Summary: The Council accepts it did not take sufficient steps to ensure Miss Y received all the support in her Education, Health and Care plan when she was out of school in 2021-2022. It has offered a payment that is appropriate to remedy the injustice caused to Miss Y and the avoidable time and trouble her mother, Ms X, was put to in pursuing the matter.

The complaint

1. Ms X complained the Council failed to ensure her daughter, Miss Y, received all the provision set out in her Education, Health and Care (EHC) plan in the academic year 2021-22, during which Miss Y was out of school for eight months. Ms X also said the Council failed to respond to her complaints in line with the timescales in its complaints policy.
2. Ms X says, as a result of these failings, Miss Y fell behind with her educational attainment, which caused significant distress for Miss Y and for her family. Ms X was put to avoidable time and trouble pursuing the Council to resolve the matter.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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 significant injustice, or that could cause injustice to others in the future 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. 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 the young person’s Education, Health and Care Plan.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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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What I have and have not investigated

10. Ms X complained in April 2023 about a lack of provision for Miss Y throughout her secondary school education. She had made a number of complaints to the Council, which provided detailed responses, and advised her she could complain to us if she was unhappy with the outcome.
11. We would not usually investigate events from more than 12 months before the complaint to us unless:
• there are good reasons for doing so;
• we are satisfied there will be sufficient information available to reach robust conclusions; and
• we consider we will be able to achieve a worthwhile outcome.
12. Although Ms X said the family were caused significant stress as a result of the Council’s failings, she has not provided good reasons for not complaining sooner about the period before 2021-2022. Further, it would be difficult to establish what provision was made in school during the earlier period, given the lapse of time, and it is therefore unlikely we could achieve a worthwhile outcome. For these reasons, I have restricted my investigation to the academic year 2021-2, which was the subject of the most recent complaints to the Council and was Miss Y’s final year of compulsory education.

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How I considered this complaint

13. I considered:
• the information Ms X and the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

15. 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
16. Councils are 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.
17. 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.

Alternative provision

18. 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. (Education Act 1996, section 19) We refer to this as section 19 or alternative education provision.
19. 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)
20. 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)
21. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
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

The Council’s complaints policy

23. The Council has a two stage complaints process. At stage 1, its policy says it will respond to the complaint within 10 working days. At stage 2, a senior officer will carry out a further investigation within 28 days.

What happened

24. This decision statement is not intended to be a full account of everything that happened in this period, nor does it refer to all the records I have considered. It is a summary only of the key events and facts.

Background

25. Miss Y attended school 1, a secondary school, and had an EHC plan. In 2021-22 she was in her final year of compulsory education.
26. By way of background, in its complaint response dated October 2021, the Council said:
• school 1 reported that Miss Y had fallen behind with her educational attainment, as had many pupils during the COVID-19 pandemic. As a vulnerable pupil she had been invited to attend school full-time during national lockdowns but had declined to do so. It provided online learning in those periods, although accepted this did not suit everyone;
• school 1 reported that all the provision in Miss Y’s EHC plan was being delivered, although the Council understood Ms X did not agree that was the case;
• Ms X wanted Miss Y to have one-to-one support, but this was not in her EHC plan. However, Miss Y did have extra support in the classroom, and was using that support;
• the Council had offered ten additional sessions, targeted to help Miss Y catch up in specific areas, but Ms X had declined these as they would have been delivered at the end of the school day. Ms X wanted school 1 to make changes to its timetable to include the extra sessions during the school day, but the Council explained this was not possible as it did not have enough staff to make the changes Ms X asked for;
• school 1 had offered to arrange mediation and a meeting had been set up to discuss Ms X’s concerns.

Academic year 2021-22

27. School 1 arranged an annual review of Miss Y’s EHC plan in October 2021. Neither Ms X, nor Miss Y attended the meeting. School 1 tried to arrange an alternative date for the review but said Ms X did not respond.
28. School 1 made a home visit to check on Miss Y’s welfare in early November 2021. At that meeting, Ms X asked the school to send work home for Miss Y to complete. The Council said school 1 did so, following that request.
29. School 1 tried to speak to Ms X about how it could support Miss Y to return to school but Ms X did not return its calls. Following this, the Council consulted alternative schools but could not identify one that could meet Miss Y’s needs.
30. In February 2022, officer 1 became Miss Y’s SEND case worker. They contacted school 1 to ask what steps it had taken to arrange alternative provision for Miss Y. School 1 said it had not been able to progress this as Ms X was not engaging with it. Following this, Officer 1 arranged an emergency review of Miss Y’s EHC plan, which was held on 25 March 2022. Miss Y’s attendance was 10.6% between September 2021 and March 2022.
31. At that meeting, Ms X said she did not want Miss Y to attend school 1 and suggested alternative schools for the Council to consider. The Council consulted with those schools. It also asked a local charity to support Miss Y with planning for her further education and training after she left compulsory education, but the charity said Miss Y was not yet old enough for it to support her.
32. In July 2022, the Council issued a final amended EHC plan for Miss Y, which named school 2, one of the schools Ms X had suggested in March 2022. Ms X said she no longer wanted Miss Y to attend school 2 and suggested the Council name school 3, a college. The Council consulted with school 3 and issued a further final amended EHC plan naming school 3 in August 2022, and I understand Miss Y attended school 3 from September 2022.
33. Ms X sent a number of emails setting out her concerns in February and March, and again in July 2022. The Council registered this as a formal complaint in July and sent a formal response at stage 1 of its complaints process on 21 October 2022. In its response:
• it set out in detail the steps it and school 1 had taken to try to get Miss Y back into school between October 2021 and March 2022. It said school 1 had confirmed it could meet Miss Y’s needs in line with her EHC plan;
• it confirmed that the sensory support Ms X wanted was not in Miss Y’s EHC plan until July 2022, but Miss Y was out of school by this point. However, its sensory services had provided support through school 1;
• it accepted Ms X’s initial complaint had not been responded to in a timely manner, which meant she had made the same complaint again. Its response to the complaint made in July 2022 was delayed due to school 1 being closed for the summer holidays, which caused a delay in getting the information it needed to complete its investigation. It apologised for the delays and acknowledged it needed to improve its communication with Ms X;
• it did not agree Miss Y needed further assessments. It said resources were and remained available to support Miss Y at school 1.
34. Ms X was unhappy with the response and asked the Council to consider the complaint further at stage 2. The Council responded at stage 2 in March 2023. In its response:
• it apologised for its delay in sending a written response;
• set out the steps it had taken to support Miss Y to return to school 1;
• explained that Ms X had the right to appeal to the SEND Tribunal if she was unhappy with the content of Miss Y’s EHC plan, and this part of her complaint was therefore outside the scope of the complaints process;
• accepted it had not done enough to secure the provision in Miss Y’s EHC plan in 2021-2022 and offered to pay Ms X £1750 for her to arrange additional education to help Miss Y catch up. It also offered Ms X £250 to remedy the avoidable time and trouble she was put to pursuing the matter. This was a total payment of £2,000.
35. In response to my enquiries, the Council:
• provided relevant records to confirm the steps it had taken and show the communications it had with Ms X and school 1. It explained the steps it had taken to consult with alternative educational providers and the steps school 1 had taken on its behalf to arrange alternative provision for Miss Y. However, it had acknowledged in its stage 2 response it should have done more;
• confirmed it was satisfied school 1 could meet Miss Y’s needs in line with her EHC plan and that school 1 remained a suitable setting for her in 2021-2022;
• confirmed it had not received any medical evidence to suggest Miss Y was not able to attend school for health reasons. Based on evidence from school 1, it had concluded Ms X was not engaging with plans to reintegrate Miss Y into school 1 and had made her own decision to withdraw Miss Y from school 1, without any medical or other evidence, because she believed Miss Y was not getting enough support;
• explained the provision in Miss Y’s plan was intended to be provided in a school setting and school 1 had a specialist unit to support Miss Y’s specific medical needs. Therefore, not all the provision in her plan could be delivered at home; and
• explained it had calculated the payment for missed provision on the basis of £250 per month, in line with the Ombudsman’s guidance on remedies.

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My findings

36. The Council was aware Miss Y’s school attendance was low in Autumn 2021. It was also aware a planned annual review had not gone ahead as neither she nor Ms X had attended the meeting in October 2021. School 1 tried to discuss plans for Miss Y to return to school but Ms X did not engage with the school. It was reasonable for the Council to work with school 1 to support Miss Y to return to school in late 2021 and early 2022 because the Council was satisfied school 1 was a suitable school and could meet Miss Y’s needs in line with her EHC plan. In addition, it consulted with alternative providers in late 2021, but was not able to identify a setting that could meet Miss Y’s needs.
37. In February 2022, Ms X asked for a change of placement. The Council took appropriate action to consult with alternative schools, including those Ms X had suggested. It initially amended Miss Y’s EHC plan to name school 2, and later issued a further plan naming school 3. I find no fault with the steps it took.
38. However, whilst it was looking for an alternative school, it should have ensured the support in Miss Y’s EHC plan was delivered and considered providing an alternative education package. It accepts it did not do enough to ensure Miss Y received the provision in her EHC plan in that period, which was fault.
39. Ms X said this fault meant Miss Y fell behind with her educational attainment, which caused significant distress for Miss Y and for her family.
40. The Council offered to pay Ms X £1750 to remedy the missed provision, which was calculated on the basis of £250 per month.
41. Our guidance on remedies, at the time the Council considered the remedy, said payments should be in the range of £250 to £650 per month. It also set out the factors to consider when deciding where on that scale the complaint sits, which is included in the current guidance (updated in September 2023). This includes the severity of the young person’s special educational needs, whether additional provision can now remedy some or all of the loss, and whether the period in question was a significant one for the young person’s education. The guidance also says we should take into account mitigating factors, such as failing to take up an offer of provision.
42. In considering whether that payment is sufficient:
• it is appropriate to consider the guidance that applied at the time the Council considered the payment. Although we have since updated the guidance, and now consider a range between £900 and £2,400 per term (rather than by month), this is not a significant increase, and would not produce a significantly different payment;
• in my view, the Council should have provided the support in Miss Y’s EHC plan from February 2022, when Ms X asked for a change of placement, and it agreed to consult alternative schools. Prior to February 2022, it was appropriate for the Council to try to support Miss Y return to school 1 as it was satisfied that school could meet her needs in line with her EHC plan. On this basis, I would calculate a payment based on five months to June 2022, which was the end of Miss Y’s compulsory education;
• I note school 1 said Miss Y had fallen behind in part because of the impact of the school closures due to the COVID-19 pandemic. It said it had offered Miss Y a place at the school throughout the closure periods because she was vulnerable, but Ms X had declined this. Therefore, not all the injustice Ms X claims was due to Miss Y missing provision in 2021-2022;
• I also note the Council had offered additional tuition to help Miss Y catch up in key subject areas in October 2021, but this was declined;
• having considered the EHC plans in place during this period, I am satisfied it would not have been possible for the Council to arrange all the provision set out in the plans. For example, the plans do not set out specific occupational therapy or speech and language therapy because school 1 was a specialist provision that was meeting these needs through its classroom-based support and was receiving relevant sensory services to support it to do so;
• the period in question was Miss Y’s final year of compulsory education before moving to post-16 education; and
• Miss Y has complex needs.
43. With all of the above in mind, I consider a payment based on £250 per month was appropriate and therefore the Council’s proposed payment of £1750 is an appropriate remedy for the injustice caused.

Complaints handling

44. The Council delayed responding to Ms X’s complaint in this period at both stages of its complaints process, which is further fault.
45. It offered to pay Ms X a further £250 to remedy the avoidable time and trouble she was put to as a result of this, which is appropriate and is in line with our guidance on remedies.

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Agreed action

46. Within one month of the date of the final decision, the Council will:
1. pay Ms X for the benefit of Miss Y, £1,750 as offered, to remedy the injustice caused by the missed provision in 2021-22, and
2. pay Ms X a further £250 for her time and trouble pursuing the complaint.
47. Within three months of the date of the final decision, the Council will:
1. share the decision statement with relevant staff to ensure staff are reminded of the need to ensure the provision in an EHC plan is delivered whilst an alternative school is sought; and
2. consider what further steps it can take to reduce the delays in responding to complaints about lack of provision in EHC plans and alternative provision.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. I have found fault causing personal injustice. The Council has offered to take action, which is appropriate to remedy the injustice. It has also agreed to take action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman