Summary: The Council was at fault because it did not arrange alternative educational provision for a child who was not attending school. It has already offered an adequate remedy for this, with the exception that it should also have offered to reimburse the complainant for a report she obtained privately. The Council has now agreed to do this. We have not investigated a complaint about the Council’s decision not to issue an education, health and care plan, because it carried a right of appeal to tribunal.

The complaint

1. I will refer to the complainant as Mrs K. Mrs K is represented in her complaint by an advocate, to whom I will refer as Ms F.
2. Mrs K complains the Council did not arrange suitable alternative provision for her son, B, after he stopped attending school in April 2023 due to his anxiety. As a result, she says he has now left school without obtaining any GSCEs. Although the Council has now offered a remedy to reflect his loss of education, Mrs K does not consider this to be adequate. Mrs K also complains the Council originally declined to issue an education, health and care (EHC) plan for B.

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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. 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)
4. 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)
5. 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.
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

7. I have investigated Mrs K’s complaint that the Council did not arrange alternative provision for B when it should, and that the remedy it has offered for this is inadequate.
8. I have not investigated Mrs K’s complaint the Council initially refused to issue an EHC plan for B. This is because this decision carried a right of appeal to the SEND Tribunal, and there is no reason to believe Mrs K was unable to use this right.

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How I considered this complaint

9. I reviewed Mrs K and Ms F’s correspondence with the Council, a chronology provided by the Council, and a copy of B’s EHC plan.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

11. The following will provide only a brief overview of the key events relevant to Mrs K’s complaint. It is not intended to give every detail of what happened. I will also omit most details about the EHC plan issue, because it does not form part of my investigation for the reasons I have already explained.
12. B was attending a mainstream secondary school, but Mrs K says he started becoming reluctant to attend when he started Year 10 in September 2022, due to anxiety. By April 2023, B had stopped attending school entirely.
13. In May the Council referred B to its Early Help service. Early Help issued a plan to support B back into education, but in August it referred B to the Council’s ‘Children Who Cannot Attend School’ (CCAS) process, because it considered his absence from school was likely due to mental health problems, rather than being a behavioural issue.
14. Through September and October the Council gathered information from Mrs K, B’s school and the Special Educational Need and Disability Information, Advice and Support Service (SENDIASS). It discussed B’s at the CCAS panel and decided to consider commissioning a sport provider to support him.
15. In November the Council refused Mrs K’s request to issue an EHC plan for B. The CCAS panel discussed his case again, and decided the Council should approach the school about funding the sport provision. The school agreed to commission this.
16. In January the Council agreed to attend mediation about its decision not to issue an EHC plan. The Council informed Mrs K that B had engaged well with the sport provider, and it would therefore consider adding tuition to his education package.
17. Also in January, Ms F submitted a complaint to the Council on Mrs K’s behalf. She said the Early Help plan had not prevented a deterioration in B’s situation, and said Mrs K had funded some tuition and commissioned a private educational psychologist (EP) report. Ms F noted Early Help had then referred the matter to CCAS, because it felt it could not achieve anything more for B.
18. Ms F said Mrs K had then not heard anything from the Council before submitting an initial complaint in November. The Council’s response to this complaint had said its next steps would depend on whether it decided to issue an EHC plan, but Ms F said the Council’s duty to arrange alternative provision was not dependent on whether an EHC plan existed.
19. In any case, Ms F noted the Council had already agreed to commission alternative provision in October, albeit Mrs K was not satisfied the sport package was adequate. Ms F said the Council had not provided a convincing rationale for why it considered this was enough, and said B’s lack of provision meant he would not achieve his educational expectations.
20. Ms F asked the Council to urgently consider what provision was available to support B, to provide a financial remedy for B’s loss of education and the distress this had caused, to reimburse Mrs K for reports she had privately commissioned and tuition she had funded, and to apologise to her and B.
21. In February, the sport provider agreed to provide an additional session for B, and the Council told Mrs K the CCAS panel would consider her request for tuition. The Council also confirmed it would issue an EHC plan for B. The CCAS panel met and agreed to commission a tuition provider for B.
22. In March, the Council responded to Ms F about Mrs K’s complaint. It explained it had commissioned the sport provider because of concerns about B’s ability to engage with education, and explained it had now increased the number of sessions and was seeking to commission a tutor. However, the Council accepted B had no educational provision, and agreed it would consider and offer a remedy for this. The Council did not agree to reimburse Mrs K for the private reports she had paid for.
23. Ms F then referred Mrs K’s complaint to the Ombudsman.
24. The Council has explained that, since then, it commissioned an alternative educational provider for B in April, but this placement broke down quickly for reasons it has not explained. The Council then sought a replacement provider through May and June, eventually commissioning a tutor in July.

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Legislative background

25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We call this the ‘s19 duty’.
26. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
27. 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)
28. 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’)

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Analysis

29. Mrs K’s complaint covers two broad points – a failure by the Council to arrange alternative provision for B, and an initial refusal to issue an EHC plan for him. As I have explained, I have not investigated the second point because it carried a right of appeal to the SEND Tribunal.
30. Further to this, and as it said it would in response to her complaint, the Council has now offered Mrs K a remedy for its failure to arrange alternative provision for B. In a letter to Mrs K, the Council said:

“Our records indicate that [B] was out of education for 26 weeks, between 4th September 2023 and 4th March 2024. In light of this, the following financial remedy will be paid to you:

• £3,600 for 26 weeks of missed education to be used to support [B’s] educational needs.
• £175 for the five specialist teacher support lessons that you purchased.
• £45 for 90 minutes of Maths tuition
• £76 for [other private tuition funded by Mrs K]
• £300 payment for the stress and impact that this has had on you.

“A total payment of £4,196 will be made. This is in line with the [Ombudsman’s] guidance for financial remedies.”

31. Mrs K wrote back to the Council declining this offer for several reasons:

• B had been absent from school since April 2023, not September;
• the offered remedy did not reflect that B had missed the whole of Year 11;
• it did not reflect the distress and frustration they had suffered, or that the failure to arrange education was a breach of B’s human rights;
• it did not reflect the Council’s decision not to issue an EHC plan for B;
• the Council had not offered to reimburse Mrs K for the EP report and a dyslexia assessment she had commissioned;
• it had not offered to reimburse her travel and parking costs for taking B to the sport provider and tuition sessions; and
• she was not confident the Council had improved its services.

32. I will now consider each of Mrs K’s points in turn, to determine whether the remedy offered by the Council is adequate.
33. I asked the Council to explain its rationale for not offering a remedy for loss of education during the summer term 2022/23 (April - July). The Council explained that, during this time, B’s school was treating his absence as school refusal, rather than being due to a medical issue, and for this reason the Council had referred him to its Early Help service. The Early Help service case was open until August, at which point it decided that B’s attendance issues were more likely because of mental health problems. The Council therefore decided it should offer a remedy for loss of provision from September.
34. As I understand it, therefore, the Council’s position is that it did not accept a s19 duty for B until September, and hence it was only from this point it is at fault for not arranging adequate alternative provision for him.
35. The Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or not properly explained a decision. We call this ‘fault’ and, where we find it, we can consider the consequences of the fault and ask the relevant council to address these.
36. However, we do not provide a right of appeal against council decisions, and we do not make operational or policy decisions on councils’ behalf. If a council has made its decision without fault, then we cannot criticise it, no matter how strongly a complainant believes it is wrong. We do not uphold complaints simply because someone thinks a council should have done something different.
37. The law says a council must arrange alternative provision for a child who is not attending school for a qualifying reason. But this does not mean a council must accept that any child who is not attending school is doing so for a qualifying reason. This is a case-by-case decision to be made by the relevant council.
38. It could be argued the Early Help service’s decision to close B’s case and refer him to CCAS means the Council’s initial view of the matter was flawed. However, this is only possible to say with the benefit of hindsight. It does not mean there was an administrative fault in the Council’s original decision, at the time it was made, which is what we need to see to find fault in it.
39. On balance, therefore, I consider the Council has provided adequate reason for not including loss of provision during the summer term 2022/23 in its offered remedy.
40. With regard to Mrs K’s comment about B missing the whole of Year 11, while I am conscious of this, the remedy offered by the Council is at the higher end of the tariff set out in our guidance on remedies (which says we will recommend between £900 and £2400 per term for loss of education, depending on the circumstances). The Council’s offer amounts to £1800 for approximately two missed terms, which is at the mid-point of the tariff, and I consider this to be an appropriate level of remedy.
41. Similarly, given the purpose of such a remedy is to reflect loss of education, the possible human rights aspect is already part of this consideration. And I note the Council has offered a separate element to account for the distress and frustration arising from its fault, which again accords with the relevant tariff set out in our guidance on remedies.
42. I have not investigated Mrs K’s complaint about the Council’s initial decision not to issue an EHC plan, and so I cannot consider whether the Council should offer a remedy for this.
43. With regard to the EP report and dyslexia assessment Mrs K commissioned, our current position is that a council should reimburse parents if they have obtained a private EP report, which it has then used to form an EHC plan. I have seen a copy of B’s EHC plan, which states it was based the EP report, amongst other documents. I therefore consider this principle should apply here, and the Council should reimburse Mrs K for the EP report. I make a recommendation to this effect.
44. However, our policy is limited to reimbursement for EP reports. This is because we are aware there is currently a critical national shortage of EPs, which is causing very significant delays in the production of EHC plans. In general, we do not recommend reimbursement for privately-obtained reports, and so I do not consider the same principle should apply for the dyslexia assessment. In any case, B’s EHC plan does not appear to list this amongst the documents used to form it.
45. When I spoke to her at the beginning of my investigation, Ms F explained the Council had originally told Mrs K it would pay her a mileage rate for taking B to his sport and tuition sessions. She said it had not honoured this promise at the time Mrs K made her formal complaint, but it had since made the payment, and so this issue was now resolved.
46. But Ms F explained the Council had refused to reimburse Mrs K’s parking costs, because it said there was a point where she could have dropped B off, without having to pay to park. Ms F said Mrs K was unaware of this, but either way, given the distance from home and the length of the sessions, it made no sense for Mrs K to drop B off, rather than parking and waiting.
47. I acknowledge this point, but as I cannot see any reference to parking costs in Mrs K’s complaint to the Council, this is not something I am able to consider as part of my investigation. In any case, as this appears likely to be a relatively marginal cost, I consider it unlikely we would accept it for investigation as a complaint.
48. Finally, I appreciate Mrs K’s concerns about whether the Council’s services will improve as a result of her complaint. However, this does not mean the remedy the Council has offered is inadequate.
49. I therefore consider the Council’s offer is appropriate, with the single exception it should also offer to reimburse Mrs K for the EP report.
50. Separately, in her complaint to the Ombudsman, Ms F listed several outcomes Mrs K desired from her complaint. These were for the Council to:

• ensure suitable education is put in place for B immediately;
• offer a financial remedy for his loss of education since April 2023;
• apologise to B and offer a remedy for the fact he was unable to complete formal qualifications;
• instruct a named school to provide support for B’s “probable” autism and mental health problems;
• provide an EP and mental health assessment; and
• name the Council officer responsible for s19 provision.

51. I will again briefly address these in turn.
52. As I noted previously, there has been some issue in arranging tuition for B since the Council’s final response to Mrs K’s complaint, albeit he is shortly due to start college now anyway. Regardless, as this post-dated Mrs K’s complaint, it is not something I can consider as part of this investigation.
53. For the reasons given I consider the Council has offered an adequate remedy for B’s loss of education, including the fact he was unable sit his exams. I also note the Council’s letter to Mrs K, in which it offered the remedy, includes an apology, and so I do not consider it would be proportionate to recommend it repeat this.
54. It is unclear to me what role the school Ms F mentioned has here, as it not the placement named for B in his EHC plan. Either way, B’s EHC plan should set out the support he needs from his educational placement. If Mrs K considers it does not, then this is a matter she has/had the right of appeal to the SEND Tribunal for, and as such it falls outside our jurisdiction.
55. Ms F says the Council “agreed” to provide an EP and mental health assessment for B. However, this point does not appear to form part of Mrs K’s formal complaint, and so I cannot consider it as part of this investigation.
56. Finally, statutory guidance says each council should have a named officer who is responsible for s19 provision. I have searched the Council’s website and I am unable to find this information.
57. As this again did not form part of Mrs K’s complaint, it is not something I can formally consider here. Further to this, the s19 duty does not apply to young people in post-16 education, and so this is no longer relevant to B anyway.
58. However, I would urge the Council still to note and rectify this, as it is something we will criticise it for if we receive a valid complaint about it in future.

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Conclusions

59. The Council has already accepted fault for not arranging alternative provision for B, and acknowledged that this caused injustice in several different ways.
60. However, the Council has offered a remedy which I consider reflects this adequately. The only exception to is that the Council should also offer to reimburse Mrs K for the EP report she obtained.
61. It is unclear whether the Council’s remedy offer still stands, after being declined by Mrs K, but I consider it should give her another opportunity to consider accepting it. For the avoidance of doubt, therefore, I will make a recommendation to this effect.
62. The desired outcomes listed by Ms F in her complaint to the Ombudsman are either addressed already by the Council’s remedy, or outside our jurisdiction for some reason.

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Agreed action

63. Within one month of the date of my final decision, the Council has agreed to write to Mrs K again to make a further offer of remedy. This remedy will include both the offer the Council made in its letter to Mrs K of 24 April, and also a further offer to reimburse her for the EP report she obtained.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman