Summary: Miss X complains her son D has been out of education for three years. We find fault with the Council for delays with D’s Education Health and Care Plan, delay with the complaint response, failure to properly explain Elective Home Education to Miss X, and failure to provide alternative provision to D. We have suggested financial remedies for the injustice caused to Miss X, with service improvements to ensure it does not happen again.

The complaint

1. Miss X complains her child (D) has been out of education for three years and the Council has not provided any alternative.
2. She says the Council wrongly treated her son as being home educated.
3. Miss X would like a suitable school place, compensation for lack of education, compensation for loss of earnings, training and disciplinary action for the SEN officer involved.

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The Ombudsman’s role and powers

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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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)

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How I considered this complaint

7. I discussed the complaint with Miss X and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, health and care plans

9. 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.
10. 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.
11. 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)

Alternative education

12. 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 it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absence for health reasons for more than 15 days.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19 (6))
15. 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 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)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

17. D has been out of school since December 2019. He is non-verbal, severely autistic and has an EHC Plan in place.
18. D started reception in September 2019 but was placed in nursery rather than reception class.
19. D was only in school for 45 minutes a day, and Miss X did not like some comments made by the head teacher, so she took the decision to remove him until he got a place at a special school.
20. D was on the waiting list for a special school from December 2019 but in June 2020 the Council took D off the list as it thought Miss X was Electively Home Educating (EHE) him.
21. Miss X says this was not the case. She took D out of mainstream school as they could not cater to his needs and he would only be there for an hour or 90 minutes a day.
22. D continues to be on the waiting list. The Council say unfortunately all special schools continue to have extensive referral lists of several years.
23. She complained to the manager when she found out the Council thought she was EHE D in November 2021.
24. The Council said they would provide Education Other Than At School (EOTAS) for D in November 2021.
25. In January 2022 Miss X brought a formal complaint to the Council. She said was still out of school, she had not received any EOTAS provision and she was dissatisfied at the level of service received from the SEND team.
26. The Council’s stage two complaint response sent in May said it had explained the process for EHE to Miss X, but there may have been a misunderstanding for which it apologised.
27. D went back on the waiting list for Miss X’s preferred school and in August 2021 the headteacher said the school would meet D’s needs, however there was no place available for September 2021.
28. The final amended EHC Plan was dated August 2021. D is known to speech and language services and is awaiting an appointment with the paediatric team.

Analysis

29. Miss X has been trying to get a special school place for her son D since December 2019.
30. In the complaint response dated 3 August 2022, the Council said they could not uphold the complaint about her not home educating D because of emails to the SEND team from her about her this.
31. Having reviewed emails between Miss X and the Council before November 2021, it is clear the Council were continually trying to get Miss X to put D in a mainstream school while she was waiting for a place in special school for D.
32. Miss X also made it clear she did not want to place D in a mainstream school as they could not cater to his needs, and it would not be a fulltime place.
33. I cannot see any evidence the Council fully explained EHE to Miss X, other than a reference in the complaint response from the Council. I also cannot see any evidence of Miss X saying she wanted to EHE D.
34. I therefore find fault with the Council for failing to explain properly what EHE would mean for Miss X, and the consequences it would have for D’s place on the special school waiting list.
35. This caused Miss X distress and frustration.
36. Miss X has chased the Council continuously and there has been delay in the complaint response, in updating D’s EHC Plan, and in providing EOTAS.
37. The Council apologised for the delay in the complaint response. The delay is fault as they failed to respond within their own time frames.
38. For the delay with the EHC Plan the Council explained it only had two SEND officers. It was training new officers and had over 2000 EHC Plan emails to get through. Although this explains the reasons for the delay, it is fault which caused Miss X frustration.
39. The Council did try to provide EOTAS services for D from November 2021. Tuition began in January 2022 but due to unforeseen circumstances it ended in March and the company could not provide another tutor for D.
40. The Council found another company in April, but in June the company told the Council they did not have a tutor to support D’s needs.
41. Although the Council did try and put in place the EOTAS provision, it did not take place which amounts to service failure, causing Miss X frustration and distress.

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Agreed action

42. When recommending a remedy we seek to remedy the injustice caused because of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
43. Where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
44. I recommend that, within one month of the Ombudsman’s final decision, the Council:
• write a personal apology to Miss X;
• pay Miss X £150 to acknowledge her avoidable distress, frustration and uncertainty;
• pay Miss X £3700 (£400 per month less school holidays = 11 months - 7 weeks) to remedy the failure to provide D with alternative education from September 2021 to July 2022. I have limited it to this period as this is her most recent complaint we are dealing with; and
45. After our investigation of other complaints we have made recommendations to the Council about improving its services and we ask that compliance with our decisions be monitored.
46. I also recommend that, within three months of the Ombudsman’s final decision, the Council should:
• issue written reminders to relevant staff to ensure they are aware of what EHE entails and the consequences for the parents or carers;
• tell us how it will ensure that future EHC Plan reviews are held on time and the action required following the review meeting is taken according to statutory timescales; and
• confirm how it will ensure that timescales are met in responding to complaints.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I find fault with the Council for delays with D’s Education Health and Care Plan, delay with the complaint response, failure to properly explain Elective Home Education to Miss X, and failure to provide alternative provision to D. I have recommended it acts to remedy the injustice caused, and reviews the relevant policies and procedures.

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Investigator's decision on behalf of the Ombudsman