Summary: There was fault by the Council which meant Y did not receive suitable fulltime alternative education when he stopped attending school. Y missed out on education during a critical time in his education. The Council will apologise, make a financial payment and implement service improvements.

The complaint

1. Ms X complains on behalf of her son, whom I shall refer to as Y, that:
• Y’s Education, Health and Care (EHC) Plans were never fully implemented by the Council.
• The Council failed to provide suitable alternative education when Y was unable to attend school for a period of two years (2019 to 2021).
• The Council told her alternative education was temporary, but a year later the Council had still not found a replacement school. She had to appeal to get a suitable school named.
• The alternative education provider did not have qualified teachers.
• The Council blamed the alternative provision school for not providing the special educational provision in the EHC plan when the legal duty lay with the Council.
• The Council agreed actions in mediation in Autumn 2021 but then failed to abide by what was agreed.
• The Council agreed to reimburse costs Ms X incurred for a specialist assessment but failed to do so.
2. Ms X says because of the fault she incurred costs arranging education herself. Ms X would like the Council to review its processes, better its train staff and reimburse her costs.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
• We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. 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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What I have and have not investigated

8. I have investigated the above complaint issues except where Ms X could reasonably have used, or has used, a right of appeal to the SEND Tribunal. This is explained further below. (Local Government Act 1974, section 26(6)(a))
9. Ms X has complained about events which took place more than twelve months before she brought her complaint to the Ombudsman. I have exercised discretion to consider events from when a final EHC plan was issued in February 2020 and the Council had a legal duty to secure special educational provision. Ms X complained to the Council in May and October 2021, which is just over the twelve-month period. The complaint includes the period of COVID-19 when many complaints were raised late or took longer to process.
10. I have not investigated the period prior to Spring 2020 when Ms X says Y did not receive suitable education. This complaint is too late for us to consider. I have seen no good reason why Ms X could not have raised this complaint at the time. (Local Government Act 1974, sections 26B and 34D, as amended)
11. I have not investigated events after a new final EHC plan was issued in mid-2022. This period was not included in the Council’s complaint investigation. (Local Government Act 1974, section 26(5))

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How I considered this complaint

12. I have considered information provided by Ms X and the Council including the complaint correspondence and documents relating to the Education, Health and Care (EHC) plan process.
13. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 and associated Regulations and Code of Practice
• The Education Act 1996
• ‘Alternative provision’ statutory guidance
• ‘Ensuring a good education for children who cannot attend school because of health needs’ statutory guidance.
14. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report ‘Out of School…out of sight’ (2022).
15. I have spoken to Ms X by telephone.
16. 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

Relevant law and guidance

17. A child with special educational needs may have an 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.
18. There is a right of appeal to the SEND Tribunal about the content of the final EHC Plan.
19. Councils have 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 ‘Section 42 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)
20. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

21. 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 this is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. Councils are not expected to become involved where a school has made appropriate arrangements itself for alternative provision.
22. ‘Suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) Where the tuition is one-to-one, the guidance says fewer hours of education can be considered equivalent to fulltime as the provision is more intensive. Councils must consider each case on its individual facts and should seek advice from relevant clinicians about the amount of education a child can manage when less than fulltime provision is being considered.
23. The Coronavirus Act became law on 25 March 2020 and made changes to the way education was provided during the pandemic and modified councils obligations to children with special educational needs. The Government issued guidance to schools and councils about vulnerable pupils, including children with EHC plans.

Key events

24. In 2018 Y started secondary school. The school raised concerns Y may have special educational needs (SEN) and advised Ms X to get Y assessed for learning difficulties. Ms X applied for an Education, Health and Care (EHC) plan but the request was refused by the Council at that time.
25. In 2019 Ms X and the Council attended mediation and the Council agreed to carry out an EHC needs assessment. The Council agreed to issue a plan which was finalised in Spring 2020. By this time Y was struggling to attend school due to anxiety and bullying.
26. The Council issued four final EHC plans in Spring 2020, Spring 2021, Summer 2021 and mid-2022 (after a Tribunal appeal).
27. The Council told me it was ‘not aware’ of any medical evidence to support Y’s absence from school due to anxiety.
28. The 2020 EHC plan included fifteen hours per week of support in school. It did not include any specified support from external professionals such as specialist teachers or speech therapists.
29. On 20 March 2020 schools were closed to all except vulnerable pupils due to COVID-19. In May 2020 the Secretary of State issued a notice under the Coronavirus Act which changed the absolute duty to secure or arrange provision in an EHC plan to one of ‘reasonable endeavours’. This remained the case until 31 July 2020. The Government published guidance around conducting risk assessments to check whether vulnerable pupils, including those with EHC plans, could be safely supported at home, or should attend school.
30. The Council told me while all education was affected by the COVID-19 pandemic during the period March to September 2020, Y had been on roll at school. It expected Y’s school to provide support while Y was unable to attend, by using the funding provided via Y’s EHC plan.
31. Y’s COVID-19 risk assessment by the School says Y had the opportunity to attend in person with support in his EHC plan, but did not do so. Work was provided and supported via online contact with teachers. Y had a key contact within school who contacted Y at least once a week and often several times a week. The Council told me it was not aware until it saw annual review paperwork in July 2020 that Y had not engaged with online learning.
32. The Council says Ms X met the EHC plan coordinator in April and May 2020 about requested amendments to the plan. At this time Ms X expressed a preference for an independent school, but this school said it could not meet Y’s needs. The Council’s panel decided Y’s needs could be met via a mainstream school and he did not require specialist schooling. However, the Council did agree to consult other schools due to the bullying that had taken place at Y’s current school. The Council has provided evidence other schools were consulted in Summer 2020, and subsequently.
33. Ms X appealed the 2020 EHC plan to the SEND Tribunal. Ms X had the right to appeal for a different placement to be named in the EHC plan.
34. The Council said in its stage one complaint response it would usually have expected the pupil to attend the school named on their plan, but due to Y’s anxiety, time out of school, and the bullying, it agreed to provide alternative education ‘as an exception’.
35. The Council’s stage two response in July 2020 however said the Council agreed to remove the named school from the EHC Plan and name an alternative education provider. I have not seen evidence the EHC plan was changed at that time, but Y did start alternative provision in September 2020.
36. Ms X says the tuition in place from Autumn 2020 was part-time and delivered one-to-one meaning Y was socially isolated and had no teacher involvement or oversight.
37. The 2021 EHC plan however states Y’s views including that he had made two friends while at the alternative provision in 2020/21
38. Ms X says Y did not receive all the special educational provision set out in the 2020 and 2021 EHC plans. Ms X raised complaints with the Council about provision in May and October 2021.
39. Ms X says the EHC plan required funding to be used to commission a cognitive assessment of Y, but this did not happen. In July 2021 Ms X commissioned a specialist teacher to do an assessment herself at a cost of £450. The final EHC Plans I have seen show this provision was not included in the 2020 plan. The Spring and Summer 2021 Plans provided for the alternative provision school to commission a suitable professional to assess Y as part of his EHC provision as well as make a referral to a speech therapist. This did not happen when the Plan was issued in Spring 2021.
40. Ms X employed the specialist teacher she commissioned to do the assessment to provide tuition ‘to plug gaps in Y’s education provision’ and to attend a mediation meeting. Ms X wants the Council to reimburse her for these costs.
41. Ms X also complained the following speech therapy in the EHC plan was not in place:

“Speech and Language Therapy programmes and strategies as advised by a SALT to be incorporated into the daily curriculum and delivered by education staff.”

42. This wording was added to the EHC plan in Spring 2021, it was not in the 2020 plan. The 2021 Plans referred to a potential need for speech therapy and provided for an assessment to establish this but did not include a specified amount of speech therapy provision.
43. The Council’s complaint response said when it proposed a return to mainstream school, Ms X requested alternative education continue with a new placement found for September 2021. The Council said this indicated Ms X ‘continued to be in agreement with the current arrangement’. As Ms X had raised concerns the special educational provision was not in place the Council said it would hold an emergency review. The EHC Plan was reviewed in Summer 2021 which led to an amended final plan being issued naming an alternative provision school from September 2021.
44. Y received thirteen hours per week tuition from late September 2020 until July 2021 in Maths, English and Science. From September 2021 Y attended a post-16 vocational provider two days per week but received no academic tuition or special educational provision. Y started at his new school in January 2022.
45. Ms X says the gap between the school being named in Summer 2021 and Y starting in January 2022 was because no transition planning had taken place. Ms X and the Council agreed a plan at a mediation meeting to gradually transition Y into school. Ms X says the agreed actions did not happen so Y’s return to school was delayed.
46. The Council points to education being available to Y during this period which he did not take up. The Council did acknowledge due to staff absence a meeting with the new school was delayed from late September until November 2021
47. Ms X appealed the Summer 2021 EHC plan to the SEND Tribunal, which led to an amended final plan being issued in mid-2022. Ms X says the appeal was necessary to get a suitable school named and to properly quantify and specify provision. Ms X says the Council conceded the appeal but did not put all the provision in place.
48. During the complaint process, the Council agreed to reimburse Ms X for the private assessment she obtained in Summer 2021. Ms X says the Council never did so. The Council declined to fund tuition Ms X arranged without its agreement.
49. In the Council’s response to my enquiries, it told me it had now agreed to pay Ms X a personal budget which includes £450 for the private assessment she commissioned.
50. The Council said in December 2021 it had referred Y for a speech and language assessment ‘as a result of her recent Tribunal appeal’. It told Ms X the School was responsible for providing the provision in the EHC plan and Ms X should raise concerns about lack of speech therapy with the School. It said it would not provide a remedy for lost provision when it did not know provision was not in place.
51. An updated final EHC plan was issued in mid-2022 following the appeal.
52. Documents provided to me from the Council show it consulted a wide range of schools in 2020/21 but placements either could not meet need or were full.

Analysis

53. The 2020 EHC plan was issued just before schools were closed due to COVID-19. The Government amended the s.42 duty to put in place provision in an EHC plan during COVID-19 to a requirement to use ‘reasonable endeavours’ to deliver provision.
54. Y did have a risk assessment by school during COVID-19, but it is unclear to me if the Council was involved in that process, which it should have been. The assessment shows a place in school with support was available to Y. As he did not attend, remote learning was in place and the School says at least weekly, and often more frequent contact was made with Y.
55. While the Council should have been involved in Y’s risk assessment at the time, even if it had been, it is likely it would have been satisfied that Y was able to attend on-site or access online learning according to Ms X’s preference. There is no evidence that either the school or Ms X complained to the Council that Y was not engaging in the education at that time. I would not criticise the Council for failing to intervene when it was not aware of any problem with Y accessing remote education before July 2020. Even if the Council had been aware earlier it is likely it would have encouraged Ms X to take up the place offered.
56. From September 2020, when Y did not return to school, the Council put in place thirteen hours per week of English, maths and science tuition per week. Statutory guidance ‘Alternative Provision’ says pupils should receive the same amount of education as they would in a mainstream school, unless that is not in their best interests. The guidance says this should particularly include English, Maths and Science (including IT). The guidance does not mean only these subjects should have been offered. Y should also have received the special educational provision in his EHC Plan, as far as that was possible in an alternative setting.
57. I find the Council did not provide fulltime provision as while it did provide English, Maths and Science tuition, a wider range of subjects should have been offered. Y was in Year 9 and approaching his exam years. This was fault. There is no medical evidence to support that Y required less than fulltime education or could only manage three subjects. The Council should have sought clinical advice about Y’s anxiety if it considered this impacted on his ability to manage fulltime education.
58. Y’s 2020 EHC plan required his education to be delivered by ‘education staff’. It did not specify the qualifications of staff to work with Y. From Spring 2021 the Plan wording was changed to specify staff working with Y should be aware of and implement current recommended strategies relating to Y’s special educational needs. The staff must have ‘knowledge’ of Y’s conditions but did not require any specific qualifications. Interventions were to be delivered by a learning support assistant / qualified teacher. There was to be input from a speech therapist into programmes and strategies to be incorporated into Y’s daily curriculum and delivered by education staff.
59. Ms X says staff knowledgeable about Y’s SEN were not in place until she secured advice from a specialist privately in Summer 2021. I agree the Council should have secured this specialist report itself when it issued the amended EHC plan in Spring 2021 and failure to do so was fault. Ms X should not have had to obtain this privately. The Council has refunded the cost of £450 to Ms X via the recent personal budget / direct payment. However, Y and his tutors missed out on the benefit of specialist advice between Spring and Summer 2021.
60. There is not enough evidence for me to make a finding the Council should have funded ongoing specialist tuition and should refund the costs Ms X incurred doing so until December 2021. The EHC Plan did not provide for ongoing specialist support, only advice for other staff to implement strategies. I cannot recommend reimbursement of provision that goes beyond what the EHC plan required. Y did receive individualised tuition. I have not seen evidence Ms X raised concerns about the quality of alternative provision until May 2021. Overall while I acknowledge Ms X’s concern about lack of teacher input for a Year 9 pupil with special educational needs (SEN) there is not enough evidence to show that the tuition provided did not meet Y’s needs in English, Maths and Science.
61. There was fault by the Council in failing to secure input from a speech and language therapist (SLT) when it issued the EHC plans in Spring and Summer 2021. The Council said it made a referral in response to Ms X’s appeal in December 2021, but the Council should have secured this special educational provision from Spring 2021 when it issued an amended EHC plan that included SLT input.
62. As provision was not specified, the Ombudsman cannot speculate about what amount of SLT provision was required. The lack of specificity was a matter Ms X took to the SEND Tribunal. The Tribunal later decided what it considered the appropriate provision for Y going forward.
63. There was delay putting in place transition arrangements agreed at a mediation meeting in Autumn 2021. This was fault and delayed Y starting at his new school by three months and would also have delayed the referrals for external advice. Y did not receive academic tuition or special educational provision for three months but did receive two days per week vocational education. The Council should have done its due diligence to check Y’s education and special educational provision was fully in place when it issued the new Plan at the start of the school year. While the Council might expect a school to implement the provision this does not absolve the Council of its s.42 duty. We expect Councils to have processes in place to check its duty has been discharged when a new plan is issued, or a new placement started.
64. I have not investigated if any provision was not in place after the amended final plan was issued in mid-2022, Ms X would need to raise any concerns as a new complaint with the Council.
65. The Council did try and find alternative school placements. Several schools were consulted from 2020 onwards. If Ms X was unhappy with the type of placements consulted, then this is a matter Ms X could have raised as part of her appeals. I have not seen evidence the Council failed to action consultations.
66. In summary, I have identified the following fault and outstanding injustice:
• That not enough provision was secured for Y from September 2020 to July 2021 when he was educated in alternative provision. He only received a narrow curriculum, and his education was not fulltime.
• That Y’s education was affected by a lack of specialist advice between Spring 2021 and August 2021 (when Ms X obtained this privately), and a lack of speech therapy advice from Spring 2021 to 2022.
• A gap in academic tuition and lack of fulltime provision between September 2021 and December 2021 when agreed actions to aid transition to the new placement were not implemented.

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Agreed action

Within four weeks of my final decision, the Council will:

67. Apologise to Ms X and Y for the fault identified in this investigation.
68. Pay Y £3500 for loss of education as follows:
• £2300 for period September 2020 to July 2021 when only part-time education in three subjects was provided and specialist advice was not sought.
• £1200 for the three months in Autumn 2021 when only two days vocational education was provided.
69. Pay Ms X £250 for her time and trouble in bringing the complaint and the distress caused by the fault.

Within two months of my final decision, the Council will:

70. Provide training or guidance to staff and make any necessary improvement to services to ensure:
• Mediation agreements are kept to, with checks to ensure all agreed actions are completed.
• All staff are aware the s.42 duty cannot be delegated to schools and councils remain responsible for ensuring special educational provision in an EHC plan is secured.
• Where provision that is less than full-time is proposed under s.19 Education Act 1996, the reasons for this can be evidenced and, where appropriate, clinical advice is sought.

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Final decision

71. I have completed my investigation. There was fault by the Council which meant Y did not receive suitable fulltime education when he stopped attending school. I am satisfied that completion of the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman