Summary: Mrs Y complained the Council failed to provide her child, Z, with a suitable education or make appropriate alternative provision for them. We have found fault by the Council, causing injustice, in failing to: consider its duty to make arrangements for alternative provision for Z in April 2023, properly consider the type of alternative provision suitable for Z in December 2023/January 2024 and complete Z’s Education Health and Care needs assessment within the statutory timescales. The Council has agreed to remedy this injustice by apologising to Mrs Y, making a payment to reflect the distress caused and a service improvement.

The complaint

1. Mrs Y complains:
1. the Council has failed to provide her child, Z, with a suitable education and school placement since April 2023; and
2. the alternative provision it offered for Z from November 2023 was not appropriate.
2. Mrs Y says because of these failures, Z has been out of education for a significant amount of time. This has affected their and the family’s life and wellbeing.
3. Mrs Y wants the Council to ensure Z returns to education by finding them a suitable placement or making appropriate alternative provision.

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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.
5. 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).
6. 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)
7. 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 not investigated

Failure to provide a suitable education from March 2024

8. I have not investigated whether the Council failed to provide Z with a suitable education in the period from March 2024.
9. This is because:
1. 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;
2. The courts have established that if someone has appealed to the SEND 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);
3. 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; and
4. 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. Once the Council issued Z’s final EHC Plan on 13 March 2024, Mrs Y had the right to appeal to the SEND Tribunal against the Council’s decision in the plan about the type of educational provision it would make for Z, and their placement.
11. I consider the reason Z was not attending school from March 2024 was linked to Mrs Y’s disagreements about the Council’s decision that Z’s education should be provided at their mainstream school placement as named in the plan, rather than a specialist placement or through a package of Education Otherwise than at School (EOTAS).
12. This means, in my view, we cannot investigate a complaint about alternative provision for Z from 13 March 2024, the date the Council’s appealable decision was made.

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How I considered this complaint

13. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
14. Mrs Y and the Council had the opportunity to comment on my draft decision. I considered any comments before making my final decision.

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What I found

What should have happened

Alternative provision: the law

15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)). We refer to this as section 19 or alternative education provision.
16. 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)
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)

Our guidance: “Out of school, out of sight”

18. We issued guidance in our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. We recommended 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Timescales and process for EHC assessment 

19. 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. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks;
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal;
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks; and
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).  

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

21. Z struggled to attend school from January 2023. Their school put a plan in place to support Z with these difficulties.
22. The school and Mrs Y agreed to a part-time timetable for Z.
23. In April 2023 the school told the Council about Z’s attendance issues and the part-time timetable now in place.

April to July 2023: Education Health and Care needs assessment request

24. Mrs Y asked the Council to carry out an Education Health and Care (EHC) needs assessment for Z on 27 April.
25. The Council refused the request on 17 May. Mrs Y appealed to the SEND Tribunal against this decision.
26. On 21 June, the Council overturned its previous decision and agreed to complete a needs assessment. Mrs Y withdrew her appeal following this decision.
27. The school continued with the work in the support plan to get Z, who was still struggling to attend for more than a short period each day, back into school.

September to December 2023: Z’s ongoing attendance issues

28. The school continued its work to settle Z back into school at the start of the autumn term.
29. But Z stopped attending school completely in November.
30. On 4 December the school reported to the Council that Mrs Y had told it Z would not be returning and they should have a new placement. Mrs Y had said it was clear Z would not ever be able to return to the school.
31. On 18 December the Council met with Mrs Y and the school to discuss a way forward. It was agreed the school could not meet Z’s needs and the Council would provide tuition for Z.

January to May 2024: tuition arrangements

32. In January, the Council arranged two hours of online tuition for Z, from 5-7pm each day.
33. Mrs Y told the Council this online tuition was not appropriate for Z. She said it was scheduled too late in the day, and Z needed face-to-face tuition to build a relationship with tutors to help their re-engagement and return to an education setting.
34. In March the Council agreed to provide Z with 8 hours a week of face-to face tutoring until June 2024. It arranged for a local provider to contact Mrs Y to put this in place. It also agreed to provision for Z at a farm placement.
35. In May, the local provider advised the Council and Mrs Y, following an initial consultation, it could not deliver the tuition package because it could not meet Z’s needs.

Z’s EHC needs assessment and EHC plan

36. The Council completed the needs assessment and agreed to provide Z with an EHC plan.
37. The Council’s Placement Panel considered the placement for Z’s EHC plan. Mrs Y had asked the Council to name a specialist placement. The Panel recorded it could not see any reason why a specialist rather than mainstream placement would be appropriate. It decided the Council should name a mainstream placement in Z’s plan.
38. The Council issued Z’s final EHC plan on 13 March 2024. This set out Z’s special educational needs (SEN) provision and named their current mainstream school as their placement.
39. The Council also told Mrs Y about the action she could take if she disagreed with the plan and her right to appeal to the SEND tribunal.

June 2024: Mrs Y’s complaint to the Council

40. Mrs Y complained to the Council that it had failed to make appropriate alternative provision for Z when they started struggling to attend school.
41. In its complaint response, the Council said it:

• accepted it should have done more to look into the absence notification for Z in April 2023, and the reasons why Z stopped attending school in November 2023;
• apologised for this failure and that the alternative provision initially proposed was not suitable; and
• had now put a process in place for children who could not attend school.

42. The Council also said it:

• would now make a referral for Z’s tuition and provision at a farm placement; and
• had named Z’s current mainstream school in their EHC plan but would hold an interim review of the plan so Mrs Y could request a change in placement. This request would then be considered by its Panel.

43. Mrs Y was not satisfied with the Council’s response and brought her complaint to us in July 2024.

My view – was there fault by the Council causing injustice?

44. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

Complaint a) failure to make alternative provision for Z

45. The Council has accepted it should have done more in April 2023 when it was told about Z’s absences from school.
46. In my view, the Council should have:

• investigated Z’s circumstances shortly after it was told about their attendance issues in April 2023; and then
• considered whether it had a duty to make alternative provision for Z’s education because they were not attending school.

47. The Council’s failure to do this was fault.

The impact of this fault from April to November 2023

48. I have considered what is more likely to have happened if the Council had properly investigated Z’s circumstances and considered its duty to make alternative provision for them in April 2023.
49. I understand:

• the school had a support in plan in place and was continuing to work with Z and Mrs Y to enable Z to access a full-time education at school; and
• Z’s attendance, although still for only a short period each day, was settled when they started back at school in September 2023, after the summer holiday, until a sudden change in their behaviour in November 2023.

50. I don’t consider, based on the information I have seen, it is more likely the Council would have decided it should make alternative provision for Z in the period from April to November 2023.
51. But its failure to properly investigate Z’s circumstances and consider its duty at this stage caused Mrs Y uncertainty about the situation.

Complaint b) failure to make appropriate alternative provision

52. Z stopped attending school altogether in November 2023. The Council arranged a meeting with Mrs Y and the school in December 2023 to consider Z’s circumstances. The Council decided it should now make suitable alternative provision for Z.
53. I have considered the action the Council then took, from December 2023 to 13 March 2024, to arrange this provision. I have not investigated the arrangements for Z’s alternative provision in the period from 13 March 2024 for the reasons explained in paragraphs 8 to 12.
54. The Council agreed in December 2023 to provide Z with tuition as alternative provision. But I have not seen anything to show it discussed with Mrs Y the type of tuition or other alternative provision suitable for Z before arranging two hours a day of online tuition scheduled for late afternoon/early evening.
55. Mrs Y told the Council why this was not appropriate for Z. My view is the Council’s failure to properly consider in December 2023 and January 2024 the type of alternative provision suitable for Z’s needs was fault. This caused Mrs Y frustration and upset about the arrangements for Z’s education.
56. Following this, in my view, the Council put things right by talking to Mrs Y about the type of alternative provision she considered suitable for Z. The Council made arrangements for the face-to-face tuition and provision at a farm placement Mrs Y requested. But unfortunately, Z was unable to access this alternative provision because of their very complex needs.
57. The information I have seen indicates the difficulties Z had accessing any type of provision without Mrs Y being present. I consider it more likely, that even if the Council had properly considered alternative provision for Z sooner with Mrs Y, it would not have been able to source suitable provision Z could access during the period from December 2023 to March 2024.
58. I appreciate Z has missed out on their education during this period. But in my view, this was not because of a failure by the Council to properly consider appropriate alternative provision for them.

Complaint c) failure to provide a suitable school placement

59. I don’t consider the Council failed to provide Z with a suitable school placement. A place was available for Z at their current mainstream school. The issue was whether Z could access an education there. During the period from April 2023 to March 2024, the Council’s duty was to consider this question and whether it had a duty to make alternative provision. I have set out my findings about this issue in paragraphs 45 to 58.
60. From 13 March 2024, the Council named Z’s current school as their placement in the EHC Plan which set out the SEN provision the Council considered appropriate to support Z at that school. If Mrs Y did not consider this school was a suitable placement for Z she then had the right to appeal against this to the SEND Tribunal.

Complaint d) The EHC needs assessment process

61. Although Mrs Y has not raised this in her complaint, it is clear to me from the information provided as part of this investigation, the Council did not complete the EHC needs assessment process within the statutory timescales.
62. The final EHC Plan should have been issued within 20 weeks of the Council’s decision of 21 June 2023 to carry out the assessment – so by 8 November 2023.
63. It was not issued until 13 March 2024, over 4 months late.
64. This delay was fault, causing Mrs Y further uncertainty about proposals for Z’s education and SEN support.

Conclusion

65. I have found the following faults, causing injustice, by the Council in failing to:

• investigate Z’s circumstances shortly after it was told about their attendance issues in April 2023 and consider whether it had a duty to make alternative provision for Z’s education because they were not attending school. This caused Mrs Y uncertainty about the situation (complaint a);
• properly consider in December 2023 and January 2024 the type of alternative provision suitable for Z’s needs. This caused Mrs Y frustration and upset about the arrangements for Z’s education (complaint b); and
• complete the EHC needs assessment process within the statutory timescales. This caused Mrs Y uncertainty about the proposals for Z’s education and SEN support (complaint d).

Service improvements

66. We have issued a number of recent decisions in which the Council has agreed to make service improvements to its procedures for considering its duty to make alternative provision for children not attending school. Details of action it is taking was also set out in our published decision for case reference 23016331.
67. I don’t consider it appropriate, at this time, to ask the Council to make any additional service improvements regarding its alternative provision procedures.
68. But I have asked it to take action to remind officers about the statutory timescales for completing EHC needs assessments.

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Action

69. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failures to: consider its duty to make arrangements for alternative provision for Z in April 2023, properly consider the type of alternative provision suitable for Z in December 2023/January 2024 and complete the EHC needs assessment within the statutory timescales. This apology should be in line with our guidance on Making an effective apology;
2. pay Mrs Y £500 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies;
70. And within three months from the date of our final decision the Council has agreed to remind officers of the need to complete EHC needs assessments within the statutory timescales.
71. The Council should provide us with evidence it has complied with the above actions.

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Decision

72. I have found fault causing injustice. The Council has agreed to take the above action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman