Summary: Ms C complained the Council has failed to provide alternative provision for her son, who we will refer to as D, and secure the provision set out in his Education, Health and Care (EHC) Plan. There was fault by the Council. It did not arrange alternative provision for D when it was aware he was not receiving regular full-time education, and it did not regularly review this. The Council was also at fault for not ensuring the provision outlined in D's EHC Plan was in place, and for delays in responding to Ms C’s complaints. Because of the fault, Ms C suffered frustration and financial loss, and the delays in the complaint procedure meant she continued to chase the Council for updates. D suffered a loss of education and provision. The Council has agreed to apologise to Ms C and D, make symbolic payments, consider reimbursement of the costs of the provisions put in place by Ms C, and issue staff briefings.

The complaint

1. Ms C complains the Council has failed to provide alternative provision and secure the provision set out in her son’s EHC Plan since November 2023.
2. Ms C says she has suffered distress, worry, and financial loss because of the Council’s failings, and D has suffered a loss of education and provision.
3. Ms C would like the Council to apologise to D and pay compensation for the loss of education and impact on her and her family.

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The Ombudsman’s role and powers

4. 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)
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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have investigated

9. I have investigated matters in this case from November 2023, when Ms C says D became unable to access education, to October 2024, when the Council issued D with an updated EHC Plan.

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How I considered this complaint

10. I considered evidence provided by Ms C and the Council as well as relevant law, policy and guidance.
11. Ms C 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

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 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 

Maintaining the EHC Plan

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). 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 provision

15. 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.
16. 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)
17. 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)

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What happened

18. This is a summary of events outlining key facts and does not cover everything that has occurred in this case.
19. Ms C’s son, D, has special educational needs. He was initially provided with an EHC Plan in 2019.
20. Ms C says D stopped being able to access education in late November 2023.
21. A couple of weeks later, D’s school told the Council he had been unable to attend the previous and current week. Shortly after, Ms C informed the Council D was unable to attend the setting due to anxiety and she requested the Council provide him with alternative provision. The Council considered increasing funding to support D’s setting, and it asked the setting to approach a provision which I will refer to as provision X, to encourage and enable D to attend.
22. In late December 2023, Ms C raised a stage one complaint with the Council. She told the Council it had failed to provide a suitable education to D, and the provision detailed in his EHC Plan. She complained she was still waiting for the Council’s decisions around the agreement of a specialist placement and short-term top-up funding to support D’s current needs. She also told the Council she had not received a response from it about her alternative provision request.
23. In mid-January 2024, the Council accepted Ms C’s complaint and told her the due date for it to send its complaint response to her was 23 January 2024.
24. The Council says D stopped attending school in mid-April 2024. It says before this, he attended in the afternoons on a part-time timetable. Ms C says this is wrong and D did not attend school at all from November 2023.
25. A few days later, Ms C told the Council and D’s school he would not be doing provision X as the company was not appropriate for D. She says it took until April 2024 to find one staff member for provision X, but D needed two-to-one support. D’s EHC Plan outlines one-to-one support, so although Ms C felt provision X may not have been the right support for D, the Council’s view is that it was an appropriate company.
26. In early May 2024, the Council arranged a meeting for it to have a discussion with Ms C and D’s school about Ms C’s visits to two specialist settings. The Council says Ms C did not attend the meeting or receive a response from her. But Ms C spoke to the Council on the day of the meeting to tell it she could not attend as the time was not suitable.
27. In late May 2024, Ms C chased the Council as it had been five months since she raised a complaint with it, and she had not received a response. Ms C also asked the Council to have a meeting with it and an independent SEND advisor to discuss next steps, as D was still out of school without support or provision as detailed in his EHC Plan. The Council replied and asked Ms C when she would like to meet.
28. In early June 2024, the Council contacted Ms C and asked for her input on her preferred setting for D, which Ms C had already sent to the Council in April 2024.
29. In late June 2024, the Council sent Ms C its stage one response to her complaint. It told her it disagrees it has failed to provide a suitable education and make the provisions as set out in D’s EHC Plan. In its response, the Council also told Ms C:
• meetings were held with D’s school during February and March 2024 to support his attendance and the Council also agreed to fund provision X; and
• following the cancellation of provision X in April 2024, the Council had offered to meet with Ms C but says it had not received a response. Although, Ms C had responded and requested a meeting in late May 2024.
30. In early July 2024, the Council told Ms C it had agreed an Education Other Than At School (EOTAS) package for D with the aim of reintegration into a specialist setting from September 2025. It told her D would remain on roll at his current school until the end of term.
31. Around the same time, Ms C raised a stage two complaint with the Council. She told the Council she disagreed with its stage one complaint response. She said she did not think the provision X company was suitable for D, but there had been no other suggestions or offers of support from the Council. She also said the provisions in D’s EHC Plan had not been met.
32. In mid-July 2024, there was an annual review of D’s EHC Plan.
33. In early August 2024, the Council sent Ms C its stage two response to her complaint. It told Ms C provision has been and continues to be provided for D, it increased funding, and it has supported D and his school on his education journey.

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Analysis

34. The Council says D attended his school on a part-time timetable from November 2023 to April 2024, when he stopped attending altogether. D’s school told the Council his attendance was successful between 19 February and 11 March 2024, where he attended school for 12 days out of a possible 15. But Ms C has told us D did not attend school at all from November 2023, which she says the Council was aware of as she copied it into absence emails she sent to D’s school. Ms C also sent us evidence which shows D’s attendance for the school year was 27.74%. So, it seems D stopped attending school in late November 2023.
35. The Council was aware D was on a part-time timetable and was later made aware by Ms C and the school that he had stopped attending in November 2023. So, the Council knew D would not be receiving all the provision in section F of his EHC Plan while not attending school. As outlined in paragraph 14, Section 42 of the Children and Families Act requires councils to secure provision in section F. We expect councils to provide as much of the special educational provision as possible in a home or alternative setting even where a child cannot attend school. The question is whether D’s school, where most of the provision was intended to be delivered, was available and accessible. The Council’s view is D’s school was available and accessible to him. But the Council has not evidenced how it considered or decided this. This was fault.
36. D’s EHC Plan which was in place at the time detailed various supports in section F including alternative education provision once or twice a week, and support through an Occupational Therapist (OT) programme at least three times a week for 20 to 30 minutes each session. D was in receipt of alternative education provision until November 2023 where this broke down, and the OT later referred him to a different alternative education provision in March 2024 for six weeks. But I have not seen evidence to show D was receiving all provisions in section F from November 2023 onwards, or that the Council took sufficient action to consider if it needed to make alternative arrangements to meet its section 42 duty. This was fault.
37. The law also requires councils to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. As outlined above in paragraph 34, the Council was aware D was not attending school in November 2023, and the alternative education provision detailed in his EHC Plan also broke down around this time. This meant C was not receiving education provision, as well as the provision outlined in section F of his EHC Plan. The Council should have considered if its section 42 or section 19 duty was owed at this time when it was aware of D’s non-attendance.
38. The Council first considered its section 19 duty when Ms C asked it to provide alternative provision for D in late 2023. It increased the funding to D’s school in December 2023 in attempt to get him re-engaged with school. It appears the school was of the view it could meet D’s needs and so was available for him to attend, and it was making steps to put in place provision X to encourage his attendance. But it seems the Council accepted D’s school was not accessible for D as it also began to consult with other placements in December 2023. Provision X was not immediately available or full-time and the first session was in March 2024. And as the Council knew D was out of school, it knew he would not be receiving any education provision while it consulted with other placements or while provision X was being put in place by the school. The Council did not regularly consider if it had a duty to provide alternative provision. The Council’s failure to ensure D received an education provision was fault.
39. The fault caused an injustice to D. D missed section F provision and education from November 2023. The Council issued an updated EHC Plan in October 2024. The final plan gave Ms C the right to appeal to the SEND Tribunal. As explained in paragraph 5, once an appeal right takes effect, we cannot consider matters which can be dealt with by an appeal to the Tribunal. We can therefore only recommend a remedy for the missed education and provision for just over nine months from December 2023 after the Council had increased the funding to D’s school, until the Council issued an updated final EHC Plan in October 2024.
40. Ms C told us she has suffered a financial loss through having to pay for other provisions for D while he was not receiving a full-time education or the section F provision detailed in his EHC Plan. She told us the provisions she commissioned included gymnastic free flow sessions and swimming. D’s EHC Plan at the time detailed water play and movement activities daily, so it seems the provisions Ms C arranged were ones that worked to meet D’s needs and reflected the provision in his EHC Plan he should have been receiving.
41. The Council was not timely when it responded to Ms C’s complaints. When Ms C raised her stage one complaint with the Council, it told her it aimed to respond by 23 January 2024. But it sent her the stage one response in late June 2024. And when Ms C raised her stage two complaint in early July 2024, the Council told her it aimed to respond within 20 working days. It did not do this. Ms C was already under significant pressure due to other failings by the Council, and its delayed complaint responses caused additional frustration to Ms C and meant she chased the Council for updates.
42. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
43. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
44. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
45. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a 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.
46. Given D’s age, the stage of his education and the level of education and provision that was provided, I consider a payment of £900 per term of missed provision would be appropriate. The Council did not ensure provision in section F was secured or provide suitable education from December 2023. However, as mentioned in paragraph 39, due to Ms C’s appeal rights being in place in October 2024, we can only consider this up to October 2024.

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Action

47. To remedy the outstanding injustice caused to Ms C and D by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Ms C and D for not ensuring D was provided with suitable education and provision and for the delay in responding to Ms C’s complaints. This apology should be in accordance with our guidance Making an effective apology.
• Pay Ms C £150 for the frustration caused by the delays in the complaints procedure.
• Pay Ms C £2,205 for not providing education provision to D from December 2023. This money should be used for D’s benefit.
48. The Council should also consider reimbursement of the costs of the provisions put in place by Ms C from November 2023, upon receiving evidence of these costs from Ms C. If the Council decides not to reimburse Ms C for these costs, it should explain why.
49. The Council will take the following actions within three months of my final decision:
• Issue a staff briefing to ensure all relevant staff are aware of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school.
• Share our focus report "Out of school, out of sight?" with relevant staff to emphasise the Council’s section 19 responsibilities and identify wider points of learning.
• Issue a staff briefing to remind relevant staff to respond to complaints in line with the Council’s procedure and keep complainants updated where deadlines cannot be met.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I uphold Ms C’s complaint and find fault causing injustice to Ms C and D. 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