Summary: The Council failed to put in place alternative educational provision for Mrs X’s son when he was unable to attend school because of anxiety. It also delayed in responding to Mrs X’s complaint. In recognition of the injustice caused by these failings, the Council has agreed to make a payment to Mrs X.

The complaint

1. Mrs X complains that the Council:
• delayed in completing an education, health and care needs assessment for her son;
• failed to seek advice and information from a speech and language therapist as part of the assessment;
• failed to secure the provision set out in her son’s education health and care plan and put in place alternative educational provision when he was unable to attend school because of severe anxiety;
• failed to process the annual review following a meeting held by the school in October 2022; and
• delayed in responding to her complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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.

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What I have and have not investigated

Failure to secure alternative provision

5. I have investigated Mrs X’s complaint that her son received no alternative education provision or the special educational provision set out in his EHC plan when he was unable to attend school because of anxiety.

Delay in completing an education, health and care needs assessment

6. I have not investigated Mrs X’s complaint that the Council delayed in completing an EHC needs assessment. This is because the complaint is late and I do not consider there is good reason to investigate it now.

Failure to seek advice from a speech and language therapist

7. I have not investigated Mrs X’s complaint that the Council failed to seek advice and information from a speech and language therapist as part of the EHC needs assessment. This is because Mrs X had a right of appeal to the SEND Tribunal which arose in July 2022. We cannot look at anything which happened before the appeal right arose which could have been considered by the Tribunal. This includes the EHC assessment process and which reports and documents the Council obtained. Any injustice caused by the failure to obtain a specific report is that the resulting EHC plan does not meet the child’s needs and the adequacy of the plan is the subject of the appeal. The Tribunal has wide powers to order reports to be completed so Mrs X could have asked the tribunal to order the Council to seek a report from a speech and language therapist. Accordingly, this aspect of Mrs X’s complaint is outside our jurisdiction.

Failure to process the annual review

8. I have not investigated Mrs X’s complaint that the Council failed to process the annual view paperwork following the annual review meeting held by the school in October 2022. This is because the complaint is late and I do not consider there is good reason to investigate it now. In addition, Mrs X has not yet complained to the Council about this issue.

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How I considered this complaint

9. I have considered all the information provided by Mrs X and documents provided by the Council. I have also considered the Ombudsman’s guidance on jurisdiction.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

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 C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.

13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative provision

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 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)
17. 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
18. We made six recommendations. 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.

19. 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.

Key facts

20. Mrs X’s son, C, was diagnosed as autistic in 2019.
21. In late 2021 Mrs X asked the Council to complete an education, health and care needs assessment for C. The Council agreed to carry out an assessment in January 2022.
22. By March 2022 C was struggling to attend school because of anxiety and was placed on a reduced timetable.
23. On 9 May Mrs X made a complaint to the Council. She said C was on a severely reduced timetable because of overwhelming anxiety. She asked the Council to put in place alternative provision.
24. C stopped attending school in June.
25. On 24 June the Council responded to Mrs X’s stage 1 complaint. It denied responsibility for providing alternative provision and referred her to the school.
26. On 14 July the Council issued an EHC plan naming a new school from September. Mrs X was not in agreement with the named school and appealed to the Tribunal. She also appealed against the provision set out in the EHC plan.
27. C was unable to start at the new school in September because he was still suffering from extreme anxiety. C’s GP wrote a letter stating that C had not attended school since June 2022 “due to mental, emotional, and physical health needs. His absence from school is due to illness for reasons stated above”. Mrs X sent this letter to the Council.
28. On 3 October Mrs X made a stage 2 complaint.
29. An annual review was held at which the new school stated it was not able to meet C’s needs. Mrs X requested a special school.
30. On 24 November the Council advised Mrs X it could not consider her stage 2 complaint because she had now appealed to the Tribunal. Mrs X responded stating that her complaint was separate from the issues she had raised at the Tribunal and specifically concerned the Council’s failure put in place alternative provision. She said C was isolated at home and his anxiety was increasing. As a result, she was hardly able to work and was having to fund C’s educational and therapeutic needs.
31. In January 2023 the Council agreed to complete a stage 2 investigation.
32. In March Mrs X wrote to the Council complaining about the delay in sending a stage 2 response stating that C was still without education.
33. In May the Tribunal ordered by consent that the Council should issue an EHC plan for C with the agreed amendments and name a special school in the plan.
34. On 12 June C started at the special school.
35. On 31 July the Council wrote to Mrs X apologising for the delay in responding to her stage 2 complaint.
36. In March 2024 Mrs X complained to the Ombudsman.
37. On 22 March the Council sent Mrs X a stage 2 response. It accepted C had missed out on education and offered a payment in recognition of this. The Council identified that there was a need for additional staff training in relation to its duties under Section 19 of the Education Act 1996. It also accepted there was confusion and delay in responding to Mrs X’s queries and her complaint.

Analysis

Alternative provision

38. The Council provided C with no alternative education provision or the special educational provision set out in his EHC plan when he was unable to attend school because of anxiety between June 2022 and June 2023. This was fault.
39. The Council accepted this at stage 2 of its complaints process and offered Ms X £900 per term for loss of education between September 2022 and June 2023. While this goes some way towards remedying the loss of provision, I do not consider this to be a sufficient remedy.
40. Our guidance on remedies states that, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors including: the severity of the child’s SEN as set out in their EHC plan and any educational provision made during the period.
41. I consider an appropriate remedy to be in the middle of this range. C received no educational provision apart mentoring and maths tuition provided by Mrs X.
42. I have also recommended an additional remedy for the distress Mrs X suffered because of the lack of education provided for C by the Council.

Delays in the Council’s complaints process

43. I find there were significant delays in the complaints process. This was fault.
44. In the stage 2 response the Council accepted that the stage 1 response was unnecessarily delayed and there was a further delay when responding to the stage 2 request. It accepted that it incorrectly conflated the issues before the Tribunal with those in the complaint and, as a result, delayed its response. However, there was a further significant delay after January 2023 when the Council agreed to complete a stage 2 investigation. The stage 2 response was not issued until March 2024.
45. The Council accepted the delays caused prolonged and unnecessary distress to Ms X. It apologised for this and offered to pay her £500 in recognition of this. I consider this represents a satisfactory remedy for the injustice caused by the delays in the complaints process.

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Agreed action

46. The Council has agreed that, within one month, it will:
• Pay Mrs X a further £1,500 in addition to the £2,250 it has already offered in recognition of the loss of education C suffered. Mrs X should use this for C’s educational benefit;
• pay Mrs X a further £500 in recognition of the distress she suffered because of the loss of education provision for her son. This is in addition to the £500 the Council has offered in recognition of its poor communication and the delays in responding to her complaint.

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Final decision

47. I find fault causing injustice.
48. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman