Summary: Ms X complained the Council did not provide education or special educational provision to her child when they were unable to attend school. Ms X said this resulted in her child missing education and support they should have received. We have found the Council at fault for not providing suitable provision to her child and for how it handled her complaint. To remedy the injustice caused the Council agreed to apologise, make a payment for the distress caused to Ms X and the loss of education to her child and carry out a service improvement in relation to complaint handling.

The complaint

1. Ms X complains the Council did not provide education or special educational provision to her child when they were unable to attend school.

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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. 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)
4. 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.
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)

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What I have and have not investigated

6. I have not investigated whether the Council provided education and special educational provision to Ms X’s child after 16 May 2023. This is because Ms X received her child’s Education, Health and Care Plan on this date and appealed the sections relating to the special educational provision and school placement to the SEND Tribunal.
7. 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)
8. 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. In this case most of the special educational provision was due to be delivered at a school setting.
9. 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.
10. 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). 
11. This means this investigation looks at whether the Council should have put in place suitable education for Y from when Y stopped attending school in March 2023 until Ms X received Y’s final EHC Plan on 16 May 2023.

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How I considered this complaint

12. As part of this investigation I considered the information provided by Ms X and the Council. I spoke to Ms X over the telephone about the complaint. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
13. 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 found

Education, Health and Care Plans

14. 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. 
15. 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
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.

Alternative Provision

17. 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.
18. 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)
19. 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)
20. 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”.

What happened

21. Although I have not investigated events after 16 May 2023, I have included a brief summary of these for context.
22. Ms X’s child, Y, attended a mainstream school. The Council started to carry out an assessment of Y’s EHC needs in the later part of 2022.
23. In March 2023 Y stopped attending school. Y suffered with extreme anxiety at the prospect of attending school and Ms X was not able to physically get Y into the school building. In the months leading up to this Ms X raised concerns with the school about Y’s attendance. Y was having breaks of non-attendance and she was concerned the school were not meeting Y’s needs.
24. On 16 May 2023, the Council issued Y’s final EHC Plan. Ms X disagreed with the special educational provision in the Plan and the school named, so appealed to the SEND Tribunal.
25. In July 2023, Y’s school put in place 6 hours of provision per week. This was not educational and was designed to help Y reintegrate back into school.
26. Ms X contacted the Council in October 2023 and told it the school had said the Council had not agreed the funding for the 6 hours of provision per week. Ms X said the Council had not put this to its Panel to decide on the funding.
27. The Council agreed at Panel to fund the 6 hours of provision per week for Y in early December 2023. This was to fund the Autumn term of the 2023 school year.
28. In late 2023, the Council said it would not continue to fund the 6 hours of provision as Ms X was not engaging with this. The Council said it made this decision after feedback from Y’s school. Ms X disputed this.
29. In March 2024, there was a case review meeting as part of the SEND Tribunal and the Council agreed to Ms X’s school choice. This was a specialist school. Y started a placement at the specialist school in April 2024.

Ms X’s complaint

30. In late October 2023, Ms X complained to the Council. Ms X said Y had not been able to attend school since March 2023 and before this Y had several periods of absence. Ms X said the Council had not provided Y with any education, nor had it provided any of the provision in Y’s EHC Plan which was issued in May 2023.
31. Ms X chased the Council for a response to her complaint in late November 2023. The Council responded to Ms X and told her the complaint was allocated to a manager but there was currently a delay in responding to complaints.
32. On 8 December 2023, Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said she had not received a response at the first stage and the 6 hours of provision Y was receiving had ended.
33. On 11 January 2024, the Council provided Ms X with its final response to her complaint. The Council said it should have put Y’s case for the 6 hours of provision to its Panel sooner and partially upheld this part of the complaint. In relation to providing education to Y, the Council said education was available for Y at school and Y could have received the special educational provision at school too.

Analysis

34. Y stopped attending school in March 2023 due to extreme anxiety. The Council in response to my enquiries said it considered the school placement Y had provided adequate education. The Council said it considered several reports from professionals involved with Y, Y’s medical diagnosis and information from Y’s school.
35. The reports and information the Council referred to were from Autumn 2022. At this stage Y was attending school, albeit with some absences. In March 2023, Ms X could not physically get Y to go into the school building due to extreme anxiety. Based on the above I am satisfied on balance that the Council did not take action to satisfy itself Y was fit for school or tried to get up to date information to make a decision. Nor was it clear whether the Council communicated its position to Ms X. This was fault.
36. In a situation like this we would in practice expect to see a Council act quickly and consult the professionals involved in a child’s education and welfare, take account of the parents views and come to a decision about whether the child was fit to attend school.
37. After Y stopped attending school there was no educational provision in place for them and there was no reintegration support put in place for Y until July 2023. This was fault. As a result Y did not receive any education from when they stopped attending school until the Council issued the final EHC Plan. This is an injustice to Y. Our guidance on remedies recommends 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. In this case the period of time we can look at amounts to around half a term.
38. I am also satisfied Ms X has suffered an injustice here. As Y was not attending school she had to spend more time looking after Y and helping them with their education. Ms X also suffered distress as a result of knowing her child was not getting any education.
39. The Council was at fault for its complaint handling. The Council’s complaints process says it will provide a response at stage one within 15 working days of a complaint, or 20 working days for very complex cases, or where key people are not available.
40. The Council did not provide a response at stage one of its complaints procedure to Ms X. After Ms X complained to the Council she chased this up after a month as she still had not received a response. While I recognise the Council did then tell her there were delays completing complaints, she decided to ask the Council to consider her complaint at stage two.

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Agreed action

41. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Ms X for not providing education to Y after they stopped attending school in March 2023 and for the failures in complaint handling.
• Pay Ms X £300 to recognise the distress she suffered as a result of Y not having education in place and for the time and trouble she experienced in complaining to the Council.
• Pay Ms X £500 for the benefit of Y’s education for the period Y was without education after they stopped attending school up until the Council issued a final EHC Plan. In coming to this figure I have considered Y had no education for this period however I have acknowledged the Council would have had to source an alternative provider and factored in the time it should take to do this.
• Consider what steps it can take to reduce the backlog of complaint responses and report back to the Ombudsman with the steps the Council is taking to address this.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation and found was fault by the Council which caused injustice to Ms X and Y. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman