Summary: Mrs X complained the Council failed to provide her son, L, with a suitable education and the specialist provision set out in his Education, Health and Care plan between October 2021 and March 2023. Mrs X further complained the Council failed to take any action after partially upholding her complaint about the matter. The Council failed to provide L the specialist provision for two terms and a suitable education for two terms. The Council agreed to pay Mrs X £3,400 to acknowledge the loss of provision and education to L and repay the £1,800 she spent on provision for him.

The complaint

1. Mrs X complained the Council failed to provide her son, L, with a suitable education and the specialist provision set out in his Education, Health and Care (EHC) plan since October 2021. Mrs X further complained the Council failed to take any action after partially upholding her complaint about the matter. Mrs X said L missed over a year of education, which affected his physical health, both of their mental health and Mrs X had to pay for some of L’s provision herself.

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What I have and have not investigated

2. 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. (Local Government Act 1974, sections 26B and 34D, as amended). I have investigated events from October 2021 until March 2023. Mrs X raised these matters with the Council during this time and the Council said it would take action to address her complaint. Mrs X brought her complaint to us when the Council failed to take that action.
3. I have not considered the specialist provision L received from July 2022 onwards. This is because Mrs X has appealed the provision specified in the EHC plan to the SEND tribunal. 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. Mrs X has appealed the provision specified in L’s plan, therefore the SEN provision the Council provided to him from July 2022 is inextricably linked. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407). This restriction applies from the date the person receives their appeal right (when they receive the child or young person’s final EHC plan).

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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. 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. 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

7. I discussed the complaint with Mrs X on the phone.
8. I considered the documents the Council provided in response to my enquiries.
9. Mrs 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

Special educational needs and disability (SEND) code of practice

10. The SEND code of practice sets out that 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.
11. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school. 
12. 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.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Children and Families Act 2014, section 42). 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 provision

15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if 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”.
17. 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))
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. 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

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. L is a child of primary school age. He has special educational needs (SEN). In October 2021 the Council issued an EHC plan that set out how it would meet L’s SEN. It named school A, a mainstream primary school as the setting L should attend. The Council told Mrs X of her right of appeal to the SEND tribunal if she disagreed with the content of the plan or the named school.
22. L’s EHC plan included the following provision:
• A social skills assessment followed by appropriate social learning intervention for 30 minutes a week.
• Baseline assessment in school of reading, spelling and math skills.
• 15 minute each a day multi-sensory reading and spelling interventions.
• 1 hour a day small group literacy lesson.
• 15 minutes a day emotional regulation support.
• Any recommended Occupational Therapy programme following an assessment.
23. L began to find it very difficult to attend school and was distressed in the mornings and his attendance began to drop. Mrs X, concerned for L’s welfare, arranged for him to attend an alternative provider (provider G) for two days a week in October 2021. At that time school A said it could still meet L’s needs.
24. The Council held annual review meetings in November 2021 and December 2021 as school A and Mrs X had raised concerns about L. A private paediatric psychiatrist wrote to the Council and said L was unlikely to be able to return to school A, or any mainstream school due to his anxiety which was related to his SEN. They recommended L continued to attend provider G two days a week and gradually reintegrate to school. The Council accepted the view that L was medically unfit to attend mainstream education. It recorded Mrs X wanted to request an Education Other Than At School (EOTAS) package where L attended provider G for two days a week as part of a full week’s package. The school recorded that provider G was not a registered school.
25. School A began funding L’s placement at provider G from December 2021 for two days a week.
26. In January 2022 Mrs X asked the Council to provide L educational provision for five days a week, which was not funded by the family. She said two days a week was insufficient and none of the interventions in L’s EHC plan were being delivered. School A asked the Council for another annual review as L was not attending school A at all. By this time, L was attending provider G for three days a week, one day funded by Mrs X.
27. School A completed a referral to the Council’s Hospital Education Service (HES), which educates children who are unable to attend school due to illness. The HES declined because the referral was not completed by a consultant community paediatrician, L was attending provider G and Mrs X had requested EOTAS to meet his needs.
28. The Council considered Mrs X’s request for an EOTAS package for L covering five days provision in February 2022. It decided not to amend L’s EHC plan to name EOTAS in section I. It decided this because it felt it was appropriate to educate L at school. It decided it should continue with an annual review of L’s EHC plan while school A tried to reintegrate L.
29. The Council held a further annual review of L’s EHC plan in May 2022. School A repeated that L was only attending provider G and was not at school A at all. The psychiatrist confirmed it was unlikely L would be able to return to a mainstream school and recommended gradual reintegration into some form of education. The Council suggested the psychiatrist referred L to the HSE again.
30. The Council issued a final amended EHC plan for L in May 2022. The provision remained broadly the same and named school A in section I.
31. The Council decided L did not require a special school placement and did not agree to an EOTAS package in July 2022. It recommended a reintegration plan to get L back to school A. The Council issued another final amended EHC plan for L in August 2022. The provision and named setting remained the same.
32. Mrs X complained to the Council in September 2022. She said L had only attended school A for six weeks and then was signed off with extreme anxiety. She said the Council was failing to provide him the full-time education he was entitled to and it was affecting his education.
33. Mrs X appealed to the SEND Tribunal about the provision and named setting in L’s August 2022 EHC plan.
34. School A began to fund the third day for L at provider G from September 2022.
35. The Council responded to Mrs X’s complaint in October 2022. It said it accepted it had not provided a sufficient education to L since January 2022. It apologised and said it would:
• liaise with school A to ensure that L received suitable education provision;
• arrange an educational psychologist to offer updated advice/guidance on appropriate steps to support L to engage in a suitable, full-time education placement;
• discuss with Mrs X her preferred options for meeting L’s educational needs.
36. School A told the Council it could no longer meet L’s needs in October 2022.
37. Mrs X suggested a plan for full-time provision for L to the Council. Mrs X did not receive a response and complained at stage 2. She said it was still not meeting L’s needs. She said the offer to arrange the educational psychologist advice had been withdrawn.
38. The Council responded to Mrs X in November 2022. It said it did not feel further investigation was appropriate as it agreed it should increase the provision for L. It said it would:
• contact provider G to find out what funding it needed to maintain the current arrangements (three days a week); and
• arrange increased provision and communicate with Mrs X about what the increased provision would look like.
39. Mrs X and School A contacted the Council in January 2023. They both said L’s needs had changed and provider G needed additional funding to provide two-to-one support for L. School A said it had not agreed to provide the additional funding. Mrs X said the placement was on the verge of failure and L would have no educational provision.
40. Dissatisfied with the Council’s lack of action Mrs X complained to us.
41. The Council responded to Mrs X in February 2023 and said it would not be appropriate for it to make provision for a child who was medically unfit to attend school as it may be detrimental to their health and wellbeing. Instead, school A was offering remote and in person provision working towards a transition back to school.
42. In March 2023 the Council agreed to fund 15 hours a week tutoring and mentoring alongside two full days at provider G until the end of the summer term.

Further information

43. In response to my enquiries the Council said L was not well enough to reintegrate into school A and so it did not go ahead with the reintegration plans.
44. The Council said the medical advice stated L was not well enough to receive the provision in his EHC plan. It intended to consider alternative provision when he was well enough, as guided by medical advice.
45. The Council said it had not completed the actions it identified as being necessary in its complaint response, other than establishing funding for three days at provider G.

Attendance and funding

46. Records show L received 2 days a week (11 hours provision) in December 2021. He attended 3 days a week from January 2022,and one day a week from February 2023. Mrs X paid for L to attend for the third day from January to July 2022. The additional provision cost Mrs X £1,800.

My Findings

Special Educational Provision

47. L had an EHC plan that set out the provision he needed. In December 2021 the Council considered and accepted the medical advice that L was unfit to attend school A, or a mainstream school. From that point onwards, it had a duty to ensure it provided the educational provision specified in L’s EHC plan (Children and Families Act 2014, section 42), up until Mrs X received her appealed right to the SEND Tribunal in August 2022.
48. The records show that L received three days education a week, which Mrs X arranged and partially funded. Mrs X told the Council the provision was insufficient and was not meeting L’s needs in January, February and September 2022. The psychiatrist stated a reintegration plan was appropriate for L. The Council did not arrange any additional provision for L and it has provided no evidence to show it considered at the time that L was so unwell he was unable to receive the provision in his plan. The Council accepts it did not provide the provision in L’s plan. That was fault and meant that L missed out on some of the specialist educational provision he was entitled to for two terms.
49. Mrs X arranged and paid for L’s place at provider G. The Council began paying for the placement via school A, therefore it agreed it was an appropriate placement for L. It reviewed L’s EHC plan three times during that period and there is no record it considered only two days was sufficient to meet L’s needs. It agreed to pay for the third day from September 2022. Had it acted without fault and considered how it was providing L’s provision earlier, on balance, it would have funded the placement earlier. It did not and that was fault. Mrs X had the financial cost of paying for some of the provision L did receive from December 2021.

Alternative provision

50. School A told the Council it could no longer meet L’s needs in October 2022, from that point L did not have a suitable placement to attend. So, the Council had a duty to arrange a suitable full-time (or equivalent) education for L. Although L was not attending school A, it was the school named in his plan and the Council had recommended reintegration to it in February and July 2022. The Council accepts it did not provide suitable alternative provision to meet L’s educational needs. That was fault.
51. I cannot say what alternative provision would have been appropriate for L, had the Council properly considered it at the time. However, the Council has since agreed to provide two days alternative provision and 15 hours tutoring a week for L without any additional medical evidence. On balance, had the Council considered the matter earlier, it would have increased the provision earlier. The fault meant L missed out on part of his education for two terms, between October 2022 and March 2023. The fault also caused Mrs X frustration and distress.

Complaint handling

52. The Council told Mrs X it would take a number of actions because of her complaints. It did not take those actions and failed to maintain communication with Mrs X about those matters. That was fault and caused Mrs X frustration.

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Agreed action

53. Within one month the Council will:
• write to Mrs X and apologise for the injustice caused to her and L by the lost education and SEN provision and for the frustration which resulted from its failure to respond appropriately to her complaints;
• pay Mrs X £1,800 to recognise the two terms between December 2021 and August 2022 L did not receive the provision in his plan. This is based on £900 per term and is in line with our Guidance on Remedies. Mrs X should use this for L’s educational benefit as she sees fit;
• pay Mrs X £1,600 to recognise the two terms L did not receive an efficient and suitable education between October 2022 and March 2023. This is based on £800 per term as in line with our Guidance on Remedies. Mrs X should use this for L’s educational benefit as she sees fit;
• pay Mrs X the £1,800 she paid to fund L’s attendance to provider G and a symbolic amount of £100 to recognise the frustration caused to her.
54. Within three months the Council will:
• ensure it has an effective method of tracking and reviewing recommendations and actions taken because of a complaint;
• remind SEND staff that they must keep clear and accurate records of how the Council considers medical evidence in relation to children not attending school and what education and SEN provision it is appropriate to provide in each case; and
• remind relevant staff of the Council’s duties to provide a suitable and efficient full-time, or equivalent, education for children who cannot attend school due to illness under section 19 of the Education Act 1996.
55. The Council will provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice and prevent the fault occurring again.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman