Summary: Miss B complained that the Council had failed to find a suitable educational placement for her daughter C or provide her with a suitable full-time education since May 2023. We found some fault causing injustice to Miss B and C. The Council has agreed to apologise to them both, make symbolic payments totalling £800 and improve its procedures for the future.

The complaint

1. Miss B complained that South Gloucestershire Council (the Council) in respect of her child C, failed to find a suitable educational placement or provide a suitable full time education for C since May 2023. The Council also delayed in responding to Miss B’s complaint about the matter and despite finding fault, failed to offer a remedy for the injustice caused. C has missed out on education and socialisation for a prolonged period and Miss B has been caused significant distress and time and trouble.

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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. 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)
4. 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)
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)

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What I have and have not investigated

6. Miss B complained to us in September 2024. I have decided to exercise discretion to investigate the complaint from May 2023 when C stopped attending the alternative provision.

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How I considered this complaint

7. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
8. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. 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

Special educational needs

10. 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. 
11. 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)  

Alternative provision

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
15. 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’)
16. 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

17. Miss B’s daughter, C, has an EHC Plan. Since April 2021 she was attending an alternative provision (School Z) for students unable to attend mainstream school, for medical reasons. School Z was named in C’s EHC Plan.
18. In June 2022 at C’s annual review School Z said that it was unable to meet C’s needs and Miss B requested that the Council find a specialist provision. The Council consulted with a number of specialist provisions over the next 12 months but was unsuccessful in finding a place for C.
19. C attended School Z on a full-time basis until May 2023 when she struggled to attend due to a breakdown in peer relationships which caused her severe anxiety.
20. In June 2023 School Z put in place some home tuition for C, starting at around 4.5 hours a week, with a view to integrating C back into School Z’s onsite provision by September 2023. However, C was unable to do this, and the tuition increased to between 5.5 and 12.5 hours over the next 12 months. School Z also offered attendance at a small group off-site hub and fulltime provision on site.
21. In October 2023 Miss B made a formal complaint about the Council’s failure to find a specialist placement or provide C with a full-time education. The Council asked School Z to provide some information about the education it had offered to C. School Z again said it could not meet the requirements of the EHC Plan but would always be willing to provide appropriate provision within its capacity. It felt that Miss B would only be happy with a specialist placement, but it considered that it was as well-placed to support C as any other specialist setting and the existing challenges would still manifest in any of those other placements. It did however say that C would need 1:1 support for this to be successful.
22. It said that since September 2023 it had tried to increase the education provision by:
• Offering an off-site equine provision
• Additional home tuition
• Impact mentoring
• On-site sessions
• Exploring another off-site alternative provision.
23. The Council responded to the complaint at the end of November 2023 at stage one of its complaints procedure. It said it had been looking for an alternative placement and had consulted six organisations, but none had offered a place. It accepted fault in communication with Miss B about the process. In respect of a full-time education, it said School Z had throughout the period offered a full-time on-site placement or hybrid approach, but Miss B had consistently declined it. These options were still available. The Council offered to meet with Miss B to discuss the full-time education offer and her reasons for declining.
24. Miss B remained unhappy and escalated her complaint to stage two in February 2024. She complained that
• School Z was not suitable for C’s needs.
• The Council had not secured an alternative placement for two years.
• C had not received a full-time education for two years.
25. She wanted a specialist placement extended to post-18 education, for boarding provision to be considered, along with transport and repeating an academic year.
26. In March 2024 School Z again said it was unable to meet C’s needs but would continue to support her as best it could until a new long-term placement could be found. It said it was able to offer a full-time onsite placement, but this would require 1;1 support at all times which would all it to address more (although not all) of her needs. But it said it was clear from conversations with Miss B that C was not well enough to return to an on-site programme. It said it would look at continuing with off-site provision aiming to increase this to 20 hours a week but needed the resources for 1:1 provision.
27. The Council carried out an independent investigation. The investigator completed their report in June 2024. They upheld the complaints that School Z was not suitable for C’s needs and that C had not received a full-time education for two years. They did not uphold the complaint about the failure to secure an alternative placement because they concluded the Council made reasonable efforts to do so.
28. The Council sent its adjudication response on the complaint to Miss B in August 2024. It agreed with the findings. It said it would continue to look for a placement for C but would also get an updated health assessment on whether C could still attend mainstream provision. It did not consider boarding provision unless there was an identified social care need and there was no evidence of that in C’s case. It agreed to consider transport provision and either repeating a year or catch-up provision.
29. The Council issued an amended final EHC Plan on 28 August 2024 naming a placement at an independent specialist day school. Miss B then complained to us.

Analysis

Alternative placement

30. School Z had said since June 2022 that it could not meet C’s needs even if 1:1 support was resourced. So, it is accepted from May 2023 that C needed an alternative placement. The Council’s complaint investigation concluded that the Council had made significant efforts to find an alternative placement for C. Although this had not been successful it did not uphold the complaint because the failure had not been due to a lack of competence of inaction by the Council.
31. While recognising that the failure to find a placement was not due to any deliberate act of omission by the Council, I have still concluded this was service failure as described in paragraph 3 above and is fault which has caused C to miss out on education for a prolonged period. It also caused Miss B distress and inconvenience.

Full-time education

32. School Z acted promptly to offer C some home tuition from June 2023 when it was clear C could no longer attend the on-site provision. For the next year C received between 4.5 and 12.5 hours a week of home tuition and mentoring. This does not equate to a full-time education even taking into account the 1:1 nature of the provision. I accept School Z offered full-time education on-site during this period, but the evidence suggests that C was not well enough to attend.
33. I also accept that School Z offered additional sessions and provisions to increase the educational provision, but Miss B declined. I have not seen evidence that the Council considered during this period whether the offer was suitable and accessible to C or whether the refusals were reasonable. I note as a result of the complaint investigation, the Council agreed to obtain an updated health assessment. I consider it should have done this sooner to help it reach a view as to whether the education on offer was suitable and accessible to C. The failure to do so was fault.
34. I also note School Z said in November 2023 and March 2024 that it could provide more suitable education for C with 1:1 support. The Council did not respond to this request which suggests C was not able to access full-time education.
35. The complaint investigation concluded that while both the Council and School Z had made efforts to provide C with education, she had not received a full-time education since the summer of 2023. I agree with this conclusion although I am unable to say how much education C would have been able to access with either 1:1 support or a different placement because the Council did not properly assess this question. But I have concluded the failure caused uncertainty for C and Miss B.

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Action

36. In recognition of the injustice caused to Miss B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Miss B and C;
• makes symbolic payments of £300 to Miss B and £500 to C; and
• reviews its processes to ensure that in cases where children are receiving alternative educational provision for medical reasons, that the Council regularly reviews whether the provision is accessible and suitable.
37. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman