Summary: Mrs B complained the Council failed to provide her son (X) with a full-time education, provision in his Education, Health, and Care plan, and alternative provision since Autumn 2021. We found part of Mrs B’s complaint was late, and there was no fault in the process the Council followed to reach its views around X’s education. It therefore made decisions it was entitled to make. Mrs B also had appeal rights to the SEND Tribunal available to her throughout, which she should have exercised.

The complaint

1. The complainant, Mrs B, complained about the Council’s handling of her son’s (X) education since Autumn 2021. She said the Council:
• failed to provide X with a full-time education and meet his special educational needs when he was unable to attend school due to high levels of anxiety;
• failed to implement Section F provision as set out in his Education, Health, and Care (EHC) plan; and
• continued to name a setting in his EHC plan which was unable to meet his needs and failed to acknowledge he was under assessment for an additional health condition diagnosis and reassess his needs when she requested it.
2. Mrs B said, as a result, X experienced distress and a loss of education, and she experienced distress and had a financial loss as she was unable to work.

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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 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)
4. 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)
5. 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)
6. 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)
7. 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.
8. 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

9. I have investigated Mrs B’s concerns about the Council’s handling of X’s education from January 2023.
10. I have not investigated Mrs B’s concerns about:
• X’s education and the Council’s handling of her requests from before January 2023. This is because she did not bring her complaint to our attention within 12 months of the matter complained about, and I have seen no good reasons to extend my discretion further;
• the provision or school placement set out in X’s EHC plans. This is because such matters carry appeal rights to the SEND Tribunal, which she could have exercised in Autumn 2022 and Autumn 2023 when his amended final EHC plans were issued; and
• how X’s school handled her requests or communication. This is because I cannot investigate matters which occurs in school, unless this is provision set out in an EHC plan. Mrs B should bring such matters to the school’s attention.

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How I considered this complaint

11. As part of my investigation, I have:
• considered Mrs B’s complaint and the Council’s responses;
• discussed the complaint with Mrs B, and considered the information she and the Council provided; and
• had regard to the relevant law and guidance to the complaint.
12. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health, and Care plans

13. A child or young person with special educational needs may have an EHC Plan. This 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 SEND Tribunal or council can do this.
14. 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 2014). 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)
15. The council must arrange for an 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.
16. There is a right of appeal to the Tribunal. These includes against:
• a decision not to carry out an EHC needs assessment or reassessment;
• 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; and
• a decision not to amend an EHC Plan following a review or reassessment.
17. 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)
18. 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.
19. 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.

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. 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))
22. 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)
23. 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.

Background

24. Mrs B’s son, X, has been diagnosed with conditions which impacts his ability to receive an education, which includes an anxiety disorder. His special educational needs are set out in his EHC plan, which since October 2021 listed a mainstream school (School Y) he should attend.
25. X attended School Y from Autumn 2021. In October 2022 the Council issued an amended final EHC plan for X following an annual review and input from professionals and Mrs B. It arranged for an eight-week transition plan to get X back in school and improve his attendance.
26. In January 2023 the Council’s transitional support ended. Soon after X’s attendance decreased again, and Mrs B asked School Y for reasonable adjustments and requested an early annual review.
27. Mrs B met with School Y in March 2023 and a reduced timetable was put in place in April 2023. However, she felt the school was not responsive to her reasonable adjustment requests for X.
28. An early annual review was held in May 2023 to discuss Mrs B’s concerns about X’s provision and attendance in school. She also said not all X’s special educational needs provision was available to him in school. The Council agreed with professionals’ recommendations to provide some additional funding to School Y. This was to increase support during lessons in school while X was reintegrating to support him with his anxiety.
29. During Summer 2023 Mrs B asked the Council for alternative provision with a specific provider. The Council said it had funded School Y which it found appropriate to meet X’s needs. It explained Mrs B could appeal the school placement to the SEND Tribunal, or it was up to School Y if it would agree to provide X alternative provision with the provider she requested. School Y subsequently declined as the provider was not registered with Ofsted.
30. In Autumn 2023 the Council issued X’s final amended EHC plan. Mrs B continued to dispute the suitability of School Y and request alternative provision, but she did not appeal to the SEND Tribunal. The Council agreed to consult with Mrs B’s preferred school and three other special schools.
31. In October 2023 the Council received the consultation responses from the schools. None offered X a placement, and Mrs B’s preferred school said it needed further assessment with X to respond. Shortly after the Council issued a further amended final EHC plan following its discussions with Mrs B, which only included some minor amendments.
32. In December 2023 a further annual review was held. Mrs B continued to dispute the suitability of School Y. The Council’s educational psychologist had considered X’s case but found his needs had not changed. School Y raised concerns about whether a mainstream school was suitable for X.
33. X attended school from January 2023 to December 2023, but his attendance decreased throughout the year. By January 2024 he stopped attending completely.
34. In February 2024 a meeting took place between Mrs B, School Y, and the Council. Its educational psychologist also attended. This was around X reintegrating into school. The Council found the provision and curriculum in place to be appropriate to support X.
35. Mrs B appealed X’s school placement listed in his EHC plan to the SEND Tribunal in February 2024.

Mrs B’s complaint

36. Mrs B complained to the Council in December 2023. The Council provided its response in February 2024, which Mrs B again disagreed with. The Council provided its final complaint response in April 2024. The key points of her complaint and the Council’s responses were:
• It had failed to provide X with a full-time education and meet his special educational needs when he was unable to attend school due to high levels of anxiety;

The Council explained it had repeatedly found School Y to be suitable to meet X’s needs and had funded the placement. It had also increased funding following advice from professionals to support X with his anxiety in school. It said it found the school had worked appropriately to provide work for X when he was unable to attend school in line with advice from the educational psychologist.

It also explained it had no duty to provide X with alternative provision as it had found School Y was available to him and was appropriate to meet his needs.

• It had failed to implement Section F provision as set out in his Education, Health, and Care (EHC) plan;

The Council explained it had considered Mrs B’s concerns, discussed these with School Y, and annual reviews had taken place. It was satisfied the provision set out in X’s EHC plan was available to him in School Y.

• It continued to name a setting in his EHC plan which is unable to meet his needs and failed to acknowledge he was under assessment for an additional health condition diagnosis and reassess his needs when she requested it; and

The Council acknowledged Mrs B’s views but explained she should have exercised her appeal rights if she disagreed with the school placement or the provision in X’s EHC plan.

• School Y had not put in place her reasonable adjustment requests for X and had failed to inform the Council about X’s absence and recorded his absence incorrectly.

The Council explained Mrs B should bring her concerns about School Y’s handling of her requests and how it communicated with her to the school’s attention.

37. The Council did accept there was no evidence of joint working to promote good attendance for X by School Y in early 2023, which was unknown to the Council at the time, and X had had a limited education over the 12-month period. It said it would take this forward as learning with the school and internally. However, as an annual review was held soon after and the outcome was unchanged, it did not find it appropriate to provide a financial remedy to X.
38. In May 2024 Mrs B asked the Ombudsman to consider her complaint.

Analysis and findings

The school placement in X’s EHC plan

39. The Council issued final amended EHC plans for X in 2022 and 2023. Each plan listed School Y which the Council found suitable to meet X’s needs.
40. The evidence shows Mrs B was informed about her appeal right to the SEND Tribunal. She decided to try and work with the Council to get it to agree to a different school placement.
41. The listing of a school in an EHC plan is a matter which should be brought to the SEND Tribunal’s attention. I cannot therefore consider whether the School Y was suitable or not for X. Mrs B has since appealed the school placement to the SEND Tribunal, which is the appropriate way to have this disagreement determined.

Was X’s Section F provision in place?

42. Mrs B said some section F provision was not in place and School Y caused some errors regarding a laptop and how it assigned a teaching assistant.
43. I have not found the Council at fault for failing to provide X with the provision set out in his EHC plan. This is because:
• the evidence shows the provision in the plan was funded and available to him at School Y;
• it considered Mrs B’s concerns about any missing provision and confirmed with School Y all the relevant provision was in place for when X attended school;
• it asked Mrs B to share any information or evidence about missing Section F provision so it could action this with School Y. I have not seen evidence of provision which was not available to X; and
• while the Council is responsible for X’s education, it could only address any errors by the school once it was informed about this and based on the evidence presented to it.

Provision of a fulltime education and alternative provision

44. All children and young people are entitled to receive a full-time education. However, in some circumstances this may not happen or be appropriate for a child. This does not necessarily mean a council was at fault.
45. In this case, X’s attendance was highly linked to his special educational needs and anxiety. School Y and the Council had put provision and support in place in line with his EHC plan to enable him to attend school. This included transitional support up to January 2023.
46. The Council agrees X did not receive a full-time education from January to December 2023 as his attendance was decreasing. I have considered whether this was fault by the Council. I have not found fault in the process the Council followed to reach its views on the support available to X and whether alternative provision should be provided to him when his attendance in School Y decreased. In reaching my view I was conscious:
• School Y caused a delay in informing the Council of attendance concerns in February and March 2023, and more joint working could have taken place. However, the Council was not aware of this at the time. It has addressed this with School Y directly to ensure such delays does not occur in future;
• when Mrs B and School Y involved the Council, it agreed to an early annual review as requested. This was to consider the school placement and whether alternative provision or further support should be provided. This was also around the time I would expect the Council to consider X’s case following the cessation of his transitional support;
• the Council considered Mrs B’s concerns and disagreement around the suitability of the school placement, but repeatedly found it to be appropriate. It also put some further support in place through funding to School Y to support X with his anxiety and encourage attendance. It therefore did not have an alternative provision duty: and
• it considered the support the school put in place and whether this was in line with the advice from the educational psychologist. It was satisfied this was appropriate and the school had remained in communication with Mrs B.
47. In addition, it is clear Mrs B disagreed with the school placement. She had the opportunity throughout the process to exercise her appeal rights to the SEND Tribunal. This is also relevant for X’s decreasing attendance, as this was directly linked to his anxiety which was a key part of his special educational needs provision in school. If Mrs B believed the provision in X’s EHC plan was insufficient, she should have exercised her right to appeal to the SEND Tribunal sooner.
48. As X’s attendance at school was directly linked to what could be appealed in the SEND Tribunal, and Mrs B has since submitted her appeal. I cannot therefore consider the Council’s alternative provision duty from August 2023 when it issued X’s final amended EHC plan.

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Final decision

49. I have completed my investigation with a finding of no fault in the process the Council followed to reach its views around X’s education. It therefore reached decisions it was entitled to make, and Mrs B had appeal rights to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman