Summary: Ms X complained the Council failed to put in place suitable education for her child when they were unable to attend school. Ms X said her child has missed out on education. We have found the Council at fault. To remedy the injustice caused the Council agreed to apologise, make a payment to Ms X for the distress caused and to acknowledge the loss of education to her child.

The complaint

1. Ms X complains the Council failed to name a school in her child’s Education, Health and Care Plan in a timely manner and failed to put in place alternative education when her child was out of school.

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The Ombudsman’s role and powers

2. 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)
3. 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 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)
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. 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)

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What I have and have not investigated

8. Paragraphs 33 to 39 set out what parts of Ms X’s complaints fall outside of the Ombudsman’s jurisdiction. This investigation will focus on whether Ms X’s child received suitable alternative education from September 2023 to January 2024.

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How I considered this complaint

9. As part of this investigation, I considered the information provided by Ms X and the information the Council provided. I discussed the complaint with Ms X over the telephone. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
10. 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 found

Law and guidance

11. 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.
12. 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)
13. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies ‘to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend’. It says there is no absolute legal deadline by which councils must arrange s.19 education for children with additional health needs, but councils should arrange it once it is clear that a child will be away from school for fifteen days or more because of their health needs. The Guidance says when a council arranges s.19 education this should begin as soon as possible and at the latest by the sixth day of absence. Where an absence is planned, for example a planned hospital admission, councils should plan for provision to be available from day one.
14. For children without health needs but who ‘otherwise’ require alternative provision statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable fulltime provision should begin, councils should ensure children are placed ‘as quickly as possible’.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
16. The law does not define full-time education but statutory guidance says alternative provision should be high quality and equivalent to education a child would receive in school. If they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
17. Guidance ‘Alternative Provision’ says all pupils in alternative provision must receive full-time provision in total unless a pupil’s medical condition makes full-time provision inappropriate.
18. We have issued guidance (Out of school, out of sight? published July 2022) on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. One of the recommendations we made was that councils should consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence even when a child is on a school roll.
19. Under the Education (Pupil Registration) (England) Regulations 2006 a school can only remove the name of a pupil from its register in certain circumstances. These include where a pupil has ceased to attend the school and the proprietor of the school has received written notification from the parent that the pupil is receiving education otherwise than at school.
20. 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 council can do this.
21. The EHC Plan is set out in sections which include: 

• Section B: 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 educational placement 

What happened

22. Ms X’s child, Y, has special educational needs. The Council issued a final EHC Plan for Y in May 2023. This named a mainstream school, School Z, as Y’s school placement. At this time Y was attending School Z, albeit on a part time timetable.
23. In September 2023, Y stopped attending School Z for mental health reasons. The Council treated Y’s absence from school as authorised due to evidence received from Y’s doctor.
24. In late October 2023, the Council held an emergency annual review of Y’s EHC Plan as Y was no longer attending School Z. The notes from the annual review meeting showed Ms X wanted a change of placement and believed Y needed a specialist school placement. Ms X’s preference was for a specialist independent school which had previously offered Y a placement. Ms X also wanted the Council to put in place education for Y. The notes also showed School Z said it could not meet Y’s needs and strongly recommended a change of placement. School Z said it had made a formal complaint to the Council about this. The agreed actions from the annual review meeting were that the Council would reconsider whether a specialist placement was suitable for Y and would look to see what it could do for Y in the meantime as they were not attending school.
25. In December 2023, the Council decided a specialist placement was suitable for Y. The Council told Ms X it was consulting some further schools. Ms X contacted the Council and asked it to put in place alternative education for Y as they were not attending school. Ms X explained she had recently given birth and was struggling with Y at home.
26. The Council responded to Ms X in early January 2024 and told her it could refer her to its interim provision service but Y would need to come off roll at School Z for this to happen. Ms X responded and said she did not want Y to come off roll at School Z until the Council found a new placement.
27. On 23 January 2024, the Council issued Y with a final EHC Plan following the October 2023, annual review. This did not name a school placement but just named the school type as specialist.
28. In April 2024, Ms X complained to the Council about the time it had taken to name a school placement for Y. Ms X said she was unhappy that the Council initially decided a mainstream placement was suitable and had now decided to consult with other schools despite Y being offered a place at an independent specialist school. Ms X also complained that Y had been out of school with no education in place.
29. Around the same time, Ms X submitted an appeal to the SEND Tribunal. Ms X appealed the section of the EHC Plan which contained the school placement (Section I) as she wanted the Council to name the specialist independent school which had offered Y a placement.
30. In May 2023, the Council responded to Ms X’s complaint. The Council said it took longer than it should have to find Y a school placement but it had to be certain a specialist placement was appropriate for Y. The Council said it had now agreed to name Ms X’s school choice on Y’s EHC Plan. The Council said it offered to refer Ms X to its interim provision service but Ms X declined this, however it provided Y’s school with additional resources.
31. In May 2024, Y started attending their new school. This was the specialist independent school which had previously offered Y a placement.
32. Ms X remained dissatisfied and complained to the Ombudsman.

The Ombudsman’s jurisdiction

33. The courts have established that if someone has appealed to the SEND 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)
34. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
35. 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.
36. I am unable to investigate matters that have been or could have been appealed to the SEND Tribunal. Therefore, I cannot investigate Ms X’s complaint that the Council initially decided mainstream education was suitable for Y. Ms X could have appealed this decision to the SEND Tribunal after Y received an EHC Plan in May 2023.
37. I cannot consider Ms X’s concerns about the way the Council consulted with schools and the delays in finally agreeing to name her preferred school placement. This is because these issues go to the substance of the content of Y’s EHC Plan and Ms X had appeal rights to challenge this, which she did engage in April 2024.
38. I also cannot investigate whether Y received suitable provision from January 2024, until they started their new school placement in May 2024. This is because the Council issued a final EHC Plan for Y in January 2024 and Ms X disagreed with the content of Section I. After the Council issued the final EHC Plan, Ms X could have lodged an appeal and finally did in April 2024. This appeal challenged the section of the EHC Plan which named the educational placement. Therefore the question of what provision Y should receive was linked to Ms X’s disagreement about the school placement named.
39. 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).

Analysis

40. After Y stopped attending School Z in early September 2023 because of medical reasons relating to their mental health the Council called an emergency annual review. The Council agreed to look at support for Y as they were not attending education. While it is welcomed that the Council called an emergency annual review for Y at this time, from the evidence seen, the Council did not put in place any alternative education for Y. This was fault.
41. Prior to the annual review the Council were aware that School Z was saying it could not meet Y’s needs. It is not clear what steps the Council took to source any alternative education, however in January 2024, the Council told Ms X it could refer Y to its interim provision service if Ms X agreed for Y to come off roll at School Z. As Ms X refused, Y did not receive any alternative provision. This was fault.
42. To meet the legal test to off roll a child the Council must provide the school with written confirmation that alternative provision is already in place. This was not the case for Y. It was not open to the Council to off roll a child who was not yet in receipt of alternative education. This is not consistent with the Education (Pupil Registration) (England) Regulations 2006.
43. In addition, it was incorrect for the Council to tell Ms X that Y could not receive alternative education unless Y came off roll at School Z. We have criticised this Council in past investigations for this approach.
44. After the Council became aware that Y was not attending School Z, it should have looked at putting in place alternative education. Y has suffered an injustice as they have not received education they should have done. Ms X has also suffered an injustice as she had to manage Y at home with no education in place. At this time Ms X also had to look after another child and had recently given birth.
45. Our Guidance on Remedies recommends a symbolic payment for when education is lost due to fault of between £900 and £2,400 per term to acknowledge the impact of that fault. In this case, the period which falls within our jurisdiction to consider, amounts to just under one term.
46. The Council has responded to a recent case we investigated and said it reviewed its use of off rolling and now had a process in place to ensure children were not off rolled from their home schools until the Council’s interim provision service confirmed an alternative education offer was in place. In light of this I decided it was not necessary to make a service improvement recommendation.

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Agreed action

47. Within one month of my final decision the Council agreed to carry out the following:
• Provide Ms X with a written apology for not providing Y with suitable education for the above period.
• Pay Ms X £2,000 to acknowledge the loss of education to Y. When coming to a suitable figure I considered that Y was a child with special educational needs and that no provision was put in place.
• Pay Ms X £400 to acknowledge the distress and uncertainty caused to her by the Council not putting in place alternative education for her child.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. 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 decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman