Summary: Mrs Y complains the Council failed to arrange suitable educational provision for her child, B. She complains the Council failed to put in place adjustments to meet B’s disability-related needs so B could access any provision offered. We have decided to uphold Mrs Y’s complaint because there is evidence of fault by the Council causing injustice. To remedy this, the Council has agreed to apologise to Mrs Y and B and make several payments. The Council has also agreed to make certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs Y, complains that the Council failed to arrange suitable educational provision for her child, B, between October 2019 and March 2021. She says B could not attend school due to health reasons. More specifically, she says the Council:
1. failed to arrange suitable alternative provision for B as soon as it became aware B would be absent from school for 15 days due to health reasons;
2. failed to process B’s Education Support for Medical Absence (ESMA) re-referral in a timely manner;
3. incorrectly closed B’s case with ESMA in June 2020;
4. failed to fund the alternative provision that Mrs Y had to arrange for B instead; and,
5. failed to have due regard to its duty to make reasonable adjustments for B under the Equality Act 2010 when arranging alternative provision for them. Mrs Y says B was not able to access the proposed ESMA provision because of their disabilities. But, she says the Council failed to consider what reasonable adjustments could be put in place instead so B could access an education in line with their needs.
2. Mrs Y says B missed out on a suitable education between October 2019 and March 2021, which covered the majority of B’s GCSE years (Years 10 and 11). She says this has caused B significant distress and stress.
3. Mrs Y says she went to significant time and trouble trying to secure a suitable alternative education for B during this time. She says she has had to cover the cost of an Educational Consultant and the Council has not reimbursed her for the period between September 2020 and February 2021. Mrs Y says the situation with B’s education has caused her significant distress and stress also.

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What I have investigated

4. Mrs Y complains about matters dating back to October 2019. The last section of this decision explains why I cannot investigate the period between October 2019 and April 2020.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. 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)

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How I considered this complaint

11. I spoke with Mrs Y about her complaint. I considered the information and documents Mrs Y and the Council sent me.
12. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
13. 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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What I found

Legal and administrative background

Education, Health and Care Plans

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
15. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Children and Families Act, Section 42) We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
16. 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)

Alternative provision - General section 19 duty

17. 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.
18. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should generally be on a fulltime basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health. (Education Act 1996, section 19) We refer to this as section 19 or alternative provision.
19. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
20. 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)
21. 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 provision 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)
22. The Ombudsman issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for councils, including that they:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and,
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Impact of the COVID-19 pandemic

23. This complaint involves events that occurred during the COVID-19 pandemic.
24. On 23 March 2020, schools in England closed to most pupils as part of the first national lockdown, apart from the children of key workers and those who were vulnerable, including children with EHC plans.
25. The government introduced new and frequently updated rules and guidance during this time. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
26. The Coronavirus Act 2020 temporarily amended the absolute duty to make the special educational provision in an EHC Plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.
27. The Secretary of State issued a notice under the 2020 Act. However, the Notice did not apply to section 19 duties. This meant, if a council had been arranging alternative provision for a child or young person prior to 1 May 2020, we would expect the provision to continue as previously arranged. If the provision was reduced, there would need to be clear and cogent reasons from the council to justify this.

Child in Need

28. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
29. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

30. When a council assesses a child as being in need, it supports them through a child in need plan.

Reasonable adjustments under the Equality Act 2010

31. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
32. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act includes disability.
33. We cannot decide if a council has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether a council has properly considered an individual’s rights in its treatment of them.

What happened

34. I have set out a summary of the key events below. It is not meant to show everything that happened.

Scope of the investigation

35. Case law has decided that I cannot investigate any matter complained of that is inseparable from any appeal made to the SEND Tribunal. I cannot investigate or comment on any decision made by the SEND Tribunal. However, I have referred to SEND Tribunal decisions, where necessary, to understand the action taken by the Council and sequence of events.

Chronology

36. Mrs Y’s child, B, is autistic and has severe anxiety and several other conditions.
37. At the beginning of the 2019/20 academic year, B was in Year 10 and on the school role at School One, an independent school. B did not have an Education, Health and Care Plan (EHC Plan) at this point, but had a Child in Need Plan.
38. In October, B’s school attendance significantly dropped. B was experiencing severe panic attacks and increased anxiety.
39. Mrs Y appealed to the SEND Tribunal against the Council’s refusal, in September 2019, to issue an EHC Plan for B.
40. Towards the end of April 2020, the SEND Tribunal issued a Consent Order. Mrs Y and the Council had reached an agreement before the Tribunal hearing. The Council had agreed to issue an EHC Plan for B.
41. In May, the Council arranged a meeting online with School One, Mr and Mrs Y, B’s social worker and an ESMA officer. The record of the meeting shows:

• reintegration plans were affected by COVID-19 and the closure of School One because of this. School One said there was no expectation B’s year group would return on site before September 2020.
• B was unable to access any ESMA support. This was because School One was providing the type of support and reasonable adjustments ESMA could provide, which were “differentiated work; reduced time and lesson content; [and] pre-lesson information such as teacher details/venue visit”
• B was receiving monthly private sessions with a psychiatrist. After the meeting, the psychiatrist said B was not well enough to access education, but supported providing B with opportunities to build their confidence.

42. In mid-June, ESMA held a further review meeting with School One and Mr and Mrs Y. ESMA decided to close B’s case.
43. On 10 July, the Council issued B’s final EHC Plan. The Council named School One in Section I of the Plan.
44. In mid-August, Mrs Y appealed to the SEND Tribunal about certain parts of Sections B and F of the EHC Plan. Mrs Y requested the appeal be considered as part of the National Trial because she said the EHC Plan did not accurately describe B’s health and social care needs or provision.
45. In September, Mrs Y arranged for an Educational Consultant to support B in accessing education again.
46. In late October, ESMA contacted B’s psychiatrist to request an update on B’s health needs. The Council said it received no response.
47. In mid-November, ESMA tried to contact School One and Mrs Y to discuss a possible new referral.
48. At the end of the month, ESMA chased the psychiatrist, but received no response.
49. On 11 December, Mrs Y requested ESMA provide tuition for B. ESMA said it would wait until the start of the spring term 2021 to start the new referral process.
50. A few days later, an ESMA Officer replied to say B’s psychiatrist had been contacted for updated advice to help the Council identify a suitable support plan and understand the impact of B’s medical needs on accessing learning.
51. Mrs Y replied to the Officer. She complained B had received no contact from ESMA since June 2020 and she expected the re-referral process to be quick and easy. She asked the service to confirm when it would provide some teaching provision for B. Mrs Y instructed a solicitor who wrote to the Council asking it to arrange a slow transition back to school for B with 1:1 support.
52. The next day, an ESMA Officer replied to Mrs Y to say its service closed the next day so it would consider her request from spring term 2021. The Officer explained ESMA still required updated advice from health professionals.
53. On 11 January 2021, an ESMA Specialist Advisory Teacher attended B’s Child in Need meeting. This was to decide whether ESMA should support B in accessing education. It was decided School One would make a new referral to ESMA.
54. The next day, Mrs Y complained to the Council. She said B was unable to access any of the online learning offered by School One and ESMA due to their disabilities. Mrs Y said B was unable to attend the in-person provision offered by ESMA as B was unable to leave the family home.
55. On 20 January, the Council’s Special Educational Needs and Disability (SEND) team held a SEND Specialist Advice & Support Involvement meeting to discuss B’s transition back to education. Mrs Y, B’s Educational Consultant and an ESMA Officer also attended the meeting. The record of the meeting shows it was agreed the next best steps needed to be small for B and achievable with a focus on building up their ability to leave home and engaging in activities outside the family home.
56. In February, the Council’s Multiagency Panel considered Mrs Y’s request for direct payments to cover five hours per week with the Educational Consultant to assist B in accessing education and 40 hours per year to be used to support B in accessing the community. The Council’s record of the Panel’s decision shows:

• B was not receiving any face-to-face transition support from School One or the Council. B’s family was instead “bridging the gap” and privately funding support;
• advocacy services would be provided for B as there were concerns B’s voice was not being fully heard;
• B’s 40 hours per year short break provision was not being used. However, the Panel refused Mrs Y’s request to instead use these hours on community access for B; and,
• the Panel refused the request for direct payments for the Educational Consultant, but would instead directly commission this with the provider.

57. Mrs Y chased the Council’s ESMA and SEND teams for an update on the Multiagency Panel’s decision. She complained the Council had failed to arrange alternative provision for B or the special educational provision in their Plan.
58. A week later, an Officer in the Council’s SEND team said the Council had agreed to fund B’s support from the Educational Consultant.
59. In mid-April, Mrs Y chased the Council for the exact details of the package of support agreed for B at the Multiagency Panel meeting. She said the Educational Consultant had not received any payment from the Council.
60. The Council held a meeting with Mrs Y and School One to plan for B’s transition back to school. A timetable that allowed B to gradually build up their time at school was agreed with support from the Educational Consultant.
61. A week later, the SEND Tribunal issued its decision.
62. In May, the Council sent Mrs Y an amended final EHC Plan following the SEND Tribunal decision in April. This named School One in Section I of the Plan until July 2021. It said in Section F of the Plan that an Educational Consultant would provide support as B transitioned back to school and B should receive 1:1 support.
63. Two further planning meetings for B’s transition back to School One were held.
64. In August, Mrs Y sent a further formal complaint to the Council.
65. In September, the Council sent its stage one complaint response.
66. In November, the Council sent Mrs Y its final complaint. It did not uphold Mrs Y’s complaint that it had failed to arrange alternative provision for B or the special educational provision in B’s Plan.
67. Mrs Y then complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

68. On 27 April 2020, the SEND Tribunal issued a Consent Order as Mrs Y and the Council had reached agreement the Council would issue an EHC Plan for B. By this point, the Council had:

• already accepted in March 2020 that ESMA should provide B with support as they were unable to attend school due to illness. I find this means the Council had accepted its duty to arrange alternative provision for B had been triggered by the time of the Tribunal’s Consent Order; and,
• organised a meeting with Mrs Y, School One and B’s Specialist Advisory Tutor from ESMA to plan the support and learning B should have access to. The meeting took place online due to the national lockdown restrictions in place. The record of the meeting in April shows B’s anxiety had heightened at the thought of returning to education at the end of the summer. As School One had closed due to COVID-19 restrictions in place, the School would provide B access to online lessons and said B could begin gradually attending whichever sessions they felt able to. To accommodate B’s concerns about being visible during lessons, the School said pupils were asked to turn their video cameras off during live lessons. The ESMA Specialist Advisory Teacher recommended B begin by listening to 15 minutes of certain sessions each week and asked B’s core subject teachers to explain the lesson content.

69. In my view, the Council was satisfied that the online learning offered by School One combined with the reasonable adjustments it had put in place provided a suitable education. The Council told me the gradual and slow return to sessions was in line with the advice from B’s psychiatrist, meaning part-time education was in B’s best interests. The Council arranged a further review meeting for mid-May. I do not find the Council at fault for the period between 27 April and mid-May 2020. The Council has given clear reasons why it considered the provision through the School was suitable at the time and ensured there was scope to review whether it was working within a short period of time. This is a decision it was entitled to make. Without fault in how it reached its decision, I cannot question the content.
70. However, at the mid-May review of B’s progress, B’s parents said the deterioration of B’s health was extremely challenging and they felt “lost and unsure of the best way forward”. They said B had managed to attend 35 minutes of a Year 8 art lesson, but they became overwhelmed by the lesson and had to stop. The Council had a duty here to consider whether the alternative provision offered to B was both “available and accessible to [B]”. In my view, it was clear at this meeting that B was struggling to access the provision offered through School One. But, the Council failed to consider what alternative options could be provided for B to ensure they could access the alternative provision. Rather, based on the record of the meeting, I find the Council tasked B’s parents with ensuring B could access the online support available. This is fault. It was the Council’s responsibility, not Mrs Y’s or School One’s, to make sure B received suitable educational provision and, when this was inaccessible to B, to promptly arrange alternative provision or additional support.
71. At the following mid-June review meeting, Mrs Y explained B had not been able to work towards the previously agreed targets and B felt unable to attend any of the timetabled online lessons.
72. ESMA decided to close B’s case with its service because the medical professionals involved in B’s care and their family had explained B was not well enough to engage in any education. It said this meant there was no role at that time for ESMA support.
73. However, ESMA tasked B’s parents with maintaining regular contact with School One so the School had a full understanding of how to support B. It tasked B’s parents to send any letters from B’s doctors to the School explaining how B’s condition impacted their ability to attend school and engage in education. I find the Council here effectively tried to transfer its duty under section 19 to B’s parents and School One when ESMA closed B’s case. As explained above, this is fault (part c of the complaint). When a child, like B, is out of education due to illness, the Council must arrange suitable alternative provision for the child. This means it was for the Council to maintain oversight of B’s ability to engage with education, keep this under review and maintain clear records of any decisions made about why no educational provision was in B’s best interests.
74. Due to the fault identified above, I find this caused B and Mrs Y significant uncertainty about what alternative provision, however limited, the Council could arrange for B between mid-May to the end of summer term 2020. In my view, if the Council had met its section 19 duty and continued monitoring B’s ability to engage with education, this would have avoided Mrs Y being put to the unnecessary time and trouble of navigating the re-referral process to ESMA in December 2021 (part b of the complaint).
75. By the beginning of the autumn term 2020, B was still unable to attend school. However, based to the evidence I have seen, the Council next considered its section 19 duties in late January 2021 when its SEND team held a Specialist Advice & Support Involvement meeting to discuss B’s transition back to education.
76. During this meeting, a Council Autism Specialist Advisory Tutor stated B needed to see themselves as successful and progressing. The Tutor said:

• B required support around this as they could not do this independently;
• B needed support in advance of, during and after any learning activity to enable them to reflect on any positive achievements; and,
• B needed to develop tolerance and resilience in day-to-day tasks and activities with a slow build up to a more formal educational arrangement.

77. This meeting led to the Council agreeing, in February 2021, to fund the cost of five hours per week of support with the Educational Consultant that Mrs Y had arranged. I find this delay meant the Council failed to arrange any alternative provision for B between September 2020 and February 2021. This is fault. During this time, the Council also had a duty to secure the special educational provision (SEP) in B’s Plan while they were unable to attend school due to illness. However, I have seen no evidence that the Council considered this or made arrangements to secure any of the SEP, however limited. This caused Mrs Y uncertainty about what education B would receive during this time. B missed out on receiving a suitable education and the SEP in their Plan.
78. In my view, much of the fault here stemmed from the following:

• the Council’s response to my questions and its stage one complaint response show the Council offered B either online provision through School One or through ESMA’s teaching support. ESMA’s offer of provision was made up of: an online teaching school with access to up to 18.5 hours teaching in English, maths and science, 1:1 online tuition over an online communication platform, and an assistive device to allow B to be present virtually at School One.
• Mrs Y told the Council that B was unable to access the online communication platform the Council used because of their disabilities. The Council was aware that B was not accessing similar online provision that School One had offered during the summer term 2020. However, based on the evidence I have seen, the Council failed to show how it considered the “acid test” of whether educational provision the Council had offered was both available and accessible to B. (R (on the application of DS) v Wolverhampton City Council 2017)
• based on the Council’s stage one complaint response, the Council does not have a budget to provide for alternative provision outside the above offer. However, it accepted that its commissioning process for provision, such as the Educational Consultant, needed reviewing following Mrs Y’s complaint. It offered to reimburse Mrs Y for the costs incurred between September 2020 and February 2021. In my view, this is an acceptance of fault that the Council did not have a process in place for promptly putting in place alternative provision when a child, like B, was not able to access the above offer of provision. I have recommended a service improvement below around this.

79. Because of this lack of process, Mrs Y went to significant time and trouble trying to explain to the Council that B was unable to access the online learning and asking it to make reasonable adjustments around this to meet B’s disability-related needs. Broadly speaking, the Council’s duty to make reasonable adjustments required it, when arranging alternative provision for B, to decide what reasonable adjustments it could make so B, as far as possible, could have the same experience as someone without that need. When Mrs Y said the reasonable adjustments School One had offered were not working and the same would be true for ESMA’s offer of provision, the Council should have considered whether there were other adjustments it could have put in place to make sure B could assess the service. I find the Council failed to do this until January 2021, which is fault.
80. In my view, the Council should have obtained the Autism Specialist Advisory Tutor’s advice much sooner than January 2021. On balance, if the Council had obtained this advice in May 2020 when it was clear B was struggling to access the online learning, it is likely B would have had access to the support they needed in advance of, during and after any learning activity much sooner.
81. In late February 2021, Mrs Y chased the Council for an update on the support it would provide with B’s transition back to school. However, it is my understanding that there was a further delay of a month before ESMA arranged a planning meeting that led to the Educational Consultant travelling to School One with B and a plan of school contact days was established.
82. Based on the above findings of fault, I find B missed out on receiving alternative provision and the SEP in their Plan between September 2020 and end of March 2021 (part a of the complaint). Mrs Y went to significant time and trouble trying to get the Council to put provision in place and incurred costs with the Educational Consultant.
83. Where fault has resulted in a loss of educational provision, including SEP, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
84. In this case, I have taken into consideration the fact B was at a key stage of their education and, as I understand it, was working towards retaking a school year so they could begin studying towards their GCSEs.
85. I have also taken into consideration that B received some limited provision through the Educational Consultant that Mrs Y arranged up until the end of February 2021 (when the Council took over funding this). The Council offered to reimburse this in its stage one complaint response. Based on its response to my enquiries, the Council has failed to complete this, which is fault. The Council should reimburse Mrs Y for the sessions with the Educational Consultant. I have calculated the total cost of these sessions to be £2,400 (from 18 September 2020 to end of February 2021).
86. I, therefore, consider the monthly payment for the period from September 2020 to end of March 2021 should be at the mid-range of the scale as B received some limited provision arranged by Mrs Y.
87. It is my understanding that, during the summer term 2021, the Educational Consultant began working with B to attend School One when B was able and School One was sending work home for B. The Council reviewed B’s progress in transitioning back to school and, in May 2021, following the SEND Tribunal decision, provided a package of alternative provision for B, which included building up their hours of support with the Educational Consultant and 1:1 support. I do not find the Council failed to arrange alternative provision for B during this time.
88. I have, therefore, decided to uphold parts a to e of Mrs Y complaint because of the fault causing injustice identified above.

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Agreed action

89. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mrs Y;
2. apologise in writing to B;
3. make a payment to Mrs Y of £2,400 for the costs incurred between 18 September to end of February 2021 for B’s Educational Consultant;
4. make a payment to Mrs Y, on behalf of B, of £400 for each school month the Council did not make suitable educational provision for B, including the special educational provision in B’s EHC Plan. This covers the periods from September 2020 to March 2021 (six school months after deducting school holidays), making a total of £2,400. This payment should be used for B’s educational benefit;
5. make a payment to Mrs Y, on behalf of B, of £200 for the uncertainty caused during the summer term 2020 about the type of alternative provision the Council could put in place once B was able to begin engaging in education again that was suitable to their needs, including their SEN; and,
6. make a payment of £400 to Mrs Y for the significant distress and uncertainty caused by the fault as well as the significant time and trouble she was put to trying to get the Council to arrange suitable educational provision for B and chasing it for clarity on what it could provide.
90. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments.
91. Within two months of my final decision, the Council has also agreed to:

• establish a mechanism to ensure suitable alternative provision is promptly identified and put in place when a child or young person is unable to access the provision offered by the Council. The Council should consider including a quicker escalation process between ESMA and its SEND team. The Council should include clear guidance to staff on the process to follow and report back to the Ombudsman on the outcome of this service improvement;
• circulate a reminder to staff that the duty to arrange alternative provision lies with the Council and is non-delegable to schools or parents. This includes circumstances when a child or young person is unable to quickly transition back to attending school due to illness; and,
• circulate a reminder to staff that there should be clear records of how the Council has decided any alternative provision is suitable to the child’s age, ability, aptitude and any special educational needs they may have. This should include details of how the Council has decided whether educational provision the Council has offered is “available and accessible to the child”.

92. The Ombudsman will need to see evidence these actions have been completed.

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Final decision

93. I have completed my investigation.
94. I have decided to uphold parts a to e of Mrs Y’s complaint. This is because I have seen evidence of fault causing injustice to Mrs Y and B. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Parts of the complaint that I did not investigate

95. Mrs Y complains that the Council failed to arrange suitable educational provision for B between October 2019 and March 2021.
96. As explained above, the law says we cannot investigate a complaint if someone has appealed to a tribunal, including the SEND Tribunal. Caselaw has established that this means the Ombudsman cannot investigate any matter complained of that is intrinsically linked to any appeal made to the SEND Tribunal.
97. In September 2019, the Council wrote to Mrs Y with its decision not to issue an EHC Plan for B. It said a Plan was not necessary as B’s special educational needs (SEN) were being met within the resources of School One.
98. In October, Mrs Y appealed the Council’s refusal to issue an EHC Plan for B. It was around this time that B’s attendance at school began to drop significantly as they were experiencing severe panic attacks and increased anxiety.
99. In April 2020, the SEND Tribunal issued a consent order as the Council had agreed to issue an EHC Plan.
100. Based on the evidence I have seen, the reasons for B’s drop in attendance are inseparable from B’s SEN and the matters appealed (whether B had unmet SEN and needed an EHC Plan). When reaching this decision, I have considered the evidence available to me, including:

• the letters from B’s psychiatrist from October and December 2019, which said B had significant SEN. The psychiatrist supported Mrs Y’s request the Council issue an EHC Plan to support their education. In the letters, the psychiatrist said B’s anxiety levels were high and were triggered by many small changes including sensory overload caused by the School’s busy lunch hall and pressures at school. By December, she said B was only able to manage two hours of school when B was able to attend, but they experienced high levels of anxiety and panic when they attended.
• School One’s statement to the SEND Tribunal said B could become anxious and overwhelmed at school and their drop in attendance was connected to increased anxiety and illness.

101. For the reasons explained above, I, therefore, cannot investigate the matters complained of between end of September 2019, when Mrs Y’s appeal rights arose, and the end of April 2020 when the appeal was completed. The Ombudsman cannot investigate the consequences of the Council’s decision not to issue an EHC Plan during the period of appeal, which would include any failure by the Council to provide B with alternative provision.
102. I can, however, investigate matters from end of April 2020 onwards.

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Investigator's decision on behalf of the Ombudsman