Summary: Mrs X complained the Council failed to provide a suitable education for her daughter, Y. There was fault with how the Council took too long to arrange alternative education for Y when she stopped attending school in 2022 and how the Council decided how much alternative education to arrange. While this did not cause an injustice to Y, it caused some uncertainty for Mrs X. The agreed to apologise, pay Mrs X a financial remedy and remind its staff about keeping clear records of decisions.

The complaint

1. Mrs X complains the Council has failed to provide a suitable education for her daughter, Y, since March 2020. She says the Council failed to properly consult with schools and failed to arrange suitable alternative education when Y was unable to attend school.
2. As a result, she says Y has missed out on a significant part of her education and both she and Y have been caused significant distress. She wants the Council to apologise, properly recognise the education Y missed and arrange a suitable school for her.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

Back to top

What I have and have not investigated

11. I have investigated what the Council did between January 2022 and January 2023, and how the Council decided whether it needed to arrange alternative education for Y in September 2023 after an accident at school.
12. I have not investigated the other parts of Mrs X’s complaint.
13. From late 2020 Mrs X had rights to appeal to the SEND Tribunal, which she used in early 2021. Mrs X appealed about the content of Y’s education health and care (EHC) plan and which school Y should attend. Any education Y missed during that time was due to the disagreement about what support Y needed and which school she should attend. Those matters were considered by the SEND Tribunal, so I cannot investigate those events now.
14. Mrs X complained to the Ombudsman in November 2023. So, her complaint about events before November 2022 are late. While there are good reasons to investigate events from January 2022, I am not satisfied there are good reasons to investigate events from 2020 now. Mrs X could have complained to the Ombudsman about those events earlier than in 2023.
15. The Council issued an amended EHC plan for Y in late January 2023. Mrs X appealed Y’s EHC plan to the Tribunal. Since Mrs X used her appeal rights, I cannot investigate the consequences of anything she could have appealed, including the Council’s decision about which school Y should attend or how it consulted schools leading up to this.

Back to top

How I considered this complaint

16. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education health and care plans

19. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
20. There is a right of appeal to the Tribunal against various matters connected with EHC plans, including:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan; and
• a decision not to amend an EHC Plan following a review or reassessment.
21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
23. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Alternative education

24. 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.
25. 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’)

Background

26. Mrs X’s daughter, Y, has special educational needs and has had an EHC plan from the Council since for several years.
27. Mrs X appealed Y’s EHC plan to SEND Tribunal in 2021, after which the Council agreed to amend the EHC plan and name a different school (School C). It issued an amended EHC plan for Y in late 2021, and Y began attending School C.

Events between January 2022 and January 2023

28. In late January 2022, Mrs X raised concerns with the Council that School C was not able to meet Y’s needs and she was on a reduced timetable. School C said Y was on a reduced timetable, with the agreement of the Council, as part of a plan to integrate Y back into full-time lessons. School C told the Council it was concerned about Y's aggressive behaviour.
29. Mrs X told the Council she wanted Y to move to a different school in early March 2022. Around a week later, School C told the Council it could not meet Y’s needs because of her challenging behaviour. Y stopped attending School C at that point.
30. In late March 2022, the Council referred Y to a home tuition agency for up to 10 hours of at home tuition, depending in Y’s engagement, while it consulted other schools.
31. The tuition agency said it first found a suitable tutor for Y in late April 2022, but the tutor was unable to take up the role. It then offered Mrs X two further tutors in May 2022 but said Mrs X refused the tutors because they were female and she believed Y needed a male tutor.
32. The tuition agency found a male tutor for Y and she began 6 hours a week of tuition in Maths and English from July 2022. This tuition continued over the school summer holidays until September 2022, when the tuition increased to 10 hours a week.
33. Mrs X asked the Council to name a different school for Y but wanted the Council to make changes to other parts of Y’s EHC plan, so the Council arranged a review of Y’s EHC plan in September 2022.
34. The Council consulted Mrs X’s preferred school and another school (School D) with a draft of the updated plan in November 2022. Mrs X’s preferred school said it could not meet Y’s needs.
35. The Council issued an amended final EHC plan in January 2023, naming School D. Y’s at-home tuition ended at the same time. Mrs X appealed the amended final EHC plan in May 2023.
36. In September 2023, Y had an accident at school. The School D’s notes of the incident did not record any serious injury to Y. However, Mrs X told the Council and School D that she did not think Y was safe at school, so withdrew her from school and paid for online education for her instead. She also asked the Tribunal to also consider what Y’s future school placement should be.

My findings

37. Mrs X’s complaint about events before November 2022 is late. However, after she complained to the Council in November 2022, the Council said it believed it had resolved Mrs X’s complaint when it issued the draft amended EHC plan at that time. It did not realise that Mrs X still was not satisfied. When the Council sent its final response to her complaint in November 2023, Mrs X promptly complained to the Ombudsman. I consider that, had the Council responded to Mrs X’s complaint at the time, she would have complained to the Ombudsman sooner. I am satisfied the delay in the Council’s final response is a good reason to investigate events from 2022 now.

Reviewing Y’s EHC plan

38. When Mrs X and School C told the Council the school could not meet Y’s needs in March 2023, we would expect the Council to have considered whether it needed to arrange a review of Y’s EHC plan and whether it needed to arrange alternative education for Y in the interim.
39. The Council said it decided not to carry out a review of Y’s EHC plan, since it had only recently agreed the content with Mrs X through the tribunal process and it agreed to consult other schools. I am satisfied with the explanation the Council has given. There is no evidence Y’s needs had changed since the tribunal appeal and it is unlikely the Council would have made any changes to the other parts of Y’s EHC plan so soon after having agreed the content with Mrs X. The Council did start consulting other schools and, when Mrs X asked for more changes to Y’s plan later in the year, arranged a review at that time.

Alternative education in 2022

40. The Council arranged alternative education for Y, and I am satisfied it made a referral for this promptly after it became aware Y had left School C. This was just before the Easter school holidays and the tuition agency offered a first tutor when the summer term started. I do not consider there was any fault in not arranging a tutor until the start of the summer term, given the time likely needed to find tuition for a child with Y’s needs. In any case, if Y had been at school, she would not have received any education over the school holidays.
41. The first tutor identified could not take up the role. While this was outside the Council’s control, it still had a duty to arrange suitable education for Y while she was out of school. Therefore, I am satisfied the delay between the start of the summer term and when the tuition agency offered Mrs X alternative tutors in May was service failure and therefore fault.
42. I do not consider the Council was responsible for the delay between when the tuition company offered tutors in May and when the tuition started in July. I am satisfied, on the balance of probabilities, that this delay was caused by Mrs X declining female tutors in favour of a male tutor. Y’s EHC plan did not say Y needed male teaching staff and therefore it was not fault for the Council to have expected Mrs X to accept female tutors for Y.
43. When tuition started in July, Mrs X said that it was only for a few hours a week. The Council said it was for more than this. On the balance of probabilities, I am satisfied the Council provided six hours of tuition a week during July and August 2022, and 10 hours a week from November onwards.
44. While this was, at first, less than the 10 hours a week the Council commissioned, the Council arranged for this tuition to continue during the summer holidays when Y would normally have been off school. Therefore, I am satisfied that, although the hours were initially less, Y received more education during this time than she would normally have done. Therefore, I do not consider there was an injustice to Y.
45. When arranging alternative education, councils should consider how much education a child or young person can take part in. Education should be full time unless a council decides there is a reason why it should be less. Councils can treat one-to-one tuition as more than equivalent classroom hours, because it is more intensive. However, we expect councils to have properly considered all the evidence when deciding how much education to arrange for a child or young person and to keep a record of that decision.
46. I am not satisfied the Council properly considered how much education to arrange for Y or that it kept adequate records of how it made the decision that 10 hours was suitable for her. That was fault.
47. However, even on the balance of probabilities, I cannot say how much education Y would have been able to take part in, given her needs and the difficulty she had in taking part in lessons while at School C. Therefore, I consider there is an outstanding uncertainty about whether Y missed out on any education between July 2022 and January 2023. That uncertainty is an injustice for Mrs X.

Alternative education in 2023

48. I do not consider there was any fault in how the Council responded to Mrs X telling it she had withdrawn Y from school in September 2023, following the accident. There was no evidence available to the Council that Y was unable to attend school due to the injury or other illness. Therefore, it is unlikely it would have decided it had any duty to arrange alternative education for her.
49. The suitability of Y’s school was something Mrs X had asked the Tribunal to consider as part of her ongoing appeal at the time. Therefore, I cannot investigate how the Council decided that the school was still suitable following the accident.

Consulting schools

50. Once the Council issued the amended EHC plan naming School D in January 2023, Mrs X had fresh appeal rights if she was not happy with the Council’s decision about which school it named in that plan.
51. Because Mrs X had the right to appeal the Council’s decision and later used that right, I cannot investigate how the Council decided which school to name, including how it consulted schools leading up to that decision.

Complaint handling

52. The Council sent its response to Mrs X’s November 2022 complaint in November 2023. This was significantly longer than the time allowed in the Council’s complaints process.
53. The Council said this was because it believed Mrs X’s complaint had been resolved when it issued a draft amended EHC plan shortly after Mrs X’s complaint. Had the Council written to Mrs X to confirm this, it might have realised that Mrs X still wished to complain. The failure to formally respond to Mrs X’s complaint in November 2022 was fault.
54. However, I am not satisfied that delay caused Mrs X a significant injustice. There is no evidence Mrs X chased the Council for a response until much later or tried to complain further during late 2022 and the first half of 2023.

Back to top

Agreed action

55. Within one month of my final decision the Council will:
• apologise to Mrs X for the initial delay in arranging alternative education for Y and for the uncertainty about how much education Y could have taken part in; and
• pay Mrs X £250 to recognise that uncertainty.
56. Within three months of my final decision the Council will:
• remind its education staff that, when arranging alternative education provision, they should consider how much education to arrange and keep adequate records of how they make that decision; and
• review how it monitors and records complaints to ensure it issues responses to all formal complaints, even if it believes the issues have been resolved.
57. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

58. I have completed my investigation. There was fault with how the Council took too long to arrange alternative education for Y when she stopped attending school and how the Council decided how much alternative education to arrange. While this did not cause an injustice to Y, it caused some uncertainty for Mrs X. The Council agree to apologise, pay Mrs X a financial remedy and remind its staff about keeping clear records of decisions.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman