Summary: Mrs X complained the Council failed to provide appropriate alternative education and special educational provision for her child when they were unable to attend school, and delayed issuing an education, health and care plan. She said the missed education had an impact on her child, and it also caused her and her family unnecessary and avoidable distress. We find the Council at fault, and this caused injustice. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. The complainant, who I refer to here as Mrs X, complained about the way the Council handled special educational provision for her child. Specifically, she complained that:
1. the Council failed to provide appropriate alternative education for her child when they were unable to attend school;
2. there were delays reviewing and issuing the final education, health and care plan; and,
3. the Council failed to provide the provision set out in her child’s education, health and care plan.
2. Mrs X said missing education has had an impact on her child. She said it also caused her and her family unnecessary and avoidable distress.

Back to top

The Ombudsman’s role and powers

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. ‘Service failure’ can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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.
9. 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

10. Regarding parts a and c of this complaint, I have investigated from November 2022 (when Mrs X’s child, B, stopped attending school) to October 2023. This is because B’s final amended education, health and care plan was issued in October 2023. That plan set out B’s educational provision from then on. Mrs X therefore had a right to appeal the plan at the SEND Tribunal and the provision from October 2023 (see paragraph 20).

Back to top

How I considered this complaint

11. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
12. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

Back to top

What I found

What should have happened

Education, health and care plans

13. Education, health and care (EHC) plans set out the special educational provision required to meet a child or young person’s special educational needs. EHC plans can be amended for certain reasons, including where there is a change to the child’s circumstances.
14. The Special Educational Needs and Disability Code of Practice (‘the Code’) says within four weeks of a review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan.
15. To amend an EHC plan, a council must send the parent a notice detailing the proposed amendments (this is the amendment notice) within four weeks of the review meeting.
16. The Code says if, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible (within eight weeks of the amendment notice).

Alternative educational provision

17. 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.
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. Where the child has an EHC plan, we expect councils to try and secure as much provision set out in Section F of the plan as is possible in the home or alternative provision setting.
20. Where there is an appeal or a right to appeal to the SEND Tribunal about the content of the EHC plan or placement, we may be prevented from investigating from the date a final EHC plan is issued until the appeal is resolved.

What happened

21. Mrs X’s child, B, has an education, health and care (EHC) plan.
22. In November 2022, B stopped attending school for their wellbeing. A week later, there was an emergency review of B’s EHC plan.
23. A week after this, the Council agreed to provide alternative educational provision for B. This consisted of 10 hours a week of tuition, 2 hours of forest school once a week, and monthly payments to Mrs X for online learning, subscriptions and swimming.
24. In May 2023, Mrs X complained that B had not been receiving all the alternative educational provision the Council had agreed to.
25. The Council accepted it had not been able to deliver B’s tuition provision yet. It made a payment to Mrs X of £1000. This was made up of £200 per month for each of the five months that B had not had tuition up to that point.
26. A tutor started working with B in June, but they were not a good fit for B. So, this did not continue.
27. In July, the Council agreed to additional provision on top of the existing alternative provision. This additional provision was made up of mentoring and occupational therapy.
28. A week later, Mrs X told the Council to put a hold on finding a tutor for B. She said she would look for a tutor herself.
29. In August, the Council sent Mrs X an amendment notice about B’s EHC plan. Mrs X complained again.
30. In October, the Council sent Mrs X B’s final amended EHC plan.
31. The Council said it felt the package of alternative educational provision was adequate for B. The Council acknowledged a significant delay in issuing B’s final amended EHC plan. The Council offered Mrs X a payment of £400 to remedy the injustice caused by this.

Analysis

Alternative educational provision

32. Mrs X complained that the Council failed to provide appropriate alternative education for her child, B, when they were unable to attend school (part a of the complaint). She said not only did it take time to get provision in place, but the provision that was put in place was inadequate.
33. The Council agrees that it had a duty to provide alternative education for B under its section 19 duties. I have therefore considered the provision that was agreed in December 2022.
34. I am satisfied that the Council paid Mrs X everything it should have for swimming and online resources. I am also satisfied that B attended forest school as agreed.
35. Regarding tuition, the Council acknowledged in May 2023 that it had not been able to provide this provision. In May, the Council made a payment to Mrs X of £1000 (£200 per month for each of the five months B had not received tuition). I find this amount was in line with the Ombudsman’s published guidance on remedies.
36. A tutor started working with B at the end of June, but unfortunately this did not work out. So, I find that B essentially had no tuition for June or July. This is fault. I find this fault caused B injustice because they missed out on alternative educational provision they should have received.
37. Mrs X told the Council at the end of July to put a hold on trying to find another tutor. For this reason, I do not consider the Council had a duty to provide tuition provision from then on.
38. In July, the Council agreed to additional provision: mentoring and occupational therapy. The mentoring started in October. The occupational therapy started in November.
39. The Council says there was a delay sending the referral to the mentoring provider. This was because of a change in Council officers. This delay is fault. This fault caused injustice in that it caused Mrs X uncertainty as to when this provision would start.
40. Regarding the occupational therapy provision, there was no delay in the Council arranging this. The Council says the occupational therapy service told it there would be a delay starting therapy due to a lack of available therapists. I find this is service failure (see paragraphs three and four). It was not the Council’s fault that this provision did not start promptly.
41. This service failure caused Mrs X injustice in that the delay caused uncertainty about when the provision would start.
42. Mrs X said the alternative educational provision put in place for B when they stopped attending school was inadequate. The Council told Mrs X it found the alternative provision package was appropriate. This is a decision the Council was entitled to make. I find no fault with the Council for the alternative educational package it put in place for B.

Education, health and care plan delays

43. Mrs X complained that there were delays reviewing and issuing B’s final education, health and care (EHC) plan (part b of the complaint).
44. The Council accepts there were delays issuing the final amended EHC plan. It says Mrs X agreed that the EHC plan should not be amended until all assessments and advice were available. The Council says there were delays with the occupational therapy service and the Children and Adolescent Mental Health Service (CAMHS).
45. While Mrs X may have agreed to wait to issue the EHC plan until the Council had received all the assessments and advice, it does not relieve the Council of its statutory obligations. The Code sets out specific timeframes within which councils must issue amended EHC plans after reviews. These must be adhered to.
46. The review was held in December 2022. The Council sent the amendment notice in August 2023, and the final amended EHC plan in October 2023.
47. The Council should have sent the final amended EHC plan a maximum of 12 weeks after the review in December. This would have been mid-March 2023. Therefore, I find there was a delay of seven months. This is fault.
48. I find this fault caused Mrs X injustice in that it caused uncertainty as to when the final plan would be issued, and delayed her appeal rights.
49. In its later complaint response, the Council offered Mrs X £400. It says this was to remedy the injustice caused by this fault. However, I find it was not made clear to Mrs X what this payment was meant to remedy. As a result, Mrs X did not accept this offer.
50. I consider this offer is an appropriate and proportionate remedy for the level of injustice caused by the delay.

Providing special educational provision

51. Mrs X complained that the Council failed to provide the provision set out in B’s education, health and care plan (part c of the complaint). She said the Council did not try to provide the provision set out in B’s EHC plan when they were out of school.
52. As I have said above, when a child who has an EHC plan is out of school we expect councils to try and secure as much provision set out in Section F of an EHC plan as is possible in the home or alternative provision setting.
53. I have considered the provision set out in section F of the EHC plan that was in place when B stopped attending school. I cannot identify any provision the Council could reasonably have provided outside the school. The provision in the EHC plan is school-specific and could not have been provided anywhere but the school.
54. For this reason, I do not find the Council at fault.

Back to top

Agreed action

55. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the injustice caused by the delay providing the additional provision (mentoring and occupational therapy).
56. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
57. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £900. This is made up as follows:
• £400 to remedy the injustice caused by missed tuition for June and July 2023. In arriving at this figure, I have considered that the Council made a payment to Mrs X of £200 per month of the missed tuition up to May 2023. I find this is a suitable, appropriate and proportionate figure. So, £200 multiplied by two months is £400;
• £100 to reflect the uncertainty caused by the delays arranging and starting the additional provision (mentoring and occupational therapy); and,
• £400 to reflect the uncertainty and denied appeal rights caused by the delay issuing the final EHC plan. The Council previously offered this amount, but Mrs X has not yet accepted it. For this reason, I have included it here.
58. In arriving at these figures, I have taken into consideration the Ombudsman’s published guidance on remedies.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

60. I have completed my investigation. I find the Council at fault for parts a and b of this complaint. This caused injustice, which the Council has agreed to take action to remedy.
61. I do not uphold part c of the complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman