Summary: Ms X complains on behalf of her son, Y, the Council has failed to provide suitable education since September 2023. Ms X says the Council failed to find a suitable placement for her son. Ms X says this caused both her and her family distress. We have found fault in the actions of the Council for failing to provide suitable alternative education to Y. The Council has agreed to issue an apology and pay Ms X a financial payment.

The complaint

1. Ms X complains on behalf of her son, Y, that the Council has failed to provide suitable education since September 2023. Ms X says the Council failed to find a suitable placement for her son.
2. Ms X says this caused both her and her family distress.

Back to top

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. 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)
5. 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.
6. 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
7. 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.
8. 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)
9. 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.

Back to top

What I have and have not investigated

10. I have investigated Ms X’s complaint from September 2023 when Y was excluded from school until March 2024.
11. I have not investigated Ms X’s complaint after March 2024 when the council issued a new Education, Health and Care (EHC) Plan for Y which did not name a placement in Section I. This is because Ms X has appealed to the Tribunal about this element.

Back to top

How I considered this complaint

12. I have reviewed the information provided by Ms X and have spoken to her about the complaint.
13. I have reviewed the information the Council provided.
14. Both Ms X and the Council were invited to comment on my draft decision. Any comments received have been considered before a final decision was issued.

Back to top

What I found

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. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
18. 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

19. Y attended a mainstream primary school. In late September 2023, the school permanently excluded Y from school.
20. Between the end of September and October 2023 the Council consulted with three alternative provision providers to try to secure provision for Y. The Council also consulted with three school placements for Y. Unfortunately, all three school settings felt they could not offer a placement for Y.
21. The Council told Ms X at the end of October 2023 it had secured a place for Y two days a week (10 hours) at an alternative provision setting.
22. Ms X issued an appeal to the Tribunal about Y’s August 2023 EHC Plan in October 2023. Ms X appealed the placement which the Council had named.
23. In November 2023 the Council agreed it could not name a placement in Section I of Y’s EHC Plan and accepted an Educated Other Than At School (EOTAS) package should be put in place.
24. The Council held a review meeting in February 2024 with Ms X and agreed to consult for school from September 2024. The Council sent out consultations but received responses saying the schools could not offer Y a place.
25. The Council issued a new EHC Plan for Y at the end of March 2024 which did not name a placement in Section I. The Council continued to consult with schools and Y continued to attend a placement two days a week (10 hours) which the Council arranged in October 2023.
26. Ms X raised a complaint with the Council in July 2024 and said Y had been out of education since September 2023. Ms X said the Council had not put a package in place for Y following his exclusion and that he only received around half of what she believed Y should receive.
27. The Council responded and said it would not look at Ms X’s complaint as she had the right to appeal.

Analysis

28. Y was permanently excluded from school in late September 2023. The Council should have put provision in place for Y within six days but did not do so until the end of October 2023. This is fault and caused Y to miss provision.
29. When the Council put provision in place for Y towards the end of October 2023 it only secured two days (10 hours) for Y. Although the law does not define full-time education it is generally accepted this would equate to around 22-25 hours a week.
30. The Council had therefore arranged roughly half the provision Y would expect if he was attending school. This is fault and has caused Y to miss provision.
31. The Council consulted with various settings to try to secure a placement for Y but were unsuccessful in finding a suitable setting.
32. I accept the Council has tried to find a placement for Y and continues to do so. However, I cannot see between September 2023 and March 2024 the Council put suitable provision in place for Y. The Ombudsman issued a decision in January 2024 which recommended the Council review how it ensured all special educational needs provision is put in place for children or young people. I have therefore not made any service improvement recommendations in relation to this.
33. I understand the Council secured additional provision for Y from September 2024, but this is outside the period I have investigated.
34. When Mrs X complained to the Council in July 2024 it responded to say it would not deal with her complaint as she had appeal rights. This is fault and would have caused Ms X distress. The Ombudsman issued a recent decision for this Council. This recommended it remind complaint handling staff to respond to education complaints which are not linked to and are separable from any Special Educational Needs and Disabilities (SEND) tribunal appeal in good time. I have therefore not made any service improvement recommendations in relation to this.

Back to top

Agreed action

35. Within one month of a final decision, the Council should:

• Write to Ms X to apologise for the faults identified.
• Pay Ms X £2,000 to regonise the loss of Y’s education between September 2023 and March 2024. This is calculated at roughly £1,000 per term.
• Pay Ms X £250 to recognise the distress caused to her by the Council’s failings.
• Pay Ms X £50 to recognise the distress caused by failing to investigate her complaint.

36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have found fault in the Council for failing to provide suitable alternative education to Y.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman