Summary: Mrs X complained the Council failed to provide her son Y with a suitable full-time education. We found fault by the Council which meant Y missed some education provision. It also caused Mrs X distress and frustration. The Council has agreed to apologise and make a payment in recognition of the injustice caused to Y and Mrs X.

The complaint

1. Mrs X complained the Council failed to provide her son (Y) with a suitable full-time education for three years up to April 2024.
2. Mrs X stated Y has missed education he is entitled to, and she has been caused distress, frustration and financial loss.

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The Ombudsman’s role and powers

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 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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
8. 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)
9. 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)
10. 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)
11. 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

12. I have investigated Mrs X’s concerns about the Council’s actions from January 2023 until November 2023.
13. I have not investigated matters before January 2023 for the reasons explained in paragraph 3. I am not aware of any reasons why Mrs X could not complain to us about these events sooner and so I do not consider there are grounds to investigate these matters now.
14. I have not investigated matters between November 2023 and April 2024. In November 2023 Mrs X appealed to the SEND Tribunal against Sections B, F and I of the Y’s EHC plan. Therefore, the restriction in paragraph 4 applies to this part of the complaint.
15. I cannot investigate any concerns Mrs X may have about actions taken by Y’s school, because of the reasons set out in paragraph 7.

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How I considered this complaint

16. As part of my investigation I have:
• discussed the complaint with Mrs X and considered her complaint and information she provided.
• made enquiries of the Council and considered its response.
• considered the relevant legislation, guidance and policies.
• considered our guidance on remedies; and
• set out my initial view on the complaint in a draft decision statement and invited Mrs X and the Council to comment. I considered the comments I received from Mrs X and the Council.

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What I found

17. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.
18. The EHC Plan is set out in sections which include
• Section B: The child or young person’s 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 school.

Reviewing EHC Plans

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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 is only complete when the council issues a decision about the review.

Appeal rights

20. There is a right of appeal to the 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

21. 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)
22. 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.
23. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative provision

24. 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.
25. 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)
26. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
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’)

Part-time timetables

29. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
30. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

31. This section sets out the key events in this case. It is not intended to be a detailed chronology.
32. Y had an accident causing him a brain injury. Following his injury Y struggled to stay focused at school and he became tired easily, affecting his behaviour. Y’s brain injury consultant advised Y should attend school for no more than three hours every day.
33. In January 2022 Y started a new school. Y’s timetable increased gradually until he was attending school full-time.
34. In July the Council issued Y with an EHC plan. The plan named Y’s school in section I of the plan. Section F of the plan said Y should have the following provision:
• 1:1 support throughout the school day;
• 3 direct sessions of speech and language therapy (SALT) per term and 3 sessions per week with an identified staff member to work towards his speech and language targets.
• 3 occupational therapy (OT) visits per school year of at least 90 minutes.

The plan stated that Y will have access to a teaching assistant (TA) for 25 hours a week for individual, paired or small group intervention, and for outings or activities.

35. In November Y’s school made a referral to the Council’s specialist teachers for inclusive practice (STIP) because Y was only managing short periods in the classroom.
36. In January 2023 Y was on a part-time timetable.
37. In February 2023 Y’s school asked for a multi-professional meeting because of problems meeting Y’s needs. It explained Y’s behaviour met the criteria for exclusion most days.
38. In response the Council referred Y’s case to its ECH plan Governance Board to consider an alternative provision package for Y as he was no longer on a full-time timetable. It supported an alternative provision package for Y.
39. In June the Council held an annual review of Y’s ECH plan. It found Y had missed 6.5 days of school due to exclusion in the last year and that his behaviour regularly met the criteria for suspension. It said alternative provision has been explored but travel time and finding a suitable environment have made this difficult.
40. Also, in June Mrs X wrote to the ECH Governance Board asking it to consider changing Y’s placement to a specialist school. The board agreed to do so.
41. In August the Council issued Y with a final EHC plan. It named Y’s school in Section I, until a suitable specialist placement was found. In section F it said Y should receive:
• 1:1 support from the start of his school day;
• access to a social skills group, such as LEGO therapy, for two 30 minutes sessions per week.
• three weekly sessions to work on his speech and language targets.
• two SALT sessions in the autumn term and three reviews during the 2023/2024 academic year.
• a timetable set to Y’s energy levels which considers the times he tires. He should do 1:1 activities in the afternoon.
• OT visits once per term for a least 90 minutes with another 60 minutes for liaison and report writing.
42. In September Y returned to school after the summer break. He remained on a part-time timetable, finishing school at 1pm. He attended two morning sessions of alternative provision at a farm and three morning sessions with Provider N.
43. Also, in September Y received an Autism diagnosis.
44. In November the Council reviewed Y’s EHC plan.
45. Following the review, the Council issued an amended ECH plan for Y. Section I of the plan named Y’s school until a specialist COIN placement could be found. The provision set out in section F remained the same as in the previous EHC plan.
46. Mrs X appealed to the SEND tribunal about sections B, F and I of Y’s EHC plan.
47. In January 2024 Mrs X complained to the Council. She complained the Council was not delivering the provision set out in Y’s EHC plan.
48. In February the Council replied to Mrs X’s complaint. It said Y had received alternative provision since the start of September 2023. Y’s timetable includes time with a teaching assistant, a placement at a farm and provision from Provider N. It said any concerns about Y’s placement is for the tribunal appeal to consider.
49. Unhappy with the Council’s reply, Mrs X escalated her complaint to stage two of the Council’s complaints procedure. She said the Council failed to address her concerns about why Y has been on a part-time timetable since 2020 without alternative provision. She also said it did not explain if alternative provision funding for Y would continue.
50. In March the Council’s EHC plan Governance Board considered Mrs X’s request, linked to her appeal to the SEND tribunal, for Y to stay at his school and access alternative provision. The board agreed to Mrs X’s request, so long as the Y’s school also agreed.
51. In April Y resumed a full-time timetable.
52. Also, in April the Council replied to Mrs X’s stage two complaint. It said the school and the Council had made best efforts to provide suitable education for Y. It also said Y’s school received funding for his alternative provision. It said it cannot consider matters raised or linked to matters in Mrs X’s appeal to the SEND tribunal.
53. Mrs X remained unhappy and complained to the Ombudsman.
54. Following Mrs X’s complaint to the Ombudsman the Council wrote to her offering her a payment of £1500 to recognise the education missed by Y between May 2023 and July 2023. Mrs X refused the payment.
55. As part of our investigation into Mrs X’s complaint we made enquiries of the Council. In response it said:
• a part-time timetable was appropriate for Y because he was at risk of exclusion. It sought a specialist school placement for Y until Mrs X asked it not to do so.
• Y’s timetable increased as he made progress.
• Y was not able to work in a small group and so he did not receive the LEGO therapy suggested in his EHC plan. However, Y has received SALT and therapeutic input including work on social skills from his alternative provision providers.

Finding

January 2023-August 2023

56. The Council was aware that Y was not attending school full-time from January 2023. The Council’s education Governance Board discussed Y’s case in February 2023, where it agreed alternative provision for him.
57. However, I have seen no evidence alternative provision was provided to Y, despite the decision at the February meeting. This is fault. As a result, Y did not receive the alternative provision the Council agreed he needed. This meant he received only a part-time timetable and so, he missed education. This is injustice.
58. I note Y was on a part-time timetable to prevent his school excluding him permanently. However, I have seen no evidence that Y could not engage in education full-time. The Council agreed to provide Y with alternative provision because his school could not meet his needs, and alternative provision was needed for Y to receive a full-time education.

August 2023-November 2023

59. In August 2023, the Council issued Y with a new EHC plan. Y’s plan named his school in Section I, until a suitable specialist placement was found for him. I have exercised discretion to investigate this period even though Mrs X had a right of appeal to the SEND tribunal. This is because the Council was proposing to keep Y in his current school until a suitable specialist placement could be found and so I think there were good reasons for Mrs X not using her right of appeal to the SEND tribunal.
60. From September 2023- November 2023 Y began to receive some alternative provision in the form of two morning sessions at a farm and three morning sessions with Provider N. However, he was finishing school at 1pm and so, despite receiving alternative provision he remained on a part-time table.
61. Therefore, Y was still not receiving a suitable full-time education and continued to miss education.
62. Mrs X also states that Y has not received the LEGO therapy set out in EHC plan. Y’s plan says he should receive access to a social skills group for two 30 minute sessions per week, such as LEGO therapy. So, I accept the Council’s view that LEGO therapy was a suggestion and not a must. However, the Council has not provided evidence Y received alternative social skills provision and so, I cannot conclude he received this part of the provision in his plan.

November 2023-April 2024.

63. In November 2023 the Council issued Y with a new EHC plan. At that point Ms X had a right of appeal to the SEND Tribunal which she used. She appealed against sections B, F and I of Y’s plan. This means Mrs X’s appeal related to both Y’s provision and the placement named in his plan. I cannot look at the lack of full-time education during this period because it is linked to the disagreement about the placement named in Y’s plan.
64. Furthermore, the courts have established that when a complainant has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate a matter which is ‘inextricably linked’ to the matters appealed. So, when a complainant disagrees with the placement named in an ECH plan we cannot seek a remedy for the lack of education after the date the appeal was entered if it is linked to the disagreement about the school named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

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Agreed action

65. The Ombudsman’s Guidance on Remedies says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss.
66. Within one month of my final decision, the Council will make Mrs X a symbolic payment of £5000. This comprises of:

1. pay Mrs X £2000, to use on Y’s behalf, for the education he missed between January 2023 and April 2023;
2. pay Mrs X £1500, to use on Y’s behalf, for the education he missed between May 2023 and July 2023 (this is the payment the Council offered to Mrs X)
3. pay Mrs X £1000, to use on Y’s behalf, for the education he missed between September 2023 and November 2023. This figure considers that Y began to receive some alternative provision during this period but remained on a part-time timetable; and
4. apologise to Mrs X for the fault identified and make her a payment of £500 for her avoidable distress. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.

67. We note there have been recent service improvements recommended by the Ombudsman regarding how it fulfils its duty to provide alternative education and so I have not made any further recommendations as we will monitor the impact of these changes through our complaints.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I have completed my investigation and found there was fault by the Council which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman