Summary: Miss Y complains the Council failed in its duty to provide a full-time education to her son, D, when they moved into its area last year. Although the Council has put some alternative provision in place, Miss Y says this is part time and not sufficient for D. We find the Council failed to provide an education suitable for D’s needs and did not finalise his Education, Health and Care plan. This caused injustice to both Miss Y and D which the Council will remedy with the actions listed at the end of this statement.

The complaint

1. Miss Y complains the Council has failed to provide suitable education for her son, D, who has an EHCP and has been out of school for a year. For six months Miss Y says D did not receive any education, and the education he now receives is on a part time basis only.
2. Miss Y complains the provision the Council has now put in place is not sufficient for D. She says this has affected her son’s progress and mental health. Miss Y says the failure to provide a suitable education has also caused her significant distress and impacted negatively on her own mental health and her ability to work.
3. Miss Y also complains the Council’s communication with her about the matter has been inadequate, delayed and inconsistent.

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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)

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How I considered this complaint

6. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
7. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance, referenced where necessary in this statement.
8. Miss Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
9. 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

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What I found

What should happen

Special Educational Needs

10. Children with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.

Fair Access to education

12. The School Admissions Code (2021) says that councils must have a ‘Fair Access Protocol’ to place vulnerable and ‘hard to place’ children, where they are having difficulty in securing a school place outside of the normal admissions round.
13. For a young person to be considered under the protocol, they will need to fall into one of the categories set out in the council’s own policy. This includes those with special educational needs (but without an EHCP), children with challenging behaviour and those out of school for more than four weeks in the event of there being no available place.

Provision of suitable education

14. Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1))
15. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies, “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. 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))
16. 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)
17. 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’)
18. 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 mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils may need to act whatever the reason for 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Summary of key background events

19. Miss Y moved into the Council’s area on 14 February 2022 when her son, D, was in school year eight. At that time, D had a draft Education Health and Care Plan (EHCP) produced by the council area where he previously lived.
20. In the previous council area, D attended a mainstream school until his permanent exclusion. Due to his diagnosis of Autism, Attention Deficit and Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD), D moved to a school especially for young people not able to attend a mainstream setting. When Miss Y moved areas in February 2022, D stopped attending that school.
21. The Council received notification of D’s upcoming move into the area, and his need for provision, on 19 January 2022. The records show the Council consulted three mainstream secondary schools in January, but they all refused to offer a place to D because they could not meet his needs.
22. One of the schools consulted by the Council was Miss Y's preferred choice: a mainstream school with SEN support. The Council had further correspondence with the school, but it maintained its decision not to offer a place to D.
23. The Council consulted another school in March, but it refused to offer a place due to being over its published admissions number (PAN) in D’s year group.
24. Dissatisfied with the lack of process, Miss Y submitted a complaint to the Council, and it responded on 3 May 2022. In summary, this said the Council:
• is consulting with schools and trying to ensure a collaborative approach for D’s provision. The case officer will follow up with some other suggested solutions next week;
• recognises that at times it could have contacted Miss Y sooner, especially leading up to the half-term break. The Council apologises and assures Miss Y that it will improve the timeliness of its contact with her.
25. On 4 May the Council consulted with a provider of alternative education. It responded five days later with a proposal to offer five sessions of tuition each week for D. The Council relayed this to Miss Y. She accepted this as an interim measure, but said her preference remained for D to attend her chosen mainstream school.
26. The Council contacted Miss Y’s preferred school again at the end of May and proposed a meeting. The school did not respond, and the Council chased for an update in June. The school replied to say it could not meet D’s needs. After some further discussion, the school proposed some trial sessions for D in September.
27. On 13 September, and after an initial trial period, the school informed the Council that it could not offer a full-time place to D. The Council relayed this to Miss Y and explained that D’s weekly sessions with the alternative provider would continue until a school placement is found.
28. Throughout October the Council contacted a further 14 education providers for D. None of those consultations were successful and on 31 October the Council authorised the five weekly sessions from the alternative provider to continue.
29. The Council consulted with a Pupil Referral Unit (PRU) in January, but it responded to confirm that it was full in D’s year group. Miss Y submitted a second complaint.
30. D’s alternative education provider told the Council in February that, in its view, D may become a school refuser if the Council continues to pursue a move to mainstream school.
31. The Council responded to Miss Y’s second stage complaint on 8 February 2023. In summary this said the Council:
• recognises that its updates have not been as timely as Miss Y hoped for, and at times Miss Y has needed to seek updates. This is a time of uncertainty and stress, and it is important the Council provides regular updates;
• has arranged for D to receive alternative provision from a service who work with children in the community. The Council says it has tried to secure a 1:1 tuition service, without success. The Council continues to try and identify a suitable provider of education for D.
• has recently explored the possibility of learning centres and specialist schools for D, but without success. Miss Y continues to express a preference for mainstream school and the Council will have further discussions about a possible place.
32. The Council continued to consult with education providers throughout March and April, without success.
33. In May the Council decided to maintain the five weekly sessions with the alternative provider and also agreed to increase D’s provision. The Council told Miss Y on 27 June 2023 that it had secured a 1:1 tutor for up to ten hours per week in addition to the five sessions of alternative provision already in place.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

34. The Council received notification in January 2022 that D needed education in its area from the date of the family’s upcoming move in mid-February. As D did not have a finalised EHCP, the Council’s legal duties were in accordance with Section 19 of the Education Act. That duty meant the Council should have taken action to assess D’s case and decide what provision he needed within 15 school days.
35. The records show the Council took some prompt action to consult with Miss Y’s chosen school, as well as other providers which may have been suitable for D. None of those consultations were successful. From reading the files it appears that schools had reservations about being able to meet D’s needs. The Council liaised with Miss Y’s chosen school and negotiated a trial timetable from September 2022. Despite this, the school maintained its decision not to offer a place to D.
36. Hard-to-place cases like D’s would normally fall under a council’s ‘Fair Access’ protocol. This ensures the needs of vulnerable young people, who are not on a school roll, are dealt with quickly and sympathetically. The protocol makes sure that schools are not expected take a disproportionate number of children who have been excluded from other schools, or who have challenging behaviours.
37. However, the protocol is not used for children with an EHCP. D had an EHCP in progress, but it was not finalised at the time he moved. The Council says it ‘adopted’ D’s plan from the previous council area and reissued this as a draft. It was not finalised by the Council due a “technical flaw” within the case management system. The Council has apologised for this and made assurances that D’s final EHCP will now be issued. The Council also says it is introducing a new case management system from the autumn term of 2023 which it considers will help to prevent any future errors.
38. Consequently, D’s case fell between both procedures: he was not a fair access applicant, nor did he have a final plan which Miss Y could appeal. I note the significant difficulties the Council has faced in trying to secure a placement for D. However, if the Council had issued a final EHCP with a blank Section I, then Miss Y could have appealed to SENDIST in early 2022 to ensure that D received an education appropriate for his needs. This fault therefore caused injustice in the form of frustrated appeal rights.
39. In response to our enquiries, the Council clarified that, in its view, D has always been able and entitled to receive a full-time education. It points to the difficulties in finding the right placement and confirms its ongoing efforts to work with local and independent providers. The Council explained that three independent settings have offered to assess D, but Miss Y declined because they were too far away.
40. While I recognise there have been some challenges outside of the Council’s control, there is no good reason why the Council could not have sourced an interim solution sooner, such as 1:1 tuition. Part-time provision should be on a temporary basis, for exceptional and documented reasons, and part of a programme to return children to full-time education. There is no evidence of any efforts made by the Council to source full-time tuition in 2022. The Council only provided a full-time equivalent programme of education in June 2023 and after Miss Y approached the LGSCO.
41. The Council’s Section 19 duty was engaged 15 school days after D’s move and from 14 March 2022. The ten hours of weekly alternative provision began in mid-May. Therefore, D received no provision for seven school weeks. Between May 2022 and June 2023, D received partial provision amounting to approximately half of the full time equivalent.
42. The LGSCO’s 'Guidance on Remedies’ suggests the following approach to remedy injustice in cases like D’s:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss”
1. I consider it is appropriate for the Council to pay a remedy of £1000 for the first seven weeks of total missed provision. This period equates to half a school term. D was in school year eight, and he did not miss any transitions or exams. However, he does have special educational needs and also missed the opportunity to form friendships in his new area. These factors warrant a remedy towards the higher end of the suggested scale.
2. From May 2022, D received partial provision which equated to approximately 40% of the full-time equivalent which he now receives. He received this provision for 75% of the summer 2022 term and then for two full terms in 2023. The Council increased the offer to full-time provision four weeks before the end of the summer 2023 term. Taking this into account, and with consideration that D is about to enter academic year ten, I have calculated my remedy based on £2,200 per term.

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Agreed action

45. Within four weeks of my final decision, the Council will provide evidence to show it has:
• Paid £300 to Miss Y in recognition of her frustrated appeal rights resulting from the Council’s failure to finalise D’s EHCP;
• Paid a further £100 to Miss Y in recognition of the time and trouble caused by the Council’s failure to keep her appropriately updated;
• Paid a total of £5,554 to Miss Y to be used for D’s educational benefit. This is in recognition of the missed or partial educational provision between March 2022 and June 2023. This figure is based on £2,000 per term for the first half term of total missed provision, and £2,220 for the terms thereafter. The remedy I have calculated is pro-rata for any partial school terms and in recognition of the part-time provision offered by the Council between May 2022 and June 2023; and
• Issued D’s final EHCP and provided Miss Y with a right of appeal.
46. Within twelve weeks of my final decision, the Council will also:
• Provide an update on the status of D’s case; particularly whether a placement has been secured or if Miss Y pursues an appeal. The Council should ensure it continues to offer a full-time or equivalent education, unless D’s needs change for exceptional or documented reasons; and
• Improve the way it makes decisions about requests for alternative provision. This could be in the form of staff training or a briefing paper. As part of this, the Council will draw officers’ attention to the Section 19 duties, accompanying statutory guidance and the LGSCO’s focus report ‘Out of School, Out of Sight?’.

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Final decision

47. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed above will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman