Summary: Mrs P complained about the alleged lack of support by the Council to provide her young son, who has special educational needs, with a suitable education. We found the Council failed to identify and secure a suitable school placement for Mrs P’s son within a reasonable time. We also found the Council failed to provide alternative education provision for the period Mrs P’s son was not receiving full-time education. The Council’s fault caused a loss of education, as well as uncertainty and avoidable distress, time and trouble. The Council had agreed to our recommendations to put right the injustice caused.

The complaint

1. The complainant (Mrs P) complains about the lack of support and treatment of her son (Child X) who has special educational needs (SEN). Child X’s SEN need to be by met by the Council maintaining an Education and Healthcare Plan (EHC Plan) for him. Specifically, Mrs P alleges the Council:
1. Failed to secure a specialist school placement for Child X within his EHC Plans, and to consult her preferred independent school without justification.
2. Failed to address her complaints concerns and communicate effectively.
3. Failed to provide full-time alternative education while Child X was out of school.
2. In summary, Mrs P says Child X has been on a one-hour daily timetable since September 2023 which is not full-time education as he entitled to. Mrs P says this has led to social isolation, weight gain, and another year of lost education. She has self-funded a tutor and says Child X missed free school meals and other learning activities. As a desired outcome, Mrs P wants the Council to immediately consult with her preferred school for Child X to attend, reimburse her costs for tutoring and swimming sessions since January 2024 and ensure it provides suitable education and provision going forward.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. 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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How I considered this complaint

6. I considered evidence provided by Mrs P and the Council, as well as relevant law, policy and guidance. I also invited both Mrs P and the Council to comment on a draft of my decision. I consider any comments and additional evidence provided before making a final decision.

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My findings

Background, law and guidance

Education and Health Care Plans

7. 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.
8. The Council has a legal 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).
9. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 Years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Alternative Education Provision

10. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the council’s duty to provide education when the section 19 duty is applicable.
11. Statutory guidance (Alternative Provision 2013) provides comprehensive guidance on a council’s duty to arrange alternative provision. Local authorities must arrange suitable full-time education for children of compulsory school age who would not receive suitable education without such provision. This applies whether the child is on the admission register of a school or not and whatever type of school they attend.

EHC Plan Appeal Rights

12. There is a right of appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) against a council’s 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 in their EHC Plan. 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).

Chronology of events

13. In September 2023, Child X was placed on a reduced timetable at School Z due to his SEN. He has attended School Z for one hour each day since then.
14. In October 2023, Mrs P made a complaint to the Council over the alleged lack of support provided to her and Child X. She complained that the amount of education Child X was receiving was insufficient and that nobody within the Council seemed to be addressing this.
15. In November 2023, the Council issued a final EHC Plan for Child X. This continued to name School Z as his educational placement. Mrs P contacted the Council again in respect of her complaint having received no response. Between then and July 2024 (the end of the 23/24 academic year) the Council sent consultations to 26 schools or other institutions to identify and secure a suitable educational placement for Child X.
16. In January 2024, the Council responded to Mrs P under Stage One of its complaint policy and procedure. The Council apologises for past failings in how it had communicated with Mrs P and the overall service she and Child X has received. It confirmed to Mrs P that it would be amending Child X’s EHC Plan and that it was committed going forward to finding Child X a suitable placement. The Council confirmed it would be engaging in a consultation process and would keep Mrs P informed with its progress.
17. The same month, Mrs P escalated her complaint to stage two of the Council’s policy and procedure. She complained Child X was still only attending school for one hour each day which was not full-time education. Mrs P also complained about a continued lack of communication and timely progression in securing a suitable placement or providing alternative education provision in the meantime.
18. In July 2024, the Council issued an amended final EHCP having received updated advice from an educational psychologist about Child X’s needs. The amended EHC Plan continued to name School Z as his educational placement.
19. The same month, Mrs P referred her complaint to the Ombudsman having not received a response to her escalated complaint. We asked the Council to provide Mrs P a final complaint response before we decided whether to investigate.
20. In August 2024, the Council sent Mrs P a final complaint response. The Council apologised for the delay responding to Mrs P and acknowledged Child X continues to not have a suitable placement. It told Mrs P that it recognises Child X is not receiving full-time education, though says named school should be providing some form of education. The Council upheld the complaint and offered Mrs P £300 for failing to provide full-time education, as well as for the distress and anxiety caused to her more generally. The Council confirmed it was continuing to search for a suitable placement for EHC Plan.
21. In October 2024, the Council agreed to reimburse Mrs P for the cost of one hour of home tuition she arranged for Child X. The Council says it will continue to reimburse this tuition until it makes alternative tuition arrangements of its own.

My Assessment

Scope of investigation

22. As set out in the case chronology (above), Mrs P first complained to the Council in October 2023. The Council responded in January 2024. The same month, Mrs P escalated her complaint to stage two. She chased the Council for a response several months later. With still no response being provided, Mrs P complained to the Ombudsman in July 2024. We asked the Council to complete its complaints process before accepting Mrs P’s complaint and it provided its final stage two response in August 2024. We expect complainants to exhaust internal complaint policy and procedures in the first instance and I am satisfied Mrs P has promptly brought her complaint to the Ombudsman. The period I am investigating is from September 2023 to August 2024. For events after this period, Mrs P would need to make a fresh complaint to the Council.

Complaint handling and communication

23. It is noted that the Council’s responsiveness to Mrs P’s complaints far exceeds the amount of time it ought to respond in accordance with its complaint policy and procedure. This is fault, both in terms of the Council’s complaint handling and overall communication with Mrs P in addressing her problems. We have previously issued a Public Interest Report (July 2023) about the Council’s delay in responding to complaints concerning children with SEN. In this, the Council agreed to develop an action plan to show how it intends to address ongoing delays with EHC Plan annual reviews and complaints about them. The Council has confirmed it has plans for considerable development and refinement of its plans to tackle this issue which are is expected to continue for at least the next twelve months. I have not therefore considered it proportionate to make recommendations in this area.
24. In any event, I am satisfied this fault has caused Mrs P serious uncertainty and avoidable stress, time and trouble. She has therefore suffered an injustice in her own right by this issue which is separate to the central issues concerning Child X and the provision of suitable education. I have made several recommendations in respect of this injustice also.

Rights of Appeal/Jurisdiction

25. Since September 2023, Child X has been unable to attend school on a full-time basis on account of his SEN. He has been attending school on a reduced timetable for one hour each day. The following month, Mrs P complained to the Council that Child X was not receiving an adequate education and it was not providing either him or her with adequate support.
26. Before investigating whether the Council failed to provide Child X with a suitable education, it is necessary to address Mrs P’s rights of appeals. This is because Child X’s lack of full-time education is in consequence of Mrs P’s point that the school placement in his EHC Plan (where he attends for one hour per day), is unsuitable to meeting his SEN. The named placement in an EHC Plan carries a right of appeal to the SEND Tribunal. Given the Council issued an EHC Plan (v.1) in November 2023, an amended final EHC Plan (v.2) in July 2024 which named School Z, Mrs P had two separate rights of appeal over its suitability.
27. 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 SEND Tribunal. 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
28. I have therefore considered whether it would have been reasonable for Mrs P to have exercised her rights of appeal. In doing so, I have considered the stage one and two complaint responses from the Council. Each of these accept School Z is not suitable and it points to its efforts to secure a suitable placement through its many consultations. I consider the Council created an expectation that it was working actively to resolve this issue and that Mrs P reasonably relied upon this instead of appealing. In these circumstances, I consider it was not reasonable to expect Mrs P to exercise her appeal rights in November 2023 (EHCP v.1) and July 2024 (EHCP v.2).

Identifying/Securing a Suitable Placement

29. The SEND Code of Practice states that when a local authority is considering naming a school or college in Section I of an EHCP, it must consult the governing body, principal, or proprietor of that institution. This is set out in section 9.78 of the Code, which refers to the local authority’s duty under section 39 of the Children and Families Act 2014. This requires the Council to secure that the EHC Plan names the school or other institution requested by the parent, unless it can show the requested placement is unsuitable due to criteria set out at section 9.80 of the Code. Where the requested placement is deemed unsuitable, councils must then name another school or college which it considers to be suitable.
30. The Council sent out 26 school consultations from November 2023 to July 2024. The purpose being to understand whether it could meet Child X’s needs and be named in his EHC Plan. This consultation process included Mrs P preferred school. The schools consulted have either declined Child X a place or failed to respond to the Council. Though the evidence shows the Council has consulted widely and on an ongoing basis to secure a suitable placement which is appreciated, it has ultimately failed to name a suitable placement over nearly two years. I therefore find fault (service failure) for not naming and securing within the EHC Plans a suitable placement within a reasonable time period.

Alternative Education Provision

31. The Council accepted in its formal complaint responses to Mrs P that Child X did not have a suitable school placement for him to attend, and was also not receiving full-time education, whether in school or through alternative arrangements. It offered Mrs P £300 in recognition of these problems. The Council offered to increase this amount to £600 when it responded to our formal enquiries. In this response, the Council accepted it had a responsibility for making alternative education provision available to Child X and, despite its efforts to arrange home tuition for him, this was unsuccessful and it apologises for this. This information is consistent with the Council’s case note records. While this evidences some attempt to secure home tuition, the Council ultimately failed to make arrangements despite knowing this was necessary for it to meet its section 19 duty to provide Child X alternative education which is suitable for his SEN.
32. As said by Mrs P when discussing her complaint with me, while she can appreciate the difficulties the Council has faced in searching for a suitable school placement throughout its consultation process, this does not negate its obligation to provide alternative provision to Child X in the meantime. I fully accept that assessment. The Council failed to identify a suitable placement for Child X and although its reasons for this carry some weight, these do not justify alternative arrangements not being put in place. I do therefore find fault by the Council for not meeting its section 19 duty which has, by the Council’s own admissions, resulted in Child X not receiving a suitable full-time education.

Injustice/Loss of Education

33. In order to determine the injustice to Child X, I have assessed how much education he has been receiving from September 2023 to July 2024. Considering Child X has been on a reduced timetable at School Z and has been receiving one hour of home tuition per week since January 2024, it cannot be said he has received no education at all. Following my discussions with Mrs P, I found Child X has continued to attend School Z for one hour each day to present. However, I have taken into account that the one-hour Child X attends School Z for one hour each day is at an educational setting both Mrs P and the Council agree is not suitable for meeting his SEN. It would be unfair and inappropriate I feel to consider this time in school as fully contributing to suitable full-time education.
34. While Child X has attended School Z for five hours each week, I consider it is reasonable for the reasons I have given to make a disregard of that amount. I must also factor in the one hour of home tuition arranged by Mrs P which the Council has agreed to reimburse her for.
35. As set out in statutory guidance (Alternative Provision 2013), the law does not define “full-time education” but children should have provision, where possible, which is equivalent to the education they would receive in a mainstream (or special) school. This may not mean the same number of hours. If, for example, a child receives one-to-one tuition, the hours of face-to-face provision could be fewer as the education may be more intensive.
36. The documentary evidence shows Mrs P saying that the Council told her Child X requires 10 hours of home tuition per week. She clarified in her conversation with me that this is what she wants the Council to provide. This amount of hours is confirmed by the Council’s case notes which evidence officers contacting tuition providers for quotes for the cost of 10 hours each week. In my view, there appears to be agreement between Mrs P and the Council that 10 hours of home tuition would constitute suitable full-time provision. On that basis, the amount of home tuition Child X received each week only amounts to a small portion of that he was entitled to receive.
37. On the basis of that analysis, I find that between September and December 2023 (the 2023 Autumn Term), Child X only received 3 hours of education per week (approximately 10% of what he was entitled to receive). That was before Mrs P arranged for Child X to receive some home tuition from January 2024. For all school terms after the 2023 Autum Term in 2023, he received 6 hours each week (approximately 20%). This is particularly relevant to my recommended actions to the Council in order for it put right the injustice caused.
38. As set out in our published guidance on Remedies, where fault has resulted in a loss of educational provision, we will usually recommend a 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. I have considered Child X’s SEN as set out in his EHC Plan which has led to him being out of education and in need of a specialist school placement. I also considered the amount of alternative education provision which Child X needs to receive a suitable education while the search for a specialist placement continues. I have taken into account how much education he has actually received and whether the provision he should receive has been provided. It is clear Child X has suffered a loss of education between September 2023 and July 2024.
39. I note that much of the provision Child X should receive under his EHC Plans is largely contingent on him attending school. This includes structuring teaching methods to his specific SEN and providing individualised learning programmes around literacy and numeracy. By the expressed wording of Child X’s EHC Plans, particularly with respect to the quantity and frequency of provision, this being made available is incompatible with him attending one hour per day. This is because Child X’s EHC Plans list a range of provision requirements which exceed one hour a day. This includes Balance, Education and Movement (BEAM) teaching (30 minutes daily), ‘sensory diet’ teaching (30 minutes daily) and ‘Clever Fingers’ and ‘Dough Disco’ learning activities (15 minutes daily) to help improve fine motor skills. These examples alone exceed one hour a day and only account for a small part of the overall provision Child X is entitled to receive. The Council’s failure to secure a suitable school placement for Child X has meant a failure to make the provision which he is entitled to receive available. I therefore find fault by the Council in this respect.
40. The loss of education warrants a financial remedy in my view. I am unclear how the Council has arrived at a figure of £600 in order to put right Child X largely having lost two academic years of education. To the Council’s credit it has accepted its failings. However, I do not consider the amount offered reflects the Ombudsman Remedies guidance. This by no means provided a proportionate remedy to the injustice caused and which puts Mrs P and Child X back in the position they would have been had the fault not occurred. Weighing all the relevant factors and the impact to Child X, I have concluded that the fairest and most considered way is to recommend an amount which is marginally lower than the full amount, as follows:
1. Autumn Term 2023: £2,160
2. Spring and Summer Terms 2024: £3,840
41. This informs a total amount of £6,000 which is equivalent to approximately 60 hours of home tuition. I consider a financial remedy of this amount is appropriate as it allows Mrs P to draw from available funds and provide Child X with additional tuition and educational support when he transitions to secondary education in September 2025. I consider this is the best available option to provide a means of remedying Child X’s loss of the education and EHC Plan provision which he was entitled to receive. I have also considered the injustice caused to Mrs P in forming the below recommendations.
42. Separately, I note that Child X’s EHC Plans also identify provision around Speech and Language Therapy and Occupational Therapy. This includes two separate blocks of therapy by an Occupational Therapist, namely one block of ‘VERVE PCI’ OT comprising four sessions (up to 60 minutes) and another block of unspecified OT therapy which comprises six sessions over six weeks. I spoke to Mrs P about whether this provision has been provided to Child X. She told me that Child X’s provision in this area was contingent on him attending school on a full-time basis. This is consistent with much of the other specified provision requirements and my earlier findings in this respect.
43. I therefore invited the Council to confirm whether the two separate blocks of OT therapy have been provided to Child X. The Council confirmed it had not and this was fault. However, to the Council’s credit, it has offered to allow Mrs P to choose a private OT provider which she feels could best work with Child X to deliver these two particular blocks of therapy, as well to promptly reimburse her for the costs of these. The purpose of this to enable Child X to be able to attend as many of the missed block sessions (up to the amount in the EHC Plan) over the course of the Summer school break so he is in the best possible position to transition to secondary school in September 2025. Mrs P therefore may wish to engage with Council officers to identity a number of OT providers and the specific therapy which was Child X’s EHC Plan made provision for.
44. I have considered Mrs P’s request that the Council reimburse her for the costs of swimming classes she incurred. However, I see no evidence this forms part of the provision set out in Child X’s EHC Plans, or was an issue complained about to the Council either at stage one or two of its procedure. I cannot find the Council at fault for not providing a specific learning and/or teaching activity which it is not required to provide at the relevant times being complained about. If Mrs P felt and/or feels that swimming should be included within Child X’s EHC Plan in order to meet his specific SEN, I take the view she could reasonably have appealed to the SEND Tribunal on this basis. It is not the role of the Ombudsman to adjudicate such matters.

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Agreed action

45. To remedy the fault and resulting injustice identified (above), I recommend the Council take the following actions by the time frames set out:
1. Within 14 days of the Council receiving invoices from Mrs P in respect of her privately arranged OT session/package costs, the Council will provide her with full reimburse of these.
2. Within 30 days of the date of my final decision statement, the Council will provide Mrs P with a written apology which acknowledges the fault and injustice identified. This should also set out how it intends to learn from the findings of our investigation and any proposed actions regarding service improvements.
3. Within 30 days of the date of my final decision statement, the Council will pay Mrs P the sum of £400 in recognition of the ongoing fault with respect to communication and complaint handling. The Council will also pay Mrs P the sum of £6,000 to remedy the loss of education Child X was entitled to receive over the relevant 2023/24 school terms. The purpose of this amount is to benefit Child X’s educational development over his secondary education.
4. Within 30 days of the date of my final decision statement, the Council will contact Mrs P to collect any unpaid invoices for the one hour of tuition she arranged and paid for from January 2024 up to and including the end of the 2024 Summer Term. The Council will reimburse Mrs P for these payments within 7 days of receiving the invoices from her.

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Final decision

46. I find fault by the Council causing both Child X and Mrs P an injustice between September 2023 and July 2024. The complaint is upheld uphold and the Council has agreed to my recommendations 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