Summary: Mr X complains the Council has failed to provide his son, Y, with suitable alternative education and the content of his Education, Health and Care Plan since January 2022. Mr X says this has caused Y and his family distress and Y has missed out on his education. Mr X wants the Council to put a plan in place to allow Y to receive an appropriate education and return to school. We have found fault in the actions of the Council for delays in putting place Section 19 provision and responding to Mr X’s complaint. The Council has already apologised for this so we have not recommended any remedy.

The complaint

1. Mr X complains the Council has failed to provide his son, Y, with suitable alternative education and the content of his Education, Health and Care (EHC) Plan since January 2022.
2. Mr X says this has caused Y and his family distress and Y has missed out on his education.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. 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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. Under an information sharing agreement, we will share our final 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

9. We have not investigated events back to 2022. This is because we generally expect complaints to be made to us within 12 months of someone knowing of the issues subject to complaint. I have exercised discretion to consider the complaint from January 2023. This is when the Council issued Y’s new EHC Plan.

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How I considered this complaint

10. I have considered the information Mr X has provided, and I have spoken to him over the telephone.
11. I have also considered the information the Council provided in response to enquiries I made.
12. Both Mr X and the Council were invited to comment on my draft decision. Any comments provided have been considered before a final decision was issued.

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What I found

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements made to meet them.
14. The council must arrange for a review of the EHC Plan at least once a year. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process completes when the council issues a decision about the review. This should happen within four weeks of the review meeting when the Council tells the child’s parent if it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents of their right to appeal the decision to the SEND tribunal.

Law and guidance around alternative provision

16. 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.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on a school roll. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The courts have considered the circumstances when the section 19 duty applies. Caselaw says 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 them 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)
19. Where a council agrees to make alternative education arrangements under Section 19, for reasons other than medical absence or exclusion, guidance says it should do so as soon or as quickly as possible. (Statutory guidance: Alternative Provision – January 2013 and ‘Arranging education for children who cannot attend school because of health needs – December 2023).
20. 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’)

Complaint process

21. The Councils website states a stage one response should be issued to a complaint within 15 working days. If the complaint moves to stage two a response should also be issued within 15 working days.

What happened

22. The Council issued a final EHC Plan for Y in early January 2023. The plan named a school for Y to attend and included details in Section F to help Y when he was attending school. I understand at this point Y was attending school for a small proportion of the time.
23. In late January 2023 the school sent login details for Y to be able to access online learning as he was not attending school full time.
24. In April 2023 the Council agreed a review of Y’s EHC Plan would take place towards the end of June 2023.
25. The Child and Adolescents Mental Health Service (CAMHS) wrote to the Council in June 2023 and outlined the challenges Y was facing and noted in its opinion Y was medically unfit to attend school.
26. The Council cancelled the review of Y’s EHC Plan after speaking Mr X who said he did not feel it was in Y’s best interest to change his placement at that time. He said he was keen for Y to receive help for his mental health. The Council suggested that Y may benefit from further referrals for example to the autism spectrum disorder (ASD) advisory service.
27. CAMHS issued a care plan in late August 2023.
28. Mr X contacted the Council in mid-September 2023. He asked the Council to update Y’s EHC Plan following his ASD diagnosis.
29. The Council responded within a few days to say a review was due shortly and discussed best practice options to implement.
30. In late September 2023 CAMHS wrote to the Council to confirm Y’s ASD diagnosis and his situation should be reviewed in the annual review of his EHC Plan. The Council say at this point Y was recorded as being medically unfit to attend school.
31. The Council agreed to put tuition in place for Y in late September 2023.
32. Mr X raised a complaint with the Council in mid-October 2023 which said he felt Y had suffered increased anxiety and missed education wince he started at his current school. He also said he felt there had been a lack of alternative provision for Y.
33. The Council arranged for a tutor for Y for 3 hours a day Monday to Friday from the end of October 2023.
34. In late October 2023 the Council told Mr X a review would take place in December.
35. Mr X raised a further complaint with the Council as he had not had a response to the complaint he raised in mid-October.
36. The Council contacted Y’s school in late November 2023 to ask for an annual review to take place in December.
37. The Council confirmed the date of the annual review with Mr X in early December 2023 and shared various documents.
38. The Council issued a response to Mr X’s complaint at the beginning of December 2023 which partially upheld some of his complaint.
39. The annual review of Y’s EHC Plan took place in mid-December 2023.
40. Mr X raised a further complaint with the Council in late December 2023 and said he was unhappy with the time taken to issue a response at stage one. He also said he was unhappy with elements of the EHC Plan. Mr X told the Council he was unclear about what had been upheld by the previous complaint response.
41. Mr X also told the Council outside of the complaints process that he was unhappy with the EHC Plan and would not sign it until the Council made changes. The Council responded to say it would review documentation and then come back to the family within four weeks.
42. The Council issued a stage two response to Mr X’s complaint in mid-January 2024. The response apologised for the delay in the stage one response and confirmed it accepted there was some delay in providing the tutor to Y.
43. The Council issued a draft EHC Plan in late January 2024 and continued to liaise with the family until a final plan was issued in April 2024.
44. I understand a tutor is in place for three hours a day, but that Y is struggling to engage with the tutor and a new tutor has been requested by Mr X.

Analysis

45. The council issued Y’s EHC Plan in January 2023. The majority of the Section F relates to classroom-based support. Y’s attendance from January to October 2023 fluctuated. The content of his EHC Plan was being delivered by the school while he was attending. In addition, the school provided online learning.
46. The Council scheduled an emergency review in June 2023, but this was cancelled following discussions with Mr X. The Council and Mr X agreed it would make further referrals and discussions would take place about strategies to increase Y’s attendance.
47. While I understand Mr X is now unhappy with the level of education Y received in this time, the school was providing the content of the EHC Plan when Y could attend. I understand the school were trying to work with Y to increase the time he spent in school.
48. I cannot say there was fault in the actions of the Council in this period. It had no reason to believe Y was not receiving a suitable amount of education either when he could attend school or via online learning.
49. Following the Council’s decision Y was medically unfit to attend school in early October 2023 it sourced a tutor for Y. This was in place from the end of October 2023 and was scheduled for three hours a day. As described in paragraph 20 the hours provided of face-to-face tuition could be fewer than those received in school as the provision is more concentrated.
50. I understand that Y could not to engage with the tutor and Mr X had to pass work to Y. There is nothing to suggest to the Council that Y could have engaged with more hours of education.
51. The Council has acknowledged there was a short delay arranging the tuition of 13 days when the half term is taken into account. This is fault. However, the Council has apologised for the delay which for the time period Y was affected is a suitable remedy. The delay was not excessive and in itself would not have caused injustice to Y.
52. Mr X has said he was not provided with documentation which led to him being unhappy with the content of the EHC Plan following the review in December 2023. If Mr X was unhappy with the content of the plan, he had the opportunity to appeal it to the SEND Tribunal.
53. Mr X raised a complaint with the Council in mid-October 2023 and did not receive a stage one response until early December 2023. This is not in line with the Councils complaint procedure. This is fault. The Council apologised for the delay in responding to the complaint and did respond to the stage two complaint within the timescale detailed in its policy. The apology issued to Mr X by the Council is a suitable remedy for the fault which occurred and so I have not recommended the Council takes any further actions.

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Final decision

54. I have found fault in the actions of the Council for delays in putting place Section 19 provision and responding to Mr X’s complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman