Summary: Miss X complained that the Council has failed to offer her son suitable alternative provision, failed to secure the provision in her son’s Education, Health and Care Plan and failed to consult with providers suitable for her son. We find the Council was at fault for failing to provide Miss X’s son with alternative education between February and May 2022. This caused distress to Miss X and B has been out of education. The Council agreed to make symbolic payments to the parent and for the child’s educational benefit to remedy the injustice caused, and to make improvements to its service.

The complaint

1. The complainant, Miss X, complains about how the Council has managed her son’s education and special educational needs (SEN) provision. She said the Council has:
• Failed to offer suitable alternative provision.
• Failed to secure provision in her son’s Education, Health and Care (EHC) Plan.
• Failed to consult with provisions suitable for her son.
2. Miss X said because of this, her son has been out of education and said she has been caused significant stress.

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What I have and have not investigated

3. I have investigated what happened between February September 2022. I have not investigated the Council’s decision about what type of schools to name, or the provision set out in the plan, after September 2022 and what happened after September 2022. This is because Miss X used her right to appeal the decision at tribunal, which she did and is awaiting a response.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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).
7. 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.
8. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
9. 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)
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.
11. 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

12. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Law and Guidance

14. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
15. Before producing an EHC plan, a council must complete an EHC assessment. Both parents and schools can ask councils to do this and councils must then decide whether an assessment is necessary.
16. If a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:

• It would be unsuitable for the age, ability, aptitude or SEN of the child
• The attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.

17. The nursery, school or college and, where relevant, the other local authority, should respond within 15 calendar days. Where a nursery, school of college identified is named on an EHC plan they must admit the child or young person
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

19. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
20. When a child is not receiving a suitable education, the courts have confirmed it would be necessary to consider the whole picture to decide in what respect, if any, this is attributable to a breach of duty by the council. Parents are also under a duty to ensure their child receives a suitable education either by regular attendance at school or otherwise as set out in section 7 of the Education Act 1996. If there is no suitable education available that is ‘reasonably practicable’ for the child, the council will be in breach of section 19. The courts have confirmed that it is the council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access.
21. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
22. Councils are responsible for arranging suitable full-time education for permanently excluded pupils, and for other pupils who-because of illness or other reasons- would not receive suitable education without such provision. This applies to all children of compulsory school age resident in the Council’s area, whether or not they are on the roll of a school, and whatever type of school they attend.

Absences from school

23. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
24. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child. When a parent presents expert evidence to the council that their child is unfit to attend school, the courts have said it is for the council to decide whether to accept that expert’s view, providing it has rationale grounds for doing accepting or rejecting it.
25. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.

What did happen?

26. This section sets out the key events in this case and is not intended to be a detailed chronology.
27. Miss X requested an EHC needs assessment for her son, B, which the Council agreed to in January 2022.
28. Miss X contacted the Council in the following month. She said B was on a reduced timetable at school D where he was on roll but said he was currently refusing to attend. She said he had been on this timetable since November 2021 and said she had requested reasonable adjustments with the school, such as smaller learning groups. But she said this was not sustainable or beneficial to B as he was missing out on his education.
29. In March 2022, on two separate occasions, Miss X told the Council B had school-based anxieties due to unmet needs. She said school D set B work online. But she said this had not been consistent. She asked what alternative provision was available as she said the current plan was not sustainable long term and said B had been without suitable education for four weeks.
30. An occupational therapy assessment report noted in March 2022 that B was on a reduced timetable but had not been attending school much.
31. In the same month, the Council issued B’s draft EHC plan. Miss X sent in her comments and named her preferred school choice, school A.
32. The Council consulted with various schools in April 2022, including school A, who offered B a placement for September 2022.
33. The Council finalised B’s EHC plan in May 2022. It said B required a minimum of 25 hours support during structured learning times and speech and language therapy (SALT) interventions to support with his difficulties with social communication. It named his school D until July 2022 with a transition to school A from September 2022 which Miss X disputed. She said B had not attended school D since February 2022 and asked for alternative provision in the interim.
34. School D told Miss X in June 2022 that it had secured a 1:1 home tutor for B who could provide a bespoke timetable in line with his EHC plan for 25 hours a week, including SALT provision. It also said it had secured one morning session a week at an alternative provision. But Miss X said a home tutor would not be suitable as home was B’s safe space. She also said with her working from home, she did not have a separate working area for B and asked the school to reconsider other alternative provisions better suited to B’s needs.
35. Towards the end of June, as B was not attending school, the Council asked Miss X whether B had been deemed as unfit to attend an educational setting by a medical professional as it might have implications for its decisions.
36. In June 2022, school A retracted its offer after B had attended a taster day and the Council agreed to look at finding another suitable placement for B.
37. In the same month, school D asked the Council how to proceed with B. The Council advised it to ask Miss X to reconsider the 1:1 home tutor. But Miss X reiterated her previous response and asked the school to consider a different alternative provision.
38. The Council consulted with various schools in June, July and October 2022 who could not offer a placement for B. Miss X was updated and told the Council it had consulted with some schools who were not all age appropriate. But the Council said its process was to consult all schools.
39. Miss X asked the Council for an interim review of B’s EHC plan in June and August 2022 and the Council asked her to evidence her reasons for this. Miss X said this was because she wanted amendments made to B’s EHC plan.
40. The Council said it would ask school D to hold the review. But Miss X said this was not appropriate as he was no longer on roll there.
41. Miss X asked the Council for an update as she said B still did not have a named placement. She asked the Council to consider a different school, school C who agreed a placement and a meeting was arranged. It was also agreed that B could attend an alternative provision.
42. The Council arranged an interim review in September 2022. But Miss X requested for this to be on a different date.
43. The EHC plan was re-issued on 23 September 2022 naming school C. The Council said it would ask school C to hold the interim review. But Miss X said she longer felt like school C was suitable for B.
44. The Council arranged for a home tutor to provide education for B which Miss X questioned as she said she had specifically stated she did not want a home tutor.
45. In November 2022, Miss X appealed to the Tribunal regarding the content of B’s EHC plan of September 2022. She also requested that the Council named a specialist school.
46. The Council sent Miss X a letter in November 2022. It said following her request for a re-assessment for B, its panel had declined this as it did not consider B’s needs to have changed significantly. It said it would look to hold an interim review. It also said a tutor would be on site at school C for B, regardless of whether Miss X accepted this provision or not.

Analysis

47. For the period February to May 2022, before the Council issued B’s final EHC plan, I have considered whether there was any fault on the Council’s part when it found out B was not attending school.
48. There is a duty on the school where a child is on roll to provide education. In this case, the school placed B on a part time timetable in November 2021. I cannot consider the actions of the school so I cannot comment on whether the actions taken were sufficient. Miss X told the Council in February 2022 that he was still on a reduced timetable and had not been attending school as he refused to attend due to his anxiety. The Council told us it was not responsible for B’s education before his EHC plan was issued as his school sat within another council area. But the guidance clearly states the section 19 duty applies to all children of compulsory school age living in the local council area. Therefore, any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. The Council has provided no evidence showing how it satisfied itself the part-time provision was suitable and sufficient when it was aware B was not attending. This is fault. This meant that B went without suitable education, and this caused significant stress to Miss X.
49. The Council issued B’s draft EHC plan in March 2022 and Miss X named her preferred school placement. The Council began consulting with several schools in April 2022 and school A offered B a placement. We would expect councils to consult schools promptly and concurrently. In this case, the Council has evidenced that it has done so. Therefore, there was no fault in how the Council consulted with schools.
50. If a school placement breaks down and the child is out of school, we can look at the period from then until any right of appeal arises. In acknowledgment of missed education, we recommend a payment per school month. I consider an appropriate figure in this case to be £300 per month between February 2022 when the Council became aware B was not attending school to May 2022 when appeal rights began. In determining this, I have taken into account the Council decided in May 2022 that B required a minimum of 25 hours support during structured learning times.
51. Miss X complains B did not receive a suitable education, or his special educational provision set out in his May EHC plan, for the period after the Council issued B’s first EHC plan in May to when it reissued a new EHC plan. The new plan, issued in September had new rights of appeal to tribunal.
52. The May 2022 EHC plan named school D for B to attend up to September 2022. We have considered whether it was reasonable for Miss X to appeal to tribunal because she disagreed that school D was suitable for B to attend, given our powers set out in paragraph six. Given there was only two and half months left of term at school D, and it would take longer than that to receive a tribunal decision, we have decided it was not reasonable for her to appeal. Therefore, we have gone on to consider if there was any failure by the Council to offer B a suitable educational and SEN support in line with his plan in that period.
53. Once the Council named school D, this demonstrated it had decided school D was suitable to meet B’s needs. The courts have confirmed it is for the Council to decide what is a suitable school, or a tribunal following an SEN appeal. In addition, some education was offered by school D, including full-time 1:1 tuition that could also deliver speech and language support and some online work. The Council also offered 1:1 tuition at the start of the September term after it was no longer able to get a place for B at School A. We acknowledge Miss X felt these offers were not a suitable for a variety of reasons and she declined them. However, the Council decided the education offered was suitable. This was a decision it was entitled to take. It was aware B was not attending school and it had asked Miss X to provide medical evidence in June. It had also recently considered a wide variety of professional reports and Miss X’s views as part of the EHC plan assessment process. As a result, we are satisfied the Council considered relevant information before coming to its decision the education offered was suitable. There was no fault by the Council.
54. For the reasons outlined in paragraph eight, I cannot investigate the Council’s decision about which schools were suitable for B after the Council issued a revised EHC plan in late September 2022 because Miss X appealed to the tribunal about this plan in November 2022.

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Agreed action

55. To address the injustice caused by fault from February to May 2022, within one month of the date of my final decision the Council has agreed to:
• Apologise to Miss X for the faults identified in this statement.
• Pay Miss X £1200 for the educational benefit of B, to recognise the impact of its failings on B’s education.
• Pay Miss X £150 to acknowledge the distress caused by the faults identified in this statement.
56. Within two months, the Council has agreed to issue written reminders to relevant staff to ensure they are aware of:
• The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• The section 19 duty applies to all children of compulsory school age living in the local council area.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation with a finding of fault from February to May 2022 causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault in this period.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman