Summary: Ms X complained the Council has not provided support to her child who was out of school and has not agreed a school placement. We cannot investigate Ms X concerns that her child has not got a school placement or whether they received the specialist provision in their Education, Health and Care Plan as Ms X appealed to a Tribunal. We have not found the Council at fault for failing to provide Ms X’s child with education.

The complaint

1. Ms X complains her child has been out of education since September 2023 with no support despite having an Education, Health and Care Plan.

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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 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.
4. 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.
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 Ms X’s child received the section F provision in their Education, Health and Care Plan. This is because Ms X had an ongoing appeal with the SEND Tribunal and part of her appeal was about the section of the Plan which stated the special educational provision.
7. I have also not investigated the fact the Council disagreed with Ms X’s school choice for her child. Ms X has appealed to the SEND Tribunal about the school placement. Only the Tribunal can decide what school placement is suitable for her child.
8. 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)

9. This investigation focuses on whether the Council provided alternative education for the child after Ms X moved to the Council’s area.

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How I considered this complaint

10. As part of this investigation I considered the information provided by Ms X and the Council. 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.

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What I found

Law and guidance

11. 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.
12. 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
13. 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.
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. [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.
15. 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)
16. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

18. Ms X lived in a different Council area. This council issued an EHC Plan for her child, Y. Ms X disagreed with the contents of the EHC Plan and appealed sections B, F and I to the SEND Tribunal.
19. On 31 July 2023, Ms moved into the Council’s area. Her previous council sent the Council over a copy of her child’s EHC Plan. The EHC Plan did not name a school placement or type of school.
20. The Council contacted Ms X in August 2023 and sought to consult schools so Y could have a school placement. As there was no school placement available for Y at the start of term in September 2023, the Council put in place tuition for Y. This consisted of 15 hours per week with a tutor.
21. Of the schools which the Council consulted only one, School Z, offered Y a place. The Council had concerns about the cost of this placement and what the cost included so sought further information from School Z.
22. On 23 January 2024, the Council was made aware that there was an active SEND Tribunal appeal against Ms X’s previous council.
23. On 23 January 2024, Ms X made a formal complaint to the Council. Ms X complained Y had not been able to take up a place at School Z as the Council had not agreed to the placement. Ms X also complained the tutoring Y received had ended and Y had no education.
24. In late January 2024, the tutors for Y emailed the Council with an update. This said some sessions in January 2024 were cancelled by Ms X as Y was unwell. The tutor said Ms X told them she would make contact once Y was ready to start sessions again.
25. The Council responded to Ms X’s complaint on 25 January 2024. The Council said:
• While it looked for a placement for Y it provided interim education. The Council said it did not end this tuition for Y. It had spoken to the tutors who confirmed Ms X cancelled tuition sessions as Y was unwell and these were due to restart on 29 January 2024. The Council said it had agreed to provide Y with tuition until it could find a suitable school placement.
• After it consulted with schools, School Z offered a place but the cost of the placement was unusually high so the Council attempted to secure further information as to the breakdown of the placement cost, however School Z had not provided this information.
• It was only made aware about Ms X’s active SEND Tribunal appeal recently and any decision about Y’s EHC Plan will need to be considered as part of the appeals process.
26. On 13 February 2024, Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said she did not end the tuition but tuition ended as Y was unwell. Ms X said she did not hear anything after this. Ms X said she did not believe the tuition was working and Y had stopped engaging with it. Ms X also said the Council had not named a school for Y.
27. On 28 February 2024, the Council provided its final response to Ms X’s complaint. The Council said the tutors believed Ms X would contact them again after Y was ready to start tutoring after being unwell. The Council said it would explore alternative tuition options for Y as Ms X was unhappy with the tuition. The Council said it could not agree to a placement at School Z due to the cost of the placement. The Council said it believed Y’s needs could be met at a newly developed specialist school for a much lower cost.
28. Around late February 2024, Ms X moved out of the Council’s area. The Council said in March 2024, it was notified that Ms X had moved out of the Council’s area and the appeal had been transferred to her new council. The Council ended the tutoring it put in place for Y at this stage.

Analysis

29. As stated above this investigation only considered whether the Council provided Y with alternative education whilst they were out of school and living in the Council’s area.
30. After Ms X moved into the Council’s area it sought to consult with schools to try to find Y a placement. In the meantime it put in place tutoring for Y of 15 hours per week with a tutor. While this was initially online, it moved to face to face tuition.
31. I have not found the Council at fault for not providing alternative education to Y. As there was no school placement for Y to attend, or a school placement which the Council agreed to, it had to put in place alternative provision. The provision was with a tutor and was for 15 hours per week. On balance I am satisfied the Council put in place suitable alternative provision for Y.
32. Whilst there was a period of time where the tutoring did not take place in January 2024 due to Y’s sickness and some confusion around how the tutoring would restart, I do not consider this was the fault of the Council.
33. After Ms X complained to the Council it agreed to look at alternative options for tuition for Y but by this time Ms X had already moved out of the Council’s area.

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Final decision

34. I have completed my investigation and found the Council was not at fault for failing to put in place alternative provision for Ms X’s child.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman