Summary: Mrs X complained the Council failed to provide Y with a suitable full-time education when he could not attend school and failed to secure the provision in his Education, Health and Care Plan. We find the Council was at fault for failing to properly consider the education Y received for the academic year 2023/24 and for the way it communicated with Miss X. The Council has agreed to apologise for the uncertainty this caused Mrs X, make a symbolic payment to acknowledge the distress and uncertainty and provide service improvements.

The complaint

1. Mrs X complains about the Council’s failure to secure suitable full-time education for Y since 2021. Mrs X also says Y has had an Education, Health and Care (EHC) Plan since May 2022, but the Council had not secured the provision set out in this. Mrs X says the communication from the Council has been poor throughout that time, the Council failed to attend an EHC Plan review meeting in March 2023, and it has not done what it said it would do following its final complaint response.

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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 unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

9. We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further than this if there are good reasons to do so.
10. Mrs X first brought her complaint to the Ombudsman in August 2024, which means anything that took place before August 2023 has been raised as a late complaint and I have seen no good reason to look back further than this.
11. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us. If Mrs X remains unhappy about events that have occurred since she contacted the Ombudsman in August 2024, she would need to raise these with the Council before we could investigate.
12. If Mrs X was unhappy with the content of any of Y’s EHC Plans, including the named provision and educational setting, she had the right to appeal the content of the plans to the SEND Tribunal. As it would have been reasonable for Mrs X to use that right, I have not investigated whether the named provision or settings were suitable for Y.

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How I considered this complaint

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

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What I found

Relevant law and policy

15. A child or young person with special educational needs (SEN) may have an 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. 
16. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
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. Council’s 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 provision.
19. 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).
20. 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’)
21. 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
22. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.
23. 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.

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
25. Y has SEN and his education was supported by an EHC Plan, which named School A. Y was struggling to attend School A so it offered him virtual lessons. Mrs X told the Council she did not believe School A could meet Y’s needs, he was not accessing any provision even online, and asked it to secure him a place at School B instead.
26. On 27 September 2023, the Council held an early annual review of Y’s EHC Plan.
27. That month, the Council also wrote to Mrs X to acknowledge the support and alternative provision Y had received from December 2021 up to that point had been limited and not effective. The Council acknowledged it had not properly challenged those responsible for Y’s education. The Council provided Mrs X with an action plan, which said it would ensure it effectively communicated and collaborated with her.
28. On 26 October 2023, the Council issued a final amended EHC Plan for Y, naming School B. This EHC Plan provided for teaching assistant support, daily check ins, a predictable routine, and 1:1 support for managing difficult situations.
29. Y started at School B but struggled with attendance. As a result, the Council arranged additional support for him. This included a personalised timetable to include an allocated key worker, 15-minute emotional check ins, 20-minute nurturing starts, support to start lessons, movement breaks and a safe space to withdraw to when necessary.
30. In December 2023, Mrs X emailed the Council to explain Y had not been attending school and, despite School B’s best efforts, the placement was not working for him. Mrs X asked the Council to consider alternative placements, or education other than at school.
31. The Council told Mrs X it could consider alternative options but first, would talk to School B to see what else could be put in place to help Y’s attendance.
32. Mrs X complained to the Council in February 2024. She explained things had not improved since the Council wrote to her in September 2023 to accept there was fault in the way the Council had handled Y’s case.
33. In February 2024, School B contacted the Council to request support. School B said Y had only attended for around two weeks before he became overwhelmed. School B said it had personalised Y’s timetable but this had not helped and he was still not attending.
34. The Council asked School B to arrange an early EHC Plan review meeting and suggested using an online provider to meet the provision in Y’s current plan.
35. The Council responded to Mrs X’s complaint to explain it had secured Y a place at School B, as it said it would, and remained in contact with her since that time. The Council acknowledged there were challenges to Y settling into School B, but said all parties seemed to be working together. The Council explained it had suggested an early EHC Plan review as the best way to identify changes to Y’s provision.
36. Mrs X asked the Council to reconsider her complaint as she felt the communication and engagement had been poor and was impacting Y’s education.
37. The EHC Plan review meeting was held on 18 March 2024. Notes from this meeting show Y was now receiving online tuition for three hours per day while School B was trying to source a bespoke package of education for him. School B said it still felt it was a suitable placement for Y.
38. The Council responded to Mrs X’s complaint and acknowledged Y was still struggling to access provision, but the service and communication it was providing had improved. The Council accepted it could have provided more support to that point and offered Mrs X a meeting with a casework manager to discuss how it could improve this going forward. The Council also offered to pay Mrs X £500 in recognition of the uncertainty and distress she had been caused.
39. On 9 June 2024, the Council issued a final amended EHC Plan for Y. This named School B and provided for significant adult support to transition back to education from key adults, managed by a SENCo, and access to online learning at times of high anxiety. The EHC Plan required timetables daily check ins with a key adult, a predictable routine based timetable, and 1:1 support to manage difficult situations. The EHC Plan said it aimed to transition Y back to attending school full time by July 2025.
40. In August 2024, the Council agreed additional funding for a bespoke package of provision for Y to include alternative provision and assist his transition back to school on a full-time timetable.

Analysis

41. Where a Council maintains an EHC Plan for a child or young person, it must secure the specified special educational provision named within it.
42. During the timeline I have investigated, Y had three different EHC Plans, and the named the provision set out of these was available for him at the named schools. I do not find the Council at fault for failing to secure EHC Plan provision for Y.
43. On two occasions during the timeline above, the Council was made aware the content of Y’s EHC Plan may not be suitable for him. The Council then promptly arranged for Y’s EHC Plan to be reviewed. I find no fault with the Council here as it took action to review the provision set out in Y’s EHC Plan.
44. However, the Council is also under a duty to make suitable alternative provision available for children who are absent from school because of illness, exclusion or otherwise and must put this provision in place without delay.
45. Between September 2023 and November 2023, the Council was aware Y was not attending School A and was not accessing online provision. The notes the Council has provided do not show how the Council considered whether or not it needed to arrange alternative provision for Y during this period. This is fault. It is not my role to say what alternative provision may have been suitable for Y during that time, but this fault caused uncertainty for Mrs X, which is injustice.
46. From November 2023, Y was enrolled at School B. However, Mrs X informed the Council he was not attending on a fulltime basis in December 2023, and School B also confirmed this. While the Council did engage with School B to consider how best to reintegrate Y to full-time education, the notes I have seen do not show how the Council decided whether the reduced timetable and online tuition made available to Y was suitable alternative provision for him. This is fault and caused further uncertainty for Mrs X, which is injustice.
47. School B then reached out to the Council again in February 2024 to ask for support. While the Council arranged an early review of Y’s EHC Plan, I have not seen any notes to show how it decided whether he required any alternative provision in the meantime. This is a missed opportunity to consider its Section 19 duty, which amounts to fault, and caused further uncertainty for Mrs X.
48. During the period I have looked at, there were times the Council failed to properly communicate with Mrs X. I cannot see the Council explained to Mrs X how it had reached decisions on the alternative provision available to Y, or how it was monitoring this to ensure it remained appropriate. I also cannot see the Council laid out a plan to increase this provision or reintegrate Y into full-time education. Mrs X also had to chase on multiple occasions to receive responses from the Council. The Council has also not arranged for Mrs X to meet with a casework manager as it said it would. This is fault and caused uncertainty for Mrs X, which is injustice.
49. The Council has already paid Mrs X £500 to recognise the lack of full-time education Y received and distress caused by communication failings. However, I find it ought to do more to recognise the injustice set out above.

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Action

50. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Mrs X to apologise for the injustice caused by the communication failures and the failure to evidence its consideration of its Section 19 duty. 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 in my findings.
• Contact Mrs X to arrange a time for the meeting with a casework manager that was offered to her.
• Pay Mrs X £500 to acknowledge the uncertainty caused in terms of whether Y received appropriate education during the academic year 2023/24.
• Remind relevant officers and managers to make and store clear and accurate records of section 19 decision making.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I find fault, causing injustice. The Council has accepted the recommendations set out above, and 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