Summary: Mrs X complained the Council delayed issuing her son’s Education, Health and Care plan and it failed to secure suitable alternative provision while it sourced a suitable school place for him. The Council acknowledged the delay in issuing the Education Health and Care plan. We found fault in the alternative provision the Council secured. The Council has agreed to apologise to Mrs X and make a payment in recognition of the injustice caused by the faults.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council delayed in issuing her son’s (Y’s) final Education, Health and Care (EHC) plan. Mrs X also complains the Council failed to ensure Y received suitable alternative provision in line with his EHC plan.

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What I have and have not investigated

2. Mrs X also complained about the Council’s refusal to name a special education placement in section I of Y’s EHC plan. I have not investigated this aspect of Mrs X’s complaint. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. Certain decisions related to special educational needs (SEN) have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal. Some of the decisions which are appealable and usually out of our jurisdiction include the provision specified in section F of the EHC plan and the placement named in section I.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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

8. I considered Mrs X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from the Council before making this final decision. I did not receive any comments from Mrs X.

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What I found

Alternative provision

11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless that is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. 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).
12. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child” (R (on the application of DS) v Wolverhampton City Council 2017).
13. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  

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 SEN Tribunal can do this.
15. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. 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 EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
17. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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).

What happened

18. This is a summary of key events that are relevant to my investigation. It is not an exhaustive list of everything that happened.
19. Mrs X’s son, Y, has a diagnosis of Autism Spectrum Condition (ASC), Attention Deficit Hyperactivity Disorder (ADHD), Attachment Disorder and childhood trauma. Y was permanently excluded from mainstream school in October 2021.
20. In November 2021, the Council agreed that Y required a place at a specialist provision school. The Council consulted several schools. School 4 said it was able to meet Y’s needs up until Year 13 and that Y could start with immediate effect.
21. The Council did not agree to a place at School 4. Instead, it arranged alternative provision whilst it found a “suitable placement” for Y. 15 hours a week of alternative provision was secured with School 2 and this was supplemented by 10 hours a week of home tuition.
22. The tutor who provided the home tuition was due to leave her position after the half term break in February 2022. Mrs X notified the Council of this and it began searching for an alternative tutor for Y.
23. Y was also in receipt of therapy on a weekly basis, one hour per session. This was also in jeopardy due to funding. The Council secured funding for a further 10 sessions from March 2022.
24. Mrs X says Y’s EHC plan was due on 21 December 2021. On 12 January 2022, the Council issued Y’s final EHC plan but it failed to name a school in section I. The Council said it was considering School 3 which was an independent special school that was due to open in May 2022. The Council was of the view that Y’s needs could be met by School 3 and it would continue with the alternative provision until the school opened.
25. Mrs X appealed to the SEND Tribunal. Her preference was for School 4 to be named on Y’s EHC plan and she was concerned School 3 had not shown it was able to meet Y’s needs.
26. During the appeal hearing, the Council was unable to demonstrate how School 3 would meet Y’s needs. In May 2022, the SEND Tribunal decided the Council was to name School 4 on Y’s EHC plan. It did this in an amended plan which was issued on 24 May 2022.

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Analysis

27. Mrs X says Y’s EHC plan was due on 21 December 2021, but it issued it on 12 January 2022. This is fault. The Council has acknowledged the delay and apologised to Mrs X.
28. Mrs X complains the Council did not provide full time alternative provision to Y. The Council arranged between 21-25 hours a week of alternative provision for Y. The statutory guidance states that “full-time” education is not defined in law and that some forms of provision, such as one to one provision, need not be full time because it is intensive. 6 to 10 hours of Y’s alternative provision was home tuition, therefore I do not consider the Council was at fault for the amount of alternative provision it secured up until the half term holidays in February 2022.
29. After the half term holidays, the tutor delivering the home tuition could no longer continue with the role. I understand there were also issues regarding funding for therapy Y received on a weekly basis. The Council arranged funding for the therapy to continue until the easter break.
30. It is acknowledged that the Council acted swiftly in reinstating funding for the therapy and also in its attempts to find a tutor for Y.
31. The Council arranged the funding up until easter because it was of the view Y would begin attending School 3 when it opened in April 2022. However, in May 2022, the SEND Tribunal ruled that School 3 was not suitable for Y and the Council had not demonstrated how it could meet his needs.
32. In May 2022, the SEND Tribunal decided the Council was to name School 4 on Y’s EHC plan. School 4 had previously offered Y a place with immediate effect in November 2021. Therefore, had the Council fulfilled its duty effectively, it would have identified earlier that School 3 was unable to meet Y’s needs and this would have avoided the injustice to Y and Mrs X.
33. Although I have not found fault with the amount of provision the Council initially arranged for Y, based on the Tribunal’s decision, I find the Council at fault for not properly considering Y’s needs earlier. The injustice of this is significant because Y could potentially have began his placement at School 4 as early as November 2021.
34. Had the Council properly considered Y’s needs, it is likely that he would have had his SEN needs met in accordance with his EHC plan and Mrs X would not have had to go to the time and trouble to complain.
35. The remedies calculated below are from 21 December 2021 (which is when the Council should have issued Y’s final EHC plan) to the end of May 2022. I have also taken into consideration the provision Y received from January 2022 to May 2022.

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Agreed action

36. To remedy the injustice to Mrs X and Y, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Mrs X for failing to consider Y’s needs properly;
• Pay Mrs X £1500 (£300 for each month from January 2022 to May 2022) to recognise the injustice to Y as identified above. Mrs X should use this payment for Y’s educational benefit; and
• Pay Mrs X £150 for the time, trouble and frustration she has suffered in bringing this complaint.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have found evidence of fault and the Council has agreed to my recommendations to remedy the injustice caused. I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman