Summary: Ms X complained the Council did not deliver suitable alternative education to her son when he was unable to attend mainstream education and that it did not deliver specialist provision outlined in his Education, Health and Care Plan. We found fault because the Council did not act decisively to try and secure alternative education for her son and did not have appropriate oversight of what specialist provision was being delivered to him. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Ms X, issue reminders to relevant staff and consider reviewing some of its procedures.

The complaint

1. Ms X complains the Council has failed to deliver appropriate education to her son, Y, since October 2022 and has failed to deliver specialist services included in his Education, Health and Care Plan (EHC Plan) from March 2023.
2. Ms X says this has caused distress and anxiety and that her son has missed out on educational provision he is due.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I have exercised discretion to investigate the period of time after which Ms X had a right of appeal to the SEND Tribunal when Y’s first Final EHC Plan was issued. Ms X did not appeal as the Council agreed to try and source a specialist placement for Y to attend. I am satisfied it is reasonable to include this period in my investigation.
9. My investigation will end in December 2023 which is when Ms X brought her complaint to us.

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How I considered this complaint

10. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

12. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.
14. 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 2014 (S42)). 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)  
15. We can look at complaints about where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Mediation and appeal rights

16. There is a right of appeal to the SEND 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.
17. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.

Alternative provision

General section 19 duty

18. 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 S19 or alternative education provision (AP).
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. 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))
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Available and accessible

22. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

Focus report

23. 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
24. Where councils arrange for schools or other bodies to carry out the functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

25. I have set out below a summary of the key events. This is not meant to show everything that happened.
26. Ms X has a son, Y, who is secondary school age. Y has SEN and multiple diagnoses.
27. At the beginning of November 2022, Ms X sent a request to the Council for it to complete an EHC Plan needs assessment (the assessment) on Y. The assessment would help decide if Y needed an EHC Plan.
28. At the beginning of the process for the assessment, Y’s school (School A) sent a report to the Council. This highlighted some of the difficulties he had in school, that he was struggling to make progress and would often refuse to follow instructions. The report also detailed the AP School A had put in place as Y was unable to attend mainstream lessons.
29. According to the report, the following was available and accessible to Y:
• two days per week in a specialist unit attached to School A where Y would have access to one-to-one support delivered by support workers and teachers from School A (Provision A)
• one day per week at a local outdoor-based provision (Provision B);
• two days per week at a local arts-based AP provider (Provision C); and
• access to one hour per week of physical education delivered by a professional.
30. In mid-December 2022, the Council agreed to assess Y for an EHC Plan and sent a letter to Ms X to advise of this.

2023

31. As part of the process for the assessment, an educational psychologist (EP) wrote a report for the Council at the end of January 2023. This highlighted Y’s desire to return to mainstream lessons at School A and that he did not enjoy Provisions B or C.
32. As part of the EHC Plan process, the Council sent consultation letters to four potential schools late in February 2023. One of these was Y’s existing school, School A. The letters were to establish if providers could offer Y a school place. At the same time, the Council sent Ms X a draft EHC Plan and advised her of her right to request that a particular type of school, college or institution be named in his Final EHC Plan.
33. In mid-March 2023, School A formally replied to say it did not believe it could meet Y’s complex needs and gave a summary of examples to support its decision. It explained that its attempts to help Y reintegrate back into some mainstream lessons within the school had not been successful. It also explained that not all of the AP in place was working successfully.
34. School A said Provision B had voiced concerns over Y’s engagement and behaviour and Provision C had at this time given notice to end his placement there. It felt the placement was unsuitable given Y’s needs and SEN.
35. At the end of March 2023, Y’s first Final EHC Plan was issued. Section I of the plan named Y’s existing school, School A. The Council advised Ms X of her right to enter mediation or to appeal the type of educational placement specified in the EHC Plan.
36. Section F of Y’s EHC Plan listed things such as:
• general support provided by a key worker to access learning;
• social communication and skills intervention delivered by a key worker;
• emotional communication support delivered by appropriately trained adults; and
• support work on sensory needs assisted by a key worker.
37. By the end of March 2023, the remaining three schools consulted had all said they were unable to meet Y’s needs.
38. At the beginning of April 2023, Ms X requested mediation as School A had been named in the EHC Plan but had said it could not meet Y’s needs.
39. A mediation meeting was held at the beginning of May 2023. Amongst other things, the Council agreed to reconsider its decision about the type of school named in Y’s EHC Plan and send consultation letters to all parental preference schools suggested by Ms X.
40. In mid-May 2023, Ms X advised the Council Y had been excluded from mainstream lessons at School A and was on a reduced timetable in its specialist unit on site, Provision A.
41. A few days later, the Council advised Ms X it had decided to agree specialist provision for Y. This was not on a residential basis as Ms X had requested but was for daily attendance. Ms X gave the Council a list of providers she wanted it to consult with to try and find a place for Y.
42. Throughout May, July and August 2023, the Council sent consultation letters to five other providers.
43. School A emailed the Council in mid-June 2023 to advise that Y was now attending Provision A onsite full time, as both Provisions B and C had now ended their involvement in his education.
44. At the beginning of July 2023, School A confirmed Y was now attending a different alternative education provider (Provision D) for five mornings per week. Y also had access to a session with a personal trainer on two afternoons per week. Y was no longer attending Provision A.
45. At the beginning of August 2023, the Council spoke to Ms X and advised it had been trying to organise some form of AP for Y to access in the afternoons. It said that the search had ‘gone a bit quiet’ over the summer holidays. The Council said it had asked School A to provide details on what AP Y was accessing and when.
46. At the beginning of September 2023, Ms X spoke to the Council as she was concerned about Y’s reduced timetable of mornings only, at Provision D. She wanted Y to have more hours of provision.
47. In mid-September 2023, the Council was aware that Y was struggling to engage and access work on site at Provision D and the placement was not going well. It was also aware that Y was struggling to engage with some of the personal training which had been organised for him.
48. Following a complaint from Ms X in August 2023, the Council sent her a stage one complaint response at the end of September 2023.
49. At the end of October 2023, and due to the continued difficulties Y was having accessing on site AP at Provision D, his allocation was reduced from five mornings per week on site and changed to three mornings outreach instead.
50. In an additional stage one complaint response sent to Ms X around the same time, the Council advised that School A was going to try and explore further AP for Y. It would look to organise something for the remaining two days of the week he was not scheduled to access education from Provision D and for the afternoons of the three days he was receiving education from Provision D.
51. At the beginning of December 2023, the Council sent its stage two final complaint response to Ms X and signposted her to the Ombudsman if she remained unhappy.
52. In mid-December 2023, the Council re-approached one of the schools it had previously sent a consultation letter to in February. The school replied at the end of the month to advise that it believed it was still not a suitable setting for Y. By now, none of the additional schools consulted for Y had said they could offer him a place.

Analysis

Context regarding alternative education and specified provision

53. Ms X chose not to appeal the naming of School A in Y’s EHC Plan as following mediation the Council agreed to try and source a specialist placement for Y. I am satisfied, that in the circumstances of this complaint, it was reasonable for Ms X not to exercise her right to appeal to the SEND Tribunal.
54. The Council also had a duty under S19 of the Education Act 1996 to ensure Y received a suitable alternative education if he was not attending his specified placement.
55. 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.
56. The Council also had a duty (see paragraph 14 above) to ensure Y’s section F provision was delivered as far as it was possible to do so outside of a formal school setting.
57. It is apparent that Y’s health did not permit him to access a full-time curriculum or all the provision made available to him. This is discussed further below.

Alternative education from October to December 2022

58. The Council became aware of Y’s difficulties in attending mainstream classes at School A at the beginning of November 2022. At that time, School A had organised a package of AP which was equivalent to full time. I am satisfied that at this time the Council considered what was on offer to Y was available and accessible and was therefore in line with its S19 duties to provide AP to Y.

Alternative education from January to December 2023

59. It was clear in the EP report (as part of the assessment) at the end of January 2023, that Y was not fully engaging in AP at both Provisions B and C and was keen to reintegrate into mainstream lessons at School A.
60. By mid-March 2023, School A had made it clear it did not believe it could meet Y’s needs. It also said various elements of his AP in place since October 2022 were now not working successfully and Provision C had given notice to end its involvement.
61. By mid-June 2023, both Provisions B and C had now withdrawn their services.
62. Although School A then acted quickly to secure five mornings of AP at Provision D from July 2023 onwards, there is no evidence of any consideration by the Council to say it viewed this to be equivalent to full time or its rationale for accepting the level of AP if it considered that Y could not access more than this due to his health needs.
63. Evidence from after the period of investigation shows that Y still felt unable to fully access various different forms of AP made available to him.
64. In response to my enquiries, the Council said it had worked with School A to ensure it was providing education to Y. I am satisfied that when it became clear in March 2023 (and Y’s first Final EHC Plan was issued) that not all of Y’s AP was working, the Council should have adopted a more proactive approach. It should have more carefully considered its S19 duties to provide suitable alternative education to Y which was equivalent to full time rather than rely on School A to organise something new if the AP in place was not meeting need or Y felt unable to engage with it. The Council appears not to have understood that under S19 the duty to deliver suitable education lay with it and not the school.
65. I am satisfied this pattern of reliance on School A carried on throughout the summer months and into the autumn term of 2023. When Provision D was reduced, the Council, as per its complaint response to Ms X late in October 2023, was again reliant on School A to find further AP for Y. There is no evidence to suggest the Council itself took action to secure other AP for Y other than send a list of approved alternative providers for Ms X to consider which is briefly mentioned in its complaint response to her.
66. This reliance on School A rather than take decisive action itself is fault. However, I am satisfied that on the balance of probabilities it is more likely than not that even if the Council had stepped in and organised further AP for Y, his difficulties in accessing that which was available to him would have meant he was unable to engage with it. For this reason, I consider the injustice to Y was limited. There is an injustice to Ms X in that as the Council did not act more decisively, this would have led to uncertainty as to what might otherwise have happened regarding Y’s AP. I have made a recommendation below to remedy this.

Section F provision from March to December 2023

67. Ms X complains that since Y’s first Final EHC Plan was issued in March 2023, he has not had access to specialist provision outlined in Section F of the plan.
68. As part of my enquiries, I asked the Council what level of Section F provision had been delivered to Y and to provide evidence of this.
69. In response to my enquiries, the Council said some of the provision was being delivered by the AP in place, mainly around social and group interaction. The Council also said that some work at Provisions C and D would have provided small group academic work. The Council said it regularly spoke to School A about Section F delivery, which in turn spoke to the AP providers in place at the time. The Council said it had no readily available evidence of specific interventions or education in place that would deliver Section F content.
70. This lack of oversight is fault. The Council’s duty to deliver Section F provision is non-delegable and I am satisfied, that in the circumstances of this complaint, it should have had oversight of what was and was not being delivered to Y.
71. However, in the circumstances of this complaint and on the balance of probabilities, I am satisfied it is more likely than not that given Y's difficulties in accessing AP available to him, he would be unable to fully access any Section F provision available through this. The evidence is that provision was available to Y, but that he felt unable to access it due to his health needs and SEN. I therefore consider there is limited injustice to him.
72. There is an injustice to Ms X in that there is uncertainty as to what Section F provision has been able to be delivered by AP providers as the Council has little oversight of this. I have made a recommendation below to remedy this injustice.

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Agreed action

73. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X for the injustice caused by its lack of decisive action in attempting to secure additional AP for Y and for its lack of oversight in the amount of Section F provision being delivered to him;
• make a symbolic payment of £250 to Ms X to remedy the injustice caused by the identified faults and the distress and uncertainty caused;
• remind relevant officers and managers that the Council’s S42 duties to arrange Section F provision are non-delegable and owed personally to the child;
• remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996; and
• consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties.
74. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
75. Payments made are in line with the Ombudsman’s guidance on remedies.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman