Summary: Ms X complained the Council did not provide her daughter with services outlined in her Education, Health and Care Plan since January 2022. She also complained the Council did not provide her daughter with any education from May to November 2022. We found fault because the Council failed to deliver suitable education. Ms X suffered avoidable frustration and distress in getting the issues resolved and her daughter missed out on education she should have received. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Ms X.

The complaint

1. Ms X complains the Council has failed to provide her daughter, Y, with specialist services included in her Education, Health and Care Plan (EHC Plan), from January 2022. She also complains the Council failed to provide any education whilst Y was out of school from May to November 2022 or to deliver specialist equipment in a timely manner.
2. Ms X says this has caused distress, anxiety and frustration and that her daughter missed out on educational provision she was due.

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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. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. 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.
8. 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

9. Paragraph four (above) applies to this complaint. I have exercised discretion to investigate Ms X’s complaint back to January 2022. This is when the Council first issued Y’s EHC Plan and it is reasonable to include this period in my investigation.
10. I have exercised discretion to investigate during the two periods of time when Ms X had a right of appeal to the SEND Tribunal. For the first final EHC Plan, Ms X did not appeal as consultations were already underway with specialist providers. For the second final EHC Plan, Ms X did not appeal as within three weeks of its issue, the Council agreed to a specialist setting to deliver Y’s education and then began new consultations.
11. My investigation ends in March 2023 which is when Ms X brought her complaint to us.

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How I considered this complaint

12. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

14. A child with special educational needs may have an 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. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in Section F of an EHC Plan (Section 42 Children and Families Act). 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.  

Appeal rights

16. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;

• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

General section 19 duty

17. 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 S19 or alternative education provision (AP).
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. 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))
20. 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’)

Available and accessible

21. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

Focus report

22. 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
23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

24. Ms X has a daughter, Y, who has an EHC Plan. She has multiple diagnoses and complex needs.
25. In the summer of 2021, Y was attending a mainstream school in the local area, School A. At the time, she was coming to the end of Year 9 and did not yet have an EHC Plan.
26. In July 2021, as part of the EHC Plan assessment process, the Council began gathering information on Y’s needs. A report written by the Council’s Educational Psychologist (EP) “suggested that a specialist school setting could be better than the alternative of trying to (put together) a more fragmented education based around her current setting”, School A.
27. A second report written by a different EP at the same time said that Y required a highly personalised curriculum and long-term specialist adult support throughout her education.

January to August 2022

28. At the beginning of January 2022 and at Ms X’s request, the Council’s Education, Health and Care panel (the panel) began consulting with other schools. The Council sent consultation letters to four schools, all of which were specialist providers who Ms X asked the Council to consult with.
29. In mid-January 2022, the Council issued Y’s first final EHC Plan. This named School A where she was already attending. The Council advised Ms X of her appeal rights if she was unhappy with the EHC Plan. Ms X did not appeal.
30. At the end of February 2022, School A advised the Council that Y was on a reduced timetable of 9.5 hours education per week. It cited the reason as “supporting special educational needs (SEN).”
31. Late in March 2022, an interim review of Y’s EHC Plan was held. Part of the review paperwork provided by School A highlighted how the reduced timetable had only caused Y further anxiety around her schooling rather than improve overall attendance as she found being out of her normal routine to be difficult.
32. The review documents also highlighted that Y was unable to attend mainstream lessons within the school, access local mental health support services and was making no educational progress in school.
33. Ms X requested that Y attend an alternative provider (Setting B) for her education whilst consultations with other specialist providers were taking place. School A supported Ms X’s wish to consult with specialist schools and said Y had not achieved her Section F outcomes due to limited attendance. The Council agreed to update Y’s EHC Plan.
34. At the beginning of April 2022, the Council advised Ms X that of the seven schools now consulted (all specialist providers), schools were either unable to offer Y a place or had put her on their waiting lists for an assessment to be done. The Council advised Ms X that its EHC Plan had stated the type of placement Y should attend was a mainstream school and this would remain unchanged. It also confirmed it would no longer be pursuing parental preference consultations with schools. The deadline for Ms X to register an appeal against January’s final EHC Plan had passed in the middle of March 2022.
35. At the end of April 2022, the panel met and told School A any decision about AP such as Setting B should be made by School A as it was named in her EHC Plan. It said it would not support five-day provision at an unregistered provider such as Setting B. The Council also said any AP must be monitored by School A to ensure the outcomes in the EHC Plan were being met.
36. At the beginning of June 2022, Ms X emailed detailed concerns to one of the Council’s SEND officers regarding Y’s Section F provision not being delivered. The officer then advised Ms X to request a meeting with the school and request a caseworker from the Council to attend this.
37. In mid-late June 2022, School A carried out a further interim review of Y’s EHC Plan. School A then met with the Council, it advised the Council of Ms X’s concerns that it was not meeting Y’s needs or delivering the provision specified in Section F of her EHC Plan.
38. In this meeting with the Council, School A also provided detailed evidence following its meeting with Ms X to say:
• it considered a mainstream setting was unable to meet Y’s complex communication and interaction needs;
• she was unable to attend mainstream classes;
• she had significant gaps in her learning due to non-attendance which was a result of her complex needs; and
• that it did not have the resources to provide 1:1 teaching or small group teaching in a format which Y would be able to access.
39. School A requested that a specialist school should deliver Y’s provision.
40. The panel met again at the end of June 2022 to discuss Y’s case after receiving the interim review documents from School A. The panel agreed to change Y’s EHC Plan, “determine (Ms X’s) concerns around the setting” School A, discuss her preferences and potentially challenge School A on the situation.
41. In mid-July 2022, the Council issued a draft EHC Plan. The Council advised Ms X that no changes were being made to the plan as School A had put specialist provision in place. This provision was Setting B and was for one afternoon per week. Ms X says that at the time, Y was no longer attending School A.
42. In mid-August 2022, the Council issued an updated final EHC Plan which again named School A.
43. At the end of August 2022, the panel decided a mainstream setting was still suitable for Y.

September 2022 onwards

44. At the end of the first week in September 2022, and after further reviewing and clarifying the content of the two EP reports originally written and sent to the Council in July 2021, the panel then agreed that Y should be educated at a specialist setting.
45. Two weeks later, a further interim review meeting was held. School A advised the Council Y had not attended at all that academic year due to her increased anxiety. It asked that Setting B be considered as interim provision whilst consultation with specialist settings was ongoing.
46. In September and October 2022, the Council sent new consultation letters to three specialist providers.
47. In mid-late November 2022, Y began to attend Setting B for three days per week whilst remaining on roll at School A. Two hours 1:1 tuition per week was also agreed for Y to be held onsite at Setting B but delivered by a tutor.
48. At the beginning of January 2023, the Council advised Ms X it would update Y’s EHC Plan.
49. Ms X brought her complaint to the Ombudsman in March 2023, at which time Y was still attending Setting B for three days per week, accessing two hours tutoring per week and remained on roll at School A.

Complaints

50. Ms X made her first formal complaint to the Council about Y’s education in early-January 2023.
51. After moving through its complaints processes, the Council issued its final complaint response to Ms X at the beginning of April 2023. The Council advised Ms X that it believed its response had been accurate and robust. It declined to escalate her complaint to stage two of its process. It signposted Ms X to the Ombudsman.

Specialist chair for Y

52. Ms X also complains it took the Council too long to arrange a special type of chair for Y after it had agreed to fund this in September 2022.
53. The Council ordered the chair in September 2022 and says it then handed oversight to the Occupational Therapist who is employed by local health services.
54. The order was not fulfilled by the supplier but the Council was not made aware of this until March 2023.
55. The Council followed the matter up and the chair was then delivered to School A late in April 2023. The chair was set up and delivered to Setting B in the first half of May 2023.

Analysis

January to August 2022

56. When Y’s EHC Plan was issued in January 2022, Ms X did not exercise her right to appeal the naming of School A to the SEND Tribunal. At her request, consultations were already underway with specialist providers, so I am satisfied it was reasonable for her not to exercise her right to appeal the naming of School A in Section I of the plan.
57. By the end of March 2022, Y was attending part time due to her SEN and School A had already held an interim review of her recently issued EHC Plan. Although School A outlined Y’s difficulties in accessing provision, it did not at this time say it could not meet her needs.
58. Although Ms X made it clear that she wished for Y to attend Setting B whilst consultation with specialist providers was underway, School A was the named school and the Council expected education should be provided to Y from this location. I agree and am satisfied the Council did not act with any fault here.
59. In terms of Y’s section F provision at the time of the March 2022 interim review, although the Council was aware Section F outcomes had at that time not been met, Y’s EHC Plan was still relatively new and she was struggling to attend school. I am satisfied that the Council is not at fault for not taking further action when it became aware outcomes had not yet been met as the plan was in its infancy.
60. In terms of Section F provision for the time from the March interim review up until the next interim review, there is no evidence to say the Council was aware of Ms X’s concerns that provision was not being delivered until complaints to it around the beginning of June 2022. The Ombudsman does not expect councils to keep a watching brief on whether provision is being delivered unless it has been advised of an issue. I am satisfied, that in the circumstances of this complaint, the Council did not act with any fault here.
61. At the next interim review in June 2022, School A provided further, more detailed evidence (see paragraphs 38 and 39) which clearly set out its position. It specifically requested that specialist provision be sourced and said a mainstream education was unable to meet Y’s needs. In the circumstances of this complaint, I am satisfied that at this time education offered by School A was therefore not available nor was it reasonably practicable for Y to access it.
62. As part of my enquiries to the Council, I asked when it became aware Y’s Section F provision was not being delivered and what action it took. The Council responded to say it was not aware of any issues until Ms X complained to it in January 2023. The Council’s position is at odds with the review paperwork from School A, emails clearly voicing concerns between Ms X and a Council officer, and minutes from its own panel meetings, all in June 2022.
63. I am satisfied that at this time the Council failed to take decisive action to ensure Y received a suitable full-time alternative education which would include the provision set out in Section F of her EHC Plan. Although the Council considered changing her EHC Plan, it decided not to do so on the basis that AP of one afternoon per week had been organised by School A. There is no evidence the Council considered whether there was education available and practicably accessible to Y at this time.
64. Ms X says Y was not attending School A by this time, the Council says it was not aware. Regardless of this, when it became clear that School A was not able to meet Y’s need, the Council should have given greater consideration to its duties under S19 of the Act and been ready to take responsibility for arranging S19 education itself. Failure to do so was fault. There is no evidence to suggest that the Council investigated the possibility of increasing Y’s time at Setting B, suggesting this to School A to see if it could be arranged or looking at any other alternatives. This will have caused avoidable distress and frustration to Ms X and meant Y was not given the opportunity to receive a suitable alternative education equivalent to full time or access any Section F provision. I have made a recommendation below to remedy this injustice.

September to late November 2022

65. Ms X did not exercise her right to appeal the August 2022 EHC Plan as within three weeks of it being issued the Council changed its stance and agreed to source specialist provision for Y. I am therefore satisfied it was reasonable for her not to exercise her right to appeal the naming of School A in Section I of the EHC Plan.
66. In September 2022 and following the panel’s decision to seek specialist provision, School A advised the Council that Y had been unable to attend at all due to increased anxiety. It was not until mid-late November 2022 that Y’s time at Setting B increased from half a day per week to three days per week.
67. There is no evidence to suggest that she received any other education from the beginning of September despite the Council being aware of School A’s position since June and that she had not returned in September due to health difficulties.
68. Evidence shows School A made a request for the Council to consider a different AP setting for Y but the Council declined this saying it was incompatible with specialist provision at Setting B. School A also requested an increase in Y’s attendance at Setting B but there is no evidence to show this was acted upon decisively at that time.
69. I am satisfied, that in the circumstances of this complaint, the Council should again have taken more decisive action to source a suitable level of AP for Y under its S19 duties. Not doing so was fault. I am also satisfied that on the balance of probabilities, Y was not spending long enough at Setting B to have her Section F provision delivered. This would have caused further avoidable distress and frustration to Ms X, it also meant Y did not have access to a package of suitable AP equivalent to full time or to her Section F provision until late November 2022. I have made a recommendation below to remedy the injustice caused.
70. As part of recommendations made in a recent unrelated complaint to the Ombudsman, the Council has already agreed to remind staff of its statutory obligations under the Education Act 1996. It also agreed to review its policies and procedures to ensure it retained oversight and responsibility for its duties under S19. On this basis, I do not intend to make any further service recommendations.

Late November 2022 to March 2023

71. Y began attending Setting B for its maximum offer of three days per week. Evidence shows this was a positive step for Y and she did not struggle to attend.
72. There is conflicting evidence regarding Y’s ability to access the additional two hours tutoring. Ms X says Y accessed this from the start of her placement. Evidence provided by the Council from an annual review of Y’s EHC Plan early in December 2022, states that the placement was going well but that Y had not yet managed to access the additional tutoring as she was ‘exhausted’. Later evidence suggests that Y had begun accessing tutoring sometime later in December.
73. On the balance of probabilities, I am satisfied that regardless of exactly when Y was able to begin accessing the tutoring, she was receiving AP suitable to her needs and was accessing the amount she was reasonably able to do so during this time. I am also satisfied that Section F provision was therefore being delivered during this time and find no fault in the Council’s actions.

Specialist chair

74. I am satisfied that the Council agreed funding promptly. When it was advised the chair order had not been fulfilled, it acted swiftly to get the chair in place. I find no fault in the Council’s actions here.

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Agreed action

75. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X and Y for the delay in sourcing appropriate alternative education for Y under its S19 duties;
• pay Ms X £200 to recognise the avoidable distress and frustration caused by the Council’s lack of decisive action in sourcing an appropriate and suitable education for Y; and
• pay Ms X £2,160 to acknowledge that Y did not receive a suitable education equivalent to full time from late June to late November 2022, including a lack of Section F provision during this time.
76. Payments made for missed provision should be used to benefit Y’s education and are in line with the Ombudsman’s guidance on remedies.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman