Summary: Mrs X complained about the Council’s handling of her son, Y’s, education. There was fault in the way the Council did not pay the backdated free school meals payment it agreed to and delayed responding to the complaint. This frustrated Mrs X. The Council should apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mrs X complained about the Council’s handling of her son, Y’s, education. She complained the Council:
• Has not provided Y with adequate education and Education, Health and Care (EHC) Plan provision;
• Did not provide the free school meals Y was entitled to; and
• Complaint handling was poor.
2. Mrs X said this distressed her and impacted her family financially.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a Council’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)
5. 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.

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How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. 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. 
10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014) 
11. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• amendment to these elements of an EHC Plan;

12. 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)
13. 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.
14. 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.
15. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
16. 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). 
17. 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.
18. 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)
19. 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)
20. 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
21. 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

22. 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.
23. The Council complaint policy has three stages. It says the stage one response would be acknowledged and responded to within 20 working days. Stage two is 25 working days and stage three is Chief Executive Officer consideration, if needed.

What happened

24. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
25. Y has additional needs. Mrs X and her family moved into the Council area in late December 2023. The previous Council sent Y’s EHCP to the Council just before the Christmas break 2023. The information included a report from Y’s previous school, detailing mainstream school was too stimulating for Y and they needed suitable alternative provision.
26. The Council received the information from the previous area at the start of January 2024. The Council agreed to review the EHC Plan. The Council arranged tuition for Y at the end of January 2024.
27. The Council reviewed the EHC Plan in February 2024. Y’s tuition of six hours per week started after this review. Mrs X confirmed she was happy with this level of support.
28. In March 2024, Mrs X told the Council Y was doing well, and asked for more hours. The Council asked the tuition company if it could provide more hours, but it could not.
29. The Council issued the final EHCP at the end of March 2024.
30. The Council increased the tuition in May 2024, when the company had capacity.
31. Mrs X complained to the Council at the end of May 2024. She complained Y was receiving nine hours per week tuition, but this was not full time and there was no EHC Plan provision. She said she now received money for free school meals but asked why the Council had not backdated the payments. Mrs X said she wanted full time education and plan provision for Y.
32. Mrs X chased the Council for a response in June 2024.
33. The Council reviewed Y’s plan in July 2024. The Council decided it would not amend the plan.
34. The Council issued its complaint response in October 2024. The Council apologised for the delay in the complaint response and offered Mrs X £150. The response set out tuition is more intensive so can be less hours. The Council agreed to backdate a payment for free school meals.
35. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to backdate the free school meals funding and make a financial payment for not providing education and the distress this caused.
36. In response to my enquiries the Council accepted it agreed to pay Mrs X £195 for backdated free school meals and it had not done this. The Council stated it completed reviews within statutory timescales and provided tuition for Y.

My findings

Education and EHC Plan provision

37. Councils have a duty to provide alternative education under section 19. The Council received the information from the previous area the day before the start of the January 2024 academic term. It contacted Mrs X, arranged a review and referred for tuition after receiving the information. The tuition started and Mrs X confirmed she was happy with this package of education. The Council was not at fault.
38. Mrs X asked the Council for more tuition in March 2024. The Council asked the tuition company to provide more hours, but it could not. Mrs X felt Y could engage with more education and plan provision at this point.
39. However, the Council issued a final, appealable, EHC Plan in March 2024. As set out in paragraph 12, this limits the Ombudsman’s jurisdiction to consider missed education or provision from this appeal right. The Council considered Mrs X’s request and asked for more hours from the company. Any education and provision potentially missed was after the appeal right. I therefore cannot make a finding on this matter. The Council was not at fault for the time this investigation has considered.

Free school meals

40. The Council agreed it would pay Mrs X £195 for backdated free school meals. It has not paid this. This is fault, frustrating Mrs X.

Complaint handling

41. The Council complaint policy sets out a three-stage process as set out in paragraph 23. The final stage is only if a case warrants Chief Executive Officer consideration. The Council has only completed one stage of this process, taking 18 weeks to complete. This is a delay of 14 weeks. This is fault, frustrating Mrs X. The Council offered Mrs X £150. This is a suitable remedy for the injustice caused.

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Agreed action

42. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not paying the backdated free school meals it agreed to and delays in the complaint response. 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.
• Pay Mrs X the £150 it offered as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Mrs X the £195 it offered for the backdated free school meals.
• Remind relevant staff of the importance of effective complaint handling, adhering to policy and timescales.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman