Summary: Miss D complained her child had not received access to a full-time education since January 2023. We upheld the complaint finding some fault in the extent of alternative provision made for Miss D’s child while out of school. Also, for its response when Miss D complained about specific incidents in January 2024. We considered these faults led to some distress for Miss D and some loss of education provision for her child. The Council accepted these findings. At the end of this statement we set out the action it has agreed to take to remedy this injustice and improve its services.

The complaint

1. Miss D complained that her child, ‘E’, had not received access to a full-time education including occupational therapy and speech and language therapy since January 2023.
2. Miss D said as a result E had not received the education provision they should. Miss D also said she experienced much stress because of the Council’s actions and having taken leave from work because of E not being at school.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
5. 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)
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. 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)
8. Under an information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

9. Before issuing this decision statement I considered:

• Miss D’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Miss D and the Council about the matters covered by the complaint, which pre-dated our investigation;
• information provided to me by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council policy referred to in the text below;
• guidance published by the Ombudsman, including our Guidance on Remedies; Guidance on remedies - Local Government and Social Care Ombudsman.

10. I also gave Miss D and the Council a chance to comment on a draft version of this decision statement. I considered any comments they made before finalising the decision statement.

Back to top

What I found

Key law, guidance and policy considerations

Law and guidance around special educational needs provision

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements made to meet them.
12. The council must arrange for a review of the EHC Plan at least once a year. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process completes when the council issues a decision about the review. This should happen within four weeks of the review meeting when the Council tells the child’s parent if it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents of their right to appeal the decision to the SEND tribunal.

Law and guidance around alternative provision

14. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on a school roll. (Statutory guidance ‘Alternative Provision’ January 2013)
16. The courts have considered the circumstances when the section 19 duty applies. Caselaw says 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 them 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)
17. Where a council agrees to make alternative education arrangements under Section 19, for reasons other than medical absence or exclusion, guidance says it should do so as soon or as quickly as possible. (Statutory guidance: Alternative Provision – January 2013 and ‘Arranging education for children who cannot attend school because of health needs – December 2023).

Back to top

What I found

Chronology of key events

18. I consider the beginning of the events covered by this complaint to be November 2022. E has special educational needs and attended a specialist independent school (School X). E had an EHC Plan. Around this time E’s attendance at the school reduced before they stopped attending from January 2023. The reasons for this were:

• that Miss D had noted a worsening in E’s behaviour at home and their levels of independence with toileting. These improved when she kept E off school;
• a disagreement Miss D had with the school about E’s access to activities or excursions away from the school premises. She felt the school unfairly discriminated against E;
• concern Miss D had about physical force used on E when getting out of a taxi taking them to school.

19. The Council says it became aware of Miss D’s concerns in November 2022 when she asked it to amend E’s EHC Plan. She wanted it to name ‘EOTAS’ provision (education other than at school) on the Plan. The Council said it replied in December 2022 rejecting Miss D’s request. It said there was no evidence School X could not meet E’s needs. But that it would reconsider the position at the next annual review.
20. The review meeting took place at the end of February 2023. At the review meeting Miss D asked the Council to amend E’s EHC Plan to name an alternative school. Meanwhile, School X maintained it could meet E’s needs. Both sides advanced reasons for their position.
21. While the Council agreed to amend E’s EHC Plan, it did not want to name an alternative school. It issued several amended draft versions of E’s EHC Plan during March and April which continued to name School X as their education setting. Miss D continued to argue the placement was unsuitable. The Council gave her reasons in writing why it would not name the alternative school she requested.
22. But at the beginning of May 2023 the Council changed its position. It decided to stop funding E’s place at School X and asked it to remove their name from the school roll. The record of this decision shows the Council took account that Miss D had stopped sending E to the school and that it believed her relationship with the school irretrievably broken. It also considered the cost of maintaining the placement, with E no longer attending.
23. After that, the Council issued a final revised EHC Plan. This identified what education provision E needed. It also said they needed occupational therapy and speech and language therapy. But it did not name an education setting.
24. Miss D went on to appeal the content of the EHC Plan, and that appeal remained ongoing at the date of this decision statement.
25. When the Council issued the final amended EHC Plan, it said it would begin providing alternative provision for E. It said this would comprise 10 hours a week tuition. This began towards the end of May 2023, around three weeks after the Council decided to end E’s placement at School X.
26. This tuition ran until October 2023 (excluding the summer holiday). It stopped after Miss D expressed concern about the venue, a public building. The tutoring company and Miss D looked at an alternative public building but both agreed it was unsuitable. The tutoring company then asked if it could tutor E at home. But Miss D said this was not possible. In her communications, copied to the Council, Miss D made clear her dissatisfaction E was not in school. She also objected that she had to go with E to the tutoring sessions. This was because the tutoring company had a policy requiring an adult known to the child to be present during sessions.
27. In the second week of October 2023 Miss D broke off discussion with the tutoring company.
28. Then, in November 2023, representatives acting for Miss D wrote to the Council saying she would begin Judicial Review proceedings as the Council was not providing full time education to E. The Council replied later in the month defending its position. But it said that from the end of the month it would begin making alternative provision for E again, at a different venue. It said it would arrange for a care worker to be present, as well as a tutor for 10 hours a week. It would also arrange for E to receive occupational therapy and speech and language therapy at that venue. It said it could review the hours of tuition once the arrangement bedded in.
29. The arrangement did not begin until January 2024, when E attended for one day. The care worker did not attend as they went to the wrong venue by mistake. But a representative from the SEN service was there as well as the tutor. Miss D was unhappy with several aspects of the session. She contacted the Council the next day to complain:

• the tutor was unfamiliar with E’s EHC Plan;
• there were poor communications with E;
• adults present used inappropriate physical restraint or force; and
• did not safeguard E’s dignity.

30. Miss D’s email said E would not return to the sessions until the Council made them “suitable and adequate”.
31. A SEN Officer acknowledged Miss D’s correspondence and said a senior officer would reply. They also sent Miss D an activity planner for E for future sessions at the venue, describing the first day as a “meet and greet” and confirmed the care worker would also attend. They also provided dates for proposed occupational therapy and speech and language therapy.
32. However, the Council did not reply to Miss D’s complaint made in January, until June 2024. When it did so, it said it would not investigate the matters raised by Miss D because of her outstanding appeal to the SEND Tribunal.
33. But in reply to my enquiries the Council did give its account of what happened at the January session, which differs from that of Miss D. It also said that because of Miss D’s concerns it had contacted its Local Authority Designated Officer (LADO) in January. A LADO is a Council employee who should be told when there are concerns a professional or volunteer who works with children:

• has behaved in a way that has, or may have, harmed a child;
• possibly committed a criminal offence against a child;
• behaved in a way indicating they may pose a risk of harm to children;
• behaved in a way indicating they may be unsuitable to work with children.

34. The LADO gave their view in February 2024, taking account of both versions of events. They considered staff at the session had acted to try and protect E. So, they decided not to investigate further. But they commented there were lessons the Council could learn. They had concerns about the absence of the care worker, the seeming lack of structure of the session and lack of risk assessment.
35. Since January 2024 E has received no tuition and as noted above, the SEND Tribunal has yet to complete with no agreement on what education setting E will attend. The Council said in reply to my enquiries that it understood Miss D did not want further discussion around alternative provision for E until the SEND tribunal completed. In support it referred me to an email exchange between Miss D, her representative and the Council about the appeal.
36. In this exchange, dated April 2024, the Council asked Miss D’s representative if Miss D would agree to delay a forthcoming hearing and about her school preferences. In reply Miss D said: “I will not communicate with anyone until [E] is provided with a school and our preference and right is considered at tribunal”.
37. Aside from her complaint about events in January 2024, Miss D had earlier complained about the Council’s actions once she wanted E to change schools (i.e., events from around January 2023 onward). During its investigation of this, the Council acknowledged failing to write to her following reviews of E’s EHC Plan between March 2020 and March 2022.

My findings

Events between November 2022 and May 2023

38. I do not find the Council at fault for its actions in this case before May 2023. I recognise that for around six months before then Miss D had said she considered School X no longer suitable for E. I accept Miss D had reasons for that view.
39. My role is to consider if, given Miss D’s concerns about School X, the Council was at fault for deciding the school could still meet E’s needs. As I explained above, we could only criticise this decision if taken with fault. The key question the Council had to ask was whether E had an education placement at School X “available and accessible” to them.
40. I can find no fault in the Council’s view that School X met this description. I am satisfied it only took relevant information into account in reaching this view. At the February 2023 annual review, the school gave reasons why it considered it met E’s needs. Miss D gave a counter view. The Council could reasonably prefer the school’s evidence to that provided by Miss D. In which case it could consider School X remained suitable for E.
41. I also find no evidence the Council overlooked any relevant information in coming to this view. For example, there was no supporting evidence provided by Miss D indicating that School X could no longer meet E’s needs.
42. So, the Council was under no duty to make alternative provision for E while they remained on School X’s roll. If Miss D no longer wanted E to attend there, then they had the right to appeal the Council’s decision to name School X on E’s EHC Plan. Had the Council held to its position, then the SEND Tribunal could have decided the dispute about the suitability of School X.

Events between May and October 2023

43. In the event the Council, for practical reasons (and not because of concerns about the suitability of School X) changed its position in May 2023. It now decided to seek a different placement for E. And as Miss D would not send E to School X it assumed the responsibility to make Section 19 provision until it could identify that placement.
44. I consider the Council was at fault for not securing alternative provision before deciding to have E removed from School X’s roll. Government guidance does not specify how long the Council has to arrange alternative provision in cases where a child is missing education for reasons other than illness or exclusion. But our view is that where the Council plans to remove a child from the school roll it knows of the need to put alternative provision into place from that date.
45. Further, the Council was at fault for the extent of the alternative provision made for E. Clearly, 10 hours of tuition was not equivalent to a full-time curriculum. There is no evidence for how the Council considered this enough to meet E’s needs, nor that it had any plan to review this. The Council also failed to arrange for E’s need for occupational therapy and speech and language therapy. So, the tutoring it arranged for E was inadequate.
46. I also consider the Council should have stepped in, during October 2023, aware of Miss E’s correspondence with the tutoring company. It could have offered to become involved sooner in trying to find an alternative venue. And it could have offered to reconsider the hours of tutoring and arranged the therapies E needed.
47. The injustice these faults have caused E is that they did not receive full time education or its equivalent between May and October 2023. I consider this will also have caused avoidable distress to Miss D.
48. But that said, I consider that:

• had the Council delayed in arranging for School X to off-roll E until it had alternative provision in place, there is no reason to think Miss D would have sent them to school while it did so;
• it was Miss D’s decision to break off negotiations with the tutoring company in October 2023 about trying to find an alternative venue.

49. These factors also impact on the education E had available to them between May and September. So, I had to take account of them in considering what action the Council should take to remedy Miss D and E’s injustice. Consequently, the agreed actions do not require the Council to make any symbolic payment to reflect its delay in arranging alternative provision in May 2023, nor the lack of such provision after October 2023 until January 2024.

Events from November 2023 onward

50. Miss D chose to contact the Council again, via representatives, in November 2023. In response the Council again offered alternative provision for E. I note that while this offer was again short of a full-time provision, the Council left open the possibility it could arrange for more than 10 hours a week tuition. And it recognised the need to begin occupational therapy and speech and language therapy for E.
51. I do not know why the provision only began in January. But I decided I did not need to explore this given the arrangement broke down after only a day.
52. I note that day started badly when the care worker went to the wrong venue. But I do not consider that a significant failing, given the presence of the SEN officer. They attended because it was E’s first day at the new venue and to oversee matters. But their presence meant there was no reduction in the number of adults working with E. I also note it was not a matter Miss D put emphasis on when she complained about events on the day.
53. Instead, Miss D put weight on specific incidents that occurred during the session. Unfortunately, I cannot take a view on these because of the differences in account between Miss D and the Council which I cannot resolve. However, I think the conclusions of the Council’s LADO fair. That on balance the Council could have better prepared and structured the session. Not doing so was a fault.
54. I also consider the Council poorly handled Miss D’s correspondence about this matter. I see no fault in it putting her allegations to its LADO, a sign it took her concerns seriously. But it failed to tell Miss D about this, or any other action it took to investigate her concerns. So that was a fault.
55. It then compounded that fault by saying six months later that it would not investigate the concerns at all while Miss D’s appeal was outstanding. This showed a lack of candour given that, with the LADO’s involvement, some investigation had already taken place. But it also should not have conflated Miss D’s concerns about events in January with the outstanding appeal which had no direct bearing on what took place.
56. In considering the injustice caused by these faults I have noted the Council’s view that Miss D effectively withdrew all co-operation around alternative provision for E. Its understanding being that she wanted the appeal resolved first. I do not accept this to be an accurate picture. When she complained in January, Miss D said to the Council she wanted “suitable and adequate” sessions for E. I put more weight on this than Miss D’s email three months later, having had no reply to her complaint. In addition, Miss D sent that email in April 2024 in reply to one from the Council which did not mention the events in January, or the subject of alternative education provision for E.
57. But I also take account the Council did not completely ignore Miss D’s concerns. When they acknowledged Miss D’s complaint its SEN Officer tried to reassure Miss D by providing a scheduled plan for E. And had the Council provided the response it did to my enquiries back in January, I do not consider that would have satisfied Miss D. This is because her comments to me suggest disagreement with the Council’s account of what happened on the day. So, I find Miss D may not have agreed to alternative provision restarting, even if the Council had dealt with her correspondence promptly. It is not possible for me to separate the impact of the Council’s actions from Miss D’s own choices.
58. Consequently, I cannot say that alternative provision for E would have resumed but for the fault, nor how much they would have received. However, I consider the poor handling of this matter by the Council will still have caused Miss D avoidable distress and put her to unnecessary time and trouble pursuing a reply to her concerns.

Other considerations

59. Finally, I note that during its investigation of Miss D’s complaint, the Council acknowledged not sending decision letters to her following reviews of E’s EHC Plan between March 2020 and March 2022. In each case I understand the Council should have sent a letter saying it was maintaining E’s EHC Plan without amendment and giving Miss D a right of appeal if she disagreed.
60. This was unquestionably a fault by the Council. However, I do not consider any injustice arises. Because there is no suggestion that Miss D expressed any dissatisfaction with E's education at School X before November 2022. I have no reason to find therefore Miss D would, if told of the review decision, sought to appeal the decisions to maintain the EHC Plan without amendment.

Back to top

Agreed action

Personal remedy recommendations

61. The Council has accepted the findings set out above. It has agreed that within 20 working days of this decision statement it will provide the following:
1. an apology to Miss D accepting the findings of this investigation, following guidance set out in section 3.2 of our published guidance on remedies;
2. a symbolic payment of £1700 to Miss D.
62. The symbolic payment also takes account of our guidance on remedies. This says that where fault by the Council results in a loss of education provision we will recommend between £900 and £2400 a term to recognise the impact of that. In this case I use the figure of £1200 per term as a starting point, noting E’s age and that they had some tuition provided. So, for the three months the Council’s fault resulted in a loss of provision (between mid-May and early October discounting the summer holiday) I recommend £1200. The remaining £500 is for the distress caused by the Council’s poor handling of Miss D’s complaint about events in January 2024.
63. The body of the decision explains why I considered no award appropriate for the remaining time E has been out of school. I recognise this has caused significant disruption to Miss D with an extended absence from work. But I cannot recommend any symbolic payment for loss of wages. It was Miss D's choice to remove E from School X and I have found no fault in the Council’s view the school was available and accessible to E. The reason why no school has been found for E subsequently is outside the scope of this investigation, as it has been the subject of an appeal.
64. I also did not recommend the Council take any action to remediate the occupational therapy and speech and language therapy E has lost. The SEND Tribunal can consider if E’s EHC Plan should now contain more provision, in view of E not receiving these therapies since 2022.

Service improvement recommendations

65. The Council also agreed to learn lessons from this complaint, to help avoid a repeat of its faults. Within two months of this decision, it has agreed to:
1. remind all relevant staff that when arranging alternative provision for children not in school, that it should aim to provide this full-time or its equivalent. That for children with EHC Plans it must also consider any additional therapeutic provision they require and try to arrange this. The Council will also remind staff to always keep a record of its decision making on these matters;
2. review why it did not reply to Miss D’s correspondence of January 2024 for six months and that it consider how it can avoid a repeat. It will write to us with the findings of that review and detail any action it has taken, or proposes to take, as a result.
66. The Council will provide us with evidence it has complied with all the above actions.

Back to top

Final decision

67. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss D and E. The Council accepted these findings and agreed action to remedy the injustice. Consequently, I decided to complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman