Summary: The Council accepted fault in that it failed to provide alternative education for the complainant’s child when the College ended the placement. The Council offered a remedy for the injustice which the complainant considered insufficient. We have recommended actions to add to the Council’s remedy, which the Council has accepted.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council:
1. failed to provide appropriate education to the complainant’s daughter, Y, since November 2022;
2. in July 2023, the Council’s stage two complaint response stated that funding for the education provider, Provider 1, would be requested from the Council’s Special Educational Needs (SEN) Panel, that Provider 1 would work with Y through the summer holidays (July/August 2023) and the Council would look for a place where Y could sit her General Certificate Secondary Examinations (GCSEs). But this has not happened, and Y remained without education; and
3. there has been no review of Y’s Education, Health and Care (EHC) Plan in November 2023 as required.
2. As a result, Y has now been out of education for two years. Mrs X says that Y is bright and wants to do her Mathematics and English GCSEs. Mrs X cannot afford tuition in the absence of the Council providing this.
3. Mrs X says that the Council had initially agreed an education package at home and Mrs X was happy to have a personal budget for this. But the Council backtracked on this offer.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
9. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
10. 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

11. I have investigated the complaint since November 2022, when Y’s educational placement (the College) removed Y from the school register because of her poor attendance. I am considering matters from this date to January 2024 when the complaint was allocated.
12. The Council issued a final amended EHC Plan in June 2023. The complainant had a right of appeal to the SEND Tribunal which we would have expected her to use. However, the complainant says that she thought that, because the Council’s stage two complaint response recommended alternative education from Provider 1 should be provided, it was not necessary for her to do so.
13. I decided to exercise the Ombudsman’s discretion and that it was reasonable for the complainant to expect the Provider 1 educational provision to be made available, as indicated by the Council.
14. The Council has investigated and upheld most of Mrs X’s complaints and offered a financial remedy which, to date, Mrs X has not accepted.

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How I considered this complaint

15. I have spoken to Mrs X on the telephone and made enquiries of the Council. Mrs X has responded to those comments.
16. I issued a draft decision statement to the Council and to Mrs X. I have taken into account their further comments before reaching a final decision.
17. 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

Human Rights 1998-Protocol 1, Article 2 – Right to education

18. This protocol protects the right to an effective education. The courts have ruled that the right to education relates to the education system that already exists. It does not require the provision of any specific type of education.
19. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. We may find fault where a council cannot evidence it had due regard to a person’s human rights.

Special Educational Needs (SEN)

20. 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.
21. 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. 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

22. 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.
23. 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.
24. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC plan it must do that “without delay”.
25. Professionals should provide their advice within six weeks of the request.

Children out of school because of medical needs

26. 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.
27. 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.
28. 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.
29. 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.

The Council’s policy on alternative education

30. The Council issued a policy in February 2023. It says that the responsibility for commissioning alternative provision rests with the school and they should pay for this provision. I could not see reference to what the Council would do in cases where a pupil does not have a school place.
31. This may be because the Council has another policy which deals with pupils without a school place under its Fair Access procedures.

The Ombudsman’s Focus Report

32. In July 2022, the Ombudsman issued a Focus Report: Out of school, out of mind?
33. We made a number of recommendations. The most relevant to Mrs X’s complaint are that councils should consider the individual circumstances of each case and put the chosen action into practice without delay and keep all cases of part-time education under review.
34. And, where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.

Key events

35. Y has had an EHC Plan since 2019. Y is diagnosed with autistic spectrum condition (ASC), and has social and communication difficulties, and severe anxiety. Mrs X says that Y attended primary school successfully. Problems emerged when Y started at secondary school. Y had a period of being electively home educated. But returned to a school-based education.
36. Y attended the College, but in November 2022, at an annual review, the College ended the placement. The Council had not fully appreciated this at the time. At this annual review, Mrs X requested Education Otherwise Than At School (EOTAS) package.
37. Mrs X complained in April 2023 to the Council about the lack of education. At the stage 1 complaint response of May 2023, the Council upheld Mrs X’s complaint that the Council had failed to find an alternative placement when the College had taken Y off the school roll, and that the Council officers’ communication had been poor.
38. The Council offered £2,100 for the missed education, £300 for avoidable distress and £100 for Mrs X’s time and trouble.
39. Mrs X was dissatisfied because the Council failed to make any arrangements to provide education for Y. She says that she had asked for EOTAS.
40. The Council says that, in late November 2022, it set out a possible educational package, including 4 hours of Mathematics and English, I hour social activity, 1 hour physical activity and 1 hour online mentoring. In February 2023 Provider 1 said it could provide tutoring at home for Y.
41. In June 2023, the Council issued an amended EHC Plan. But there was no named placement or type of provision set out in the Plan at Section 1. The provision specified seemed to refer to assistance, which would be provided in a school setting. Y is a capable learner with the right support.
42. Mrs X could have appealed to the SEND Tribunal. But she chose not to as she considered the Council would be arranging for Provider 1 to start tutoring Y, as had been stated. Mrs X would have been happy with this and was willing to manage a personal budget to arrange the provision herself.
43. In July 2023 the Council’s SEN Panel refused funding for Provider 1.
44. At stage 2 of the Council’s complaint process, the Council said the stage 1 response had not provided an action plan to ensure Y could return to education and that the funding for Provider 1 should have been considered by its Placement and Resource Panel. The Council concluded that the stage 1 remedy was insufficient.
45. The stage 2 recommended that Provider 1 was the best option for Y. And, if the Placement and Resource Panel refused funding, the matter would be considered at the next Panel whereby a senior officer would attend to support the request. It was mentioned that Provider 1 would provide provision during the summer holidays.
46. The stage 2 response said that the Council was having difficulties in finding an examination centre where Y could take GCSEs.
47. The Council revised its offer for the missed education for the year 2022/2023 to £3,750 (£1,500 per term, 2.5 terms) and offered an additional £100 for the delay in completing Y’s EHC Plan. So, in total the Council offered £4250. Mrs X had requested £18,000.

The Council’s comments

48. The Council says that there was insufficient medical evidence to support an EOTAS package and that there was no medical evidence to say Y could not attend school. The Council says it was unclear what support health services were providing, and that they would, in any event, be better placed to help Y with her anxiety about leaving the house.
49. Because Mrs X was unable to provide the required medical evidence, the Council approached Provider 1. A possible package was considered. The Council says that the Panel refused funding because it thought that Y’s case was one for the Medical Education Service. But this was not a route which the SEN department had pursued because Y was not on the Children and Adolescent Mental Health Services (CAMHS)’s caseload.
50. Regarding Y taking GCSEs, this could not be provided by Provider 1. The Council says that, because Y was too anxious to attend an educational provider, it was not possible to arrange for Y to attend school to take any GCSEs.
51. The Council says an annual review was arranged for March 2024. But this had to be cancelled. The Council says that it will rearrange as soon as possible.

Mrs X’s comments

52. Mrs X says that the Council was fully aware that the College was ending Y’s placement in November 2022 because it was mentioned at the annual review of 2022. It is at this point that Mrs X asked for EOTAS.
53. Mrs X is very concerned that the Council’s offer to arrange provision from Provider 1 has still not been provided. This is despite it being agreed in July 2023 that this was the best option. Mrs X does not understand why the funding has not been agreed. She considers that the Council does not have sufficient education providers to ensure home tutoring is arranged.
54. Mrs X says an annual review was due in November 2023. But this did take place. The Council has not rearranged an annual review after it cancelled the March 2024 review.

Findings

55. The Council accepted in early 2023 that it failed to provide Y with alternative education in 2022/2023 in line with her EHC Plan requirements. The complaint response at stage 2 offered Mrs X some hope and expectation that some home tuition would be provided to Y. It appears that there is still no education package for Y.
56. I find the Council at fault, and this was compounded by the fact that the Council’s complaint procedure correctly identified it was at fault and should make educational provision. But it still failed to do so.
57. I also cannot understand why the funding for Provider 1 has not been agreed when this was recognised in the Council’s complaint process as the best and only option for Y. I find the Council at fault for failing to provide the required funding. I also consider that recommending Y be referred to its Medical Education Service, when Y did not meet the eligibility criteria, is also fault.
58. I am also concerned that the Council’s duty to provide education within 15 days, when it becomes aware that a pupil has no school place, appears not to be recognised in the Council’s alternative education policy (s19).
59. I consider that the Council’s policy on alternative education is not sufficiently detailed. The Council also appears to put the responsibility to provide alternative education on its schools (when a pupil is still registered) without recognising that the Council retains overall responsibility for ensuring this alternative provision is appropriate and suitable to the pupil. It is acceptable to ask schools to make this provision. But councils must retain overall responsibility to ensure this provision is suitable and is being provided.
60. It may also be the case that other pupils with an EHC Plan, who have been deregistered from their schools or colleges, and have no school place, may also be affected by the deficiencies in the Council’s s19 policy.
61. In addition, the Council has delayed in ensuring an annual review in November 2023 took place, as required. My view is that this is fault.
62. Regarding the ability for a pupil out of school to sit GCSEs, the Council has a duty, when providing alternative education, to ensure that pupils are not disadvantaged and have the same opportunities as their peers in school. Taking GCSEs is an essential part of a pupils’ school career and, not having the opportunity to take them, is a significant disadvantage. I appreciate Y had difficulties in attending an educational establishment. But the Council should have sufficient establishments where, those out of school, can have the opportunity to sit GCSEs if they wish. And, it may have been that Y could have sat some GCSEs if reasonable adjustments had been made. And she had received alternative education from December 2022.
63. My view is that, if the Council does not have examination centres, where pupils out of school can attend to sit their GCSEs, along with the ability to make reasonable adjustments, if necessary, that too is fault.

Injustice

64. Y has missed alternative education for one month in December 2022, and for three terms in 2023. I am not looking at events after January 2024. This lack of education is very likely to have caused a serious impact on Y, both in terms of her education and ability to obtain her GCSEs, and an impact on her mental health.
65. Mrs X has also been caused avoidable distress, frustration and time and trouble in pursuing her complaints.

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Agreed action

66. 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.
67. 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.
68. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
69. 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.

70. The Council has agreed a symbolic payment to Mrs X and Y, which we welcome. But I have to ensure that the recommended remedy is in accordance with our guidance on remedies.
71. I understand Mrs X has not accepted any payments from the Council. If she has, then the Council should deduct what it has paid her from the recommended payments below.
72. Within one month of the final statement, the Council will:
1. make a payment of £700 for the missed education for the December 2022 term and a payment of £7,200 for the three terms of lost education in 2023. These payments should be made to Mrs X to be used for the benefit of Y;
2. make a symbolic payment of £600 to Mrs X for her avoidable distress;
3. make a payment of £250 to Mrs X for her time and trouble in pursuing her complaints with the Council;
4. ensure that alternative education is provided to Y without any further delay;
5. ensure that the annual review is arranged, and the process completed promptly so that Mrs X has a final amended EHC Plan. The Council should tell us its timetable to achieve this. If Mrs X is dissatisfied with the provision in the final amended EHC Plan, she can then appeal to the SEND Tribunal;
6. the Council has agreed to review cases of all secondary school pupils, who are not registered at a school or college, who also have an EHC Plan, for the year 2023, and to report to us its findings and how it is addressing any problems. I am recommending this because of concern that there may be other pupils, like Y, who are not receiving an education in accordance with their EHC plans. This is in keeping with our powers under 26(D), paragraph 9: and
7. the Council has agreed to review its alternative education policy (s19) to ensure that the Council retains overall responsibility for pupils in receipt of alternative education and responds promptly where a parent or carer raises a concern about the alternative provision being provided by a school or college.
73. I have not recommended any payment for the missed education for the first term of this year (January to March 2024) because I have excluded this period from my investigation. But Mrs X could make a fresh complaint to the Council and, if the Council considers it has failed to provide alternative education during this period, it could consider remedying the injustice, following our guidance on remedies.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. There is fault causing injustice, which the Council has also found and has agreed the improved remedy. Therefore I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman