Summary: Miss X complained the Council failed to provide a suitable school placement for her child. Miss X also complained the Council ignored her contact and failed to provide her with suitable updates. We found fault with the Council delaying the search for a school placement for Miss X’s child for four months and for complaint handling delays amounting to 12 weeks. The Council agreed to apologise to Miss X and pay her £250 for the inconvenience and distress caused.

The complaint

1. Miss X complained the Council failed to provide a suitable school placement for her child.
2. Miss X also complained the Council ignored her contacts and failed to provide her with suitable updates.

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The Ombudsman’s role and powers

3. 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)
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 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)
5. 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)
6. 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 have and have not investigated

7. I have investigated Miss X’s complained from 26 March 2024. I have referenced matters before 26 March 2024 for contextual information but have not made any findings about what happened before 26 March 2024.
8. I have not investigated matters before 26 March 2024 because the Ombudsman has already conducted an investigation into these issues.

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How I considered this complaint

9. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

11. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
12. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
13. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
14. The EHC Plan is set out in sections which includes Section I; this names a particular and/or type of educational placement.
15. Where a council has detailed a child will receive Education Otherwise Than At School (EOTAS), and what specific provision this entails, in Section F of a child’s EHC Plan, the council should leave Section I of an EHC Plan blank.
16. If a person disagrees with the content of an EHC Plan, they have the right to appeal this to the SEND Tribunal. This includes the naming of, or failure to name, a school placement in Section I. The Ombudsman can only investigate such matters when it is reasonable for a person not exercise their appeal rights. This can include when a person has a reasonable expectation the Council is taking steps to resolve the disagreement.

Alternative provision of education

17. 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.
18. 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)
19. Parents have a duty to ensure that their children regularly attend school. (Education Act 1996, Section 444).
20. 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))
21. 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)
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
23. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
25. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child has been excluded. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence. In other absences, there is no set guidance but the Council should arrange education without undue delay.
26. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints process

27. The Council operates a one stage complaints process.
28. When the Council receives a formal complaint from a person its process says it will acknowledge this complaint within 3 working days. The Council says it will then send a complaint response within 20 working days of receiving the complaint.
29. The Council says it will direct a person to the Local Government and Social Care Ombudsman as part of sending the Stage 1 complaint response.

What happened

Background information

30. The Council issued an EHC Plan for Miss X’s child, who I shall call Y, in June 2021.
31. In June 2022, the Council reviewed Y’s EHC Plan and a specialist school placement was recommended during the annual review process. The Council agreed to consult with specialist schools in October 2022.
32. At the end of October 2022, Miss X told the Council she was going to be “home schooling” Y. Miss X said she would home school Y until a specialist school placement was available. Y’s school removed Y from the register on 31 October 2022.
33. In 2023, Miss X sought help from the Council in providing schooling for Y at home. The Council agreed to provide 25 hours of tuition for Y each week in October 2023. The Council started to provide Y with 15 hours of tuition each week with a tuition provider at both the local library and online with the view to increasing this as Y could manage.
34. On 13 November 2023, the Council confirmed Miss X was no longer Electively Home Educating Y and registered her for EOTAS.
35. In January 2024, the tuition provider agreed with Miss X to provide Y’s tuition solely online as Y was struggling to attend the library sessions.
36. On 26 March 2024, the Ombudsman produced its final decision into Miss X’s previous case. We asked the Council to issue an amended Final EHC plan for Y and found the Council had started to provide suitable Alternative Provision of education for Y since November 2023.

Matters since 26 March 2024

37. The Council began to explore the possibility of Y attending an educational placement, Placement 1 who offered a place for Y in March 2024.
38. On 15 April 2024, the Council issued a Final EHC Plan for Y. Y’s EHC Plan confirmed Y was not attending school but noted Miss X’s wish for Y to have a school placement. The Council detailed the full EOTAS provision it would provide Y in Section F. The Council left Section I of the EHC Plan blank.
39. Miss X contacted the Council on 2 May 2024 to express concerns about the suitability of Placement 1 for Y. The Council said it was still looking into this placement but had not made any decisions yet.
40. Miss X raised a formal complaint with the Council on 30 May 2024 about the lack of educational placement for Y. The Council issued an auto-acknowledgement promising a response in 20 working days.
41. Miss X chased the Council for a response to her complaint on 17 July 2024 and 15 August 2024. Miss X complained the tutoring provided by the Council was not suitable for Y because she needed 1 to 1 support.
42. On 29 August 2024, the Council told Miss X it was still waiting on a response from Placement 1. Miss X responded to reiterate her concerns about Placement 1 and asked the Council to consult Placement 2 and Placement 5. The Council sent consultation letters to Placement 2, Placement 3 and Placement 4 on 2 September 2024.
43. Y’s tuition provider liaised with the Council at the start of September 2024 about Y’s access to education. The Council discussed Y’s lack of engagement with the tuition with Miss X and agreed to reintroduce in person tuition lessons for later in the day. The Council also offered to change tutors to help promote engagement in the tuition but Y declined this.
44. Placement 3 offered a visit to Y but Y rejected this offer. The Council told Miss X this offer would remain in place if Y chose to visit. Placement 4 declined a place for Y.
45. On 19 September 2024, the Council issued a Stage 1 complaint response to Miss X. The Council said:
• It had arranged 25 hours of 1 to 1 tuition for Y since October 2023. Following discussions with Miss X in September 2024, it had agreed changes to this tuition to try to prompt Y’s engagement.
• It offered a place for Y at Placement 1 but Miss X declined this.
• Despite exploring Placement 1 further at Miss X’s request, Miss X declined this again.
• It sent consultations to Placement 2, Placement 3 and Placement 4 following discussions with Miss X. It did not consult Placement 5 at Miss X’s request because it did not consider this a suitable placement for Y.
• Placement 3 offered a visit for Y but Miss X and Y rejected this.
• It has been trying to source suitable education for Y so did not uphold Miss X’s complaint.
• Miss X could approach the Ombudsman with her complaint.
46. The Council told Miss X on 30 September 2024 that it was still waiting on a response from Placement 2 and asked Miss X to reconsider Placement 3.
47. Miss X responded on 15 October 2024 rejecting Placement 3 and asking why the Council did not consult Placement 5.
48. On 16 October 2024, the Council consulted with Placement 5 and confirmed this with Miss X. The Council told Miss X it was still waiting on a response from Placement 2.
49. Placement 5 told the Council it could offer Y a place at the year below Y’s age because of her time out of education.
50. Through the remainder of October 2024, the Council sent consultations to Placement 6 and Placement 7 and held further discussions with Placement 5 about Y’s education there. The Council also liaised further with Placement 3.
51. In November 2024, Y attended a trial day at Placement 5. Following the trial day, Placement 5 declined an offer to Y as it did not consider it was a suitable setting. The Council followed up with Placement 2, Placement 6 and Placement 7. Placement 2 and Placement 6 offered visits for Y.
52. On 2 December 2024, Y attended a visit at Placement 2 who offered three further taster days in January 2025.
53. Placement 2 confirmed it could offer a place for Y on 16 January 2025 which was formally agreed by 5 February 2025 with a start date proposed for 11 March 2025. The Council named Placement 2 in Y’s EHC Plan on 7 February 2025.

Analysis

School Placement

54. Naming a school in Section I of a child’s EHC Plan is something the Ombudsman would normally consider appropriate for a child’s parent to appeal to the SEND Tribunal, if they considered it unsuitable. Where there is a dispute about the suitability of a school place, we might decide not to investigate or remedy any lack of education that happens as a result. This is because it is sometimes unlikely the disagreement about the school’s suitability is severable from the child’s lack of education.
55. In this instance, I would not have expected Miss X to appeal Section I of Y’s EHC Plan to the SEND Tribunal despite her detailing a wish for Y to attend an educational placement. This is because the Council had already started the process of consulting with educational placements for Y. Miss X had a reasonable expectation the Council would find a suitable place for Y.
56. While the Council had consulted with Placement 1, when it produced Y’s EHC Plan in March 2024, the Council did not name a school in Section I. The Council did this because it had agreed a package of EOTAS for Y. This was the correct approach to take and I do not find fault.
57. While the Council had made EOTAS available for Y, Miss X had still made it clear she wanted an educational placement for Y. The Council sourced Placement 1 for Y but Miss X declined this on 2 May 2024. Miss X was entitled to decline this educational placement but I also do not find fault with the Council sourcing this placement and offering it to Miss X.
58. Since Miss X declined the placement at Placement 1, the Council took four months until it consulted with any other educational placements. The Council knew that Miss X wanted an educational placement for Y but it failed to act. This delay was fault causing inconvenience and frustration to Miss X. I have addressed Y’s access to education during this time under the section titled “EOTAS”.
59. The Council consulted with Placement 2 on 2 September 2024 as one of Miss X’s preferred choices. This is the placement Y started attending in March 2025. It is not the fault of the Council, Placement 2 took two and a half months to confirm it would accept Y for a visit and a further month before it formally accepted Y. This delay was caused by Placement 2 and not the Council.
60. Since 2 September 2024, the Council consulted with six different placements and chased up various placements to find a suitable educational placement for Y. The Council took suitable steps to find a placement and once a place was offered, at an educational placement Miss X accepted, the Council ensured this placement was named in Y’s EHC Plan. The Council has acted in an appropriate manner since 2 September 2024 and I do not find fault.

EOTAS

61. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself.
62. The Council was aware that Y was not attending school before the start point of my investigation. The Council decided in October 2023 that Y should access education through EOTAS. The Council acknowledged Y was not attending school and detailed its thinking that 25 hours of education each week would be suitable for Y. The Council has therefore accepted in October 2023 that it owed a Section 19 duty to provide education for Y.
63. By January 2024, Y’s engagement with the tuition in person had been poor so the tuition provider agreed for this provision to be online. The Council had already arranged a change in tutor at Y’s request.
64. At the start point of my investigation, in March 2024, the Council had acted in line with its Section 19 duty through arranging and funding the 25 hours of tuition each week since October 2023. At that stage, the Council had considered Y’s individual circumstances, chosen to provide education for Y through EOTAS, drawn up a plan for education for Y, put this into practice without delay and then adapted this to meet Y’s needs and requests. I do not find fault with the Council’s actions.
65. When a child cannot attend school, a council’s duty to provide education for a child is balanced against a parents duty to ensure their child is regularly accessing education on offer. The Council kept Y’s access to education open with this offer of tuition available to Y for up to 25 hours each week for the remainder of the academic year. This offer of education was with Y’s preferred tutor and using the online format that Miss X and Y chose as preferential. I cannot find the Council at fault for Y’s lack of engagement with the education on offer.
66. The Council reviewed Y’s access to education in September 2024 and proposed changes to try to boost Y’s engagement. Y declined a change in tutor and the Council arranged in person lessons again, in the afternoon at Y’s request. The Council again made provision available to Y considering Y’s individual needs and requests but Y did not engage in this tuition. I again cannot find fault with the Council for Y failing to engage in the education on offer.
67. Following the lack of engagement from Y, the Council reintroduced online sessions as agreed with Miss X and Y. Y engaged with these online sessions in the first few weeks of November 2024 but then stopped all engagement with the tutor sessions. While Y did not engage with the tutor sessions following this point, Y accessed some education through taster days at Placement 2. The Council stopped its offer of EOTAS following Y’s placement starting at Placement 2. The Council again adapted EOTAS to try to promote engagement from Y before finding a suitable educational placement for Y and naming this in the EHC Plan.
68. The Council has taken suitable steps to make EOTAS available for Y since October 2023. The Council has kept this EOTAS under review, considered Y’s individual needs and request for the EOTAS package and ultimately reintegrated Y into an educational placement. I cannot find fault with the Council if Y has not engaged with the education on offer in the circumstances of this complaint.

Complaint handling

69. Miss X made a formal complaint to the Council on 30 May 2024. The Council acknowledged Miss X’s complaint within its complaint timescales but failed to provide a response within twenty working days.
70. The Council missed the twenty working day deadline by 12 weeks. This was fault. This delay will have caused Miss X frustration.

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Action

71. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Miss X and pay her £250 for the inconvenience and frustration caused through the four-month delay in consulting for a suitable school placement for Y and for the 12-week delay in handling her complaint.
72. The Council should provide us with evidence it has complied with the above actions.

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Decision

73. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman