Summary: Miss X complained the Council failed to ensure her daughter, who has special educational needs, received a satisfactory education for the past two academic years. We upheld the complaint finding a series of failings by the Council. In particular, for delay in producing an Education, Care and Health plan and for inadequate consideration of the child’s need for alternative provision. We found as a result Miss X’s daughter suffered a significant loss of education provision. The Council has accepted these findings and at the end of this statement we set out the action it has agreed to remedy this injustice and make service improvements to try and prevent a repeat.

The complaint

1. I have called the complainant ‘Miss X’. Her complaint concerns the Council’s education provision for her daughter ‘Y’, who has special educational needs. Miss X says the Council has failed to meet those needs. Miss X has raised the following specific concerns - that the Council:

• delayed in completing an Education, Health and Care (EHC) plan for Y, which she requested in November 2021, but it did not finalise until September 2022;
• has not reimbursed her for alternative education provision she arranged for Y, when Y was on the school roll at ‘School A’ (up to September 2022);
• failed to ensure proper transition for Y to join ‘School B’, named on her EHC plan from the end of September 2022;
• named School B on the EHC plan which was inappropriate, given it was a mainstream school and contrary to advice provided from an educational psychologist and a pediatrics consultant;
• failed to prevent Y’s alternative provision breaking down in December 2022 due to non-payment of invoices to the provider;
• failed to arrange an emergency annual review of Y’s EHC plan when her alternative provision broke down;
• has communicated poorly with her.

2. Miss X says because of the above Y has missed a significant proportion of her education over the last two academic years. This has caused Miss X distress. In addition, Miss X has spent thousands of pounds supporting Y through paying for alternative provision from an online learning provider and a tutor. She has also paid for private assessments from professionals including occupational therapy, speech and language therapy and education psychology.

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The Ombudsman’s role and powers

3. We investigate complaints against councils and certain other bodies. 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 a young person’s Education, Health and Care Plan.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
6. 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)
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. 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

9. Before issuing this decision statement I considered:

• Miss X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Miss X and the Council about the matters forming the complaint, which pre-dated our investigation;
• information provided by the Council in response to my written enquiries;
• relevant law, Government guidance and council policy as referred to in the text below;
• relevant guidance produced by this office.

10. I also gave Miss X and the Council an opportunity to comment on a draft of this decision statement. I took account of their responses before finalising the content of this decision statement.
11. 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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What I found

Legal and Administrative Background

Relevant law and guidance re: special education needs

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
13. The Government publishes statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’). The Code sets out the procedure for carrying out EHC assessments and producing EHC plans. The guidance follows the law contained in the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• it must assess needs and develop EHC plans “in a timely manner”. It should complete steps as soon as practicable;
• it should decide whether to issue an EHC plan within 16 weeks;
• the point from requesting an assessment until issue of the final EHC plan should usually take no more than 20 weeks.

14. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This can include psychological advice and information from an educational psychologist. Those consulted have a maximum of six weeks to provide the advice.
15. There are rights of appeal to the SEND Tribunal if the Council:

• decides not to carry out an EHC needs assessment; or
• decides after an assessment, a child does not need an EHC plan; or
• issues a final EHC plan and the parent disagrees with the content of that.

Relevant law and guidance re: alternative provision

16. 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 should usually 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.
17. This duty applies to all children of compulsory school age living in the local council area, whether or not they are enrolled in school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The education provided by the council must be full-time unless the council decides 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 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, because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. 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. Out of school, out of sight? published July 2022
21. We recommended Councils should:

• consider the individual circumstances of each case. They may need to act whatever cause of the absence (except for minor issues that 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.

Council policy

22. The Council has a ‘Section 19’ policy for the education of children with medical needs. This refers to the Council’s wider duty to also provide education for children excluded or absent from school for other reasons. In relation to those with special educational needs it says:

• “The Local Authority SEN department will work with schools to review any changing needs of a child with an Education Health and Care Plan (EHCP) or statement of SEN, who is unable to attend school because of their medical needs. The EHCP will link the long term educational needs associated with the child’s medical condition to the most appropriate teaching and learning provision.”

23. The policy explains the Council’s Education Performance and Inclusion Team is “responsible for carrying out statutory duties relating to attendance, exclusion, child employment and sick children. The team provides support, advice and guidance, working alongside schools to ensure all children receive their entitlement to education”. While the Gloucestershire Hospital Education Service (GHES) has responsibility for teaching children who are medically too sick to attend school.

Recent Ombudsman decisions

24. Since the beginning of 2023 we have issued three decisions where we have referred to the Council’s duties under Section 19 of the Education Act 1996. As a result of those investigations, it agreed to ensure it had a written policy to meet the needs of children with health needs. It has also agreed to give advice to relevant staff that:

• where a pupil is missing some or all of their mainstream schooling but receiving some alternative provision, it must give consideration to who funds this. The starting presumption will be that if the Council supports the alternative provision as being in the interests of the child that it will pay for it, unless it has proposed a suitable alternative; and
• where pupils are not receiving full time education for reasons of illness, exclusion or otherwise, the Council must consider how the child can return to full-time education in line with Government guidance and our Focus Report ‘Out of School, Out of Sight?’. They must record their thinking and the steps being taken in furtherance of that objective with clear recording of who is responsible for taking action and by when.

Key facts

25. The beginning of the events covered by this complaint is November 2021. Y has special educational needs and was in year 3 of her education. She was enrolled at School A, a mainstream primary school. Since September 2021 she had not attended the school regularly and by November was on a part-time timetable. She went into school twice a week and received additional education via an alternative education provider, with the consent of the school. Miss X paid for the alternative provision.
26. In November 2021, Miss X asked the Council assess Y’s need for an EHC plan. At the end of December 2021, after making preliminary enquiries, the Council agreed to undertake this assessment. It began consulting relevant professionals.
27. By the end of January 2022, the Council had received advice from occupational therapy, Y’s school and her paediatrician. However, it did not receive any advice from an educational psychologist until the end of May 2022.
28. Between these dates, the Council’s inclusion service received contact from Y’s school. It had concerns Y had stopped coming to school. It saw an email from Miss X who reported Y’s anxiety meant she would not go to school. Miss X reported Y would run away if she tried to make her, putting herself at risk. Miss X did not want Y to return to school until her education, health and care needs assessment completed.
29. Council records show that from February 2022 the Council knew of the arrangement where Y would receive alternative provision for part of the week, paid for by Miss X. The Council told us the school did not think Y needed alternative provision, as there were no problems with her attendance before September 2021. Also, because it could make reasonable adjustments for Y to support her attendance.
30. In March 2022 a Council officer attended a meeting at School A with Miss X also present. It kept no contemporaneous note of that meeting. But it says the meeting discussed steps the school could take to help with Y’s attendance. The Council agreed to pay the school an additional £1000 to meet Y’s needs, to support arrangements where Y could return to school gradually.
31. However, in early April 2022 the Council received an email from Miss X making clear Y had not returned to school. In that, she expressed concern at the school’s ability to meet Y’s needs. Later that month the Council received an email from Miss X where she asked it to help with providing more provision for Y, such as home tutoring.
32. In the same email Miss X suggested a meeting involving her, representatives from the school and the Council. The Council agreed to arrange this and proposed a day in May. At the same time, it sent Miss X details of advice it gives to schools on ‘flexi-timetable’ arrangements where a pupil attends school part-time. Miss X expressed dissatisfaction when she saw this as despite Y being on such an arrangement for several months, she said the school had not followed this advice. Miss X then asked the Council to hold off from arranging the meeting. Miss X told it she had arranged a meeting with the school headteacher.
33. Miss X has sent me details of a reintegration plan agreed between her and School A, due to begin in May 2022. It involved Y attending the school site once a week and explained support she would receive.
34. In June 2022 the Council agreed Y needed an EHC plan, but it did not issue a draft as it wanted to consider further if she needed a specialist placement. Miss X had come to the view Y needed such a placement after receiving advice from professionals – including the education psychology assessment and from Y’s paediatrician.
35. In July 2022 Miss X made a complaint to the Council. She complained at the time taken to complete Y’s EHC plan. She also referred to the money she spent on supporting Y’s education by paying for alternative provision and extra tutoring.
36. By the start of August, the Council had decided to name School B, another mainstream school, on Y’s EHC plan. It issued a draft EHC plan accordingly.
37. During this month Miss X spoke to an officer from the Council’s SEND team. I have not seen a note of that call. But an email Miss X sent that month referred to a conversation about the £1000 the Council gave to School A. In this Miss X set out her understanding that it could use that money “for something else” such as the tutoring she paid for Y. The email also mentioned Miss X was in contact with the alternative provider.
38. Also in August 2022, the Council replied to Miss X’s complaint. I summarise its reply as follows:

• It apologised Miss X had communication difficulties in contacting its SEND team. It said this was because of a combination of “unprecedented demand” and staffing shortages which it was addressing.
• It said that with flexi-school arrangements parents assumed responsibility for any costs incurred by educating children off the school site.
• It apologised for the delay in issuing Y’s EHC plan. It explained about demands on the service and measures it was taking to address these.

39. Miss X indicated dissatisfaction with this letter and the Council told how to escalate her complaint. Later that day she sent an email to three officers involved in considering Y’s special educational needs, but not its complaints team. This email expressed continuing dissatisfaction with the actions of School A. In particular that it did not give her information on how flexi-schooling arrangements worked. Also, that she had paid for Y’s alternative provision.
40. The Council did not record this at stage two of its complaint procedure and Miss X did not receive a reply.
41. Miss X continued to pay for Y’s alternative provision, including during September 2022, at the start of Year 4 of her education.
42. Miss X was unhappy the EHC plan named School B. But the Council decided to issue a final EHC plan at the end of September 2022, still naming this setting. Despite remaining unhappy with this decision, Miss X did not appeal the EHC plan.
43. Y’s EHC plan said it was “imperative” that Y have further medical assessments related to her needs. It said these should complete “prior to planning a very graduated return back to an appropriate mainstream school”. And that “this will require an enhanced transition package”.
44. The Council says it expected the School B and Miss X to agree on the detail of Y’s transition to the school. Its notes suggest its understanding that Y would continue to attend the online alternative provision. It would pay School B £1000 a month to pay for this, the amount Miss X paid for the provision up to the end of September 2022.
45. In December 2022 School B contacted the Council to say the alternative education provider had sent it an invoice for £15,000. Also, that it had received no money for Y’s provision at all. The Council said it would “look into this”. Later it told Miss X the school and alternative provider had to resolve what happened with the unpaid invoice.
46. In January 2023 the invoice remained unpaid. As a result, the provider stopped Y attending. The school asked for an emergency review of Y’s EHC plan and the Council agreed, with a meeting arranged in February. Before the meeting the Council sent to School B details of other alternative providers, who may be able to support Y.
47. Miss X contacted the Council’s SEND service at this time to discuss the Council supporting her continuing payment of a tutor to support Y. She says the SEND service put her in touch with a different officer, who then went on to refer Miss X back to the SEND service (Miss X provides an email confirming this). Council notes reflect that Miss X did contact the Council in January 2023 having “sourced private tuition” for Y, but not the detail of those discussions.
48. By now Miss X had made a second complaint. This concerned the breakdown of Y’s alternative provision; the failure to arrange an emergency EHC plan review and that Miss X wanted reimbursement for sums spent on paying for Y’s alternative provision. In its first (stage one) reply the Council said it would work with the school to help find a new alternative provision for Y and that arrangements for an emergency EHC plan review were underway. It said Miss X should ask School B for reimbursement of any sums paid for alternative provision.
49. The Council says that when the February 2023 meeting at School B took place, it was not an emergency review of Y’s EHC plan. Instead, the school had arranged a “problem solving” meeting. The Council representative attended with Miss X and a representative from School B.
50. The Council has provided me with two versions of the notes kept by its officer of the meeting. Both record that Miss X asked for consideration of a specialist school. Both record School B saying it wanted to support Y with appropriate education in line with any medical advice. In addition, one version of the note includes a record of the outcome of the meeting as follows: “that School will continue to work with [Miss X] to identify a suitable provision for [Y] and to include alternative provision (tutors)”.
51. In March 2023 the Council sent its final reply to Miss X’s second complaint (stage two). This covered some other matters including the Council’s approach to advice received from Y’s paediatrician and how it circulated the EHC plan. The Council explained that it expected School B to arrange alternative provision for Y to support her reintegration. It had now sent School B funds to cover the period September 2022 to March 2023. It would reimburse Miss X funds for the September 2022 payment to the alternative provision subject to proof of payment – something Miss X confirms it went on to do.
52. At the end of March 2023 Miss X contacted the Council to advise that her daughter was not receiving any education from School B. She explained her efforts to set up a meeting with the school, which it had cancelled. Miss X says the Council told her there was nothing it could do to intervene. The Council’s notes of the call suggest it told Miss X to get in touch with a charity advice line that supports parents of children with special educational needs.
53. The only later record the Council has sent me is an email dated from the end of April 2023 where it asked School B if it had put any support in place for Y. It has not said if it received a reply.
54. Miss X told me that from May 2023 Y began attending School B for one hour a week. Miss X says she had no teaching support at these sessions with Miss X the only adult present with Y. Miss X continues to support Y with a private tutor.

My findings

The Ombudsman’s jurisdiction and the complaint about naming of ‘School B’ on Y’s EHC plan

55. The term jurisdiction refers to the Ombudsman’s legal powers to investigate a complaint.
56. I do not consider I can investigate that part of the complaint which concerns the Council’s decision to name School B in Y’s EHC plan issued in September 2022.
57. As I explained in paragraph 5, we will not usually investigate a complaint where someone has the right to appeal to a tribunal. In this case, Miss X had the right to appeal to a SEND Tribunal the Council’s decision to name School B on Y’s final EHC plan.
58. I do not consider it appropriate to use my discretion to investigate this matter. I have found no reason Miss X could not exercise that right given her ability to communicate her dissatisfaction with decisions taken by the Council, throughout the events covered by this complaint.
59. Further, only a Tribunal has the necessary power to decide where a child’s needs can best be met. We have no equivalent powers and cannot adjudicate where parental and professional opinion may conflict with the Council’s decision on naming a school.

The complaint about delay in issuing an EHC plan

60. The law is clear, that the Council should complete an EHC needs assessment within 20 weeks. It took double that time in this case. That was a service failing and so I must record a finding of fault.
61. In answer to my enquiries, the Council said that part of the cause of the delay was that Miss X changed her mind at times about her preferred school. I have seen no evidence for this. But even if this is so I do not consider this provides mitigation for the service failing. The facts show the wait for an educational psychologist assessment contributed the main part of the delay. The Council then took several weeks to decide what type of placement it should name (mainstream or specialist).
62. We recognise there is a nationwide shortage of educational psychologists leading to delays in assessment. So, this matter is partly outside the control of the Council. But we still expect it to do what it can to address the gap in its service. In other recent investigations the Council has told us about steps taken to try and recruit more educational psychologists on a permanent basis. I do not need to pursue that point further.
63. The presence of delays out of the Council’s control, should reinforce the need to try and limit other delays. On this occasion while I understand the need for a considered decision on Y’s placement, I cannot see this should have taken so long to decide.
64. I have gone on to consider the injustice caused to Miss X and Y from the delay. Any child is likely to suffer harm to their education when they are without the EHC plan they need. In this case I note Y has not gone on to receive the provision set out in her plan. So I cannot say that had the Council issued the plan around April 2022, when it should, that her education would have gone more smoothly. But the delay still caused injustice as uncertainty to Miss X, waiting for the outcome. So this is a factor I take account of when recommending action the Council should take to remedy this complaint.

The complaint the Council has not reimbursed Miss X for alternative provision while Y attended School A

65. I explained above the law, Government guidance and advice published by this office on the Council’s legal duty to consider a pupil’s potential need for ‘alternative provision’ when it learns they are out of full-time education. At its crux it is important to stress we do not consider a council must provide alternative provision every time they learn a child is out of school for more than 15 days. The Council may come to the considered view that a child has a suitable education placement they can access. Or that there is a suitable reintegration plan in place that will result in a child resuming full-time education and that in the short-term a part-time provision is most suitable for the child (or it can help facilitate a reintegration plan). But we do expect that councils consider if they need to make such provision.
66. The Council expects that where a child on a school roll needs alternative provision to complement their education, the school should source this. The school can then ask the Council for help with funding. This position does not appear in any publicly accessible policy document I have found. Instead, there is a gap in the Council’s policy on considering its Section 19 duty for pupils with special educational needs who are missing schooling. I can only find the single reference to the role of the SEND team above in a policy designed for children who are too ill to attend school. This guidance looks more suited for those with physical illness. It is lacking for the complexities of cases like these where a child’s absence relates to their mental health and special educational needs. Or where there is some history of the school using a flexible timetable arrangement or reasonable adjustments to address this.
67. In this case, the evidence shows School A never asked the Council to consider funding alternative provision for Y. I cannot investigate why this was as we cannot investigate the actions of schools in circumstances where a child does not have an EHC plan. For the same reason, I cannot find out why the school did not follow the Council’s advice on flexi-school agreements. The explanation may lie in the Council’s comments that School A and Miss X disagreed on whether Y could not attend school full time and so needed alternative provision.
68. Caught between these two opposing viewpoints, the Council took on a roll of trying to facilitate agreement between Miss X and School A on managing a phased return for Y. I make no criticism of that. I consider in Spring 2022 the Council could reasonably encourage steps to help Y return to school, even while the assessment of her needs continued. Indeed, there is no evidence to suggest Miss X wanted anything different, as in April 2022 her emails suggest she wanted to work with the school to the same aim. The documents provided by Miss X also confirm this.
69. However, the Council left its consideration incomplete. I reiterate its policy is not to expect parents to pay for alternative provision if needed, but for schools to do so. It should therefore have taken a view on whether it considered Y needed alternative provision as part of its duty to make the “most appropriate” provision (as per its Section 19 policy). And if the answer was ‘yes’ then it should have arranged for the school to take over its funding, for which it would then reimburse the school.
70. Not considering Y’s need for alternative provision was therefore a fault.
71. On balance, I consider had the Council undertaken that consideration then it would have supported Y’s continuing attendance at the alternative provision. This is because of the following:

• first, there is no suggestion the Inclusion Officer thought Y did not need alternative provision. They wanted Y reintegrated into school, but that position was not incompatible with her also receiving alternative provision. When they agreed Y needed a reintegration plan, by definition they accepted she could not return to school full time. In which case how would her need for full-time education be met? The assumption must be the officer thought Y should continue with the alternative provision;
• second, when by September 2022 the Council named School B on Y’s EHC plan, it made its support of the alternative provision plain. It gave (or intended to give) a budget to School B to support this. I recognise that by then the Council knew more about Y’s needs because of the assessments informing her EHC plan. So, its officers were in a better position to judge Y’s needs than in the Spring. But this is still strong evidence that Y could not manage a full-time timetable from February 2022. Because I have seen nothing to suggest a sudden increase in Y's needs between these dates which might have led the Council to take a different decision at the earlier date.

72. In which case the injustice caused to Y was a failure by the Council to ensure it funded her alternative provision (via School A) from April 2022. As I consider by this date it knew fully her then circumstances. An injustice to Miss X is that she had to meet the cost of that instead.
73. I set out below the action the Council has agreed to remedy this injustice.

The complaint about the transition for Y to join School B

74. While Y’s EHC plan named School B, it foresaw she could not attend there straight away. This is because the plan stated it was “imperative”, (so implying it was essential), that “prior” to joining the school, Y have certain medical assessments to better understand her needs. The plan then said Y would need a transition plan, with emphasis put on the need for a gradual return. So, no transition could happen until the various assessments completed.
75. The plan therefore did not provide a detailed description of what Y’s education provision would be in October 2022 and the immediate months to follow. But the Council accepts that it foresaw Y would need an unspecified period of time attending alternative provision before transition could begin.
76. The question is then who was responsible for arranging that alternative provision, checking Y’s progress and drawing up a transition plan. It is the Council’s view that these were all matters for the school. But it did not set out its expectations in writing to either the school or Miss X.
77. That said, I would not expect the Council to be undertaking a watching brief of the school. So, while the Council could have made its expectations clearer, I do not consider it was at fault for a failure to consider Y’s potential need for alternative provision before December 2022.

The complaint the Council failed to prevent Y’s alternative provision breaking down in December 2022

The complaint the Council failed to arrange an emergency annual review for Y when her alternative provision broke down

78. I have considered these two sub-headings of Miss X’s complaint together. I accept on the limited evidence available the Council was not responsible for the underlying cause of the breakdown in Y’s alternative provision. The account of the school was that it received an invoice around five times greater than it expected for Y’s alternative provision, to cover the cost of the service during the 2022 Autumn Term. This was also five times higher than Miss X paid for the same service before. It is not clear why the cost of the alternative provision increased so much. Nor is there any suggestion the school had forewarning of the increase.
79. But faced with this report from the school, I consider the Council responded with fault. I understand why it would not simply want to assign more money to the school based on the invoice it received, in these circumstances. But it knew, or should have known:

• this was the main or only education provision Y received at the time; and
• that Y’s EHC plan said she would not attend the school until she had received certain assessments, meaning she had to be reliant on alternative provision.

80. The Council knew therefore this was a potential crisis point in Y’s education. Yet it acted with no urgency or curiosity. So:

• it did not ask the school to share what enquiries it had made with the alternative provider to explore its invoices and why the provider had given no warning of the charges;
• it did not attempt any intervention with the provider directly;
• it did not make basic enquiries with the school about the progress of the assessments Y needed as an ‘imperative’;
• it did not arrange an emergency EHC plan review.

81. A failure to take one of these steps would not result in a finding of fault. But the extent of the inaction here can lead me to no other finding.
82. If the Council had tried these interventions, then I consider Y’s alternative provision might still failed given the seemingly unjustified increase in cost. But the Council may have found a way for it continue, even if only short-term, until it found an alternative. There should have been an active, urgent search for an alternative.
83. The Council’s inaction continued following the meeting in February 2023. It was essential there be an emergency review of Y’s EHC plan given she was not receiving any education provision. I recognise the Council thought this is what School B had arranged. However, even if it was not clear before the meeting the school had arranged something different, it was for the Council to intervene and insist such a meeting take place. The Council should not confuse the administrative practicalities of arranging reviews, usually left to schools, with its statutory duty to ensure reviews take place. The failure to ensure an emergency EHC plan review was a fault.
84. The Council has then shown a continuing disregard for Y’s need for full-time education after February 2023. It has failed to make adequate checks with School B to see what education Y receives, despite knowing of Miss X’s continued dissatisfaction with the lack of provision for Y. However sparse the Council’s Section 19 policy, it still makes clear the Council SEND service must ensure pupils with special educational needs are receiving satisfactory provision. Its failure to assume its responsibility here was a fault.
85. The injustice caused by these faults is that Y has suffered a significant shortfall in her education. I stress we do not expect councils to keep a ‘watching brief’ over schools. But where the Council becomes aware a child is missing education it must consider the child’s need for education. And part of that consideration will be to decide if the child needs alternative provision.
86. I am satisfied on balance, that had the Council not acted with fault then it would have ensured Y received some education. I consider this would have to be alternative provision. As it could not insist Miss X ensure Y’s attendance at School B having written an EHC plan which makes Y’s attendance conditional, and with no evidence the conditions were met.
87. The fact Y has received any education at all since January 2023, is only because Miss X has sourced some private tuition at her expense. This is something I have taken account of when deciding on a fair remedy for Miss X and Y’s injustice.

The complaint about communications

88. During its investigation of the complaint the Council recognised the difficulties Miss X found in contacting its SEND service. So, this part of the complaint is also upheld.
89. I further note a recurring pattern of a lack of satisfactory record keeping around Miss X’s contact with the Council. For example:

• in the absence of a note of Miss X’s meeting with the Council and School A in March 2022;
• in Miss X’s references to telephone calls where there is no comparative record provided by the Council.

90. I also note poor handling of Miss X’s complaint made in July 2022. Miss X has produced an email from August 2022 showing she wanted to pursue her complaint. But the Council did not acknowledge this or reply to it. While that email did not go to the Council complaint team, it went to other officers involved in Y’s case. It was clearly a reply to the Council’s stage one complaint response. So, it should have been bought to the attention of the complaint team and responded to appropriately.
91. All of the above has caused a further injustice to Miss X. She has been put to unnecessary time and trouble in pursuing her complaints.

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Agreed action

Personal remedy

92. The Council accepts the findings set out above. To remedy the injustice caused to Miss X and Y which I have identified above, it has agreed that within 20 working days of this decision, it will:
1. provide an apology to Miss X that accepts our findings in this case; this should follow the advice contained within our guidance on remedies;
2. make a symbolic payment to Miss X of £8,000 (a breakdown of this payment is set out in paragraphs 93 - 96 below);
3. commit to making a further payment to Miss X of all private tuition costs she has incurred since January 2023 in supporting Y subject to her providing any satisfactory proof the Council may require (see also paragraph 97 below);
4. arrange an emergency EHC plan review for Y;
5. either as part of the emergency EHC plan review above, or separately, the Council will also meet with Miss X to consider if there is any supplementary provision it can make for Y to help her catch up with the education it has missed. For example, making alternative provision during holiday periods.
93. The breakdown of the sum recommended at 92b) above is as follows:

• £4000 is for the sums Miss X spent on alternative education provision for Y between April and July 2022; I have seen a bank statement Miss X has provided showing these payments – the Council can request a copy if it does not have this.
• £3500 is to reflect the shortfall in Y’s education provision during the Spring and Summer terms 2023;
• £250 is to reflect the uncertainty arising from the delay in issuing Y’s EHC plan;
• £250 is to reflect Miss X’s time and trouble and distress caused by the Council’s poor communications.

94. The calculation of the symbolic payment to Miss X for the shortfall in Y’s education took account of our guidance on remedies. This says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. Individual payments take account of factors such as:

• the severity of the child’s special education needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

95. In this case I noted:

• that the period concerned was years 3 and 4 of Y’s education;
• that she has significant special education needs which necessitate an EHC plan; the extent of Y’s needs being clear to the Council from August 2022;
• that since November 2021, Y has received virtually no teaching in class; the only significant provision she has received is from the alternative and private tuition arranged by Miss X; at most I estimate this has met around 50% - 60% of Y’s needs and far less since January 2023 when the alternative provision stopped;
• additional provision may be able to remedy some or all of the loss given Y’s age, subject to an urgent review of her EHC plan and the Council maintaining an active interest in her education for the foreseeable future.

96. Taking account of these factors I did not consider a payment appropriate for loss of provision before January 2023, given the alternative provision Y received and the efforts to reintegrate her to School A. But it was appropriate to reimburse Miss X for the cost of the alternative provision. For the Spring and Summer terms 2023, I considered a mid-range payment of £1750 a term appropriate. This took account that Miss X sourced some private tuition but this still left a significant shortfall.
97. The agreed payment at paragraph 92c) takes account of my understanding that Y began receiving some private tuition, paid for by Miss X, before January 2023. However, I did not find that this formed the primary focus of her discussions with the Council around support for Y, which focused more on the alternative provision. I did not consider it proportionate therefore to ask the Council to consider reimbursement of private tuition costs before January 2023. Assuming Miss X provides any information required by the Council to reimburse her with funds within 20 working days of its request, I expect the Council to settle this payment within three months of the decision.
98. I noted Miss X’s comments that she has spent money on other assessments for Y, which she has commissioned privately. I cannot make any linkage between these expenses and the Council’s fault in this case. So, I saw no basis to recommend the Council reimburse Miss X for those expenses.

Service improvement recommendation

99. In addition to the personal remedy for Miss X detailed above, the Council agreed to learn lessons from this complaint to try and avoid a repeat. It has agreed that within three months of this decision it will amend its current ‘Section 19’ policy, or introduce a separate policy document, to address the position of children with special educational needs who are out of school on a full or part-time basis. This should set out clearly the expectations of the council of its officers, schools and parents to ensure proper consideration of each child’s circumstances. Which, in appropriate cases, will involve the Council looking to ensure a child has alternative provision.
100. Also, the Council has agreed that within one month of this decision it will issue a reminder to all staff in its SEND service of the need to accurately record and action complaints. Where an officer receives a complaint, or correspondence escalating a complaint, they must ensure the Council’s corporate complaint team knows of this. That way complaints can be properly recorded and responded to.
101. The Council should provide us with evidence it has complied with the above actions.

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Final decision

102. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Miss X and Y. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman