Summary: Mrs X complained that the Council failed to provide the provision set out in her daughter’s Education, Health and Care plan, failed to provide any education when her daughter was out of school, and ignored her complaints. Mrs X said this caused her stress, and meant her daughter missed out on education. We find the Council at fault for failing to have proper oversight of the alternative provision, but this did not cause injustice. We find the Council at fault for failing to respond to a complaint, and this caused injustice. The Council has apologised and has agreed to make a payment to Mrs X to remedy the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complained that the Council failed to provide the provision set out in her daughter’s Education, Health and Care plan. She complained that the Council failed to provide any education for her daughter when she was out of school. She also complained that the Council ignored her complaints.
2. Mrs X said this meant her daughter missed out on education. Mrs X said it has caused her stress.

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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 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)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care plan.
8. 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)
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. 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

11. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
12. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, Health and Care plans

13. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child or young person’s special educational needs. Councils have a legal duty to provide the special educational provision specified in an EHC plan. Councils cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

Alternative educational provision

14. The Education Act 1996 (Section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion, or otherwise.
15. In 2013, the government published statutory guidance for councils: ‘Ensuring a good education for children who cannot attend school because of health needs’. This relates to a council’s duties under section 19 of the Education Act 1996.
16. This guidance says that there will be a range of circumstances where a child with health needs may receive a suitable education that meets their needs without the council having to intervene. An example of this would be where a child can attend school with some support, or where the school has made arrangements to deliver suitable education outside the school, or where arrangements have been made for the child to receive an education in a hospital.
17. The guidance says councils are not expected to get involved in those situations unless it had reason to believe the education provided to the child was not suitable or, where otherwise suitable, was not full-time or for the number of hours that child could benefit from without adversely affecting their health.
18. The guidance says councils must arrange suitable full-time education, or as much as the child’s health condition allows, for children who would otherwise not receive a suitable education because of their illness. ‘Suitable education’ means suitable to the child’s age, aptitude, ability, and special educational needs. The Courts have said it is for the council to determine what is ‘suitable education’.
19. The guidance says the law does not define full-time education but says children with health needs should have educational provision equivalent to the education they would receive in school. For example, if they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.

Complaint handling

20. The Council’s complaints procedure says it will respond to complaints at stage one within 20 working days.

What happened

21. Mrs X’s daughter, D, has special educational needs and an Education, Health and Care (EHC) plan. Up until December 2021, D had been attending a mainstream school. In December 2021, D stopped attending school.
22. At this time, Mrs X complained to the Council that the school was not meeting D’s EHC plan. She said D was refusing to return to school.
23. In its response, the Council said the school could meet D’s needs. It said it had provided the school with funding to provide the provision set out in D’s EHC plan. The Council noted that Mrs X had already asked the school to review D’s EHC plan, and a review had been planned for early January.
24. At the review in January 2022, it was agreed that D was unlikely to be able to return to full-time education. This was because the environment was not suitable for D, despite all the adjustments the school had made. It was also agreed that a specialist school should be considered for D.
25. The Council started consulting specialist schools for D.
26. Mrs X asked the Council to deal with her complaint at stage two. In its response, the Council said D’s school agreed it would put in place appropriate tutoring for D.
27. In late-January, D started attending alternative educational provision (I will refer to this as ‘alternative provision’, provided by ‘the provider’). This alternative provision was for 12 hours per week.
28. By early February, the Council had confirmed a place for D at a specialist school, to start in September 2022 (it was not possible to start there earlier than this).
29. In late-February, Mrs X complained directly to the Director of Children’s Services. The next day, Mrs X attended a meeting with the Director. Mrs X told the Director she had sent this complaint. The Director said she would get back to Mrs X.
30. The following day, the Council emailed Mrs X. In the email, the Council said all of Mrs X’s questions would be answered in response to her formal complaint. The Council said it had increased D’s alternative provision to 17 hours per week.
31. In March, Mrs X complained again. She says she complained through the Council’s website.
32. In April, Mrs X told the Council she had made another complaint. A Council officer acknowledged that Mrs X said she had made a complaint.
33. Also in April, the Council apologised to Mrs X that the provider had not increased D’s provision to 17 hours per week. The Council said it had told the provider and the school. It said there was a delay implementing home tuition for D. But it also noted that Mrs X did not want home tuition now that D was accessing alternative provision.
34. In late-April, D’s alternative provision increased to 17 hours per week.
35. In May, in an email to Mrs X, the Council said it told the school about the increase to D’s alternative provision hours. The Council said the provider had assessed it was not appropriate to increase D’s hours immediately. The provider said D’s hours needed to be increased gradually.
36. In June, Mrs X complained again. She said she had complained in February and March but never heard back. The complaints team told Mrs X it was not aware of those two complaints.
37. In its complaint response, the Council apologised for the gap in D’s education. It said the provider would continue to offer D sessions over the summer holidays.
38. Mrs X then brought her complaint to the Ombudsman.

Analysis

Education, Health and Care plan provision

39. Mrs X complains that Council failed to provide the provision set out in D’s EHC plan.
40. D stopped attending school in December 2021. Up until that point, the school had been providing the provision set out in D’s EHC plan. Mrs X complains that the school was not suitable for D. This is not something the Ombudsman can consider because Mrs X had the right to appeal the school named in D’s EHC plan at the SEND Tribunal (see above). I will therefore consider how the provision in D’s EHC plan was provided after she stopped attending school.
41. In January 2022, D started attending alternative provision with the provider. This provider works with children with high levels of anxiety and school avoidance, and supports those children to reengage back into school. The Council says the provider worked to achieve the overall outcomes set out in the EHC plan, and had access to the plan.
42. D’s EHC plans, both before and after March 2022, set out how the educational provider (school or otherwise) will work with D. There is no specific provision, such as occupational health or speech and language therapy, set out in either of the relevant EHC plans. Therefore, there is no specific provision that I can show the Council failed to provide.
43. D attended alternative provision with the provider, and the provider worked to D’s EHC plan. Therefore, I cannot find the Council failed to provide the provision set out in D’s EHC plan. For this reason, I do not find the Council at fault.

Educational provision

44. Mrs X complains that D had no education from December 2021, when she stopped attending school, to the end of January 2022, when she started alternative provision.
45. The Council says the school retained responsibility for D’s educational provision until she started at her new school in September 2022. However, the Council says it needed to find a way to reengage D. It understood D had previous experiences in schools which impacted on her willingness to attend formal education.
46. The Council said it used the provider, with Mrs X’s agreement, as a way to rebuild D’s willingness to engage in education. Also, the alternative provision was to help prepare D for her placement start in September.
47. The Council was satisfied with the alternative provision. As I have said above, the guidance says councils are not expected to intervene if alternative arrangements have been made to deliver a suitable education outside of school, unless the council had reason to believe the provision was not suitable.
48. As I have said above, the Courts have said it is for the council to determine what is ‘suitable education’. The Council considered the alternative provision was suitable. Therefore, we would not expect it to have intervened and provided a different kind of alternative provision. For this reason, I do not find the Council at fault.
49. The Council says the alternative provision was due to end at the end of the summer term 2022. It says it agreed to Mrs X’s request for the alternative provision to continue over the summer holidays to support a positive transition to D’s new school.
50. I find the Council’s agreement to extend D’s alternative provision over the summer holidays is evidence of good practice.
51. There is a period of several weeks of school term (December 2021 and January 2022) where D did not receive any educational provision. I do not find the Council at fault. This is because up until early January, the school had hoped to reengage D. When it became clear this would not be possible or appropriate for D, I find the alternative provision was arranged without delay. Also, given the extended provision over the summer holidays, I find D ultimately did not miss out on any provision.
52. Mrs X complains that the alternative provision was not full time. She complains that the alternative provision started at only a few hours per week. She also complains that the alternative provision did not increase from 12 hours per week to 17 hours per week when it was first agreed by the Council.
53. The Council says it felt D was not able to attend full time provision due to her mental health. This is a decision the Council is entitled to make. The Council says it is not unusual for hours of alternative provision to be gradually increased. I find the provider agreed with this. The provider said, in May, that D’s hours should be increased gradually.
54. I find the Council told the school and the provider at the end of February to increase D’s hours to 17 per week. This did not get implemented by the school or the provider.
55. In its response to one of Mrs X’s complaints, the Council acknowledged it had not been as proactive as it should have been around the provision and tracking the provision.
56. I find the Council at fault for failing to have proper oversight of the implementation of D’s alternative provision hours. However, I do not find this fault caused D injustice. This is because of the additional hours of provision that D received over the summer holidays, and because of the provider’s assessment that D’s hours needed to be increased gradually.
57. Mrs X also complains there was no home tuition. She says she chased the Council but gave up in the end.
58. The Council says Mrs X asked for additional tutoring but it did not address this. The Council acknowledged this, and apologised for this, in its complaint responses.
59. I find this is fault. However, I do not consider this caused D an injustice. This is because D ultimately received provision the Council believed was appropriate for her age, ability, aptitude, and special educational needs. The Council says the alternative provision was a short-term plan to reengage D, as a bridge back into an educational setting.
60. Also, given the extended provision over the summer holidays, I find D did not miss out on any provision.

Complaint handling

61. Mrs X complained directly to the Director of Children’s Service in February. The Director told Mrs X she would respond. A Council officer also told Mrs X that the Council would respond to this complaint.
62. The Council accepts it did not respond to this complaint. It says this complaint should have been forwarded to the complaints team to log and monitor. This did not happen.
63. This is fault. This caused Mrs X injustice in that she spent time and trouble chasing the Council for a response. Also, it caused avoidable distress (frustration).
64. The Council says it has reminded staff that they must share complaints with the complaints team. I am satisfied the Council has taken appropriate action to improve its service and avoid a similar occurrence in future.
65. Mrs X says that when she complained through the Council’s website in March, she received an automated acknowledgement. I have not seen an automated acknowledgement which shows Mrs X made a complaint through the Council’s website.
66. However, I have seen an email from a Council officer a month after Mrs X complained. This officer acknowledged that Mrs X said she had made a complaint.
67. I do not find that this email is an acknowledgement of Mrs X’s complaint. I find it is an acknowledgement that Mrs X made a complaint, but I cannot say which particular complaint. This is because Mrs X made a number of complaints at around that time.
68. The Council says it has no record of the complaint Mrs X says she made in March. It says it was not aware of the complaint until the Ombudsman brought it to the Council’s attention.
69. I accept there is no record of this complaint on the Council’s system. I also accept that the way Mrs X complained (by emailing a lot of different people and departments, often not including the complaints team) made it very hard for the Council to keep track of her complaints.
70. Without evidence to show that Mrs X made a complaint through the Council’s website (with an automated acknowledgement, for example), I cannot find the Council at fault for failing to respond to that particular complaint.
71. Also, I do not find any injustice here. This is because the Council was in regular communication with Mrs X about the situation she was complaining about, and the Council was working to address it.

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Agreed action

72. Since issuing the Council a draft of this decision, it has apologised to Mrs X in writing for failing to respond to her February complaint. I am satisfied with this apology.
73. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £100. This is to remedy Mrs X’s time and trouble, and avoidable distress. I have seen evidence that the Council has arranged for the payment to be made, but I have not seen evidence the payment has actually been made at this stage.
74. I have considered the Ombudsman’s published guidance on remedies when arriving at this figure. I have taken into account: the Council’s actions around the substantive issue Mrs X complained about; its communication with her; and the length of time involved. I therefore consider a figure at the lower end of our range for time and trouble/distress (which sets out a usual payment of between £100 and £300) is appropriate.
75. The Council should provide us with evidence it has made the payment above.

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Final decision

76. I have completed my investigation. I find the Council at fault and this caused injustice. The Council agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman