Summary: Mrs X complained the Council failed to provide her child with a suitable education. The Council was at fault because it failed to arrange alternative education, secure the provision outlined in her education, health and care (EHC) Plan and delayed issuing the final EHC Plan following a review. The faults identified resulted in a loss of education, delayed appeal rights and avoidable distress. The Council has agreed to remedy the injustice caused by providing an apology and a payment for the loss of education, delay and uncertainty.

The complaint

1. Mrs X complains the Council failed to provide her daughter, Y, with a suitable education and the provision outlined in her education, health and care plan from September 2023 to July 2024. Mrs X also complains the Council did not communicate with her effectively.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)
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 am unable to investigate events that occurred after 26 February 2024. 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) 8.
8. This means that if, for example, 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.
9. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.
12. Therefore, I have investigated matters that occurred from September 2023 to February 2024.

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How I considered this complaint

13. I considered Mrs X’s complaint and the information she provided.
14. I considered the information I have received from the Council in response to my enquiries.
15. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) Plan

16. 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. 
17. 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)  
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative education

19. 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.
20. 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)
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)

What happened

22. Mrs X has a daughter, Y, who has an education, health and care (EHC) Plan maintained by the Council. Provision in Y’s EHC plan includes weekly Speech and Language Therapy (SaLT) sessions and Occupational Therapy (OT).
23. Y attended a specialist school and in the summer of 2023 her attendance began to decline. In September 2023, Y stopped attending school and the Council received a request for alternative provision to be arranged as she was not in receipt of any education.
24. On 31 October 2023, an emergency annual review as held. It was decided the school could no longer meet Y’s needs.
25. On 14 November 2023, an Alternative Provision provider, AP1, visited Y at home to discuss Y’s needs.
26. On 20 November 2023, the school formally notified the Council that Y’s placement would be ending because it was no longer appropriate. It said Y’s attendance for the academic year so far was 3.4%. The school implemented a transition plan for the final six weeks of Y’s placement.
27. AP1 advised the Council on 1 December 2025 that it was not suitable for Y because it was an interim service and Y needed provision that was for a longer period.
28. On 6 December 2023 the Council’s Panel refused an EOTAS package for Y and agreed to consult with a specialist school, School 2. School 2 was parental preference. The Panel said that other specialist (ASD) provisions should also be consulted.
29. Y’s placement at the school ended on 13 December 2023. No alternative provision was secured for Y and no placement had been found. Y was also no longer in receipt of the therapeutic provisions such as SaLT and OT as outlined in her EHC Plan.
30. In January 2024, the Council consulted with another Alternative Provision Provider.
31. On 26 February 2024, the Council issued a final EHC Plan for Y. No placement was named in the Plan but it stipulated the type of placement as ‘Specialist’.
32. Mrs X used her right to appeal to the SEND Tribunal.
33. The Council has apologised to Mrs X for the delay in arranging alternative provision and for not communicating with her effectively. Mrs X remained unhappy with the Council and brought her complaint to the Ombudsman.

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Analysis

34. I consider the Council was at fault in failing to ensure Y received a suitable education and the provision outlined in her EHC Plan. Councils have a duty to arrange suitable education for a child it knows cannot attend school and it has a duty to provide the provision in EHC Plans.
35. The Council was aware from 22 September 2023 that Y’s attendance at school was limited. Although the Council accepted its section 19 duties in November 2023, it did not put any provision into place. This failure to provide educational provision is fault.
36. Government guidance is clear that all children of compulsory school age are entitled to a full-time education. During the period I can investigate, 14 December 2023 to 26 February 2024, Y did not receive any education and she did not receive the provision as outlined in her EHC Plan.
37. The Council was also at fault for the five weeks delay in finalising Y’s EHC Plan following the emergency annual review in October 2023. The Council’s failure to finalise Y’s EHC Plan in accordance within statutory timeframes is fault.
38. The Council has also acknowledged it did not communicate with Mrs X effectively during this period. There are several emails that were either not responded to or there was a delay in responding. My investigation also found there was insufficient record keeping.
39. Having identified fault, I must consider whether this has caused Mrs X and Y an injustice. The delay in finalising Y’s EHC Plan caused frustration and delayed Mrs X’s right of appeal to the SEND Tribunal. I consider the Council should make a symbolic payment to recognise this injustice.
40. The faults identified also meant that Y did not receive a suitable education during the period I have investigated. This is a significant injustice.
41. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. This is to acknowledge the education they have missed and help them to catch up.
42. In this instance, I consider a payment of £1000 is appropriate. In considering an appropriate remedy I am mindful of Y’s special educational needs and the impact of the loss of therapeutic provision and support that was outlined in her EHC Plan. I have also considered Mrs X’s individual circumstances and the impact having Y out of education had on the family.
43. To avoid duplication, I have not recommended any service improvements as the Council has, and is in the process of, making improvements as recommended by the Ombudsman in previous investigations.

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Agreed action

44. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X for the identified faults and the injustice caused;
• Pay Mrs X £1000 in recognition of the education and SEN provision Y has missed. Mrs X should use this for Y’s educational benefit as she sees fit.
• Pay Mrs X £250 to recognise the frustration, distress and uncertainty caused by the delay in issuing Y’s EHC Plan and for the service she received.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation, and I find fault causing injustice. The Council has agreed to the recommended actions to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman