Summary: Mr X complained the Council failed to secure suitable education provision for J, or discharge its statutory education responsibilities, when J stopped attending school. Mr X said this led to J losing education provision, affecting J’s educational attainment and wellbeing. We have found the Council at fault for failing to properly consider its Section 19 duty between February 2023 and May 2023, when J stopped attending school for health reasons. This caused J an injustice. We have made recommendations to remedy the injustice caused. Other parts of Mr X’s complaint are outside the Ombudsman’s jurisdiction. This is because they concern matters that were part of, connected to, or could have been part of, the appeal to the SEND Tribunal.

The complaint

1. Mr X complained the Council failed to secure suitable education provision for J, or discharge its statutory education responsibilities, when J stopped attending School N in February 2023. Mr X also said the Council failed to investigate and address these concerns.
2. Mr X said the Council’s faults led to J losing education provision, affecting J’s educational attainment and physical and mental wellbeing. This caused J and J’s family avoidable distress, frustration and uncertainty.

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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 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. 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.
5. 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)
6. 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

7. Part of Mr X’s complaint concerns matters that were part of, connected to, or could have been part of, the appeal to the SEND Tribunal. I cannot investigate these matters. I have explained why in this statement.

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How I considered this complaint

8. I discussed the complaint with Mr X and considered information he provided.
9. I considered information the Council provided about the complaint.
10. Both Mr X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
11. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plan

12. 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. 
13. 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 or the young person. 
• Section I: The name and/or type of educational placement 
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). 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) 

Appeal rights and the Ombudsman’s jurisdiction

15. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
16. 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)
17. 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.
18. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.

20. 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).

Alternative provision

21. 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.
22. 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)
23. 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”.
24. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.
25. The Courts have found that it is a judgement 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])

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What I found

26. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
27. In July 2022, the SEND Tribunal considered an appeal about J’s existing EHC Plan. This appeal was broad, concerning multiple sections of the EHC Plan in place. The SEND Tribunal ordered the Council to amend Sections B, F and I of J’s EHC Plan, suggesting it should consider amending other sections. On 29 July 2022, the Council issued J’s amended final EHC Plan. The amended final plan named School N as the educational setting. J attended School N from September 2022.
28. In February 2023, School N wrote to Mr and Mrs X. It set out disciplinary measures it intended to take against J and explained its reasoning. It also explained what adjustments it would make to these measures, accounting for J’s SEN needs. Mr and Mrs X told School N they disagreed with its proposed actions and wider approach. They said School N’s actions negatively affected J’s wellbeing outside school, impacting the whole family. They expressed concern School N was punishing J for behaviours that were a result of School N failing to meet J’s needs.
29. School N said decisions about J’s educational setting and special educational provision were taken by the Council. It suggested bringing forward the annual review of J’s EHC Plan. This took place following further exchanges of correspondence.
30. Later in February 2023, Mr X said they received a call from School N, about an accident in which J suffered an injury. Mr X said they attended School N and found J had suffered a significant injury that needed medical attention. Mr X said School N investigated the incident afterwards, but did not involve Mr and Mrs X. Mr X said School N’s resultant report was unsatisfactory.
31. In March 2023, J’s doctor provided a letter confirming J should remain at home for the rest of term, due to the injury sustained at School N.
32. The Council said it held a further annual review on 16 March 2023. The Council said the actions from the review were to issue an amended draft EHC Plan for J, allowing Mr and Mrs X 15 days for comment. It then proposed to arrange a follow-up meeting with involved professionals to address any required amendments to the EHC Plan, risk assessment, and J’s behaviour plan. Mr X confirmed the annual review took place in March 2023. He said Mr and Mrs X highlighted the risks arising from J’s placement at School N and said School N’s implementation of the provision in the EHC Plan was inadequate.
33. The Council said it offered Mr X a further meeting on 17 April 2023, but Mr X did not reply.
34. On 19 April 2023, Mr X complained to the Council:
1. Mr X said the Council had a duty to secure the special educational provision in J’s EHC Plan. He said the Council was in breach of this duty, because provision in the plan was not being made.
2. Mr X said this breach of duty related to multiple provisions specified in the EHC Plan. Mr X highlighted what these breaches were.
3. Mr X said he had followed the complaints procedure, but asked the Council to respond sooner, given the ongoing injustice to J.
35. The Council said on 3 May 2023, it told Mr X that it would issue J’s final amended EHC Plan on 12 May 2023. The Council said Mr X responded, seeking the Council’s involvement in addressing issues around J’s attendance at School N.
36. The Council said it arranged a new meeting for 10 May 2023. The Council said Mr X was not present at this meeting, but School N suggested further amendments to the outcomes recorded in J’s EHC Plan, intended to better reflect J’s current position. The Council said it shared an amended draft of the EHC Plan with Mr and Mrs X and offered further time to seek changes or provide evidence. The Council said Mr and Mrs X did not agree with the suggested amendments and felt J’s needs would be better met in a specialist setting.
37. The Council said it issued J’s final amended EHC Plan on 16 May 2023. This provided Mr and Mrs X with an appeal right to the SEND Tribunal against the content of J’s EHC Plan.
38. The Council said in July 2023, it received a referral to its attendance team about J's non-attendance at School J. The Council said Mr X lodged an appeal to the SEND Tribunal on 22 August 2023. The appeal was made against Sections B, F and I.
39. The Council said it offered an early annual review of J’s EHC Plan in September 2023, but said this meeting did not take place. The Council said it offered J online learning, but Mr X felt the offer was not suitable for J.
40. In September 2023, Mr X told the Council it had not provided a response to his complaint. Mr X said he was not satisfied with the Council’s response to his concerns. The Council provided Mr X with the Ombudsman’s details and said he had received responses to specific concerns.
41. Mr X wrote to the Council to complain in November 2023:
1. Mr X said J had been without education since February 2023.
2. Mr X said J started School N in September 2022 and it became clear the placement was not suitable. Mr X said this caused J to become dysregulated and distressed, leading to a deterioration in J’s mental health.
3. Mr X said School N had taken an increasingly punitive and restrictive approach to J’s behaviour and distress. Mr X said School N had disregarded their concerns about this.
4. Mr X recounted the injury J suffered and the concerns raised at J’s annual review in March 2023. Mr X said they had no choice but to appeal the amended final EHC Plan issued in May 2023. Mr X said the appeal date was far away and the Council seemed to be satisfied with J not receiving suitable education for around 12 months. Mr X asked the Council to address his concerns.
42. The Council said it sent information about alternative provision to School N in late November 2023. It said it asked School N to arrange suitable alternative provision for J as soon as possible. The Council said in December 2023, School N told the Council there was no alternative provision in place for J.
43. Mr X said in January 2024, School N offered some alternative provision placements for J. Mr X said they opted for Placement I as being the most suitable for J.
44. On 31 January 2024, the Council responded to Mr X’s complaint:
1. The Council said Mr X’s complaint was about J’s lack of alternative provision and poor communication. It noted Mr X’s desired outcomes: for J to have alternative provision as matter of urgency and for the Council to provide transport so J could attend this provision.
2. Regarding the lack of alternative provision, the Council said it was in discussion with School N about suitable alternative provision and would consider any requests from School N for top-up funding. The Council said there had been efforts to offer J suitable alternative provision, but it recognised the delays and accepted there was a lack of provision in place for J. It said it would follow this up to ensure provision was in place as soon as possible. It partially upheld this part of Mr X’s complaint.
3. Regarding poor communication, the Council said its records showed communication mainly concerned the early annual review meetings. It said it had communicated with Mr X’s solicitor about the appeal, but accepted there had been limited communication with Mr X. The Council partially upheld this part of Mr X’s complaint.
4. The Council set out next steps. It said there was an annual review proposed for 16 March 2024. It said it would ensure J’s casework officer attended this meeting and that any actions from the meeting were followed up and shared with Mr X in a timely manner.
45. The Council said Mr X was unhappy with its reply and asked for the complaint to be escalated on the same day it sent the reply.
46. Mr X said by 7 February 2024, there was a plan in place for J to attend Placement I with 1:1 support, following successful trial visits. Mr X said they had had to rent a vehicle to attend these trials. Mr X said they explained to the Council transport would be an issue in the longer term, if not provided.
47. Mr X told the Ombudsman the Council rejected his request for transport for J and did not confirm whether there were any escorts available to help J travel. Mr X also said the 1:1 support arrangements agreed for J were withdrawn, meaning J would have to be supervised at Placement I by staff from School N, which J would find traumatising. The Council said some further trial sessions did not go ahead, due to difficulties around transport and Mr X’s concerns regarding the 1:1 support offered to J.
48. In March 2024, the Council said it confirmed new trial dates at Placement I for April 2024, but Mr X said this could not go ahead. Mr X said the Council had confirmed it would provide transport, but would not provide the 1:1 support School N had agreed to. Mr X said without this 1:1 support, Placement I would not accept J. Mr X said this was a deliberate miscommunication that resulted in J not attending any setting.
49. Mr X made a further complaint, which the Council responded to on 5 April 2024:
1. The Council summarised Mr X’s complaint. It said Mr X was complaining there was still no alternative provision in place for J. Mr X also remained dissatisfied with the Council’s communication during the appeal. Mr X sought for the Council to arrange suitable alternative provision and transport, and improve its communication.
2. The Council recounted its recent actions and the events around trying to secure alternative provision at Placement I. It said its officers had worked hard to try and resolve concerns and keep Mr X informed. The Council said it had been unable to investigate Mr X’s more recent concerns, due to the Easter holiday.
3. The Council partially upheld Mr X’s complaint about a lack of alternative provision for J and apologised for the delay. It did not uphold the complaint about its communication. It said it would continue to try and identify suitable alternative provision for J.
50. Mr X told the Ombudsman the SEND Tribunal heard the appeal in May 2024. This resulted in changes to the provision and setting in J’s EHC Plan. Mr X said J started the new setting in September 2024.

Analysis

51. Paragraphs 15-20 set out the Ombudsman’s jurisdiction to investigate matters where there is an appeal right to the SEND Tribunal. I have considered the Ombudsman’s jurisdiction to investigate the matters brought to us.

Alternative provision - February 2023 to May 2023

52. J stopped attending School N following the incident on 23 February 2023. Mr X provided the Ombudsman with evidence of the medical advice sought and injuries J sustained. It would have been clear at that point J would not be returning to School N immediately. Following this, J’s doctor provided a medical note on 9 March 2023. This confirmed J should not return to School N until the end of that term, because of the injury sustained.
53. Paragraphs 21-25 set out the Council’s duty to secure alternative provision. Authorities should arrange suitable alternative provision as soon as it is clear a child will be away from school for 15 days or more because of health needs. I consider the Council should have been aware J would not be attending for at least 15 days from the submission of the doctor’s note. The Council’s responses to Mr X’s complaint do not show the Council turned its mind to this question at the time. In its final complaint response to Mr X in January 2024, the Council conceded there was no suitable alternative provision in place for J, since J stopped attending School N.
54. I have found the Council at fault for failing to properly consider its section 19 duty. I have also found the Council at fault for failing to ensure it secured suitable alternative provision for J, when J was unable to attend School N for health reasons.
55. This fault caused J an injustice. The Council did not turn its mind to this question at the correct moment. On balance, we can say if it had, it would have decided J needed suitable alternative provision. This is because the Council later recognised it had failed to secure any suitable provision. I believe it likely any alternative provision secured would still have been in place at the time of the annual review in May 2023. I therefore believe J missed suitable education provision between 9 March and 16 May 2023.
56. The Council has not acted to remedy this injustice. I have recommended the Council do so.

Alternative provision - May 2023 onwards

57. On 16 May 2023, the Council issued J’s amended final EHC Plan. The Council issuing the final EHC Plan provided Mr X with a right of appeal against the content of the plan, including the education setting named and the special educational provision set out. Mr X appealed against Sections B, F and I of J’s EHC Plan in August 2023. Mr X told me the SEND Tribunal decided the appeal in May 2024, changing the special educational provision and setting named in the EHC Plan.
58. Paragraphs 15-20 set out the Ombudsman’s jurisdiction to consider a complaint when an appeal right exists. The fact of an appeal right being available removes the Ombudsman’s jurisdiction to consider any matters that are part of, connected to, or which could have been part of, an appeal to the tribunal.
59. Mr X complained the Council failed to secure alternative provision for J after it issued the amended final EHC Plan. This alternative provision was sought because of the disagreement over whether the setting named in the EHC Plan, School N, was suitable for J’s needs. The SEND Tribunal considered this question as part of the appeal. Because of this, I cannot consider whether the Council provided suitable alternative provision during the period of appeal. To do so would infringe on the jurisdiction of the SEND Tribunal and matters it considered.
60. I have considered whether I can investigate any failure by the Council to secure special educational provision in J’s existing plan, in accordance with its duty set out in paragraph 14. The provision set out in Section F of J’s EHC Plan largely comprises of strategies and training that staff teaching J should use. The provision is not quantified by type, frequency or duration. The exception to this is the full-time 1:1 support J should receive while in the school setting. I considered whether I can investigate a failure by the Council to secure this provision and believe I cannot. This provision was dependent on J’s attendance to School N, which was a matter the SEND Tribunal considered when it considered School N’s suitability.
61. I have considered whether I can investigate a complaint about the Council’s failure to secure 1:1 support for J in an alternative provision setting. However, I believe I cannot. This provision relates to education sought as a consequence of J not attending School N, which is a matter the SEND Tribunal considered.
62. I cannot therefore investigate Mr X’s complaint about the alternative provision the Council provided from 16 May 2023, the point an appeal right to the SEND Tribunal arose.

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Agreed action

63. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X and J for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay £920 in recognition of J’s missed education provision between 9 March and 16 May 2023. I have considered the Ombudsman’s Guidance on Remedies when making this recommendation. In particular, I have considered:
1. J is a child with special educational needs, who received minimal education provision in this period. It is likely that future provision will be able to remedy some of the provision lost.
3. Share a copy of this decision and the Ombudsman’s Focus Report Out of school, out of sight? with relevant officers, to emphasise the Council’s Section 19 responsibilities and identify wider points of learning. This recommendation is made in addition to other service improvements the Ombudsman has made to the Council in other cases, to remind officers of the Council’s Section 19 duties.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused. There are parts of Mr X’s complaint I cannot consider. This is because these matters are part of, connected to, or could have been part of, an appeal to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman