Summary: Ms X complains the Council failed to provide her son with alternative education since March 2022. We find fault with the Council for failing to provide alternative education causing Ms X frustration and distress. We have agreed a financial remedy for the injustice.

The complaint

1. Ms X complains the Council failed to provide her son with alternative education since March 2022, and he has not had any of the therapies stated in his Education, Health and Care Plan (EHCP).
2. Ms X has had to provide provision for her son herself.
3. Ms X would like an apology from the Council and compensation for the frustration and distress.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
7. The courts have settled that the Ombudsman cannot investigate any matter closely linked to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot remedy a lack of education after the date the right of appeal was engaged. This is the case if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (LGO) [2014] EWCA Civ 1407).
8. 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

9. I investigated the Council’s failure to provide suitable education under Section 19 of the Education Act 1996 (see paragraph 15). I did not investigate matters after July 2022 because Ms X had the final EHCP in July 2022, and then had the right to appeal to the SEND tribunal, which she did.

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How I considered this complaint

10. I spoke with Ms X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. 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

Legal and administrative background

Education, Health and Care Plan

13. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

Appeal right

14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.

Alternative education

15. 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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absence for health reasons for more than 15 days.

Failure to secure provision

16. 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)

EOTAS

17. Education other than at school (EOTAS) is a package of education which is Council funded, and should be detailed in section F of the EHCP.

Summary of key facts

18. Ms X’s son Y is autistic with significant needs. He had an EHCP dated August 2021 which named the school he attended in September 2021.
19. The 2021 EHCP specifies the speech and language therapist (SaLT) will provide lessons to support staff and contribute to the annual review. The occupational therapist (OT) should give advice for the sensory demands of Y’s environment.
20. In November 2021 the Council agreed a change of placement for Y and he attended a pupil referral unit for seven weeks. He returned to the named school in January 2022.
21. Following an emergency annual review in March the school recommended Y have alternative provision. The Council agreed and funded this. It included:
• One and a half hours per week equine assisted therapy;
• Three hours a week tuition;
• Six hours (one day) a week at an alternative education provider;
• One hour per week emotional support;
• An OT assessment; and
• Two sessions per term of SaLT.
22. Ms X brought a complaint to the Council in February 2023, saying:
• Y still had no specialist school placement;
• Since March 2022 Y only had between one and a half and five and a half hours of provision a week;
• Y had not had any of the therapies named in his EHCP.
23. The response from the Council confirmed Y had not been receiving full time education since Spring 2022, and it had not identified a suitable placement. It suggested a referral to Access to Education Service to request more provision for Y.
24. The Council also said Y was discharged from the SaLT as he was not at school, and the school had commissioned an OT assessment.
25. Ms X was not satisfied with the response and made a stage two complaint at the beginning of April. She said Y had not received six hours a week at the alternative education provider, and the Council had not made a referral to the Access to Education Service. Further the school had put in a complaint it could not provide what Y needed due to limited funding.
26. The Council responded in June, saying it would refer to the service provider to give an added response by mid-July. It also said:
• It took reasonable steps to identify and secure an alternative suitable placement for Y;
• It agreed a package of support to be delivered by the school while it continued to look for a specialist placement for Y; and
• It accepted the package was not full time but was “highly personalised to meet his identified needs and restored at substantive cost”.
27. The Council sent the final stage two response at the end of August and apologised for the delay. It said following the trial session it was felt the alternative education provided was not suitable for Y, so other more suitable provision was identified and the school provided an alternative package of education via other providers, using the Council funding from the EHCP.
28. In response to our enquiries the Council provided us with correspondence from the school and Ms X. The school did request extra funding in December 2021 and it was agreed in January 2022.
29. Ms X made repeated requests for an EOTAS package detailing all the activities and therapies she was providing for Y. However the Governance Board considered the alternative provision being provided by the school was suitable and did not agree to the requests.

Analysis

30. The school arranged alternative provision for Y which the Council agreed to and funded. The Council acknowledge this was not full-time education and it was a temporary measure until it found a specialist placement.
31. I am not satisfied the Council has demonstrated Y was receiving the alternative provision. I find fault with the Council for not fulfilling the Section 19 duty (see paragraph 15) to ensure Y received suitable education.
32. The SaLT and OT provision specified in the 2021 EHCP was to support the teachers looking after Y, and as Y was not attending school this was not relevant. However the provision agreed with the school in March 2022 was specifically for Y. The Council say the school commissioned at OT assessment but I am not satisfied the Council have demonstrated Y was receiving the SaLT provision. I find fault with the Council for failing to provide this specialist provision (see paragraph 16).

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Agreed action

33. Within one month of the final decision, the Council should:
• write to Ms X and apologise for the distress and frustration caused by the faults identified above;
• pay Ms X £150 for the time and trouble, frustration and distress caused by the faults above; and
• pay Ms X £900 to recognise the injustice caused to Y by the Council failing to provide alternative provision between March and July 2022.
• pay Ms X £100 to recognise the injustice caused to Y by the Council failing to provide specialist provision between March and July 2022.
34. The total payment to Ms X is £1150.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I find fault with the Council for not providing full time alternative provision for Y. I have suggested a financial remedy for the injustice caused to Ms X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman