Summary: The complainant said that the Council failed to provide suitable education to her son, who has special educational needs. We find that there has been some fault causing injustice. We have recommended ways to remedy the injustice, which the Council has accepted. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council failed to provide her son, Child B, with suitable education since he started at secondary school (School C) in September 2021. Mrs X says that, since then, despite her son rarely attending school, he has not received any alternative education despite the Council knowing that he was out of education.
2. Child B has had an Education, Health and Education (EHC) Plan since he was at primary school. Mrs X says the Council’s alleged faults meant Child B was not receiving the educational support required, his mental health deteriorated, and he has become isolated. Mrs X had to give up work to look after Child B and the family was caused avoidable distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome.
4. 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.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
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. Parents/carers can appeal to the SEND Tribunal where a council refuses to assess or issue an EHC plan, and where there are concerns about the content of the EHC plan.
7. 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

8. Normally, we expect complainants to complain to us within 12 months of when they first realised something had gone wrong. But we have discretion to look at complaints out of time.
9. Mrs X did not complain to us until July 2023. I have exercised the Ombudsman’s discretion to look at the complaint from September 2021, when Child B started at School C to November 2023, when the Council issued a final amended EHC Plan for Child B.

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How I considered this complaint

10. I have spoken to Mrs X on the telephone and made enquiries of the Council. I issued two draft decision statements to the Council and to Mrs X. I have considered their further comments before reaching my final decision.
11. 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 the final decision with Ofsted.

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What I found

Legal and administrative arrangements

12. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
13. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC plan sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the SEN provision and Section I names the suitable placement.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.

Annual reviews

16. Councils oversee delivery of EHC plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
17. EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
18. We normally take the view that councils should amend an EHC plan (if that is required) within 12 weeks of the annual review meeting.

Personal budgets

19. A personal budget is an amount of money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
20. Councils have to consider a request for a personal budget. (Special Educational Needs (Personal Budgets) Regulations, regulation 4). Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHC Plan or during a statutory review.
21. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

22. Parents/carers can be involved in securing provision through the use of direct payments, or an arrangement where the council or school hold the budget, or third party agreements where direct payments are managed by an individual or organisation, or a combination of the above. Parents/carers should be given an indication of the level of funding at the planning stage. The final allocation of funding must be sufficient to secure the agreed provision and should be set out in section J of the draft EHC Plan.
23. If a council refuses a direct payment, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.
24. Councils should include information about personal budgets on its Local Offer on their website and have a personal budget policy.

The Council’s policy on personal budgets

25. The Council says that a parent/carer may request a personal budget which it must consider. But the Council says that this does not mean it has to prepare a proposed budget.
26. The Council’s policy explains circumstances where a personal budget might be refused. The Council’s policy says it will notify a parent/carer in writing if it refuses a request. The Local Offer on the Council’s website explains its approach to personal budgets.

Children out of school because of medical needs

27. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
28. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
29. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
30. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

Case law regarding section 19 alternative educational provision

31. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

32. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
33. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.
34. In (R(R) v Kent County Council [2007] EWHC 2135 (Admin)), a parent removed their child from school because of bullying. The Council refused to arrange alternative provision, as it felt the child was able to attend school, given the steps that had been taken to prevent bullying, and based on evidence it gathered from professionals involved with the child. The Council decided that the education offered was “reasonably available and accessible” to the child, despite the parents’ objections, and so did not arrange alternative provision. The Court agreed with the Council’s decision.
35. In July 2022, the Ombudsman issued a Focus Report: Out of school, out of mind?
36. We made a number of recommendations. The most relevant to Mrs X’s complaint is that councils should consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence- (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll.

The Council’s policy on alternative education

37. During the 2021-2022 academic year, the Council did not have a formal policy. But it says that it followed the principle of putting service support in place prior to providing alternative education, as it considered this approach secures the best chance of long-term engagement in education.
38. In September 2022, it issued a formal policy, updated in May 2023. The revised policy makes it clearer what officers should do if there is a request for alternative education.
39. Council expects schools to contact its Education Support, Behaviour and Attendance Services (ESBAS) to get advice if a child is not attending, and to make a referral to the Inclusion, Special Educational and Disability (ISEND) system.

What happened

40. Child B was diagnosed in 2015, when at primary school, with an autistic spectrum condition (ASC), anxiety, attention deficiency hyper disorder (ADHD) and specific literacy difficulties. He has an EHC Plan.
41. In September 2021, Child B was placed at the parents’ preferred school, School C, a mainstream academy, under his EHC Plan. Child B’s EHC Plan of February 2021 stated broadly that he required a quiet space for learning, adult support, a range of sensory or low-stimulus calming activities, extra curriculum activities, handwriting practice twice a week, staff trained in managing ASC pupils and assistive technology.
42. For the first three weeks, Mrs X says Child B had the support from a Placement Support Adviser (PSS) at School C and this was very helpful. But she says that this support stopped, and Mrs X says Child B’s attendance at school deteriorated.
43. Mrs X says that School C then reduced Child B’s timetable to one hour per day because it could not manage his behaviour. Initially Mrs X says that the parents agreed to this to try to manage Child B’s anxiety. But School C then said Child B could only attend at set times because it was struggling to meet his needs.
44. In November 2021, the Council says that the Placement Support Adviser recommended that School C made a referral to the Council’s Education Support, Behaviour and Attendance Service (ESBAS).

Events of 2022

45. Three months later, in February 2022, a referral was made to the Council’s Special Educational and Disability (SEND) support services. Mrs X questions why she was not told, at this stage, of the Council’s duties under s19 when it was clear Child B was not attending school and she was raising concerns.
46. The Council says that, because the referral indicated a potential need for more than one service to be involved, the case was discussed at the Council’s Inclusion Multi-Agency Panel (IMAP). It was agreed that ESBAS should lead a multi-agency meeting involving the Council’s Communication, Learning and Autism Support Service (CLASS) and the PSS.
47. This meeting took place in March 2022 when it was agreed that all the above services would continue to support Child B at school, along with the Council’s Teaching and Learning Provision. And that School C would make a referral to the Children and Adolescent Mental Health Services (CAMHS) and the Council’s Emotional Wellbeing Team in consultation with Mrs X.
48. Mrs X says that this proposed additional support was not quantified or specified, that School C did not make referrals to CAMHS or the Emotional Wellbeing Team. Mrs X says that she contacted CAMHS, and it confirmed that Child B’s diagnosis impacted on his ability to be at school. Mrs X says that this confirmation was sent to School C and to the Council.
49. In June 2022, there was an annual review of Child B’s EHC Plan. The Council says that the parents asked for a change of placement but changed their minds. Mrs X says, on reflection, she did not think a change of placement would help as Child B had said it was better for him to be at a school which he knew. The Council says that School C was considered a suitable and accessible placement for Child B by the parents, by the school and by the Council. Therefore, it was appropriate for the Council to continue to support Child B’s attendance there in accordance with his EHC Plan.
50. The Council issued an amended EHC Plan in August 2022, naming School C. Mrs X could have appealed the EHC Plan to the SEND Tribunal. But she did not because she agreed the placement and wanted to see if she could have a personal budget to arrange Child B’s education. The Council says that it gave Mrs X the link to its Local Offer. It also advised School C that it could ask for additional funding to help it manage Child B’s needs.
51. Mrs X says that the support provided by CLASS was good, but it was too little too late. Mrs X says all the agencies knew Child B was not attending school and receiving no education.
52. The Council says that Child B’s attendance improved as a result of the support provided. The CLASS supporter stated that Child B’s attendance improved in the summer term of 2022, and in September 2022. But as the time at school increased, Child B experienced more difficulties with demand avoidance and anxiety, resulting in difficult interactions with other pupils.
53. In September Mrs X asked for a personal budget. She did not hear from the Council and in November 2022 she chased this up. Mrs X explained that Child B was on his second fixed term exclusion and was struggling. The Council’s Inclusion, Special Educational Needs and Disability (ISEND) officer replied in December 2022, noting that Child B was struggling at school and Mrs X was paying £160 per month for private interventions for Child B. The Council asked her to provide costings and a specific list of the interventions provided. The Council gave Mrs X the link to information about personal budgets on its Local Offer and sent her a blank section J form to complete.
54. Mrs X says she was not provided with any specific form to request a personal budget or told how the Council dealt with requests for personal budgets. She says that she was constantly told that School C was responsible for providing Child B with education. But School C kept telling her that it could not meet Child B’s needs. And she had already provided ideas about how the additional support, required, under Child B’s EHC Plan, could be provided.
55. Mrs X also asked about an Education Otherwise Than At School (EOTAS) package. The ISEND officer sent Mrs X some information about EOTAS and resent the information about personal budgets.

Events of 2023

56. In January 2023, through a parent forum, Mrs X says she learnt about the Council’s duties to provide alternative education under s19 when a child was out of school. The Council said that, because School C was Child B’s named placement on his EHC Plan, it was for the school to provide education. The Council said that CLASS was supporting Child B to be at school.
57. The Council says that its approach remained that it was better to support Child B in school to improve his long-term engagement in education. The Council says that its duty was to consider the request rather than having to provide alternative education.
58. Mrs X says that she arranged for Child B to attend a activity setting for six sessions. She asked School C and the Council to fund this. But they would not agree to this. Mrs X says that she again asked for EOTAS.
59. In February 2023, the CLASS supporter completed a report on Child B. By this stage, it seems School C had reduced his attendance to one hour per day. Child B had had fixed term exclusions between October 2022 to February 2023. Child B told the CLASS supporter that he wanted to be at school for more than one hour per day.
60. In early March 2023, there was an annual review. Mrs X asked again for EOTAS. In accordance with guidance, the Council said it had to be satisfied that this was a suitable option. Mrs X says that School C made it clear that it could not meet Child B’s needs. On 20 March 2023, Mrs X sent a list of the activities for Child B, plus the costings (£203 per week). Mrs X told the Council that she would be willing to arrange this herself.
61. In March 2023, Mrs X formally complained in writing to the Council about the lack of suitable education. She explained that Child B was not attending school and asked, as a minimum, some English and Mathematics tuition at home or in a local centre. Mrs X explained that School C had said it could not meet needs.
62. The Council replied to Mrs X’s complaint in April 2023. It recognised that there had been some delay in the March 2023 annual review process and that there had been some delay in completing the s19 request. But that, while School C remained the named placement on Child B’s EHC Plan, the school was responsible for providing suitable education. The Council has also said that the support for Child B remained.
63. School C applied for ‘e-learning seats’ but none were available until after the May half term. So, the Council accepted that School C was unable to provide suitable education.
64. In April 2023, the Council instructed School C to ‘off roll’ Child B. Mrs X says that she then made a referral to the Council’s SEND Interim Provision Service (IPS). The Council says that parents cannot apply directly to IPS. IPS provides alternative education to children with an EHC plan but who have no school place or are awaiting a placement. The Council made the referral. Mrs X says the IPS visited at the end of April and some provision was made.
65. Mrs X says that the Council has repaid her for some of the provision she provided from April 2023 when the Council agreed IPS involvement. The Council has confirmed this.
66. The Council says that, in agreement with Mrs X, it offered two sessions of ninety minutes per week as a starting point. This began in mid-May 2023. The Council says it was necessary for a tutor to build up a relationship with Child B. From June, three hours of support/tuition per week was added.
67. The Council consulted a range of alternative schools for Child B, between May and November 2023, all of which said they could not meet his needs. The Council is still waiting for a final response from another school so, as yet, the Council has not decided whether EOTAS is the most suitable.
68. In September 2023, the Council agreed a personal budget and some further provision was provided with this funding. This has consisted of four hours per week of education, three hours at an outdoor centre, one hour of physical education and six hours of other activities.
69. Mrs X says that the alternative education since September 2023 has made a substantial difference to Child B and, had this been provided sooner, Child B would not have been so disadvantaged.
70. In November 2023, the Council issued a final amended EHC Plan. Section I (naming a school placement) remains blank and there are no details about a personal budget. Mrs X had a right of appeal to the SEND Tribunal. She has not used this because she is happy with the current arrangement.

The Council’s service improvements

71. To the Council’s credit, it has as a result of this complaint, already taken action to improve its services. The Council says it will be reminding staff that, when considering alternative provision, staff should review the support, which has taken place, and consider both the school’s ability to sustain any improvement and/or whether a different approach is required.
72. The Council will also check the capacity of its ‘e-learning’ service, which is provided by the Teaching and Learning team, before this is offered.

Findings

73. I cannot investigate School C’s actions. Mrs X could complain to the Chair of Governors. It seems that there was a delay between November 2021 to February 2022 in referring Child B to the Council regarding his poor school attendance.

Alternative education

74. The Council was fully aware of Child B’s poor school attendance by February 2022. The Council accepts this. There were then a series of multi‑agency meetings and some proposed plans to meet Child B’s educational needs as set out in his EHC Plan. The Council says that the proposed plans involved referral to a number of agencies and that Child B’s attendance improved.
75. The Council considers maintaining school placements, with additional support, can be the best way to ensure pupils remain engaged in education. I accept that this might be the case for some pupils. But to decide whether this is the case for a particular pupil, and that maintaining a named school placement on an EHC plan provides suitable education, councils need to properly review and assess what is happening in the school and review exactly how a school is meeting a child’s educational needs, especially so when there is an EHC plan specifying exactly what should be provided.
76. In this case, I find that the Council provided support to Child B from CLASS and there is evidence his attendance improved in the summer term of 2022 and in September 2022. The aim at this stage was to reintegrate Child B into School C.
77. By December 2022, Child B’s attendance had deteriorated, and he had had various fixed term exclusions by the end of 2022. In mid-November 2022, Mrs X told the Council’s ISEND officer that Child B was struggling at school.
78. I consider that, by January 2023, the Council had evidence that Child B was struggling and not attending School C and Mrs X was trying to provide some therapeutic interventions. I consider that the Council’s ISEND department was aware of this, and at this point, the Council should have considered whether School C was a suitable and accessible school for Child B, whether the education it was providing was sufficient and whether its s19 alternative education duty was triggered.
79. My view is that it was fault not to consider these questions at this time (January 2023). Had the Council done so, on the balance of probability, it is likely the Council would have reached the decision it did in April 2023, when it asked School C to ‘off roll’ Child B. So, at that point (January 2023), the Council’s s19 duty was triggered.
80. Therefore, for the spring school term, January to April 2023, Child B missed out on suitable education. I recognise that the CLASS support was still available. But, according to the CLASS report of February 2023, Child B was it seems not in school and certainly not receiving fulltime education in accordance with his EHC Plan.
81. From mid-May 2023, the Council provided some tuition. The Council says that Mrs X was in agreement with this, and it was also necessary to go slowly to build up Child B’s confidence to help manage his anxiety. The Council says that an increase in tuition was provided in agreement with Mrs X. However, I note that Mrs X maintains that Child B could have managed more tuition than provided.
82. From September 2023 the Council agreed a personal budget. As from September 2023, Child B was receiving a fulltime education programme.

Annual review process

83. An annual review took place in early March 2023. A final amended EHC Plan was issued in November 2023. I consider that this should have been issued by early June 2023 and the Council’s delay amounts to fault.
84. The injustice is that this has delayed Mrs X’s right to appeal to the SEND Tribunal. However, as she has not appealed the current final amended EHC plan, I cannot say her injustice has been significant.

Personal budgets

85. The Council says that it only has to consider requests for a personal budget. It does not have to prepare a proposed budget. It is not for the Ombudsman to determine points of law.
86. In this case, the Council says it asked Mrs X in September and early December 2022 for specific costs and what she planned to provide. In March 2023, Mrs X provided this information in an email. I cannot see that the Council replied specifically to this information. But I am aware that, by this stage, the Council was planning to amend Child B’s EHC Plan after the March 2023 annual review. And this request was incorporated into the request for EOTAS.

Education Otherwise Than At School (EOTAS)

87. Mrs X asked for EOTAS in January 2023. I accept that the Council has to consider whether this is appropriate and whether there is an available suitable school for Child B. But, by November 2023, the Council had still not decided this.
88. So, I consider that, overall, this is too long, and this should have been decided by the time the Council should have issued an amended final EHC Plan by June 2023.

Communication with Mrs X

89. The Council accepts that its communication with Mrs X has not always been as it should and this will have created avoidable distress and frustration.

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Agreed action

90. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result 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.
91. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
92. In respect of symbolic payments, we take account of the severity of the distress, the length of time involved, the number of people affected and their vulnerability. We usually recommend up to £500 but we can recommend more. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
93. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

94. Within one month of the final statement, the Council will do the following:
1. Child B missed out on alternative education between January to April 2023, ie one school term. The Council will make a payment of £2,400 to be paid to Mrs X for the benefit of Child B;
2. between April to July 2023, Child B received some alternative provision and I understand why the tuition had to be built up slowly. It is not possible to determine whether Child B could have managed more. But, in recognition of a lost opportunity, the Council will make a payment of £500 to Mrs X for the benefit of Child B;
3. for the avoidable distress, caused by the faults, the Council will apologise to Mrs X and make a payment to her of £750.00. I have recommended more than normal because of the severity of the distress and length of time involved;
4. the Council has already indicated how it intends to alter its procedures so that the faults in this case do not recur. However, I recommend that there should also be a timescale for decisions about whether its s19 alternative education duty is triggered to prevent drift and delay and to ensure children do not remain out of education for longer than necessary; and
5. the Council should remind schools in its area to make prompt referrals to it where a pupil is not attending.
95. The Council should provide us with evidence it has complied with the above actions.

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Final decision

96. I find that there has been some fault causing an injustice. The Council has accepted the findings and recommendations. I am therefore closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman