Cornwall Council (24 009 634)
The Ombudsman's final decision:
Summary: We have found fault with the Council for failing to consider its duties under Section 19 of the Education Act. It did not arrange alternative provision for Miss X’s son when he was unable to attend school. He missed out on nearly a year of education and special educational need provision. The Council agreed to remedy this injustice.
The complaint
- Miss X complained the Council did not secure the provision set out in her son’s Education, Health and Care (EHC) Plan or deliver Section 19 (S19) alternative provision (AP) for him when he was unable to attend school.
The Ombudsman’s role and powers
- 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated
- I have not considered the content of Y’s EHC Plan in relation to the naming of a school. Miss X can appeal to the SEND Tribunal about this.
How I considered this complaint
- I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
- Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance
EHC Plan
- A child or young person with special educational needs (SEN) 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.
Alternative provision
- 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.
- 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
- Miss X’s son, Y has SEN and an EHC Plan. He was attending a specialist school until November 2023 when he stopped attending due to anxiety. Miss X and the school informed the Council. Miss X said the school could not meet Y’s needs and that she wanted him to transfer to another, more local, mainstream school.
- The Council held an emergency annual review of Y’s EHC Plan and sent consultation letters to other potential schools including the one preferred by Y’s parents.
- By March, the Council had not received a response from the preferred school. It directed the school to admit Y. The school responded and explained that it had not received a consultations letter. The Council granted the school a further 15 days to respond.
- In June 2024, the Council directed the school to admit Y. It named the school in Y’s EHC Plan and Y started a part-time timetable at the preferred school in September 2024.
My findings
- The Council was aware that Y was not attending school in November 2023. It should have made a S19 decision to determine whether it needed to arrange alternative provision for Y. I have seen no evidence that the Council made this decision. This was fault.
- Y remained out of school until September 2024 when he started at a new school. He received no education or SEN provision set out in his EHC Plan for nearly a year.
- The Council was at fault for not making a S19 decision and failing to arrange alternative provision for Y.
- The Council has agreed to apologise and pay Miss X £1500 per term in recognition of Y’s missed education. Between November 2023 and September 2024 are 2.5 school terms, equating to £3750 in total.
Agreed action
- Within 4 weeks of my decision, the Council has agreed to:
- Apologise to Miss X for failing to arrange alternative provision for Y.
- Pay Miss X £3750 in recognition of the missed education.
- Remind staff of the need to make a Section 19 decision regardless of whether the child is on roll at a school.
- The Council should provide us with evidence it has complied with the above actions.
Decision
- I have found fault with the Council for failing to make a Section 19 decision and arrange alternative provision for Miss X’s son when he was unable to attend school. This caused Y to miss nearly a year of education. The Council has agreed to remedy the injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman