Summary: Mrs X complained the Council did not provide any education or provision set out in the Education, Health and Care Plan (EHCP) for her son, Y, since the family moved to the area. Mrs X says Y missed out on education and provision and this affected the mental health of her and her family. There was fault by the Council. The Council did not ensure Y received any education or provision specified in his plan for one academic term and the Council did not complete the complaint process fully. Y did not receive any education or provision specified in his plan for one academic term. Mrs X was put to time and trouble to complain and was distressed by the process. The Council should apologise, make a financial payment and remind staff of the importance of good complaint handling.

The complaint

1. Mrs X complained the Council did not provide any education or provision set out in the Education, Health and Care Plan (EHCP) for her son, Y, since the family moved to the area. Mrs X says Y missed out on education and provision and this affected the mental health of her and her family.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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)
4. 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

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. Mrs 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

Background information

8. A child 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. Only the tribunal can do this.
9. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHCP to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014) 
11. When a child or young person moves to another council, the new council should inform the child’s parents or the young person within six weeks, the plan has been transferred and if it proposes to make a new EHC needs assessment or review the EHCP.
12. The new authority must review the EHCP either:
• within 12 months from the last plan, or the previous review, or
• 3 months after the date of the transfer.
13. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. 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 section 19 or alternative education provision.
15. 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)
16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
17. 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))
18. 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)
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? published July 2022

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Y has complex special educational needs. Mrs X and her family moved to the area in September 2022. Mrs X told the Council Y would need an education and support when the family moved.
22. The Council approached two local schools in September 2022 to check if either could meet Y’s needs. Both schools could not meet his needs. The Council received Y’s paperwork from the previous Council. This confirmed it had completed an annual review of Y’s EHCP and issued a draft plan in August 2022.
23. The Council consulted with three more schools, school B, school C and school D, in October 2022. School D confirmed it could not meet Y’s needs. The Council made a referral for tuition, but then advised it would be in the early evenings and decided this would not be appropriate for Y.
24. At the end of October 2022, the Council spoke to Mrs X about tutoring. The Council advised her it did not think evening tuition was appropriate. It said it would explore online tuition. Mrs X told the Council Y could not engage with online tutoring. The Council did not challenge this view.
25. School B and school C assessed Y in November 2022. Mrs X advised she felt school B could not meet Y’s needs. School C advised the Council it could offer Y a temporary placement. The Council informed Mrs X it would name school C as a temporary placement but Mrs X requested the Council did not name the school as she was unsure if it could support Y. The Council advised Mrs X it would review the placement after six weeks from Y starting.
26. School B advised the Council it could not meet Y’s needs in the middle of November 2022. It advised the Council Y was working at GCSE level and the school did not have the expertise to deliver the curriculum for him.
27. The Council wrote to Mrs X at the end of November to inform her Y’s EHCP had transferred from the previous Council. The Council advised Mrs X it would hold an annual review in January 2023.
28. Mrs X complained to the Council at the end of November 2022. She complained Y had been out of school since September 2022 and not had the provision specified in his EHCP.
29. The Council agreed the funding for Y’s place at school C in December 2022 and agreed a start date in January 2023.
30. The Council responded to Mrs X’s complaint in the middle of December 2022. The Council upheld the complaint and confirmed it had not provided any education for Y. The Council advised it had arranged a place at school C for Y to start in January 2023.
31. Mrs X was not happy with the Council's response and asked it to escalate her complaint to stage two.
32. In January 2023, school C raised concerns about meeting Y’s needs. The Council considered this information and agreed it would not accept the offer of a place.
33. The Council confirmed it would look at creating a package of education for Y which would be delivered in his home and local community. The Council arranged an Education other than at school (EOTAS) package of education, which started at the end of January 2023. The package started at 12 hours per week. This increased to 21 hours per week in March 2023 to include life skills work.
34. The Council responded to Mrs X’s stage two complaint in March 2023. The complaint response does not mention Y. It only talks about Mrs X’s other child.
35. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to learn from its mistakes and make sure this doesn’t happen again.
36. In response to my enquiries the Council stated it attempted to secure a school place for Y and provided him with an EOTAS package.

My findings

Moving area

37. The SEND regulations 2014 sets out what should happen when a child moves from a different area with an EHCP. The Council should provide the provision specified in the plan until the Council issues an updated plan.
38. Paragraph 11 explains the Council should have informed Mrs Y within six weeks, the plan had been transferred and if it proposes to complete a new EHC needs assessment or review the EHCP. The Council wrote to Mrs X to confirm it was responsible for the plan, but it was 11 weeks after the family moved to the area. This is fault and Mrs X was frustrated by the Council’s delay.
39. Paragraph 12 explains when the Council should review the plan if it is not doing a new EHC assessment. The timescales specified in the SEND regulations 2014, would require the Council to review the EHCP by December 2022, three months after the family moved to the area. The Council has not held an annual review to complete this review. This is fault and Y's plan was not up to date to his needs.

Education

40. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school in September 2022. It should have ensured Y received education provision from this time. The Council has not ensured Y received any education. This is fault and Y missed provision for one academic term.
41. The Council stated Mrs X turned down its offer of online education. The evidence it has provided of this is a copy of an email from October 2022. The email offered online education which Mrs X advised was not suitable for Y’s needs. The Council did not dispute online tuition would not be suitable. The Council decided a face-to-face tutor was not possible at the time as the tuition would be in the evenings and this was too late for Y. Y has not received any education since the family moved to the area in September 2022. This is fault and Y missed one academic term of education.
42. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated. The Council assessed the EOTAS package from the end of January 2023 was suitable for Y’s needs.
43. The Council did not ensure Y was provided with an education suitable to his ability prior to the EOTAS package. This is fault and has meant Y did not receive an education for one academic term.
44. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
45. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

EHCP provision

46. The Council’s response says it provide the provision specified in the EHCP since the EOTAS package started in January 2023. The response does not cover the missed provision from September 2023 until the EOTAS package started. I have seen no evidence Y received any provision specified in section F of his EHCP from September 2023 until the EOTAS package started at the end of January 2023. This is fault and Y missed out on the provision specified in his plan for one academic term.
47. In the Council’s stage two response, there is no mention of Y or his lack of provision. Mrs X requested the Council escalate her complaint as both her children were not receiving any education. While Y had started his EOTAS package at the time of the complaint response, it did not remove the issues Mrs X complained about. The Council was at fault for not fully completing the complaint process. The response should have included information relating to Y. This is fault and Mrs X was frustrated by the process.

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Agreed action

48. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not ensuring he received any education or EHCP provision for one academic term, not reviewing the EHCP within the timescales set out in legislation and for not fully responding to her complaint. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 as an acknowledgement of the distress and time and trouble she has spent pursuing this complaint.
• Pay Mrs X £2,400 for not providing any education for Y for one academic term. This money should be used for Y’s benefit.
• Pay Mrs X £1,500 for not providing any of the provision set out in Y’s EHCP for one academic term. This money should be used for Y’s benefit.
• Remind relevant staff of the importance of effective complaint handling.
49. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

50. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman