Summary: Miss X complained the Council did not deliver a suitable education to her child. We found no fault with the Council’s actions when delivering alternative provision for Miss X’s child. We found the Council at fault for miscommunication regarding Miss Y’s child’s school placement. This caused Miss X and Y avoidable distress. We have recommended an apology, symbolic payment and service improvements to remedy Miss X’s injustice.

The complaint

1. Miss X complained the Council has not delivered a suitable education to her child since they started attending an alternative provision setting in September 2022.
2. She said the placement was meant to be temporary, but her child was there for 18 months.
3. Miss X said the Council confirmed her child had a placement at a one school in July 2023 but then changed this to a different (unsuitable) school 5 months later.
4. Miss X’s said her child did not have a school place for September 2024.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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.
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)

Back to top

What I have and have not investigated

10. I have not investigated the content of Y’s EHC Plan, specifically the naming of a school as this can be appealed to the SEND Tribunal.
11. I have also not investigated Miss X’s concerns about the quality of Y’s education as far back as July 2022 when Y stopped attending school. Miss X could have brought her complaint to the Council sooner.

Back to top

How I considered this complaint

12. I have considered Miss X’s complaint and have spoken to her about it.
13. I have also considered the Council’s response to Miss X and to my enquiries.
14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
15. Miss X 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

Legislation and guidance

EHC Plan

16. 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.

General section 19 duty

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)

What happened

Background

19. Miss X’s child, Y has a history of anxiety and emotional based school avoidance. Y started secondary school in September 2020 but stopped attending in January 2022. In September 2022, Y began to attend a setting for pupils whose mental health needs prevent them from accessing their existing school. I refer to this as ‘Alternative Provision A’ in this statement. This was a part-time table based on advice from Children and Adolescent Mental Health Service (CAMHS).

EHC Plan

20. The Council issued Y’s draft EHC plan in November 2022, followed by the final EHC Plan in December. In January 2023, the Council issued a proposed amended EHC Plan and consulted nine specialist schools for Y.
21. In July, the Council confirmed that Y had been offered a placement at ‘School A’. Miss X was happy with this provided it was at the site nearby (‘Near Site’), not the site that was further away (‘Far Site’). The Council confirmed it was ‘Near Site’.
22. In September 2023, the Council issued a final amended EHC Plan, naming the ‘School A Far Site’. Miss X refused to send her child citing it was too far away, and Y would struggle with the travel.
23. Miss X complained about the miscommunication from the Council regarding the placement, the delays in the EHC Plan process and Y’s missed education.
24. The Council apologised and offered Miss X £500 for the distress caused by miscommunication and the EHC Plan delays. It said that based on information received from CAMHS and other professionals, it was in Y’s best interests to have a part-time timetable. It apologised this was not fully communicated to Miss X.

EOTAS

25. During December, the Council and Miss X were in regular contact about potential Education Other Than at School (EOTAS) for Y. In January 2024, the Council agreed EOTAS in principle and began exploring costs and options.

Alternative provision (AP)

26. In January 2024, Miss X identified that ‘Alternative Provision B’ would be better for Y as a family member already attends.
27. Two weeks later, ‘Alternative Provision A’ had broken down. Miss X said this was because Y had been placed in a group of pupils who were going to attend ‘School A Far Site’ and Y was not.
28. The Council made referrals to AP tutoring services as well as consulting additional permanent school placements.

Summary of AP

29. The Council said that Y received:
• one to one mentoring to support Y’s emotional behaviour problems.
• Activities in a wildlife setting.
• One to one tutor sessions (3 hours a week initially)
• Speech and Language Assessment and then regular sessions.
• Occupational Therapy Assessment. Therapist contacted Miss X.

Update since Miss X approached the Ombudsman

30. In early March 2024, Miss X contacted the Council to chase an EOTAS package.
31. Miss X requested an update on Alternative Provision B. The Council said that Alternative Provision B would not offer Y a placement as the policy is no family members.
32. Miss X asked whether ‘Alternative Provision A’ would take Y back if she was placed in her original group.
33. Later that month, the Council issued a final amended EHC Plan for Y. This named an EOTAS package in Section I.
34. At the end of March 2024, Y began to attend a setting that provides EOTAS.

My findings

Miscommunication about school place

35. Before the Council issued the final EHC Plan naming the ‘School A Far Site’, it specifically confirmed to Miss X that it was the ‘Near Site’ that Y had a place at. This miscommunication caused Miss X and Y avoidable distress when the Plan was issued. I consider the Council’s offer of an apology and a symbolic £500 payment for distress in line with the Ombudsman’s Guidance on Remedies. The Council confirmed Miss X accepted the payment in April 2024.

Alternative provision

36. Y left ‘Alternative Provision A’ at the end of January 2024 and started an EOTAS package in March 2024. During this time, the Council was actively exploring options, making referrals to AP providers and consulting potential schools. Therefore, I do not consider the Council at fault for any missed education Y experienced.

Part-time timetable

37. With regard to Y’s recent part-time timetable, I am satisfied the Council assessed Y’s ability to cope with a full time timetable. It also took advice from relevant bodies before deciding that a part-time timetable was in Y’s best interests.
38. The Council recognised this was not recorded and communicated to Miss X adequately. I do not consider that this alone caused Miss X or Y an injustice. However, combined with the miscommunication about the school placement, it added to Miss X’s distress. The Council has agreed to make service improvements.

Back to top

Agreed action

39. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for the miscommunication regarding Y’s school placement and the avoidable distress this caused.
40. Within 12 weeks of my decision, the Council has agreed to:
1. Review its communication methods with staff, reminding them to check and re-check information before sending it out. This should particularly focus on the period of time leading up to the issuing of an EHC Plan.
2. Review its methods of assessing whether it owes a section 19 duty to children out of education. This should include the assessment, decision making, recording and communication to the parents.
41. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

42. I have completed my investigation. I have found the Council at fault for miscommunication regarding Miss Y’s child’s school placement. This caused Miss X and Y avoidable distress.

Back to top

Investigator's decision on behalf of the Ombudsman