Summary: Miss X complains the Council failed to make sufficient education provision for Y. The Council is at fault as it failed to consider if it had a duty to provide alternative education provision for Y and record that decision. But this fault did not cause injustice to Y. The Council is also at fault as it delayed in progressing arrangements for mentoring support for Y and delayed in dealing with Miss X’s complaint which caused disadvantage to Y and distress to Miss X. The Council has agreed to apologise to Miss X and Y and to make a symbolic payment of £300 to Y to acknowledge the injustice caused to him.

The complaint

1. Miss X complains the Council has failed to make sufficient provision to meet her son’s educational and special educational needs. Miss X considers that, as a result, her son’s education has been ruined which has had a significant impact on his mental health. It has also caused significant distress to Miss X.

Back to top

The Ombudsman’s role and powers

2. 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)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. I have investigated events from September 2021 as Miss X had good reasons for not making a complaint about those matters before now. I have not investigated events before September 2021 as Miss X has previously made a complaint to us about those matters and I cannot revisit that complaint.
9. I also have not investigated matters between January and July 2022. I explain my reasons for this decision at paragraph 36 below.

Back to top

How I considered this complaint

10. I have:

• Considered the complaint and the information provided by Miss X;
• Made enquiries of the Council and considered the information provided;
• Invited Miss X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Law and guidance

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. 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)
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)
14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

Appeal rights and our jurisdiction

15. There is a right of appeal to the Special Educational Needs and Disability (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.

16. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

What happened

18. The following is a summary of the key facts which are relevant to my consideration of the complaint. It does not include everything that happened.
19. Miss X’s son, Y, has autistic spectrum condition (ASC) and had been out of education for some time. Y has an EHC plan. School A was named on Y’s EHC plan following Miss X’s appeal to the SEND Tribunal. This was specialist provision for children with ASC.
20. In summer 2021 the Council issued the final EHC plan. This incorrectly recorded Y’s date of birth and led the school to wrongly offer a post 16 place for Y. School A then offered Y a place in the correct year group for September 2021. The school also invited Y to attend induction sessions before the end of the summer term. The school notified the Council of the error and I understand the Council issued an amended copy of Y’s EHC plan with the correct date of birth.
21. In early autumn 2021 Miss X requested home tuition as Y could not attend the school due to anxiety. Miss X’s representative then requested an early annual review of Y’s EHC plan due to his anxiety.
22. School A, the Council, Miss X and her representative held a meeting to discuss Y’s transition to the school and how he could be supported. The record of the meeting notes the school considered it was the right placement for Y. The notes also record the action proposed to support Y, including an engagement officer carrying out some engagement work with Y at home.
23. In late 2021 an annual review took place to review Y’s EHC plan. In early 2022, the Council notified Miss X that it would not amend Y’s EHC plan and of her right to appeal against this decision. The Council also advised Miss X that school A would be the named placement for Y on the EHC plan going forward.
24. In spring 2022, Miss X’s representative requested an urgent annual review as Y was still not attending school and he considered that home tuition should be provided. The annual review meeting was held in two parts to allow further work to be carried out with Y. The record of the first part of the review meeting notes none of the professionals considered home tuition would be appropriate due to Y’s history of non engagement and concerns that it could lead to Y wanting to stop at home. The records show Y attended the second part of the annual review to discuss what placements he was interested in. Y did not want to continue at school A as he wanted to attend a college.
25. On behalf of the Council, a personal advisor contacted Miss X and Y to explore placements for Y for his post 16 education. The Council’s records show the personal advisor visited Y on a number of occasions but was unable to speak to him. Eventually the personal advisor was able to speak to Y and identify a suitable placement at college B. In autumn 2022, the Council issued an amended EHC plan naming college B as Y’s placement.
26. In early 2023, Miss X contacted the Council as Y was struggling to attend college B due to anxiety. Miss X said he was on a reduced timetable but continued to struggle.
27. The Council identified college C as a suitable alternative placement for Y. Internal Council emails show Y was attending online lessons. Following an annual review in summer 2023, the Council issued an amended EHC plan for Y which named college C.
28. In autumn 2023 college C notified the Council that Y’s attendance was low due to a family illness. In late 2023, college C notified the Council of Y’s poor attendance due to his anxiety. Miss X also raised that Y had not received support. Emails between the Council and college show that the Council had agreed to fund mentoring support in early autumn 2023. However, this had not been progressed. In early 2024, the Council completed the forms provided by the college to enable the support to be put in place. The Council has said the mentor has visited Y at home to see if they can support Y’s attendance and engagement.
29. I asked the Council how it considered whether it had a duty under section 19 of the Education Act to make alternative provision for Y when he stopped attending school A. The Council said it considered the placement was in Y’s best interests as it was a specialist placement and secured the provision set out in Y’s EHC plan. Professionals did not consider a home based learning package would be appropriate as it had been tried at a previous setting and Y could not engage with it. The Council therefore did not consider it had a duty under section 19 to make alternative education provision for Y.
30. The Council also said:

• It considered alternative placements for Y when his placement at school A had broken down.
• There were also additional factors to consider as Y could not attend placements in a number of areas.
• It sought a placement in line with Y’s preference for online learning at college C when his placement at college B broke down. The Council was concerned that if it named a placement Y did not agree with then he would not attend.

31. Miss X considers the Council has failed to provide education for Y.

Complaint

32. Miss X made complaints to the Council in 2021 about Y’s EHC plan and the Council not consulting with her preferred schools. The Council considered the complaint thorough its two stage complaints procedure. Miss X’s MP also made a complaint on her behalf. Miss X then made a new complaint about a lack of support to enable Y to receive education in 2022. The Council did not accept the complaint as it wrongly considered Miss X had completed the complaints procedure. We referred Miss X’s complaint to the Council who acknowledged it should have accepted the complaint at stage two of its complaints procedure.
33. The Council then considered Miss X’s complaint at stage two of its complaints process. It set out the actions taken to support Y to access education and did not uphold Miss X’s complaint.

Analysis

Incorrect date of birth on EHC Plan

34. The Council has acknowledged it wrongly recorded Y’s date of birth on his EHC plan issued following Miss X’s appeal to the SEND Tribunal. This is fault which caused the school to initially offer a post 16 place to Y. But this fault did not cause significant injustice to Y as there is no evidence to show it significantly delayed his admission to school A. The school offered induction sessions in summer 2021 shortly after the EHC plan was issued and a full time place from September 2021.

School A

35. The Council has said it did not have a duty to make alternative education provision for Y when he could not attend school A as it considered the school was accessible to him. The Council should have considered if the school was accessible for Y when it first became aware he was not attending due to anxiety. There is no evidence to show the Council actively considered whether the school was accessible and whether it had a duty to provide alternative education provision at this time. On balance, this is fault. But I do not consider this fault caused injustice to Miss X and Y. I say this as the Council did not amend Y’s EHC plan which named school A when it carried out the annual review in late 2021. So, it is unlikely it would have found the school not to be accessible to Y even if it had considered its duty in autumn 2021.
36. Miss X had the right to appeal against the Council’s decision that Y’s EHC plan should not be amended following the annual review of late 2021. The issue of whether school A was accessible for Y and whether the Council should have made alternative education provision is directly connected to the Council’s decision not to amend Y’s EHC plan, including not naming different provision. I therefore cannot investigate whether the Council had a duty to make alternative education provision from early 2022 when the Council notified Miss X of her right of appeal until the Council decided to look for another placement for Y.

College B

37. The Council took three months to confirm a placement for Y at college B. But I do not consider the delay was caused by fault by the Council. It took some time for Y to engage with the personal advisor to explore his preferred placements. Y’s preferences also changed.
38. The Council took appropriate action when it because aware of Y’s difficulties in attending college B. The evidence shows the Council acted promptly to find an alternative placement for Y and there is no evidence of delay.

College C

39. Correspondence between the Council and college C refer to the Council approving mentoring support for Y at the college in autumn 2023. It appears the mentoring support was not put in place as the Council had not followed this up with the college and completed the relevant forms. On balance, this is fault by the Council. As a result, Y did not have the mentoring support for five months longer than necessary which will have disadvantaged him.
40. I cannot say, even on balance, that the delay in providing the mentoring support caused Y to stop engaging with the provision at college C. I say this as Y has struggled to engage with education for a number of years. There were also other factors affecting his engagement. But the Council should remedy the disadvantage caused to Y by not having the mentoring support for five months longer than necessary.

Complaint

41. The Council has acknowledged that it wrongly refused to accept Miss X’s complaint in 2022. This caused a delay in considering her complaint at stage two of the complaints procedure. This will have caused frustration to Miss X.

Back to top

Agreed action

42. That the Council will:
1. send separate written apologies to Y and Miss X for the disadvantage caused to Y by the five month delay in arranging mentoring support for Y at college C and the frustration caused to Miss X by the delay in considering her complaint at stage 2 of its complaints process.
2. Make a symbolic payment of £300 to Y to acknowledge the disadvantage caused to him by the delay in arranging mentoring support at college C. This payment can be made to Miss X on Y’s behalf.
3. By reviewing its procedures or other means, ensure it considers whether education provision is reasonably accessible in the event a child is not attending school full time or at all for ‘other’ reasons and keeps a record of this decision.
43. The Council should take the action at a) and b) within one month and the action at c) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. Fault causing injustice to Miss X and Y.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman