Summary: Ms X complains that the Council failed to consider its duty to make alternative education provision for Mrs Y’s daughter when she was unable to attend school on a full time basis. The Council is at fault as it delayed in considering its duty to make alternative education provision, delayed in offering the provision and delayed in issuing a final Education, Health and Care plan for Z. As a result, Z missed approximately 11 weeks of education and the faults caused distress to Mrs Y. The Council has agreed to remedy the injustice by apologising to Mrs Y and Z and making symbolic payments to them to acknowledge the distress caused to Mrs Y and Z’s missed education.

The complaint

1. Ms X complains on behalf of Mrs Y. Ms X complains that the Council failed to consider its duty under Section 19 of the Education Act 1996 to make alternative education provision for Mrs Y’s daughter, Z, when she was unable to attend school on a full-time basis between November 2022 and the end of October 2023. Ms X considers that as a result Z missed a significant amount of education and support which caused a deterioration of her behaviour and relationship with Mrs Y. It also caused significant distress to Z and her family.

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. 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.
4. 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)
5. 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

How I considered this complaint

6. I have:

• Considered the complaint and the information provided by Ms X;
• Discussed the issues with Ms X;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Law and guidance

7. 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.
8. 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)
9. 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)
10. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
11. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
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. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened

14. The following is a summary of the key events which are relevant to my consideration of the complaint. It does not include everything that happened.

15. Z attended a high school. From November 2022, Z experienced difficulties in attending school due to anxiety. Mrs Y initially sought support from a support service provided by the Council. The service provided some advice to the school and Mrs Y.
16. In March 2023, the support service attended a meeting with Mrs Y and the school as Z was struggling to access her mainstream lessons. The support service’s record of the meeting notes Z’s disengagement with the school had escalated. The record notes the school would explore alternative provision for Z. Mrs Y also sent an email to the Council and school to raise concerns about whether the school could meet Z’s needs.

17. The school submitted a request for an EHC plan needs assessment for Z. The request stated that Z was refusing to attend any lessons. The Council agreed to carry out a needs assessment and issue a EHC plan.
18. In May 2023, following a period of suspension, Z returned to school on a reduced timetable. Correspondence between the support service and Mrs Y show Z was only attending the core subject lessons which were approximately 2.5 hours of the school day.

19. In early June 2023, the school notified the Council that Z was attending on a reduced timetable. The notification stated the school had discussed the options with Mrs Y who said she did not want a managed move or alternative provision at that time. The notification also said that Mrs Y wanted a specialist placement as an outcome of the EHC plan. Mrs Y has said she did not tell the school she did not want alternative provision and this was never offered.

20. In mid June 2023, the support service contacted the officer dealing the EHC plan. The service said Z was on a very reduced timetable and struggling to attend. The service also said Z’s needs were not met by her educational provision. Mrs Y also sent an email to the officer explaining that since the request for the EHCNA, Z had consistently refused to attend lessons.

21. The Council issued a draft EHC plan on 19 July 2023. Mrs Y submitted her comments and school preferences in early August 2023. In mid August 2023 the Council decided that a specialist placement would be suitable for Z. The Council started to consult placements.

22. Z did not attend school when the new term stated in September 2023. The Council advised Mrs Y that it would discuss with Z’s existing school if they could provide education other than at school for Z and suggested a placement.

23. A later email shows the Council discussed alternative provision with Mrs Y. It said that the Council’s placement panel would have to consider Mrs Y’s preferred provider or Z’s existing school could put this in place. I understand the Council offered online home tuition to Mrs Y. She refused this as she considered online tuition would not meet Z’s needs as she would be unable to engage with it.

24. The Council issued Z’s final EHC plan on 19 October 2023 naming a specialist school. I understand Z started to attend the school at the end of October 2023.

25. In response to my enquiries, the Council has said it did not act on the school’s notification in June 2023 that Z was on a part time timetable due to a lack of capacity. It has said it was not aware of Z’s attendance issues until that time.

Complaint

26. Ms X made a complaint to the Council on Mrs Y’s behalf. She complained that the Council had not provided support to Z since she started to struggle to attend school in late 2022.She also complained about the delay in issuing Z’s final EHC plan and delay in the Council making alternative provision for Z. She noted the Council had offered tuition but this was not suitable for Z’s needs.

27. Ms X chased the Council for a response. The Council advised Ms X that the complaint was being considered informally. The Council then replied to the complaint. It explained that the Council had issued Z’s final EHC plan.

28. In November 2023, Ms X raised that the response did not address her concerns. The Council responded to Ms X’s complaint at stage 1 of the complaints procedure. It upheld Ms X’s complaint about the delay in finalising Z’s EHC plan. The Council said it had arranged interim provision for Z but acknowledged Mrs Y was unhappy with that provision. Ms X remained unhappy so escalated the complaint to stage 2. The Council declined to investigate the complaint as it considered the points raised by Ms X were matters of opinion and could not be determined by factual investigation.

Analysis

29. On balance, I find the Council delayed in considering whether it had a duty to provide education to Z under section 19 of the Education Act 1996. The Council’s support service provided guidance and support from November 2022 but this was not education. It is not clear how much education Z was accessing at this time. The support service should therefore have given some consideration to whether Z’s circumstances should be escalated to determine if the education was accessible to her. On balance, the failure to do so is fault.

30. Mrs X had raised concerns about the school meeting Z’s needs. The school’s request for an EHC needs assessment stated that Z could not attend lessons. So, the Council was aware in March 2023 that Z was not in full time education. There is no evidence to show the Council took any action on this notification to establish what education and support Z was receiving and whether the education offered was accessible to her. The Council again missed the opportunity to consider its section 19 duty when the school notified the Council in June 2023 that Z was on a part time timetable. I note the school’s referral says that Mrs Y did not want alternative provision. I also note the Council’s position that it did not have the capacity to review the part time timetable and consider Z’s attendance issues. Nevertheless, the Council still had a duty to consider if the education was accessible to Z and whether it had a duty to make alternative provision.

31. The Council missed a further opportunity to consider its section 19 duty in late June 2023 when the support service notified it that the education provision was not meeting Z’s needs. This suggested the education provision was not accessible to her. The failure to consider the section 19 duty is fault.

32. The Council accepted the duty to provide alternative provision in September 2023 when Z did not attend school at all. But it took too long to arrange any provision. The Council’s focus was on finding a specialist placement for Z but it also needed to make a prompt interim offer. The Council’s records note there was some discussion with Mrs Y about a farm school and her preferences. But there is no evidence to show the farm school was offered to her. The Council did not offer tuition until early October 2023 by which time Z had missed a month of education. There is no evidence to show the Council satisfied itself that the tuition and farm school would meet Z’s needs or considered Mrs Y’s concerns about provision offered. This is fault.

33. I cannot know, even on balance, if the Council would have accepted its section 19 duty and made alternative provision for Z before late June 2023 if it had considered its duty. But the fault causes some uncertainty to Mrs Y and Z. I consider, on balance, the Council would have accepted the duty to make alternative provision for Z from late June 2023. This is because the support service’s email said that Z’s education needs were not being met. I therefore consider it is likely the Council would have found the education was not accessible for Z and made alternative provision for her. As a result Z missed education provision for approximately three weeks until the end of the summer term and approximately eight weeks from the start of the autumn term.

34. The Council should have issued Z’s EHC plan within 20 weeks of the request for the needs assessment. The Council issued a final plan on 19 October 2023 so the final EHC plan was late by nine weeks. This is fault which contributed to the delay in suitable education provision being made for Z. The fault will also have caused distress to Mrs Y.

Complaint

35. On balance, I consider the Council is at fault in how it dealt with Ms X’s complaint. The Council’s published complaints procedure is a two stage complaints procedure. The procedure does not state the Council may deal with complaints informally so Ms X could not have been aware that the Council may consider her complaint in this way. The Council’s informal response then did not address the points Ms X raised in her complaint. This is fault which will have caused frustration to Mrs Y.

36. The Council advises staff to consider complaints informally but in doing so it is adding an additional stage to the complaints procedure. We generally consider a complaints procedure should not have more than two stages without good reason. So, if the Council considers a complaint informally, it should then consider any escalation of the complaint at stage two. This is to prevent adding a further stage to the complaints procedure.

Agreed action

37. That the Council will:
1. Send a written apology to Mrs Y and Z for the uncertainty and distress caused to them by the faults identified and for the 11 weeks of missed education provision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £400 to Mrs Y for the distress and uncertainty caused to her;
3. Make a symbolic payment of £760 to Mrs Y for Z. This is to acknowledge the faults by the Council caused Z to miss approximately 11 weeks of education provision. We would usually recommend a payment of £900 per term in these circumstances but I consider £760 is proportionate as Z did not miss an entire term due to fault by the Council.
4. Issue guidance to appropriate officers to ensure that the relevant services are aware of when they should escalate cases where children are not receiving a full time education. This is to enable the Council to consider if it has a duty under section 19 of the Education Act to provide alternative provision for them.
5. Review its procedures to ensure alternative provision which meets a child’s needs is made without delay in the event the Council has accepted a duty under section 19 of the Education Act.
6. Review its complaints procedure to make clear that the Council may consider a complaint informally and to consider if a complaint which has been considered informally should then be considered at stage two in the event of escalation. This is to ensure transparency in how the Council considers complaints and to ensure the Council does not add an extra stage to the published complaints procedure.
38. The Council should take the action at a) to c) within one month and the action at d) to f) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

Final decision

39. Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman