleeping. It was also reported that Child A was losing weight and felt scared and angry while attending the mainstream school which resulted in her often being misunderstood. I see no evidence from the Council that it considered this highly detrimental impact.
50. Eventually, Child A stopped attending the mainstream school in mid-March 2021 due to her anxiety and autism. Mrs K notified the Council that Child A would no longer attend for these reasons and she expressly requested support from the Council. The Council’s documented position is that the mainstream school could provide a suitable education to Child A. This fails to recognise that Child A’s attendance at the mainstream school was adversely impacting her health. This is demonstrated by the Council’s formal complaint responses to Mrs K which are silent on the central issue that Child A was not attending due to illness.
51. The Council also says there was no compelling evidence to suggest that Child A required specialist provision from September 2020. It said it was only in February 2022 when the Council decided that Child A required a long-term specialist placement on the basis of the latest information received from education professionals. The Council has explained that the situation developed over time, Child A’s needs became more severe and ingrained and new evidence was obtained demonstrating this. It therefore maintains that the situation in February 2022 was very different to that in September 2020. Again, the Council’s position is entirely inconsistent with the information available to it at the time.
52. Furthermore, the Council says that Child A could not have accessed a special school in September 2020 without an EHCP which was not requested until April 2021. The Council also told me that it could not offer Child A specialist provision absent an EHCP being in place. This is not correct as specialist provision can be provided absent an EHCP under s19 of the Education Act 1996.
53. In my view, the Council has inaccurately conflated the issue of its s19 duty with identifying and meeting provision through an EHCP. The Council suggests there was no evidence to support that Child A was eligible for an EHCP when she stopped receiving education, or that she required a specialist placement. However, Child A’s right to receive alternative education provision is not dependant on whether the Council maintains an EHCP for her. The question is whether Child A could not attend her educational placement due to illness, her SEN, or otherwise. I have seen no evidence of the Council’s consideration of this issue. It maintained, despite being aware Child A was not receiving an education, that her needs could be fully met without an EHCP and in her mainstream setting.
54. The Council appears to suggest Child A did not need to be out of education because her then mainstream school could have fully met her needs. However, it should be noted the Council’s position and decision-making in relation to Child A has changed considerably over a short amount of time (and only when Mrs K has formally challenged these by way of appealing to the SEND Tribunal). Initially, the Council refused to assess Child A for an EHCP. It maintained Child A’s needs could be met without an EHCP at a mainstream school setting. However, when Mrs K appealed to the SEND Tribunal, it conceded it should assess Child A for an EHCP and agreed to take on funding for her to attend an alternative education provider. The Council later identified another mainstream placement for Child A to attend when it reviewed her EHCP. Mrs K appealed and the Council later conceded Child A required a specialist placement which could meet her SEN. I consider the Council’s position relating to whether Child A could receive a suitable full-time education at her then mainstream placement to be inconsistent with its concessions and changed views over such a short period of time.
55. In addition, I do not accept the Council’s position that Child A’s needs materially changed from the time it refused to assess her for an EHCP in April 2021 to the point it agreed she required a specialist placement in February 2022. In addition, given the Council refused to assess Child A for an EHCP in April 2021, I fail to see how it reached an informed view about what her needs (and the support she required) were at this point in time. Ultimately, Child A was out of education and I have reviewed medical evidence since April 2021 which supports this being due to her SEN. There is no evidence to suggest Child A’s needs worsened since April 2021 which made a specialist placement necessary to meet her needs.
56. Importantly, the Council also told me that it did not provide alternative education provision to Child A because, at the time, Mrs K was considering elective home education for Child A. The Council has since maintained this position and has explicitly told me that Mrs K told the Council she was electing to home educate Child A. I hold a number of concerns with this position. This would negate the Council’s duty to make alternative provision available because elective home education means the parents take on full responsibility for their child’s education, including any associated costs. During my investigation, I have seen no evidence of Mrs K notifying the Council of her intention to home educate Child A pursuant to s7 of the Education Act 1996. In my view, the Council made a wrong assumption that the only plausible reason for Mrs K withdrawing Child A from school was to home educate her. This assumption ignores the duty to make alternative education provision to children out of school due to illness.
57. In mid-March 2021, Mrs K emailed the Council that she had removed Child A from her mainstream school. She also asked for additional support and advice. The Council officer recording the email subsequently logged this as notice from Mrs K that she wished to electively home educate her daughter. Importantly, the email from Mrs K made no reference to elective home education. I fail to see how Mrs K’s notice to the Council could reasonably be deduced in this way. I consider the Council’s maintained position lacks rationality and credibility. Mrs K also followed up the same day explaining that Child A could not attend due to anxiety and the impact on her mental health. I see no evidence the Council responded.
58. The Council’s position supports the view there was a lack of consideration of the issue that Child A could not attend school by reason of illness. If the Council firmly believed Mrs K had elected for home education, it follows that it failed to acknowledge its duty to make alternative provision available for Child A. This is because elective home education and the duty to make alternative arrangements are mutually exclusive. Further, there is no evidence the Council sought to undertake due diligence that Child A’s needs could be met through elective home education which it is responsible for ensuring.
59. For the reasons provided, I do not consider the Council properly considered its duty to provide suitable alternative education to Child A under s19 of the Education Act 1996. Reasonable adjustments at Child A’s mainstream school had been tried and tested and it informed the Council it could not meet her needs. The Council then wrongly deemed Child A was receiving home education which would have negated the duty to provide alternative education provision. Further, the evidence shows the Council did not consider it was possible to provide specialist provision absent Child A having an EHCP which is incorrect. In my view, the evidence supports Child A being unable to attend school by reason of illness. I find that the s19 duty to provide full-time alternative education provision should have applied since mid-March 2021 when the Council became fully aware Child A was not receiving any education. The Council did not make alternative provision available in response to Mrs K’s notice and I find this was serious fault.

Alternative education provision

60. The Council told me that when it was faced with the reality that Child A would not be returning to her mainstream school, it decided to make alternative arrangements. This included funding her part-time placement at an alternative education school for children with SEN from September 2021. The Council also said it had identified another mainstream secondary school for Child A to attend in order to support her reintegration back into the school environment during the Autumn Term of 2021. The Council say Mrs K would not engage with staff at the secondary school and that it should not therefore be held responsible for a lack of education when it had identified a suitable placement for Child A to attend.
61. I discussed the Council’s position with Mrs K who told me that neither the Council nor the secondary school submitted a transition plan for Child A to reintegrate back into the school environment. Further, Mrs K said the SEN Officer from the secondary school advised the Council that it would not be able to meet Child A’s needs in November 2021. I have reviewed the response from the secondary school which says the following:

“We are unable to meet the needs of Child A and do not agree for [anonymised] to be named on the EHCP. Unfortunately, we did not have an indication of the funding provided with this pupil, therefore there are questions over whether what we have outlined is possible as we are unaware of what funding the school will receive. From the EHCP, it is clear that Child A is a high needs child, therefore is an inefficient use of resources without a 1:1 support LSA, costed at £15,000 per year, and without sufficient support and staffing, will impact learning of others.”

62. The Council cannot rely on offering Child A a place at the new identified secondary school as giving effect to its duty to provide alternative education provision. Any alternative education provision must be suitable to the needs of the child. My view therefore is the only alternative education provision provided to Child A was on a part time basis between September and December 2021. I have commented already for reasons of jurisdiction that I will not investigate any provision post Mrs K’s appeal to the SEND Tribunal.

Attendance at unregistered school

63. Separately, Mrs K alleges that when she began to fund Child A’s attendance at an alternative education provider in April 2021, the Council terminated the arrangements. Further, Mrs K says the Council rejected to increase the hours Child A received at this setting when it took over part-time funding for the placement in September 2021. Importantly, the alternative education provider Child A attended is an unregistered school, meaning it is not regulated in the same way as a maintained school under the jurisdiction of the Council.
64. The Council has an overarching responsibility for safeguarding children attending out of school settings. The evidence suggests the Council terminated the arrangements in order to conduct due diligence and to ensure Child A’s needs and wellbeing would not be compromised at the unregistered school. Once this had been completed, the Council consented to Child A’s part-time attendance. I have not identified any fault in the Council’s decision-making in this respect.
65. On the issue of Mrs K’s request for more hours, this raises complex issues. I recognise Mrs K’s point that she felt the Council did not want to provide more hours for reasons of financial constraint. Indeed, the Council did raise with Mrs K that there was no funding available to facilitate this. However, I have also seen evidence the Council did not want to provide more hours due to the risk this could present. Specifically, it is a criminal offence for an unregistered school to provide full-time hours. This is because the Council felt that such arrangements could have amounted to Child A attending an independent unregistered school which I have provided details of at Paragraphs 23 to 25 (above).
66. Notwithstanding the concerns on this issue, the Council was at fault for not providing Child A with full-time hours of education. The law says alternative education provision should be full-time, unless it is not in the best interests of the child or young person. In my view, the Council could have facilitated alternative arrangements which did not involve an unregistered school setting.

Injustice to the complainant

67. In my view, Child A has suffered a loss of full-time education between mid-March to mid-December 2021 (when the Council issued a final EHCP). However, during this period, there were eight weeks of school holidays. I therefore consider Child A lost seven months of full-time education due to the Council’s failure to exercise its legal duty to provide alternative education provision. That said, I must also consider that for part of this period, Child A was receiving some part-time education through an alternative education provider.
68. Specifically, Mrs K paid £2,100 for ten weeks of part-time education through the alternative education provider between April and July 2021. The Council subsequently funded part-time provision from September 2021. Firstly, as the Council failed to provide alternative education provision, I consider the reality of Child A not receiving any education forced Mrs K to incur the identified expense which was not her responsibility. Secondly, I have seen no evidence that Child A should not have been receiving full-time education. I therefore consider part-time education to be unsatisfactory in the circumstances, though it was clearly an improvement on no education at all which must be considered. My assessment is that of the seven months Child A was not receiving a full-time education, this can be categorised as follows:
1. for 24 weeks (six months), Child A received part-time education through an alternative education provider and;
2. for 4 weeks (one month), Child A received no education at all.
69. In summary, I consider the Council’s failing to make full-time alternative education provision available for Child A to have had a serious adverse impact on her development and wellbeing. In addition, I consider Mrs K suffered serious distress and uncertainty during this period due to her daughter not receiving a full-time education as she was entitled to receive. This subsequently resulted in Mrs K incurring financial loss of £2,100 in order for Child A to receive some education which untimely should have been covered by the Council’s s19 duty. Both Child A and Mrs K suffered an injustice by reason of the Council’s fault and so I am making a number of recommendations for the Council to remedy this.

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Agreed actions

70. To remedy the fault and injustice identified, the Council has agreed to perform the following actions by no later than Monday 1 August 2022:
1. The Councill will provide a full written apology to Mrs K which acknowledges the fault and injustice identified in this statement.
2. The Council will pay £2,400 to Mrs K due to a loss of education to Child A. This has been calculated based on £1,800 for six months Child A only received part-time education and £600 for one month no education was provided at all.
3. The Council will reimburse Mrs K £2,100 which she spent for Child A to attend an alternative education placement for a period of ten weeks.
4. The Council will pay Mrs K £500 to serve as an acknowledgement of the serious distress and anxiety she has suffered by reason of the fault identified.
5. The Council will pay Mrs K £250 to serve as acknowledge of her time and trouble spent pursuing her complaint.
71. The Council will perform the following by no later than Monday 3 October 2022:
1. At a senior level, the Council will undertake a full review of Mrs K’s case. The purpose of the review will consider when the Council should take steps to determine the reasons why a child or young person is not attending school and when it owes a duty under s19 of the Education Act 1989. The Council will review the reasons why it failed to properly ensure alternative education provision for Child A in the circumstances and set out measures to be adopted to prevent similar occurrences in the future. The review will inform feedback and additional training to the Council officers involved in Mrs K’s complaint and those with a responsibility for supporting Child A with an EHCP.

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Final decision

72. The complaint is upheld. The Council failed to provide alternative education provision to Child A when it was fully aware she was out of education on account of her SEN. However, for reasons of jurisdiction under the provisions of the Local Government Act 1974, I am limited in the time period I can investigate a loss of education. The fault identified however caused an injustice to both Child A and Mrs K and the Council has agreed to our recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman