Summary: Mrs X complained that the Council did not provide her child with education and the provision in their Education, Health and Care Plan when they were out of school. This meant her child missed out on a period of education. We have found the Council at fault for periods where Mrs X’s child did not receive provision. To remedy the injustice caused, the Council agreed to apologise, make a payment for loss of education and put in place some missed provision.

The complaint

1. Mrs X complains the Council:
1. Took too long to assess her child for an Education, Health and Care Plan.
2. Did not offer her child a suitable school placement after it issued their Education, Health and Care Plan.
3. Did not put in place suitable education for her child after they moved into the Council area in 2021.
4. Did not properly communicate with her through this process.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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.
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)

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What I have and have not investigated

7. I have not investigated complaint a). These events took place between late 2021 and May 2022. Mrs X did not complain to us until August 2024. I can see no good reasons why Mrs X could not have complained to us sooner about this.
8. I have not investigated complaint b). This is because Mrs X challenged this decision by appealing to the Tribunal. The Council later agreed to name a specialist placement in Y’s Education, Health and Care Plan.
9. In relation to complaint c), I have only investigated events from January 2023. Prior to this too much time has passed and I cannot see any good reasons why Mrs X did not complain to us sooner about this. I have exercised discretion to investigate matters back to January 2023 as this was when the Council issued a new Education, Health and Care Plan for Mrs X’s child.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I sent a draft of this decision to Mrs X and the Council for comments.
11. 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 found

Law and guidance

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 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)
14. 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.
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)

What happened

17. Mrs X’s child, Y, has special educational needs and attended a mainstream primary school. Y also has a rare medical condition.
18. In January 2023, the Council issued an EHC Plan for Y. Most of the provision outlined in the EHC Plan related to how teachers were to interact and facilitate Y’s learning, however there was some Speech and Language Therapy (SALT) provision.
19. At this time Y was not attending school. The EHC Plan named Y’s mainstream primary school as the placement until September 2023, when Y was due to start a specialist secondary school.
20. In January 2023, the Council put in place one to one tuition for Y of six hours per week. The Council also put in place art therapy.
21. In June 2023, Y’s proposed secondary school contacted the Council to ask for additional funding to support Y. The school told the Council Y would not come into the building. Mrs X contacted the Council in July 2023 and told it Y did not attend a transition day at their secondary school and raised concerns about how Y was going to transition into school.
22. In September 2023, Y was due to start school, however Mrs X could not get Y to go into the school building. The school attempted to work with Mrs X to put in place a transition plan for Y to start attending school.
23. On 21 September 2023, Mrs X asked the Council to put in place some alternative provision for Y during their transition period into school. The Council responded and told Mrs Y to discuss alternative provision with Y’s school if she felt Y needed this.
24. In early October 2023, Mrs X, Y’s school and the Council held a meeting as Y had not attended school. The Council agreed to consider alternative provision and then review this in six months’ time.
25. Between November 2023 and January 2024 the Council and Y’s school contacted alternative providers, but no provision was put in place for Y. In April 2024, the Council contacted another alternative provider and tuition with this provider started in late May 2024 of 10.5 hours per week.
26. In July 2024, an emergency annual review took place for Y. The Council agreed to name education otherwise than at school (EOTAS) in Y’s EHC Plan.
27. In October 2024, Y was taken off roll at school and continued to receive alternative provision education.

Mrs X’s complaint

28. In May 2024, Mrs X complained to the Council. Mrs X said Y had not attended school since 2021 and only received alternative provision for a short time. Mrs X was also unhappy about the Council’s decision to initially name a mainstream school in Y’s EHC Plan before changing its position after she appealed to the Tribunal.
29. The Council responded to Mrs X’s complaint in early June 2024. The Council said when Y moved to the area there was a school place available and it did not have medical evidence Y was unfit for school. The Council said it agreed to name a specialist placement in Y’s EHC Plan after Mrs X appealed and agreed to provide alternative provision to Y for the remainder of primary school. The Council said it put in place alternative provision after Mrs X raised concerns about Y’s transition to secondary school. The Council recognised it had not communicated with Mrs X from January 2024 to April 2024 and apologised.
30. Ms asked the Council to consider her complaint at the next stage of its process. Mrs X said:
• She had conversations with the Council about Y needing a transition plan to start school in September 2023.
• She had a meeting with the Council and Y’s school in October 2023 and believed the Council would put in place alternative education, however nothing happened for six months.
31. The Council provided its final response to Mrs X’s complaint in July 2024. The Council said it took steps to put in place alternative provision at the end of 2023 and did not uphold her complaint.

Analysis

32. As stated above I have investigated matters from January 2023. At this time the Council put in place one to one tuition for Y. I am satisfied that the Council considered it had a duty to provide alternative education and did so.
33. The Council said that the tutors were qualified to work with Y. Most of the provision in Y’s EHC Plan related to how teachers would interact and work with him, therefore on balance I am satisfied much of this provision could be incorporated into the tutoring. However the EHC Plan also said Y should receive SALT. I have not seen evidence which shows Y received this provision from January 2023. This was fault.
34. From January 2023, the Council knew Y was due to attend their specialist secondary school from September 2023. Prior to September 2023, Y had not attended school for a long time. I cannot see what transition plan was put in place for Y so that they were ready to start attending school in September 2023. The evidence shows the Council were made aware about concerns from the school supporting Y in June 2023 and concerns from Mrs X about whether Y could actually attend school in September 2023.
35. On balance I am satisfied the Council could have done more to help Y transition into secondary school. This was fault. Had it done so there is a possibility Y may have been able to start secondary school, or if not, the Council would have been able to take steps to consider whether it had a duty to put in place alternative education sooner. Mrs X suffered avoidable distress as her concerns about Y being able to start secondary school were not acted on.
36. From September 2023, Y did not attend secondary school. Following a meeting in early October 2023, the Council agreed to look into alternative provision for Y. I am satisfied at this point the Council considered it had a duty to provide alternative education for Y.
37. After the October 2023 meeting, Y did not receive any alternative education until late May 2024. This was fault. While I accept the Council attempted to source alternative education in November 2023 and January 2024, it did not take any further steps until April 2024 after this was unsuccessful. This was fault. As a result Y did not receive any education or special educational provision from October 2023 until May 2024. Mrs X also suffered avoidable distress as she had to stay at home with Y whilst they did not receive any education.
38. Where fault has resulted in a loss of educational provision, our guidance on remedies recommends a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In this case Y was without any education from October 2023 to May 2024. This is roughly two terms. I consider a payment at the high end of the scale appropriate here. In coming to this figure I considered Y received no education or special educational provision during this time. Y was also in their first year of secondary school and Y was a child with special educational needs.
39. Ms X also complained about the Council’s lack of communication. The evidence shows from January 2024 to April 2024 there is no communication with Y. At this point in time Mrs X believed the Council was trying to find alternative education for Y. The Council recognised this in its complaints response and apologised. While this is welcomed, I do not consider an apology is sufficient to remedy the injustice caused to Mrs X.

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Agreed Action

40. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
• Pay Mrs X £4,800 for the benefit of Y’s education from October 2023 to May 2024.
• Arrange to put in place make up SALT provision, taking into account any part of this provision Y missed since January 2023.
• Pay Mrs X £400 to recognise the avoidable distress she suffered as a result of the delays putting in place alternative education for Y and for the lack of communication between January 2024 and April 2024.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I have completed my investigation and found fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman