Summary: Mrs X complains the Council failed to provide alternative provision for her son Y who has missed two years of school. We do not find fault with the Council.

The complaint

1. Mrs X complains the Council failed to provide her son Y with suitable alternative provision when he was not attending school from year six. He is now in year eight and has missed nearly two full years of education.
2. Mrs X would like compensation for the distress and frustration caused.

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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. 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. 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)

8. 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.
9. 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.
10. 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.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
12. 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

13. The Ombudsman generally expects complaints to be brought to us within 12 months of someone becoming aware of the issue (see paragraph five). Mrs X made the complaint in April 2024 about matters arising from the previous five years.
14. As Mrs X has her own social care package due to her disabilities and she cares for two disabled children full time, I have used my discretion to consider this complaint from September 2022 when Y’s EHC Plan was issued. This is because it would be difficult to link the later events without including this.
15. I did not investigate whether the Council should have made alternative provision for Y after the beginning of May 2023, when it issued Y’s final post-review EHC Plan. Mrs X appealed Section I of Y’s EHC Plan. As explained in paragraphs seven to nine of this decision the issue of whether the Council should have made alternative educational arrangements for Y is too closely linked to the appeal for us to be able to investigate.

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How I considered this complaint

16. I spoke with Mrs X and considered the information she provided.
17. I made enquiries with the Council and considered the information it provided.
18. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
19. Mrs X 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

Legal and administrative background

Education, Health and Care Plan

20. 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.
21. 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.
22. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

Alternative provision

23. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
24. 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)
25. 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.
26. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Appeal right

27. 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.

What happened

28. Mrs X has a social care package due to her disabilities and lives with her husband and two children, both of which have additional special needs.
29. Mrs X’s son Y has a diagnosis of Autism and extreme demand avoidance and has an EHC Plan. Mrs X says he stopped attending school in year six due to the school being unable to meet his needs.
30. Mrs X says Y has not attended his secondary school at all and needs a specialist placement.
31. Mrs X says it took all year five for Y to attend school full-time. At the start of year six in September 2022 his attendance fell. The Council finalised Y’s EHC Plan in September 2022, and amended it in December to add his leaving date in Section I.
32. The Council was aware Y was not attending school after Mrs X made a medical inclusion request in December and the school made an intervention request a few weeks later.
33. The Council decided it did not have a duty to arrange alternative provision for Y in January 2023 as the medical evidence provided did not meet the threshold.
34. In a meeting in January 2023 Mrs X said she felt a specialist school would be a better placement for Y. The school agreed to use the funds from the EHC Plan to support alternative provision at the specialist placement.
35. The Council carried out the transition annual review and completed the EHC Plan on 14 February 2023. The Plan said Y had not been attending school regularly since the start of year six. He has not spent more than 30 minutes in class. Mrs X said the provision was not sufficient. The Council said there was no new evidence to support amending the EHC Plan so it kept the mainstream school in Section I and named a mainstream secondary school for Y to start in September.
36. Mrs X got an updated report from an Educational Psychologist (EP) in March 2023. This report said a large secondary setting would not meet Y’s needs, and he requires a specialist setting.
37. The record of the annual review in April 2023 says “it is the opinion of the parents, current school, EP and teacher at the specialist placement, that the mainstream secondary school named in the EHC Plan is not an appropriate placement for Y. The provisions outlined in his EHC Plan are not, in the opinion of all who support Y, ones that a mainstream school can provide. Y needs specialist 1:1 support in a specialist setting.”
38. In response to our enquiries the Council said although two annual reviews were held, there was no new advice supporting an amended EHC Plan. After the second annual review Mrs X appealed to the tribunal and the Council received the updated advice from the EP.
39. The named school submitted a review in April 2023 and the Council sent Mrs X a letter with its decision the EHC Plan did not need amending on 3 May. Mrs X appealed the EHC Plan and the Council received the Tribunal papers in August.
40. The Council said it got the EP report in August and decided to ask the mainstream secondary school to hold an annual review in the new term.
41. In September the Council emailed the mainstream secondary school about the alternative provision that should be in place for Y. The school confirmed this would in place.
42. Between August 2023 and January 2024 the Council consulted with various school and specialist placements. The specialist placement Mrs X sought said in September it could meet Y’s needs but it did not have space for him. In January it said there would be a possible place for Y from September 2024.
43. The other placements could not meet Y’s needs.
44. The mainstream secondary school filed the EHC Plan in April 2024 and it was maintained while waiting for the result of the tribunal hearing.
45. The review of Y’s education provided to the Council in April said it was not realistic to expect Y to attend full time right now.
46. Mrs X made a complaint to the Council in April about the placement named in Section I of the EHC Plan, and the Council’s failure to provide alternative full-time education for Y.
47. The Council responded in May saying it could not look into her complaint as she exercised her right to appeal, and the complaint process does not consider requests for compensation.
48. The Council amended the EHC Plan in May and named the specialist placement to start from September, unless a place became available earlier.
49. Y started at a specialist placement in September 2024.
50. Mrs X brought her complaint to the Ombudsman as she was not happy with the Council’s response.

Analysis

51. The Council has a duty to secure education for a child who is not attending school for health or other reasons (see paragraph 23). The Council knew Y had been absent but said Y was still attending school, although not full-time.
52. The Council said there was not enough evidence to show Y could not attend for health reasons. It said although Y’s attendance was poor, he did attend weekly, and the school authorised any absences.
53. It was reasonable for the Council to allow time to see if Y would reintegrate into school. However by April 2023 it was clear the mainstream school placement was not working out for Y (see paragraph 38).
54. The Council say until August 2023 it did not have any new evidence to support amending the EHC Plan. For some reason the Council only had sight of the new EP report in August 2023. Once it had the updated reports it sought to amend and secure suitable schooling and provision.
55. From August 2023 to January 2024 the Council consulted with other specialist settings for Y. He got a place in September 2024.
56. I do not find fault with the Council for failing to provide alternative provision for Y. Although Y’s attendance was low he did attend every week. The specialist placement was given to Y from September 2022 under an alternative provison offer which was funded through Y’s EHC Plan.
57. The Council engaged through the statutory assessment process. The school were monitoring Y’s attendance and provided more alternative provison once Y could access it.

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Final Decision

I do not find fault with the Council for failing to provide alternative provison for Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman