Summary: The Council failed to record how it considered its section 19 duty to Ms X’s child, B, when they had significantly reduced attendance at school. It also failed to arrange alternative provision for B for a period of almost five months. In recognition of the injustice caused, the Council has agreed to apologise and pay Ms X £2,600.

The complaint

1. Ms X complains that the Council:
1. failed to secure the section F provision in her child, B’s, March 2023 EHC Plan; and
2. failed to put in place alternative (section 19) provision for B from July 2023 until February 2024.
2. Ms X said as a result, B has missed out on education and social interactions with other pupils. Ms X said she herself has been caused frustration and been financially impacted by B being out of school.

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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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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.
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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 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

9. Ms X has raised concerns about some of the provision B received in 2022 and earlier in 2023. Ms X could have raised these issues with us sooner and did not. Therefore my investigation begins from 6 May 2023 – which is twelve months since Ms X complained to the Ombudsman. Any events before this date would be considered as late.
10. The period I have investigated ends on 8 February 2024, as Ms X has raised a separate complaint covering this later period.

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How I considered this complaint

11. I considered the information provided by Ms X and the Council.
12. I considered the relevant law and guidance as set out below.
13. I considered our Guidance on Remedies.
14. I considered all comments received from Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education, Health and Care (EHC) Plans

15. A young person with special educational needs may have an Education, Health and Care Plan. This sets out their needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of school. 
17. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that. However the Ombudsman can look at complaints about whether support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Annual reviews of EHC Plans

18. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months (para 9.166);
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the Plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195).
19. Within twelve weeks of the annual review meeting, the final, amended EHC Plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

Council oversight of educational provision

The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. However the Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC Plan is issued, or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Alternative provision

20. 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.
21. 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)
22. 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
23. Our recommendations included that councils should:
• 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: and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
24. Schools should notify the local authority of any cases where a child is accessing reduced or part-time education arrangements.
25. 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.

What happened

26. I have investigated events between early May 2023 and early February 2024. Any events before May 2023 are only referred to for context.
27. B has a neurodevelopmental condition and a mental health condition. Due to their additional needs, B has an EHC Plan. Their EHC Plan from March 2023 said in Section I, that they should attend their mainstream primary school, School A. The Plan also listed a range of special educational needs (SEN) strategies in Section F, to be delivered by school staff.
28. B started attending School A on a much-reduced timetable - and had periods where they did not attend School A at all - between early 2022 and mid-2023. The Council was made aware of this in late 2022. This is evidenced in documents from professionals, including from B’s Educational Psychologist (EP). The EP included details of B’s attendance and emotionally-based school avoidance (EBSA) in their reports, which were submitted to the Council. The Council considered these reports as part of its assessment into whether B needed an EHC Plan.
29. The Council said it did not become aware of B’s EBSA and significantly reduced attendance until an emergency review of B’s EHC Plan which was held on 17 July 2023. This review meeting was attended by Ms X, School A and the Council.
30. B was due to start their final year of primary school (year 6) in the coming September. However School A informed the Council at this meeting, that due to B only being able to attend school for very reduced hours - if at all - it no longer felt it was the right setting to meet B’s needs.
31. At the annual review, Ms X expressed a preference for B to start attending a specialist school from September 2024 (one year later), when B was due to begin secondary school. The Council said it would send the request for a specialist placement to its panel.
32. In the meantime, for the upcoming final year of primary school starting in September 2023, Ms X said B did not want to leave School A yet and wanted to finish with their cohort of friends. She said B would like to continue to try and attend School A for very reduced hours – where B was able - but mainly B’s education would now need to be met through other alternative provision such as home-based or offsite learning and activities.
33. Various provisions were discussed at the review that may assist B, including reintegration therapies, art and animal-based activities and home tutoring. The Council asked the school to send the Council a costed plan for the alternative provision. The Council said it would fund it, but made an agreement with the school that the school would arrange it.
34. By the start of term in September 2023, the school still had not submitted the costed plan or arranged any of the provision. It continued not to arrange any of the provision for the next four months. The Council did not follow this up with the school. However it carried out the other agreed actions from the annual review, including seeking specialist secondary school placements for B to start at in the following year (September 2024).
35. When B did not receive any alternative provision from the start of September 2023 to the end of December 2023, Ms X raised repeated concerns directly with the school, rather than the Council. Ms X said she paid for informal activities to try and keep B engaged and occupied during this time.
36. Following the July 2023 annual review, the Council amended B’s EHC Plan and sent a final Plan on 11 October 2023. This continued to name B’s primary school in Section I, as this was where B would remain on roll until September 2024. It continued to list additional SEN support B would receive from school staff. Ms X decided not to appeal this EHC Plan to the SEND Tribunal, as she agreed that B remaining on-roll at School A is what all parties agreed to at the July review and the alternative provision agreed at that review was meant to be temporary rather than detailed in B’s EHC Plan.
37. In late January 2024 Ms X made the Council aware that B had not been attending School A or receiving any of the alternative provision discussed at the July 2023 review. Shortly afterwards the Council found a specialist placement for B and recommended that B start there mid-way through the school year (in February 2024) instead of remaining on roll at School A.
38. Ms X agreed to this and the Council amended B’s Plan to name the specialist placement. B started there, on a reduced timetable, on 8 February 2022.

My findings

Appeal rights

39. Ms X had a right of appeal against the provision and named placement in B’s EHC Plan from October 2023. In the event of any missed provision being due to a disagreement over what was included in that Plan, we would expect the person to use their right of appeal to resolve this through the SEND Tribunal.
40. However in this case I do no consider it was reasonable for Ms X to use her right of appeal, as the Plan contained the school placement that had been agreed by all parties at the review. As it was not reasonable for Ms X to appeal and the Council had a section 19 duty to B, I have investigated the entire period between May 2023 and February 2024.

May – July 2023

41. Between 6 May 2023 and 17 July 2023, the Council was already aware that B had significantly reduced attendance at school due to EBSA. During this time, B accessed very little of the education, or school-based SEN provision from their March 2023 EHC Plan.
42. Despite the Council being aware of this, there is no evidence from this time to show how the Council considered its section 19 duty to B. In the Council’s response to our enquiries, it said it did not know B was not attending school until July 2023. However it also said it did not put alternative provision in place for B before July because it felt the school’s EBSA-based strategies were the right approach for B at that time.
43. The Council failed to contemporaneously record its thinking about its section 19 duty to B between May and July 2023. This was fault. I cannot say even on balance, were it not for this fault, that B would have received any different provision than they did, as the Council may have recorded that it felt the school’s EBSA strategies were the right approach. However the fault has caused Ms X uncertainty and this is an injustice to her.

July 2023 – February 2024

44. From 17 July, the Council decided it owed B a section 19 duty and agreed that they required alternative provision. It made an agreement with School A for the school to arrange it and the Council to fund it. However alternative provision was not arranged for B and they received no education or SEN provision between early September 2023 and 8 February 2024.
45. Where a council arranges for a school to carry out its functions on its behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
46. The Council has accepted that it failed to have due oversight of B’s alternative provision during this time and this was fault. This fault led to almost five term-time months of missed provision for B and caused Ms X a period of frustration and inconvenience, which included Ms X having to arrange activities herself while B was at home.

Recent cases

47. The Ombudsman has found similar faults in other recent investigations into this Council. In response to those decisions, the Council made service improvements which would not have taken effect during the events Ms X has complained of. Because of this, I have not repeated the same service improvements here.

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Agreed action

48. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £350 to reflect the uncertainty she was caused by its failure to demonstrate how it considered its section 19 duty to B between May and July 2023;
3. Pay Ms X £2,050 to reflect the almost five term-time months that B was without alternative provision between September 2023 and February 2024; and
4. Pay Ms X £200 to recognise the frustration and inconvenience caused to her when B had no provision in place for this period.
49. The Council should provide us with evidence it has complied with the above actions.
50. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.

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Final decision

51. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise and pay a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman