Summary: Mr and Mrs X complained the Council failed to provide their child, Z, with a suitable education and proper social care support; and about its complaint handling. We have found fault by the Council, causing injustice, in failing to provide Z with a suitable education from March to June 2023, and with its complaint handling, causing injustice. The Council has agreed to remedy this injustice by; apologising; making payments to reflect the impact on Z of the missed education; and distress caused to Mr and Mrs X.

The complaint

1. Mr and Mrs X complain the Council failed to:
1. provide their child Z with suitable alternative educational provision. Z has been unable to attend school since 2021;
2. provide proper support, through Children’s Services, for Z and their family; and
3. properly investigate and address their complaints.
2. Mr and Mrs X say the damage caused by the missed education and lack of support has affected Z’s future and is irrevocable. They want the Council to make a full apology for its failings and pay financial redress for the impact of these on Z and the family.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
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. 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)
6. 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 have and have not investigated

Events before September 2022

7. 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)
8. I have not investigated what happened before September 2022. This is because:

• Mr and Mrs X did not bring their complaint to us until February 2024. I don’t consider there are good reasons why they could not have complained to us about Z’s missed educational provision before this; and
• September 2022 is more than 12 months before February 2024, But I have exercised my discretion to investigate what happened from this date, as the start of the academic year 2022/2023 and an appropriate point to begin my investigation.

Z’s educational provision from 29 June 2023

9. I have not investigated Mr and Mrs X’s complaint the Council failed to make suitable alternative educational provision for Z after 29 June 2023. This is when the Council issued Z’s final EHC Plan naming School A as Z’s placement and setting out the SEN provision in section F, which was to be delivered through the school.
10. This is because:

• The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement;
• 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); and
• 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.

11. 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.
12. Mr and Mrs X had the right to appeal against the Council’s decisions in Z’s EHC Plan from 29 June 2023. They exercised this right in September 2023 when they appealed to the Tribunal against the naming of School A as Z’s placement in section I and the SEN provision in section F of the Plan. They asked for EOTAS to be named as Z’s educational provision in place of School A.
13. In my view, Z’s non-attendance at school is linked to Mr and Mrs X’s disagreement about the SEN provision and educational placement set out in the final EHC Plan issued on 29 June 2023. On this basis we cannot investigate their complaint about a lack of alternative educational provision for Z from June 2023.
14. I have investigated their complaint the Council failed to make suitable educational provision for Z from November 2022, when they stopped attending school, until the final EHC Plan was issued in June 2023.

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How I considered this complaint

15. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
16. Mr and Mrs X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Alternative provision – the 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.

Our guidance

18. 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
19. We made six recommendations. These were that councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Children’s Services’ involvement

20. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
21. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

22. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

What happened

23. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
24. Although some of the contact with the Council may have been by Mr X and/or Mrs X, I have referred to all contact and complaints as being made jointly by Mr and Mrs X.
25. I am not investigating what happened before September 2022, but I have set out relevant events as context for this complaint.

Background

26. Z struggled to attend school from 2021. Mr and Mrs X asked the Council to carry out an EHC needs assessment. The Council completed an assessment and issued Z with an EHC Plan towards the end of 2021.
27. A report by a clinical psychologist confirmed Z was medically unfit to attend school. The Council agreed to fund alternative provision for Z while they were unable to attend school.
28. Mr and Mrs X asked Children’s Services for support. Children’s Services provided early help support for Z and the family from 2021, which was stepped up in 2022 to support for Z as a child in need.
29. In May 2022, following the annual review of Z’s EHC Plan, the Council named School A as Z’s placement from September 2022. The SEN provision set out in section F of the plan was to be delivered through the school.

September 2022 to November 2022: Z starts at School A

30. Z began attending school A on a part-time basis to support their re-engagement with education and transition to secondary school.
31. Z had a series of panic attacks and was unable to continue attending school after November.

November 2022 to January 2023: Children’s Services involvement

32. Children’s Services contacted Mr and Mrs X about a child in need visit. It was agreed, at a case review in November, to continue support for Z because of their disengagement with education.
33. Children’s Services held a further child in need meeting with Mr and Mrs X in January. This noted that Z’s mental health had deteriorated, and Mr and Mrs X said Z could not engage with education until their mental health had improved. Children’s Services agreed to review the Child and Family Assessment.

January 2023: Mr and Mrs X’s complaint to the Council

34. Mr and Mrs X complained that:

• Z had been out of school since March 2020 because of anxiety and depression related to autism spectrum condition. They had not been provided with an education during this period;
• the lack of education for Z had continued despite the issue of the EHC Plan;
• there had been delays by the Council’s SEN team in responding to their contact; and
• there had been delays and communication failures by Children’s Services in assessing Z and the family’s needs and providing advice and support.

35. In response to the complaint, the Council:
1. set out details, for the period to September 2022, of the;

• alternative provision arranged for Z; and
• support provided by Children’s Services.
2. commented on communication issues during the period to September 2022; and
3. said it had completed its complaints process and Mr and Mrs X should contact us if they remained dissatisfied.

February 2023 to June 2023: Annual review and Children’s Services’ work

36. The annual review meeting for Z’s EHC Plan was held on 15 February. The Council wrote to Mr and Mrs X on 15 February confirming their request to amend the plan to include Z’s recent autism diagnosis. The Council said it did not propose to change Z’s placement at this stage but was consulting with Mr and Mrs X’s preferred school.
37. Children’s Services completed a Child and Family Assessment. This recommended direct payments to allow Mr and Mrs X to employ someone to take Z out for activities, which would give them respite. It also said Early Help could support with the ongoing parenting of a child with autism. Children’s Services allocated a family worker to complete the work with the family.
38. The Council issued Z’s final amended EHC Plan on 29 June. This named School A as Z’s placement. The SEN provision set out in section F of the plan was to be delivered through the school.

September 2023: Mr and Mrs X’s appeal to the SEND Tribunal

39. Mr and Mrs X made a late appeal against the naming of School A as Z’s placement and SEN provision as set out in sections I and F of Z’s EHC Plan. The Tribunal accepted the appeal out of time.
40. Mr and Mrs X said they hadn’t appealed initially when the final plan was issued naming school A because the Council had told them it wasn’t possible to name EOTAS until it was satisfied Z’s educational provision could not be provided at school.
41. Mr and Mrs X asked the Tribunal to name EOTAS as Z’s educational provision in their EHC Plan.

September to December 2023: Children’s Services’ work

42. Children’s Services closed its Early Help work with the family. It recorded Z and the family had made significant progress. Z had engaged with learning and been working proactively to find a suitable educational placement.

February to April 2024: Council’s complaint response

43. The Council wrote to Mr and Mrs X on 15 February. It referred to their complaint of 5 October 2023 and the Council’s letter of 30 October asking them to clarify their concerns and what they wanted the Council to investigate. It said once they had confirmed the outstanding complaint issues the Council would arrange a formal investigation and response.
44. Mr and Mrs X replied on 26 February. They said their complaint in October 2023 had concerned their other child. They set out the outstanding issues regarding Z’s education, which related to alternative provision, Z’s section F provision and the postponed annual review meeting.
45. The Council issued its final response in April 2024. It replied to all the issues raised including some matters concerning the Tribunal appeal.

July 2024: Conclusion of the Tribunal appeal

46. The Council agreed to change Z’s placement to EOTAS. The tribunal proceedings were resolved and a consent order issued in July 2024.
47. In August 2024 the Council issued a final amended plan in accordance with the consent order. This named Z’s placement in section I as EOTAS and set out the details of the package of provision in section F.

My view – was there fault by the Council causing injustice?

a) Suitable educational provision for Z

48. I have considered whether the Council properly considered its duty to make suitable educational provision for Z during the period from November 2022, when they stopped attending School A, to 29 June 2023 when it issued the final EHC Plan, giving Mr and Mrs X appeal rights.
49. In my view it failed to properly consider its section 19 duty during this period. This is because there is nothing to show it contacted Mr and Mrs X about Z’s circumstances when they stopped attending school in November 2022 or considered whether it should make any alternative provision for Z until Summer 2023.
50. This failure was fault.

Impact of the failure to consider its section 19 duty

51. I consider it more likely, had the Council properly considered its section 19 duty in November 2022, it would have decided, as it had done previously in 2022, and then in Summer 2023, it should make alternative educational provision for Z.
52. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
53. The Council did not make any alternative educational provision for Z from November to June 2023.
54. But the information I have seen suggests Z was unlikely to have been able to engage with education initially, because of the deterioration in their mental health. But Z’s condition and ability to engage with online tuition and other activities improved during 2023. In my view the Council should have put in place part-time alternative educational provision for Z from 1 March to 29 June 2023.
55. On this basis I consider the payment for Z’s loss of education provision should be at the middle of our range.
56. This failure also caused Mr and Mrs X worry and uncertainty about the arrangements for Z’s education after they stopped attending school in November 2022.

b) Children’s Services’ support for Z and their family

57. I don’t consider there was a failure by Children’s Services in the way it provided support for Z and the family during the period from September 2022 to February 2024 when Mr and Mrs X brought their complaint to us.
58. It continued to support Z, as a child in need, from September 2022 and held further meetings and reviews from November 2022, when Z stopped attending school, to January 2023. It provided the family with additional support following the further assessment in 2023.
59. I have not seen any information to indicate Mr and Mrs X complained about its decision to end its Early Help work at the end on 2023, when it recorded Z and the family had made significant progress.

c) Complaint investigation and response

60. I consider the Council failed to properly investigate and address Mr and Mrs X’s complaints made in January 2023 about its failure to provide Z with a suitable education, delays by Children’s Services in providing support and communication failures.
61. This is because its complaint response only addressed issues during the period to September 2022. It failed to consider Mr and Mrs X’s complaints about failures from September 2022 to January 2023.
62. This failure was fault. It was a missed opportunity to look at Mr and Mrs X’s concerns about Children’s Services’ continued involvement and Z’s educational provision for Z from November 2022.
63. It also caused Mr and Mrs X frustration, upset and uncertainty about any action the Council proposed to take in response to their ongoing concerns.

Service improvements

64. We have made a number of recent decisions on complaints about the Council’s handling of its section 19 duty in which the Council agreed to make service improvements. These include ensuring it has robust processes in place to review provision for children unable to attend school and reviewing its processes for ensuring those to whom it owes a section 19 duty are receiving appropriate education.
65. On this basis, I don’t propose to ask the Council to make any further service improvements at this stage regarding this complaint issue.

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Action

66. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr and Mrs X for its failure to provide Z with a suitable education from March to June 2023 and to properly address their complaint about this. This apology should be in line with our guidance on Making an effective apology:
2. pay Mr and Mrs X, on Z’s behalf, £1,200 (£1,200 x 1 full half term and 2 part half terms from March to June 2023). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them: and
3. pay Mr and Mrs X £300 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
67. The Council should provide us with evidence it has complied with the above actions.

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Decision

68. I find fault causing injustice. The Council should take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman