Summary: Mrs X complained that the Council did not deal with her son Y’s education properly. The Council is at fault because it did not consider providing s19 alternative education provision. Mrs X and Y suffered avoidable distress. Y suffered loss of educational provision. The Council should apologise, pay Mrs X and Y £200 each for distress, pay Mrs X £2,000 for missed educational provision and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt with her son’s education properly because:

• It has delayed finding an appropriate school for her son;
• Consultations requested for schools were not actioned; and
• It did not provide reasons for deferring naming a school which has offered her son a place.

2. Mrs X says she and her son have suffered avoidable distress and uncertainty and he has missed educational provision.

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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. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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.
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. I have not investigated Mrs X’s complaint after July 2023 because she had the right of appeal to SEND Tribunal about the education placement specified in Y’s EHC Plan and this period is therefore outside of the Ombudsman’s jurisdiction.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law, guidance and policies

12. 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. 
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 Education

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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
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. While there is no legal requirement as to when full-time education should begin for children placed in alternative provision (AP) for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. 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)
19. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take 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 education.
• 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.
20. 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.

Limits on jurisdiction

21. The courts have established that if someone has appealed, or could have 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.

What happened?

23. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
24. Y had an EHC Plan. He was being electively home educated. The Council started looking for a school placement for Y in September 2022.
25. The Council completed a review of ‘s EHC Plan and issued an updated final EHC Plan in July 2023 with a right of appeal.
26. Mrs X complained about the delay in making school provision for Y in December 2023.
27. The Council partially upheld Mrs X’s complaint, agreeing that it took along time to find a school place and there had been an error in the school consultation process.

Analysis

28. The Council accepts it began looking for a school placement from September 2022. This is supported by records of consultation records.
29. An elective home education record from December 2022 clearly indicates that Mrs X did not want to continue providing home education as a specialist school would better meet Y’s needs. By this time the Council had already accepted this and begun consulting with schools to find Y an educational placement.
30. From September 2022, Y was therefore not being electively home educated.
31. Evidence from a report from April 2023 for Y’s EHC Plan review clearly states Y needed the structure and routine of a school. At this time the Council had undertaken further consultations with schools to find Y an educational placement.
32. Mrs X asked the Council to consult a further specific school in June 2023. The Council agreed to this request and wanted to consult other special schools at the same time. Email evidence shows the Council accepted Mrs X’s request as a parental preference school.
33. The Council consulted Mrs X about Y’s amended draft EHC Plan following the EHC Plan review. Mrs X accepted the draft EHC Plan, but did not specify again her parental preference school that the Council had already accepted.
34. In July 2023 the Council mistakenly determined that Y was being electively home educated and issued the amended final EHC Plan stating this. Mrs X had a right of appeal from July 2023, which would have enabled her to challenge the inaccurate specification of educational provision Y required in the final amended EHC Plan.
35. During the period of time I can investigate, the Council consulted appropriately with schools and undertook a review of Y’s EHC Plan to update it. This is not fault by the Council.
36. The Council accepts it did not consider the provision of s19 alternative education. It says this was because, “It was deemed by the Elective Home Education Team that the parent was making their own suitable arrangements for Y’s special educational provision, meaning that the Council will be relieved of its duty to secure the special educational provision specified in the EHC plan or Statement as set out in section 42(5) Children & Families Act 2014.”
37. Between September 2022 and July 2023, the Council failed to consider whether it was appropriate to make s19 alternative education provision for Y because it determined he was being electively home educated when this was not the case. This is fault by the Council.
38. On the balance of probabilities, given the evidence available to it, the Council would have provided some level of alternative education provision for Y from January 2023.
39. I have reviewed Y’s EHC Plan. There is no specific special educational needs provision that Y missed.
40. During the period of time I can investigate, Y therefore missed educational opportunity for two terms, between January 2023 and July 2023. Mrs X and Y suffered avoidable distress for the same time period.

The Ombudsman’s Guidance on Remedies

41. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £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 such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
42. I have taken into account the fact that Y missed educational provision, his special educational needs as detailed in his EHC Plan, the provision he actually received and an impact statement from Mrs X in determining an appropriate remedy.

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Action

43. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X for the fault found. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X and Y £200 each in respect of avoidable distress.
• Pay Mrs X £2,000 in respect of Y’s missed educational opportunity.
• Provide guidance to staff regarding:
1. what does and does not constitute elective home education;
2. the Council’s responsibilities in relation to s19 alternative education provision;
3. ensuring accuracy of content of EHC Plans.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman