Summary: Mr and Mrs X complained the Council failed to ensure their son, C, received provision in line with his Education, Health and Care plan and failed to arrange alternative provision when the school placement ended. We find the Council at fault for failing to provide alternative provision. The Council will make a financial payment for loss of education, apologise, and remind staff of the Council’s policy.

The complaint

1. Mr and Mrs X complained the Council failed to ensure their son, C, received provision in line with his Education, Health and Care (EHC) Plan between July and October 2022. Further they say when the school placement ended the Council failed to arrange alternative provision.
2. They say this has impacted on C’s educational achievement and his mental health.

Back to top

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. 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)
5. 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.

Back to top

How I considered this complaint

6. I have considered:
• The information provided by Mr and Mrs X and discussed the complaint with them;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mr and Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

8. 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.
9. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
10. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

11. 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 education provision.
12. Statutory guidance says that children regardless of circumstances should receive a good education which is tailored to their needs and enables progression. It should include a balanced curriculum and the same quality of education as they would experience at school. The use of electronic media should be used to complement face to face education rather than as sole provision.
13. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

14. C is autistic and has an EHC plan in place. The plan provided support with communication skills, literacy, numeracy, behaviour and sensory experiences. The Council reviewed C’s EHC plan in October 2021. Following this he began attending school A.
15. The plan included:
• Three lots of 30 minute activities to encourage social skills
• Staff familiar with autism.
• Structured programmes to develop basic numeracy and literacy skills.
• Reduced environmental distractions.
• Visual supports.
• Anxiety coping strategies.
• A weekly emotional development programme.
• Weekly opportunities to meet a range of people.
16. In mid-July 2022 C received a two-day suspension from school. During this time school A raised concerns about its ability to keep C safe without significant changes to the provision and support in place. On this basis the school agreed to educate C at home for the rest of the year.
17. The Council had meetings with the school A and Mr and Mrs X to discuss the longer-term provision for C. The Council decided that a new school placement was not in C’s best interests. It suggested an alternative education programme which would include three hours per day at his home. It was hoped this would improve C’s attendance at school.
18. In early September 2022 school A contacted Mr and Mrs X to explain the timetable it would be offering for the start of term. It explained it would provide three hours a day. This would include a core study, emotional regulation intervention and an enrichment activity. They raised concerns to the school and Council the school placement had failed. They also told it they thought the at home provision would not provide the support listed in the EHC plan and expressed concern the offer was for three days a week only.
19. Several days later the school offered two hours of online sessions with a familiar member of staff because of the concern Mr and Mrs X had raised. Following further discussion, it was agreed a teaching assistant would go to C’s home, for two hours a day and building to a full morning.
20. Mrs X says a teaching assistant came to their house and spent the time playing with C in the garden. She says there was no evidence of work being undertaken.
21. In early September 2022 school A also confirmed to the Council that it could no longer meet C’s needs. The Council agreed to find an alternative placement for C. It arranged an annual review meeting for mid-September and the school agreed for C to remain on the roll whilst this was ongoing.
22. Mr and Mrs X raised concerns at the annual review the alternative provision C was receiving was not suitable in terms of method of teaching or the level of teaching. The Council agreed to contact an alternative provision provider (AP1).
23. In late September the Council agreed to amend C’s EHC plan and sent out consultations to five prospective schools.
24. School A offered to provide provision three days a week to C for 5 hours in C’s home. This began in early October. In mid-October Mr and Mrs X raised concerns that this was not meeting C’s needs and that no alternative had been found. They advised the Council their home would not be available from the end of the month as a place to provide provision.
25. The Council sent out further consultations in mid-October as it had not received a positive response from the schools contacted. It provided school A with an update. The school responded to explain it could not continue to support C and its provision would end in late October.
26. In the update meeting in mid-November the Council stated it had contacted two alternative provision providers – AP1 and a new provider (AP2) - and that AP2 would be contacting Mr and Mrs X to discuss provision. Mr and Mrs X also suggested some non-Council run options, which it agreed to look into. The Council contacted one of the providers suggested by Mr and Mrs X, AP3.
27. AP2 agreed to provide six hours a week in mid-November. It asked for the first sessions to occur in the home so a bond could form between C and staff members. Mr and Mrs X raised concerns about sessions being held in their home. Due to this disagreement the start of the sessions was delayed until the beginning of December 2022.
28. AP3 stated it could provide sessions for C and the Council commissioned it to provide ten hours a week. These began at the start of December.
29. In early January 2023 the Council issued a new EHC plan for C. It named the type of school setting but not a specific school. Mr and Mrs X issued an appeal of the EHC plan shortly after this.
30. In late January the Council confirmed it had sourced a school place for C from September 2023. It stated that it would continue to provide alternative provision until the end of the summer term.
31. The Council says since May 2022 it has been developing its own policy and procedures for alternative provision. It says these are being rolled out shortly.

Findings

32. School A made the Council aware in late July, and in August, that it could not provide a safe school environment for C. It was informed that he would not be attending school for the end of the school term and in September.
33. As there was a change in the provision being provided to C we would expect the Council to ensure that he was still receiving the provision specified in his EHC plan. There is no evidence the Council sought to consider this, despite Mr and Mrs X raising concerns the provision was not providing the support listed in the EHC plan. This is fault.
34. Further, as C was unable to attend school following the safeguarding decision, the Council had duties under section 19. It should have taken steps to satisfy itself that any provision being given by school A was suitable and equivalent to full time. Where it was not satisfied it had an obligation to provide alternative provision for C.
35. School A told the Council its provision would be for just core subjects and enrichment activities, but there is no evidence the Council looked into this provision. It did not consider whether the work was suitable, tailored to C’s needs and the EHC plan, enabled progression or of a similar quality to what he would receive in school. Nor did it consider that the offer was not full time, and whether three hours was medically all C could cope with. Although the Council did consider using an alternative provision provider to supplement this it did not take steps to arrange this promptly in September. The Council’s decision not to assess whether C’s educational needs were being met by the school’s interim provision or its duties under section 19 is fault.
36. In late October 2022 the school told the Council it would no longer be providing provision for C as it could not continue to meet his needs. This provided it with a weeks’ notice. The Council did not have provision in place for C following the half term break until early December. I appreciate that it took steps to contact an alternative provision provider before the school provision ended and that it was awaiting a response. It also contacted providers in November. The failure to ensure C had provision in place after the half term is fault. The duty to consider section 19 provision arose before the school told the Council and it should have arranged alternative provision before this. Particularly given the Council had already agreed to do this in discussion with the school.
37. As a result of the faults identified I am not satisfied C was receiving an education equivalent to full-time or on par with that received by his peers and this is an injustice. I appreciate there were concerns about C disengaging from education. However, I can see no evidence the Council considered carefully what C could manage when the hours were proposed or that this was reviewed. I am persuaded there is an injustice in terms of loss of education.
38. It is not for the Ombudsman to say the amount of education C would have been able to cope with in September and October 2022. There is dispute over what he would be able to cope with and there is no evidence to confirm this. There is, though, evidence he could cope with more than the amount offered given the provision believed suitable when alternative provision was arranged.
39. C also missed educational provision from the October half-term. Although the provision did not begin until December, I note the Council offered six hours of alternative provision in mid-November which would have mitigated the impact of the loss of education. Although Mr and Mrs X were not happy with the location of the provision, I am satisfied it was a suitable offer of education. I will recommend a financial remedy considering these factors.
40. The remedy should also reflect that C had an EHC plan and there is no evidence he received the additional special education needs support recommended in the plan between September and December.

Back to top

Agreed action

41. The Council will within one month of the final decision:
• Apologise to Mr and Mrs X and C for the injustices identified above.
• Pay Mr and Mrs X, for the benefit of C, £1,500 in recognition of the missed provision.
• Remind all staff within the education department of the duties and the Council’s policy under section 19 of the Education Act 1990. This should include the government guidance on when alternative provision should be offered.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I have completed my investigation. I have found fault leading to injustice. The Council should take action to remedy the injustice and prevent reoccurrence.

Back to top

Investigator's decision on behalf of the Ombudsman