Summary: Mrs X complained the Council failed to provide Y with the special educational provision in his Education, Health and Care Plan and to provide him with a suitable full-time education. We found fault with the Council in how it recorded its decision it had no section 19 duty to make alternative provision between February 2022 and March 2022. We also found fault because it failed to provide Y with the agreed provision between February and April 2023. The Council agreed to apologise and make payments to Y and Mrs X in recognition of the injustice caused to them.

The complaint

1. Mrs X complained the Council has failed to provide her son, Y, with the special educational provision in his Education, Health and Care (EHC) Plan and to provide him with a suitable full-time education.
2. Mrs X said this negatively impacted Y’s education, speech and language and his general development. It has also put her to avoidable time and trouble in pursuing this matter and caused her financial strain.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
7. 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)
8. 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.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
10. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
11. 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)
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

13. I have investigated matters from February 2022 onwards. I have not investigated matters prior to February 2022. These parts of Mrs X’s complaint are late. I consider it was reasonable for Mrs X to have complained to us sooner and so there are no grounds to exercise discretion and investigate them now.
14. I have investigated Mrs X’s complaint from February 2022 onwards. I have not investigated any matters which were a consequence of the matters included in Mrs X’s appeal to the SEND Tribunal. This includes the following parts of Mrs X’s complaint:
• The lack of alternative provision and the amount of education Y received from the date Mrs X’s appeal rights were available to the tribunal’s decision.
• Failure to provide the specialist provision in Y’s EHC Plan from the date Mrs X’s appeal rights became available until the tribunal’s decision. This includes the costs incurred by Mrs X in funding sessions with Provider Z from May 2022 to February 2023.

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How I considered this complaint

15. As part of my investigation I have:
• discussed the complaint with Mrs X and considered the details of her complaint;
• made enquires of the Council and considered its response;
• had regard to the relevant legislation and guidance;
• had regard to our Guidance on Remedies; and
• set out my initial thoughts on the complaint in a draft decision statement and considered Mrs X’s and the Council’s comments. In response I revised my draft decision and invited Mrs X and the Council to comment. I considered the comments I received.

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What I found

16. 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.
17. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child.
• Section I: The name and/or type of educational placement.
18. There is a right of appeal to the Tribunal against:
• 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; and
• a decision not to amend an EHC Plan following a review or reassessment.

Maintaining the ECH Plan

19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).

Alternative provision

20. 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))
21. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
22. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

The acid test

26. 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)
27. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.

Medical evidence

28. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’, says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
29. The Courts have found that it is a judgment 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])

Our guidance

30. 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
31. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

32. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

33. This section sets out the key events in this case. It is not intended to be a detailed chronology.
34. Y has Autism with pathological demand avoidance, Attention Deficit Hyperactivity Disorder(ADHD), Attachment Disorder, anxiety and developmental delays.
35. In 2020 Y began attending a specialist school placement (Y’s school).
36. In December 2021 the Council issued an EHC Plan for Y. It said:
• An occupational therapist working with Y identified he has significant sensory processing difficulties which need to be addressed.
• Y will receive 2.5 hours of speech and language therapy (SALT) per term subject to him being available in school.
37. In January 2022 Mrs X told the Council that Y’s placement at his school was breaking down because he was too anxious to attend. She said the school was working on a pastoral support plan. Mrs X asked for an emergency annual review of Y’s EHC plan.
38. On 4 February an emergency review of Y’s EHC Plan took place. The minutes of the review say:
• Plans have been put in place to help Y return to school but they have not been particularly successful.
• A pastoral support plan is in place to help support Y back into school, starting with Y meeting his keyworker off site. However, Y’s behaviour is making it unsafe for his keyworker to continue meeting him offsite and there is no budget for two staff members to attend.
• Y’s school said it was happy to send work home for Y. Mrs X said Y would refuse to engage with anything he considered to be formal learning.
• Y’s school was not sure it could meet his needs or that it was the best place for him.
• A meeting between Y’s Special Educational Needs Co-Ordinator (SENCO), Therapy Team Manager and Head of School concluded they were unsure if the school could meet Y’s needs.
• The Council suggested Y could be referred to its Flexible Learning Team if he was signed off as medically unfit for learning. The Flexible Learning Team would support Y while he remained on roll at this school. Mrs X said Y may not be able to cope with more changes. The Council said it was for Mrs X to decide whether to access help from the Flexible Learning Team or whether to continue with the reintegration package offered by Y’s school.
• Mrs X advised that Y would not be able to transfer to another school because of his anxiety and he needs an education which is not school based. The Council said it would need evidence to confirm Mrs X’s view such as a report from an Educational Psychologist and reports from the Children Adolescent Mental Health Service (CAMHS). It asked Mrs X to provide copies of reports from CAMHS.
• Y’s school agreed it would arrange for an Educational Psychologist (EP) to assess Y. It said it would do so to facilitate finding Y a new placement as it did not think it could meet his needs going forward.
39. In late February Mrs X told the Council that Y’s school had stopped offering him any outreach. She asked when the assessment by an EP would take place.
40. The Council told Mrs X there was a waiting list for EP assessments. Mrs X provided details of an EP with availability. She also told the Council Y’s clinical psychologist and psychiatrist would provide advice about his needs in the meantime. These were provided in early March.
41. In March Mrs X complained to the Council because Y was not receiving a full-time education and she was still waiting to be told the outcome of the emergency review meeting and for the EP assessment to be arranged.
42. The Council replied. It said that Y’s school was suitable for him, and this would not alter unless the EP report concluded otherwise. It would not consider an EOTAS package for Y at this time. It said it would send a EHC Plan review decision letter shortly.
43. On 29 March the Council issued an EHC Plan review decision. It said no changes would be made to Y’s plan.
44. In April the EP issued a report after assessing Y at home. The report recommended Y be offered an individualised program in a home setting. A separate report from Y’s clinical psychologist said Y was too anxious to attend school and that he requires education not in a school setting.
45. In May Mrs X appealed to the SEND tribunal regarding sections B, F and I of Y’s EHC Plan. Mrs X also sought to escalate her complaint to stage two of the Council’s complaints process, but the Council refused to do so because she was appealing to the SEND tribunal.
46. Also in May, Y began attending a weekly one-hour sessions with Provider Z to help meet his sensory integration (SI) needs. The provision was sourced and funded by Mrs X.
47. In July Y’s school removed him from its role. The Council acknowledged Y required alternative education, at least in the short term.
48. In September the Council arranged for thrice weekly, three-hour sessions for Y at Provider Q. It said if the initial sessions were successful, it would consider increasing them.
49. Also, in September Y began receiving a weekly, one hour session to meet his SI needs from Provider W.
50. In December the Council agreed to provide Y with an EOTAS package.
51. In January 2023 the Tribunal heard Mrs X’s appeal.
52. On 2 February the Council received the tribunal order and issued Y with an amended EHC Plan. The Plan says:
• Y will receive a minimum of two and half hours of SALT per term subject to him being available in education and teaching staff availability.
• A qualified teacher will support Y for a maximum of three hours per week during term time.
• A Teaching Assistant (TA) will work with Y for 1140 contact hours per year (Y’s provision will increase up to 30 hours per week, as and when it is deemed appropriate and necessary by the EOTAS multi-disciplinary team and in liaison with Y and his parents)
53. In March Mrs X instructed solicitors who sent the Council a Pre-Action Protocol letter because the Council was not providing Y with the provision set out in his plan. It also raised concerns about increasing Y’s education to full-time and reimbursement of costs incurred by Mrs X in paying for activities and resources for Y.
54. The Council replied. It said that it accepted Y was not receiving the three hours per week with a qualified teacher as set out in his plan. It said this would be provided from early April. It also said that Provider Q could not legally provide more than 15 hours of provision per week for Y and so it was looking for an additional provider to deliver the rest of his provision. It said Provider Q would provide five, three-hour sessions per week for Y.
55. In May Mrs X again asked the Council to reimburse costs incurred in providing Y with an education. The Council said it would fund Y’s sessions with Provider Z and backdate payments to February 2023. It said it would pay her £15 per week for other expenses.
56. In June a TA was found to work with Y for six hours per week. The TA would start working with Y in September when she had availability.
57. In August an annual review of Y’s EHC plan was held. The review documents show:
• Y was receiving SI provision from Provider W and had been since September 2022.
• Mrs X was happy with Y’s education package as it was. She asked Y if he would like an extra session with Provider Z, but he said no.
58. In October Mrs X complained to the Ombudsman. She complained the Council:
• did not provide Y with education from February 2022 to September 2022 as he was unable to attend his school.
• only provided 15 hours of education for Y between September 2022 and February 2023.
• failed to provide Y with three hours of specialist teaching between February 2023 and April 2023.
• failed to increase Y’s provision to full time between February 2023 and April 2023
• failed to provide the SALT and sensory integration provision in his EHC plan between September 2021 and June 2023; and
• refused to refund sessions with Provider Z between May 2022 and February 2023.

We asked the Council to consider Mrs X’s concerns as her earlier complaint to it did not raise all the matters included in her complaint to the Ombudsman. It agreed to do so.

59. In December the Council replied. It said:
• Education was available at school until Y was taken off the roll in July 2022. It recognised the school said verbally at the annual review meeting it could not meet his needs, but the Council asked for an EP report to support its view.
• The annual review meeting said Y was not attending his school because of his anxiety but no evidence was provided saying he was medically unfit to attend.
• Y could only manage 15 hours of education between September 2022 and February 2023. This was based on the recommendations of the EP report.
• Y cannot currently manage a full-time education but he is working towards this.
• It accepts it did not provide Y with specialist teaching as per his EHC Plan between February 2023 and April 2023.
• It was unable to conclude whether SALT and sensory integration provision was provided to Y between September 2021 and January 2022. It said Mrs X did not raise concerns at the time.
• It accepted Y did not receive SALT and SI provision between January 2022 and June 2022 because Y was not attending his school. It said Y’s EHC plan said provision was dependent on him attending school.
• It accepted Y did not receive any SALT or SI provision between July 2022 and May 2023. It apologised for this and accepted it should have done more to secure his provision.
• It will not refund payments made by Mrs X to Provider Z because it must agree alternative provision prior to any agreement to fund it.
60. Unhappy with the Council’s reply Mrs X escalated her complaint to stage two of the Council’s complaints process.
61. Following receipt of Mrs X’s request the Council offered Mrs X a payment of £1050 in recognition of the injustice caused by the fault identified in its stage one response. Mrs X rejected the offer.
62. The Council asked an independent reviewing officer to consider her stage two complaint. The officer found the Council’s stage one reply was fair and thorough. However, it recommended Mrs X be offered a symbolic payment in recognition of the time and trouble caused to her in making her complaint.
63. In January 2024 the Council wrote to Mrs X reiterating its offer of £1050 and a further £100 in recognition of the time and trouble caused to her. Mrs X declined the offer and asked the Ombudsman to investigate.
64. We made enquiries of the Council as part of our investigation. In its response it:
• reiterated its position on SALT and sensory integration provision for Y between September 2021 and March 2022. It acknowledged it does not have access to the records for this period.
• recognised it took too long to provide Y with SALT and SI provision following the tribunal decision.
• clarified Y has received SI therapy from the Provider W since September 2022.
• there was no evidence Y was medically unfit to attend his school from January 2022 and so it was for Y’s school to work with him to reintegrate him.
• Y received 15 hours per week of provision with Provider Q since April 2023. He also receives one hour with Provider W and three hours with a specialist teacher per week. From September 2023 he has received six hours per week with a TA. From December 2023 he has received 27 hours of provision per week.
• said that at Y’s annual review in October Mrs X said she was happy with Y’s current package. She did not want any changes and Y did not want an extra weekly session with Provider Z.

Finding

Alternative Provision

65. Mrs X states Y did not receive any education between February 2022 and September 2022. We cannot investigate the lack of education from 29 March 2022 to September 2022 for the reasons explained in paragraphs 6-9 above. The lack of education during this period was connected to the Council’s decision that Y could attend his school, which had a right of appeal which Mrs X used.
66. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This means that once the Council was alerted to Y’s absence it needed to consider its legal duties and act where appropriate.
67. The Council needed to consider whether Y was receiving a suitable education and whether this education was “reasonably available and accessible” to him. The Council says it decided it was, but it had not sent any evidence of how it reached this view. Councils should keep proper records of the reasons for their decisions. Therefore, there was fault in the way the Council has determine education was available and accessible for Y, as it has not recorded how or why it decided this.
68. However, I do not consider this fault caused injustice to Y during the period February 2022- 29 March 2022. This is because I consider that, on balance, the Council’s decision that education was available and accessible to Y would not have altered even if it had been recorded properly, and so it did not have a Section 19 duty to make alternative provision for Y.
69. I have reached this conclusion because there is evidence Y’s school were offering a plan to support Y returning to school and that this was offered until mid- February 2022. I also note Y’s school offered to send him work home and the Council offered to make a referral to its Flexible Learning Team. The Council could only say education was not accessible if all the suggestions were tried and failed. It was still establishing this during this period.
70. Additionally, the Council was seeking information from an assessment by an EP during this period and from CAMHS. I note Mrs X provided the Council will a report from Y’s Clinical Psychiatrist. However I do not criticise the Council for waiting for the outcome of the views from other professionals to see if Y’s school placement could work before considering alternatives.
71. While I understand Mrs X’s concerns, the Section 19 duty does not apply simply because a parent does not agree the provision offered is suitable. The Council was entitled to decide if Y could access the education and, whilst I find fault in how the decision was recorded, I cannot challenge its professional judgement.

Special educational provision

72. We cannot investigate the lack of special educational provision received by Y from 29 March to September 2022 for the reasons explained in paragraphs 6-9 above. The lack of special educational provision during this period was connected to the Council’s decision that Y could attend his school, which had a right of appeal which Mrs X used.
73. The Council issued Y with an EHC plan in December 2021. The plan said his school would provide the SALT and SI provision Y required. For the reasons set out above I consider Y’s school was available and accessible to him between February 2022 and 29 March 2022. Therefore, he was able to access his specialist provision.
74. The Council accepts it did not provide Y with the SALT and SI provision as set out in his plan between February 2023 and June 2023. This is fault which has caused injustice to Y.
75. The Council also accepts it did not provide Y with a specialist teacher for three hours per week, as specified in his EHC Plan, between February 2023 and April 2023. This is fault which has caused injustice to Y.

Full time education between February 2023 and April 2023

76. I have seen no evidence the Council considered whether Y was able to manage a full-time education following the tribunal’s decision. Between February 2023 and April 2023 Y was only receiving 9 hours of provision with Provider Q and one hour with Provider Z, per week.
77. The Council’s reply to Mrs X’s solicitor in March 2023, states that it is looking to increase Y’s provision with Provider Q and looking for other providers to make up Y’s remaining provision. This suggests the Council recognised Y was able to receive more than 10 hours of provision.
78. I note the Council has subsequently increased Y’s provision to 27 hours per week from December 2023. I have seen nothing to suggest the increase in Y’s provision was because of a change in his circumstances. Instead, the evidence suggests the increase has occurred because the Council was able to find Y extra provision. Therefore, I conclude Y only received 10 hours of provision between February 2023 and April 2023 because the Council was not able to secure additional provision sooner, rather than because he was not able to manage additional hours.

Agreed action

79. Within in one month of my final decision the Council will:
• Apologise to Mrs X for the lack of education and distress caused by the fault I have found; and
• Pay Mrs X £1900, made up of:

1. £1500 for the benefit of Y’s education. This payment is in recognition of the education missed by Y between February 2023 and April 2023. The payment is in recognition of the Council’s failure to provide the provision set out in Y’s plan and the Council’s failure to increase the amount of education it provided to Y.
2. £100 to recognise the time and trouble caused to Mrs X in pursuing this matter.
3. £300 to recognise the distress caused to Mrs X and Y by the failure to provide Y with a suitable education.

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Final decision

80. There was fault by the Council causing injustice. I have completed my investigation as the Council has agreed to remedy the injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman