Summary: Mr and Mrs B complained the Council failed to ensure their son received the provision in his education, health and care plan, failed to put in place education when their son stopped attending school and delayed responding to their complaint. There is evidence Mr and Mrs B’s son did not receive all the one-to-one provision in his education, health and care plan, the Council failed to act appropriately when Mr and Mrs B’s son stopped attending school and the Council delayed responding to the complaint. That means Mr and Mrs B’s son missed out on education and special educational needs provision. An apology, payment to Mr and Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainants, Mr and Mrs B, complained the Council:
• failed to ensure their son received the one-to-one provision in his education, health and care plan (EHC Plan);
• failed to put in place education when their son stopped attending school; and
• delayed responding to their complaint.
2. Mr and Mrs B say the Council’s actions meant their son missed out on education and special educational needs provision.

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The Ombudsman’s role and powers

3. 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)
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. 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.
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I am exercising the Ombudsman’s discretion to investigate what has happened since 2022. That is because Mr and Mrs B brought their complaint to the Ombudsman promptly before complaining to the Council. There were then considerable delays in the Council responding to the complaint.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mr and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mr and Mrs B and the organisation now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

11. A child or young person with special educational needs (SEN) may have an 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 Council can do this.

Section 19

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 provision.
13. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. In ‘Out of school, out of sight?’ published July 2022 we recommended councils:
• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence, (except for minor issues schools deal with on a day-to-day basis), even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Background - education

14. Mr and Mrs B’s son has SEN and attended a mainstream school until July 2022. Mr and Mrs B’s son had an EHC Plan which involved one-to-one support. Mr and Mrs B say their son stopped attending school in July 2022 because he was receiving less and less one-to-one support and was struggling to attend.
15. In September 2022 a meeting took place involving the school, Mr and Mrs B and the Council. Mr and Mrs B emailed the Council after the meeting to raise concerns the school believed their son was only entitled to 16 hours of support and intended to reduce that as the school year went on. Mr and Mrs B asked the Council to make sure the provision in the EHC Plan was in place. In response the Council noted the EHC Plan provided for level A banding which equated to 27.5 hours a week support.
16. On 6 October Mr and Mrs B told the Council their son had made clear he would not go back to the school. Mr and Mrs B said they wanted a new school for their son. The Council said it would be difficult to get Mr and Mrs B’s son into a school before January and the allocated school would have to provide work in the interim. Mr and Mrs B asked whether an alternative agency could deliver home learning as the relations between their son and the school were strained.
17. The Council held an early annual review of the EHC Plan on 12 October. At that meeting Mr and Mrs B said they wanted an alternative school for their son. The school explained it had put one-to-one provision in place but using more than one member of staff to reduce Mr and Mrs B’s son’s dependence on one person. The school said it would continue to send work home.
18. On 4 November the Council wrote to Mr and Mrs B to tell them it intended to amend the EHC Plan to make changes to sections A, B, E and F.
19. The Council began consulting alternative schools.
20. Mr and Mrs B contacted the Council on 9 December to tell it their son could not engage with a tutor. The Council therefore asked the school to produce a pack of work for each subject to collect every Monday morning. The Council continued to consult alternative schools but could not identify a placement. The Council also began consulting colleges for a September 2023 start.
21. As the Council had not identified an alternative suitable school it contacted Mr and Mrs B on 3 February 2023 to outline the options. That included consulting further schools and arranging a transition package using specialist provision within the school while also looking at support from outreach teams to support a return to education.
22. On 10 February Mr and Mrs B told the Council they were withdrawing their son from school and would home educate him. Mr and Mrs B home educated their son until he began at college in September 2023.

Background - Complaints process

23. Mr and Mrs B put in a complaint to the Council on 13 July 2023. When the Council had not responded Mr and Mrs B contacted the Ombudsman in September 2023. The Ombudsman referred the case back to the Council to respond.
24. Mr and Mrs B contacted the Ombudsman again in July 2024 to say they had not received a response from the Council. The Ombudsman chased the Council for an update. The Council said it would send Mr and Mrs B a response.
25. Mr and Mrs B contacted the Ombudsman again in October 2024 to say they had not received a response from the Council. The Ombudsman chased the Council. The Council responded to the complaint on 3 December.

Analysis

26. Mr and Mrs B say the Council failed to ensure their son received the full one-to-one provision in his EHC Plan, leading up to him stopping attending school in July 2022.
27. Mr and Mrs B’s son’s EHC Plan said he would receive one-to-one support throughout the day. It is not clear that meant in every lesson and for the whole lesson. However, the Council says it funded 27.5 hours of support for Mr and Mrs B’s son which is equivalent to every lesson. The notes from September 2022 also show at least at that point Mr and Mrs B’s son was only receiving 16 hours a week support with the school planning to reduce that moving forward. That is not in accordance with what the Council was funding or with what was in Mr and Mrs B’s son’s EHC Plan.
28. Failing to ensure the full provision was in place for Mr and Mrs B’s son is fault. It is clear from the documentary records, including the review which took place in February 2022, Mr and Mrs B’s son struggled to engage with school without an appropriate level of support. I therefore consider it likely, on the balance of probability, failing to ensure the full support for Mr and Mrs B’s son was in place led to him not being able to attend school from September 2022 onwards.
29. Mr and Mrs B are concerned the Council failed to put in place education when their son stopped attending his allocated school. Mr and Mrs B say that means their son missed out on education between September 2022 and July 2023.
30. The evidence I have seen satisfies me Mr and Mrs B did not say their son could not attend any school. Mr and Mrs B only said their son could not attend his allocated school and needed an alternative school placement. As I said earlier, I am also satisfied the reason the placement at the allocated school broke down was more about the failure to put in place the provision in the EHC Plan, rather than the school becoming unsuitable for Mr and Mrs B’s son for other reasons.
31. As Mr and Mrs B’s son had an EHC Plan I am satisfied the Council acted appropriately in the first instance by arranging a review of the EHC Plan. I am satisfied at that review meeting the Council agreed to look for an alternative school placement. I am satisfied the Council began consulting schools in November 2022 but could not identify a school placement.
32. I am concerned though the Council did not consider whether its section 19 duty was triggered when it became aware Mr and Mrs B’s son was not attending his allocated school and did not intend to return. I would have expected the Council to consider whether the school remained suitable for Mr and Mrs B’ son’s needs and to have communicated its decision to Mr and Mrs B. I have seen no evidence the Council did that. The Council also delayed seeking an alternative school placement. That is fault.
33. I recognise none of the schools the Council consulted could provide a placement to Mr and Mrs B’s son. I have seen no evidence the Council considered whether those responses were appropriate or if any of those schools had places available and were, in the Council’s view, a suitable placement. I would have expected the Council to do that and failure to do that is fault. I am also concerned there is no evidence the Council considered how to put in place the provision in Mr and Mrs B’s son’s EHC Plan while he was out of school or that it considered whether the allocated school remained appropriate provided the support in the EHC Plan was in place.
34. Those faults combined meant Mr and Mrs B’ son missed out on special educational needs provision between September 2022 and February 2023, which is when Mr and Mrs B officially withdrew their son from his allocated school and said they wanted to home educate him. Mr and Mrs B’s son also missed out on education, other than limited work the school sent home for him, between September 2022 and February 2023.
35. I take into account that although Mr and Mrs B did not consider the allocated school suitable for their son it is not clear the Council shared Mr and Mrs B’s view. I also take into account it was Mr and Mrs B’s decision to remove their son from the school and that the Council offered alternative education but Mr and Mrs B did not consider their son was ready to access it.
36. In those circumstances I consider a payment of £900 per term for the missed education between September 2022 and February 2023 an appropriate remedy. That equates to £1,350. I also recommended the Council pay Mr and Mrs B an additional £500 to reflect the fact their son did not receive all the one-to-one provision in his EHC Plan which led to the placement failing. I further recommended the Council pay Mr and Mrs B an additional £300 to reflect their distress. That makes a total financial remedy of £2,150. The Council agreed to my recommendations.
37. I also recommended the Council remind officers dealing with children who are not attending school about the Council’s section 19 responsibility and the options the Council should consider to ensure the child receives education. The Council has agreed to my recommendation.
38. The Council accepts it delayed responding to Mr and Mrs B’s complaint. The evidence I have seen satisfies me Mr and Mrs B complained to the Council in July 2023. However, there is no evidence the Council responded to the complaint until December 2024 which is a considerable delay. The Council accepts that and explains that as demand for SEN services has significantly increased this has delayed the overall response times.
39. While I understand that, it is clear from the Ombudsman’s communications with the Council the complaint was passed to the SEN department in September 2023 but then became lost in the system. The Council says it has implemented a procedure for monitoring complaints. As part of the remedy for this part of the complaint I recommended the Council apologise to Mr and Mrs B and provide details of the process the Council has put in place to monitor complaints. The Council has agreed to my recommendations.

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Action

40. Within one month of my decision the Council should:
• apologise to Mr and Mrs B for the distress and frustration they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr and Mrs B £2,150;
• remind officers dealing with children who are not attending school about the Council’s section 19 responsibility and the options the Council should consider to ensure the child receives education;
• provide evidence to the Ombudsman of the process the Council has put in place to monitor responses to complaints.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman