Summary: Mrs C complained the Council failed to find a special school placement for her son (X) and the alternative provision he received was inadequate. We found the Council caused a service failure as it was unable to find a suitable special school for X. It was at fault for failing to provide X enough alternative provision to ensure he received a full-time education, and it should have communicated better with Mrs C. The Council will apologise and make payment to Mrs C to acknowledge the injustice this caused her and X.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council had failed to secure a suitable educational placement for her son (X), who has an Education, Health and Care (EHC) Plan, and provide him with a full-time education in the 2022/2023 academic year.
2. She said, as a result, X had experienced a loss of education. She also said this had impacted his mental health and caused the family distress.

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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 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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)
6. 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.

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How I considered this complaint

7. As part of my investigation, I have:
• considered Mrs C’s complaint and the Council’s responses;
• discussed the complaint with Mrs C’s advocate and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
8. Mrs C 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

Education, health and care plans

9. A child with special educational needs (SEN) 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 which include:
• Section B: The child or young person’s special educational needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.
10. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

Education for children out of school

11. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine. If a council decides to prosecute a parent, they will be formally cautioned and interviewed under the Police and Criminal Evidence (PACE) Act 1984.
12. Where a child’s attendance at school drops below a certain level, normally a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
13. The Council does not have EWO officers, instead it has an Inclusion and Attendance Team and a Special Educational Needs (SEND) Team which between them support with issues around attendance and alternative provision packages.
14. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils to arrange suitable alternative education. The only exception is when suitable provision is already being made.
15. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
16. The Council should attempt to arrange this alternative provision as soon as it is clear that the child will be away from school for more than 15 school days, although there is no statutory timeframe.
17. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
18. 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 to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
19. 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? Ensuring children out of school get a good education, published in July 2022)
20. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they 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 reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

The Equality Act 2010

21. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
22. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
23. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.
   

24. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
25. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

26. Mrs C has a son (X) who has been diagnosed with Autism and other conditions which means he has severe learning difficulties. X is in a mainstream secondary school and he has an EHC Plan which sets out his special educational needs.
27. In 2021, X was unsettled in school and his behaviour was difficult for the school to manage. The school took some steps to support X, but this did not work.
28. Mrs C took X out of his school and moved him to another mainstream school, School Y, for the start of the 2022/2023 academic year.
29. X’s move to School Y did not resolve his difficulties with attending his education. He continued to have reduced attendance, act out and became violent on occasions to school staff.
30. In October 2022 School Y arranged an annual review of X’s EHC Plan, which Mrs C and the Council attended. It was agreed:
• mainstream school was unsuitable for X and he needed a special school to meet his special educational needs;
• Mrs C’s family needed respite care;
• behavioural assessments and support was needed; and
• alternative provision should be arranged to provide X with educational provision he could not receive in School Y, until a special school was found.
31. The Council sent consultations to special schools in its area, finalised X’s amended final EHC Plan, and X had sessions with an art therapist in school.
32. In late 2022 X received a suspension from School Y due to behavioural issues and violence. He was placed on a reduced timetable three days per week. The Council arranged alternative provision from two providers for the days X was not in school.

Mrs C’s complaint

33. In early 2023 Mrs C complained to the Council. She said School Y was unsuitable to X as he had needs for a special school. She said he was only receiving an education in School Y two hours per day as it could not support his needs. She also suggested a special school she believed could meet X’s needs. She told the Council it was discriminating against X for not providing him with the fulltime education he was entitled to.
34. In response the Council did not uphold Mrs C’s complaint. It explained:
• X’s reduced timetable was in place to ensure he did not become dysregulated for longer periods. It also said School Y had provided staff to support X on a 1:1 basis, but found tutoring and home learning would not be appropriate for him;
• it accepted X needed a special school placement. It had unsuccessfully consulted with special schools in and out of its area, but they had told the Council they could not offer X a place. It would continue to work on finding him a suitable placement; and
• it had worked with School Y and arranged alternative provision during the two days he was not in school, and School Y had arranged transport to these. It had therefore not discriminated against X.
35. Mrs C asked the Council to reconsider her complaint. She said the 14 hours of education available to X was not a full-time education and disagreed the school had explored tutoring and home learning with him. She told the Council she did not believe it had done enough to find X a suitable special school placement and keep her informed. She also suggested other special schools she believed may be suitable for X.
36. In Spring 2023, the Council told Mrs X it had not changed its view. It explained it had agreed X needed a special school placement, but it had consulted in and around its area. It said it would continue to provide alternative provision until a suitable placement was found. It also said it had consulted with one of Mrs C’s suggested school, which could not meet his needs and was awaiting a response from another school.
37. Following Mrs C’s complaint, X’s attendance at school and the alternative provision placements was limited. He:
• received several suspensions from School Y due to his behaviour in Spring 2023;
• stopped attending one alternative provision placement in May 2023 following an incident where he became aggressive and violent;
• started receiving individual sessions with the Council’s Autism and Social Communications team;
• a Family Support Worker had worked with the family along with ongoing Child in Need meetings, and social care support started for X in July 2023; and
• stopped attending the other alternative provision placement in July 2023 as he refused to attend.
38. In Summer 2023, Mrs C asked the Ombudsman to consider her complaint as she believed X’s unsuitable school, reduced timetable and limited education meant the Council had breached its education duties toward him. She said it had still not found a special school for X.
39. In response to our enquires the Council said:
• X’s overall attendance with the education available to him was just over 50%, he was therefore not considered in a severely absent cohort;
• it had considered X’s ability to engage with full time alternative provision but did not believe this was in his best interest at the time. It also said it had worked with the school and suggested different tuition providers, but it and the school found it was best for X to receive tuition outside the family home due to the significant pressure the home environment was under;
• it has still not found a special school placement for X. However, it has continued to consult with schools in and around its area; and
• it had seen a large increase in demand for special school’s in recent years. However, it had taken steps to assess and mitigate this, which included three further special schools opening by 2027 to meet the demand.

Analysis and findings

Special school placement

40. The Council agreed in Autumn 2022 X needed a special school placement, as his needs could not be met by the mainstream School Y. The Council confirmed it is continuing to seek a special school place for X.
41. I acknowledge that the Council has tried to find a suitable school place for X. It has consulted widely and has properly considered each school’s response, reverting to some schools to explore how it might meet X’s needs.
42. I also acknowledge the steps the Council has an is taking to meet the increased demand for special school places in and around its area. However, the lack of suitable educational provision is a service failure. This is because the Council has not met its duty to provide X with a suitable education in a special school which can meet his needs.
43. The Council has shared its plans and actions to mitigate its shortage of special school placements and ensure it has sufficient special school’s provision available in future years. I have therefore not made any service improvement recommendations for this finding.

Alternative provision

44. The evidence shows X was on roll with School Y, until a special school placement was found. It was accepted School Y was not a suitable school placement for X. However, this and his challenging behaviour let to some exclusions and a reduced timetable was put in place, which limited his access to an education further.
45. X’s attendance was around 80% prior to the October 2022 annual review. However, it then gradually fell due to his inability to engage with the unsuitable education available to him at School Y. By Summer 2023 his attendance was only 50% for the year and he had stopped engaging with the two alternative provisions made available to him.
46. I found the Council failed to provide X with a full-time education. In reaching my view I am conscious:
• the Council and School Y put in place measures to support X in school including 1:1 support. However, although X did attend some education available to him, the setting remained unsuitable and not all of his special educational needs could be mitigated by School Y;
• the Council took steps to put some alternative provision in place in late 2022, early 2023 and in Summer 2023, which he was able to engage with. Including other support for X and the family. However, the educational provision was not full-time and at best amounted to 14 hours per week, including some of which remained unsuitable for him; and
• the Council told School Y about tuition providers, but agreed home learning or tuition would not be appropriate due to existing pressures on Mrs C and her family. It may not have been appropriate to have tuition in the family home, however, no further tuition or learning was arranged by School Y. The Council was entitled to delegate this to the school, but it remained the Council’s responsibility to ensure it was available to X.
47. I cannot say whether X would have been able to engage with a full-time education if he was placed on roll with a suitable special school or had full-time, or full-time equivalent, alternative provision available to him. However, as only an unsuitable school or limited alternative provision was available to him, he had a loss of opportunity to receive some of the full-time education he was entitled to.
48. I understand Mrs C believes the Council discriminated against X due to his disabilities, which is a protected characteristic. However, I am satisfied the Council considered X’s needs and made genuine efforts to support him. It therefore had regard to its duties under the Equality Act 2010. I cannot say whether it breached its duty, as such matters should be determined by the courts.

Communication with Mrs C

49. Mrs C felt the Council failed to communicate with her enough to explain the steps it had taken or the progress it made to arrange or seek provision for X, including failing to respond to her calls.
50. The available evidence shows the Council participated in the annual review, shared its updated EHC Plan for X, held Child in Need meetings, and told Mrs C it would consult with schools she suggested. It also told her when it had put in place some alternative provision.
51. While the Council did communicate with Mrs C, I have not seen enough evidence the Council kept her informed about outcomes of consultations, discussions with School Y or plans for how it would meet its education duties for X. This was fault. I am satisfied this caused Mrs C some unnecessary uncertainty.
52. There was no fault in the Council’s complaints handling.

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Agreed action

53. To remedy the injustice the Council caused to Mrs C and X, the Council should, within one month of the final decision:
1. Apologise in writing to Mrs C and X, and pay her £750 to acknowledge the distress and uncertainty the Council’s service failure and faults caused her and X;
2. pay Mrs C £3,150, to use as she sees fit for X’s benefit, to acknowledge the loss of opportunity to receive his education in a special school or receive full-time alternative provision which met his needs as set out in his EHC plan between November 2022 to July 2023.

In total the Council should pay Mrs C £3,900.

54. Within three months of the final decision the Council should also:
1.  
2.  
3. Send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act 1996 when it is made aware a child is attending school part-time, or needs a special school placement. This should cover what the Council should consider when assessing the suitability of education and how it will provide, or work towards, a full-time education in such circumstances.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation with a finding the Council caused a service failure and was at fault, which caused Mrs C and X an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman