Summary: The complainant alleged that the Council failed to provide suitable alternative education when her daughter’s school ended her placement there. Based on the evidence available, we are satisfied the Council sought alternative school placements and offered home tuition in the interim. Therefore, we do not find fault by the Council.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council failed to provide suitable alternative education when her daughter, Y, was without a suitable school place.

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What I have and have not investigated

2. I have looked at the period from April 2022 when Y’s specialist school placement (School B) ended her placement. I am not looking at any complaint about School B’s actions because the Ombudsman cannot investigate actions within a school.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
6. If we are satisfied with a council’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

7. I have spoken to Ms X and considered the Council’s complaint responses. I issued a draft decision statement to the Council and to Ms X and have taken into account their further comments when reaching a final decision.

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What I found

Legal and administrative arrangements

8. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
9. 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. Section F sets out the special educational needs provision and Section I names the suitable placement.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
11. 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.

Children out of school because of medical needs

12. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
13. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
14. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
15. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Facts of this case

16. Y has significant social, emotional and mental health needs that are linked to her severe sensory processing difficulties. Mrs X says that Y has now been diagnosed with autism (ASC), attention deficient hyperactivity disorder (ADHD) and obsessive behaviours. She is known to their local Child and Adolescent Mental Health Services (CAMHS). Y has an Education, Health and Care (EHC) Plan.
17. Y attended a special school, School B. Mrs X did have concerns about School B’s adherence to Y’s EHC Plan. At an annual review of Y’s EHC Plan in March 2022, Mrs X did not mention her concerns because she did not want to ‘rock the boat’. The Council agreed to maintain the EHC Plan with no amendments and issued a final amended EHC Plan. In June, Mrs X raised concerns about School B and asked the Council to consider another independent school, School C. The Council told her of her right of appeal if dissatisfied with the amended EHC Plan.
18. In June 2022, School C told the Council it could admit Y. It is not clear whether Mrs X was aware of this offer at this time. In July 2022, School B terminated Y’s placement because it did not consider it could meet Y’s needs. The Council then consulted four other schools.
19. In September 2022, one of Mrs X’s preferred schools agreed to admit Y. But, on reflection, Mrs X did not consider it was suitable because, at a visit to the school, Y found the behaviours of other pupils with sensory difficulties triggered her anxiety. Mrs X refused the place and asked the Council to consider a particular mainstream school with additional support. In early October 2022, that school told the Council it was unable to admit Y because it could not meet her needs.
20. The Council approached School C again. It told the Council it could still offer a place for Y and the Council’s Panel agreed the funding. But the Panel did not agree to decelerate Y as Mrs X had requested.
21. Mrs X accepted the placement at School C, and Y started there in January 2023 on a part-time basis.

Home tuition

22. While also looking for another school placement, the Council asked Mrs X in July 2022 how many hours tuition Y could manage. The Council sent a request to a tuition provider asking if they had a tutor available for September. It updated the request asking for five hours tuition per week in Mathematics, English and Science.
23. In early October, the Council asked if Mrs X wanted the Council to provide a tutor. Mrs X declined saying that she did not consider a tutor would be able to cover the provision required by her EHC Plan. Mrs X was looking for a school placement.

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Final decision

24. I appreciate that Mrs X wanted to ensure that Y’s next school placement was as appropriate as possible because she considered Y had been severely disadvantaged by her time at School B, and she wanted to prevent this happening again. It was open to Mrs X to decline a school placement, which she thought unsuitable, and also to decline home tuition. Fortunately, soon after Mrs X’s refusals, the place at School C was secured.
25. There have been some gaps in Y’s education. But, based on the evidence available, I do not consider these gaps in education are because of actions by the Council. The Council tried to fill these gaps as promptly as possible but, on balance, Mrs X considered it was best to wait until a suitable school was offered.
26. Therefore, my view is that there is no fault by the Council, and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman