Summary: Mr F complained that the Council failed to provide alternative education provision and social care support to his son. We found delay in starting alternative provision, a delay in issuing the final EHC plan and fault in complaint-handling. The Council has agreed to apologise and make a payment to remedy the injustice this caused.

The complaint

1. Mr F complained that the Council:
1. Failed to provide alternative provision while his son, J, has been out of school.
2. Declined to provide social care support for his son.
3. Rejected his request for an Education, Health and Care (EHC) needs assessment and an education other than at school package, compelling him to appeal to the SEND Tribunal.
4. Did not deal with his complaint properly, causing him time and trouble.
5. Mr F also complains his son’s school refused to reduce its academic demands, leaving him unable to cope.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. We cannot investigate complaints about what happens in schools unless it relates to their provision of the special educational needs support set out in Section F of the young person’s Education, Health and Care Plan, when schools are acting on behalf of the council. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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.
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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)
10. 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

11. I have not investigated parts c) and e). This is because Mr F had a right of appeal to the SEND Tribunal about the Council’s decision not to do an EHC needs assessment and appealed about the provision named in the EHC plan. This puts it outside our jurisdiction, as set out in paragraphs 7 and 8. Nor can I investigate complaints about what happens in schools, as set out in paragraph 5.

Back to top

How I considered this complaint

12. I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The SEND code of practice: 0 to 25 years (“the Code”)
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
• Statutory Guidance, Working Together to Safeguard Children (“Working Together”)
• Statutory Guidance, Children's social care: getting the best from complaints
13. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Special educational needs

14. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
15. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
16. If the council concedes to the appeal without submitting a response to the Tribunal, Regulation 45 applies and the Council must complete the assessment and issue any final EHC plan within 14 weeks of its agreement to assess.
17. Councils must give the parent 15 days to comment on a draft EHC plan and express a preference for an educational placement. They must then consult with the parent or young person’s preferred educational placement, which must respond within 15 calendar days. This means that to meet the 14-week deadline, a draft EHC plan should be issued 10 weeks after the agreement to carry out an EHC needs assessment.
18. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan.
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal.

The Ombudsman’s jurisdiction in relation to SEND

20. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
21. The courts have established that if someone has appealed to the SEND 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)
22. 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.
23. 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.
24. 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 the provision of 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.
25. 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

26. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education at 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 such arrangements are made for them. (Education Act 1996, section 19).
27. 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, and whatever type of school they attend. (Statutory guidance ‘Alternative Provision’, January 2013)
28. 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)
29. The Courts have found that it is a judgment 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])
30. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The test is therefore whether the child is too unwell to attend any school, not just the school where they are on roll.
31. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
32. The Section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) V Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. It also says that where a pupil is not attending school and remains on the school's roll the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
33. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
34. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The education to be arranged by the local authority should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health.
35. The Council has a Hospital Education Service for children with a “specific identified health need”. It also has an Alternative Provision School, online tutoring, and mentoring and therapies provision.
36. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.” Councils may work with schools to set up an individually tailored reintegration plan for each child.
37. The guidance also 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”.

Duty to safeguard and promote the welfare of children in need

38. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
39. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed by a range of professionals as part of an Early Help programme.
40. The expectation of Working Together is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
41. The Council’s Disabled Children and Young People’s Service provides short breaks and other services to children who may have special educational needs plus a learning disability, or a severe physical disability, or a complex medical condition.

The Council’s complaints procedure

42. The Council has a two stage complaints procedure. At the first stage it aims to respond within 20 working days. If investigated at stage two, it aims to respond within 25 working days.
43. The Children Act 1989 Representations Procedure (England) Regulations 2006 sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. Stage one is local resolution and should be completed in a maximum of 20 working days.
44. At stage two, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel.

What happened

45. I have set out the key events in relation to Mr F’s complaint. This is not meant to detail everything that happened.
46. Mr F’s son, J, is autistic and has anxiety. J was on the roll of a mainstream primary school (“the School”) but by December 2022 was starting to struggle with his attendance.
47. The School submitted information to the Council on 25 January 2023 which said J’s attendance was at 90.7% for the academic year to date. On 7 March an Educational Psychologist visited the School and noted J’s attendance was 84% and he was on a reduced, four day a week timetable.
48. Mr F requested an EHC needs assessment. The Council initially refused, but at mediation on 24 March it agreed to assess. This means a final EHC plan should have been issued by 30 June.
49. Mr F also requested a section 17 children’s social care assessment of J. This was completed on 6 April. It found that J had only been in school for 1.5 hours that week. J appeared to have demand avoidance and often had meltdowns in the evenings after school and then could not attend the next day. He was anxious and struggled to manage his behaviour and toileting. He also would only eat a very limited range of foods. The assessment says J was not eligible for the Council’s disabled children and young people’s service as he did not have a dual diagnosis. It suggested waiting for the outcome of the EHC needs assessment. It also suggested work should be done to manage J's anxiety and that Mr F should self-refer to services and continue working with the School to help him attend as much as possible. The assessment says J was not a child in need.
50. On 19 April the School emailed the Council noting that J was struggling to attend for the reduced timetable and that Mr F had asked for J to be allowed just to play, rather than to have schoolwork demands made. The attendance records show that J’s last day in school was 20 April. Mr F emailed the Council on 23 April saying J had only attended school for 90 minutes the previous week and that the School had “no coherent plan” to deal with J’s refusal to attend school due to anxiety. The School emailed on 11 May to confirm that J had stopped attending and was at home due to his mental health issues.
51. Mr F complained to the Council on 30 April about a lack of support from the children’s disability service. The Council met with him to discuss the complaint. There was a team around the family meeting on 18 May. At this meeting it was suggested the child and adolescent mental health service (CAMHS) could refer J to Hospital Education. The Council also agreed to fund Lego therapy for 12 weeks. Mr F said he considered an independent, specialist educational placement was necessary for J.
52. On 1 June, CAMHS advised Mr F it would not be able to refer J to Hospital Education as no CAMHS worker had been allocated to him. Mr F asked the Council what other support may be available.
53. The Council replied to Mr J’s complaint on 20 June. It confirmed that J was not eligible for short breaks provided by the disabled children service. The Council suggested Mr F access other services or request a further assessment if he considered J’s needs had substantially changed. The letter says Mr F could contact the complaints team to discuss his options and that he had a right to contact the Ombudsman.
54. Mr F remained dissatisfied and corresponded with the Council over the next few weeks. He considered there was a gap in service provision for children like J and that the criteria for accessing hospital education was too restrictive. He said J was now spending most of his time in his room, without education or support. Mr F said the Council had been failing to provide alternative education since January 2023.
55. The Council responded that it could not investigate the complaint about the criteria for hospital education as the policy had been correctly applied. It had raised Mr F’s concerns about the lack of alternative education with officers.
56. The Council offered J a placement at its alternative provision school or online education on 3 August. Mr F declined these as not suitable, but asked for mentoring support for J. This was put in place from September 2023. The Lego therapy had not been implemented as it could not be provided at J’s home.
57. A draft EHC plan was issued on 20 July. The final plan was issued on 16 August naming the School. Mr F appealed this plan as he wanted J to have education other than at school (EOTAS). He asked the Council for increased mentoring support whilst awaiting the outcome of the appeal and came to the Ombudsman. The Council agreed to provide an EOTAS package in January 2024 but this had not been put in place by April 2024.

My findings

58. The April 2023 child and family assessment wrongly says J is not a child in need. Disabled children are children in need and section 17(11) of the Children Act says a child is disabled if they have a “mental disorder” which impairs their emotional, social and behavioural development. This would include autism. I therefore find fault but I do not consider this caused any injustice as there was an assessment of J’s social care needs and a team around the family meeting.
59. It is not the Ombudsman's role to decide what, if any, social care support J needs. That is the Council's role. My role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. If a council considers all this information properly, I cannot find it at fault just because a parent disagrees with its decision. Despite the error in the assessment, I consider it describes J’s needs and how these can be met and there is no evidence of fault in the way the assessment was carried out. I therefore do not find fault in the way the Council decided not to provide short breaks or other disabled children’s services to J as he did not meet the criteria.
60. There was a seven-week delay in issuing the final EHC plan, which was not issued until 16 August. This is fault and meant Mr F’s appeal rights were delayed.
61. J was struggling to attend school from December 2022. It is appropriate for the School to attempt to make adjustments and to try to encourage J to attend and he was still attending some of the time. His attendance was still 84% on 7 March. We expect councils to work with parents and schools to draw up plans to reintegrate children to schools as soon as possible, reviewing and amending plans as necessary. I therefore do not consider that in January 2023 it would have been clear to the Council that J’s absence would last more than 15 days, as efforts were still being made to support him in attending on a part-time timetable.
62. The Council says it became aware J had stopped attending on 11 May when the School informed it. But the School had contacted it on 19 April and Mr F had contacted it on 23 April. I therefore consider the Council should have acted sooner than 11 May.
63. The Council held a team around the family meeting on 18 May and awaited the outcome of J’s referral to CAMHS, which took about two weeks to respond.
64. Once CAMHS confirmed that it was not referring to the Hospital Education Service, the Council should have clearly determined whether it owed J a duty to provide alternative provision, either under the “otherwise” category or based on other, non-consultant medical evidence. I have seen no evidence the Council considered this in June 2023, which is fault. In response to my draft decision, the Council said it will review the admissions policy.
65. The Council made an offer of alternative provision on 3 August but I consider this should have been offered sooner, so I find there was delay and fault.
66. If the Council had acted after 19 April, rather than 11 May, and had determined whether to provide alternative provision as soon as it had heard back from CAMHS my view is that, on balance, the mentoring provision would have started in May 2023 rather than September 2023. The Council had agreed to fund Lego therapy but this was not put in place. I therefore find J missed out on about three months of alternative provision, which is an injustice.
67. I realise Mr F considered the mentoring to be insufficient and problematic, but the Ombudsman cannot determine what is a suitable education. In any case, I have also seen that it was working well and that Mr F requested an increase in it.
68. There was fault in the way the Council handled Mr F’s 30 April complaint. This was about children’s social care and as such should have been dealt with under stage one of the statutory children’s complaints procedure. In response to my draft decision, the Council said the stage one response was issued under the statutory process. But I find this is not clear in the letter and Mr F was not given details of how to escalate to the statutory stage two. I therefore find fault. But I do not consider this fault caused significant injustice as the response was issued within the timescales of the statutory procedure, and whilst it did not clearly set out the next stage of that process, it advised Mr F to contact the complaints team to discuss his next steps, which he then did.
69. I am concerned about the Council’s refusal to then investigate further Mr F’s complaint about referral to the hospital education service. The Council said it could not be investigated as there was no evidence the policy had been applied wrongly, but only a complaint investigation would establish whether the policy had been correctly applied in J’s case. The Council has accepted its declining of a stage two investigation could have been better worded. In addition, there was no formal response to Mr F’s complaint about the lack of alternative provision, though I note that the Council then offered this. But some time and trouble was caused to Mr F as he had to come to the Ombudsman to have these complaints considered.
70. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
71. Our guidance on remedies says that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. My view is that the Council should pay Mr F £1,200, to be used for J's educational benefit.
72. In reaching this view I have taken into account that J was unlikely to have been able to benefit from full time education over this time. But I have also considered that he has special educational needs and that there is potentially time for additional provision now to remedy some or all of the loss.

Back to top

Agreed action

73. Within a month of my final decision the Council has agreed to:
• Apologise to Mr F for the fault in complaint handling and delay in starting alternative provision.
• Pay him £1,200 to remedy the impact of the loss of provision on J.
• Pay him £150 to remedy the delay to his appeal rights.
• Pay him £300 to remedy the distress caused by the lack of provision to J from May to September 2023.
74. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

75. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman