Summary: Mrs D complained the Council failed to provide alternative and special educational needs provision for her son, J, when he stopped attending school. We found fault which caused uncertainty to Mrs D and J. The Council has agreed to apologise and make a payment to remedy this.

The complaint

1. Mrs D complained the Council failed to provide alternative and special educational needs provision for her son, J, when he stopped attending school. Mrs D says as a result J has not had a suitable education since March 2023, causing a detrimental impact on his and the family’s mental health. She also complained about poor communication and complaint handling, which has caused her 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 SEND Tribunal in this decision statement.
6. 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)
7. 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)
8. 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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How I considered this complaint

9. I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The SEND code of practice: 0 to 25 years (“the Code”)
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
10. Mrs D 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

Relevant law and guidance

Special educational needs

11. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reviews of EHC plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks, i.e. within 12 weeks of the review meeting.
17. Parents, the school and the council can all ask for an early annual review in certain circumstances. This is sometimes referred to as an interim or emergency annual review and is specifically carried out by the council. An early review might be because:
• The child or young person’s education, health or social care needs have changed and are no longer accurately described in the EHC Plan.
• The education, health or social care provision or the named placement in the EHC Plan is no longer meeting the child or young person’s needs.

Alternative provision

18. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
19. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. It is for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. 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)
21. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) V Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. It also says that where a pupil is not attending school and remains on the school's roll the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
22. If a parent requests alternative provision at home, the test for the council is whether the child is too unwell to attend any school, not just the school where they are on roll.
23. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. If a child is ill, they should arrange provision as soon as it is clear an absence will last more than 15 days.
24. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.” Councils may work with schools to set up an individually tailored reintegration plan for each child.
25. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
26. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
27. If the council offers a child less than full-time education, it must regularly review the situation.
28. There may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
29. Councils sometimes make the case that a child’s school has set work and/or provided teaching and there is thus no duty or a reduced duty. The statutory guidance says that councils should only become involved in such arrangements if it has reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently. Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall.

What happened

30. Mrs D’s son, J, has special educational needs including autism and learning disability. He is a child in need, with a child in need plan, support from children’s social care and regular review meetings. J is also on the Council’s “dynamic support register” (DSR) so has a keyworker who supports children with learning disability and autism and regular DSR reviews. J has an EHC plan and is on the roll of a special school (“the School”). The Council was providing a minibus as home to school transport.
31. In March 2023, when he was in Year 6, J started to struggle to access the minibus and go to school. Mrs D says J had high levels of anxiety and challenging behaviour. J’s problems with travelling to school were discussed at the annual review of his EHC plan in June.
32. When the new term started J was attending about two days a week. The School agreed with Mrs D to put J on a part time timetable and arranged an early annual review meeting on 19 October.
33. The review meeting discussed J’s problems accessing transport. It was noted that it was not safe for Mr & Mrs D to transport J due to his risky behaviour in the car and refusal to get into it. It was agreed an educational psychologist would observe him to help consider solutions. J’s social worker and an officer from the Council’s school transport team were there, so at this point the Council became aware that J was not attending school full time.
34. The review did not recommend any changes to J’s EHC plan but, as J was refusing to get into the minibus, the School suggested his teaching assistant (TA) could pick J up in a taxi. This would need to be funded by the Council as the TA’s time would need to be “backfilled” in school as J did not have one-to-one provision. The transport team said the arrangement was outside of the usual policy so would need to be funded by the Council’s SEND team.
35. After half-term, J’s attendance deteriorated so he was only attending one day a week. On 8 November, the School asked the SEND team about funding the new transport arrangement. The Council was concerned about the cost of and difficulties arranging the taxi and TA. It suggested the School discuss with the transport team and there was a meeting in December. The Council says some other transport options were suggested but none were suitable. Managers would need to consider the funding request from the School. The transport team would try to recruit a passenger assistant to travel with J.
36. There was a multi-disciplinary meeting in January 2024. A passenger assistant had not been found so the School agreed its TA would collect J one day a week. The Council would fund a taxi and aim to recruit a passenger assistant. J’s part-time timetable would be regularly reviewed. The TA started going to J’s home on 17 January but J would not leave his room.
37. Mrs D called the Council on 2 February. She asked for alternative provision to be put in place as J was only going to school one day a week.
38. The Council issued a letter refusing to make changes to J’s EHC plan on 5 February, although it is unclear why as the early review in October had not recommended changes and an earlier letter had been sent on 27 November.
39. At a DSR review in mid-February there was a discussion about increasing the number of days the TA went to J’s home, which would require funding from the Council. The March DSR review noted transport had been agreed until Easter and home schooling was being investigated.
40. On 26 March, the Council’s panel considered funding for extra days for the TA and taxi. It also considered a request for alternative provision to be made two sessions a week to help J access the taxi. The panel’s view was that the School should be able to fund this within its existing SEND budget for J and it asked for more information.
41. The School sent more information in April and the TA continued to try to collect J one day a week. It was felt he was making progress but he had not yet been able to get into the taxi.
42. On 22 May, the Council’s panel agreed the funding for extra TA days and the alternative provision, backdated from 11 March to the end of the summer term. Mrs D says this was too late to put the extra TA days in place for the summer term, as a TA needed to be recruited but this could only be started once the funding was agreed. Similarly, the alternative provision support was not available until the start of the new academic year.
43. There was discussion about whether the backdated funding that the panel had agreed could be used for the new academic year. The Council advised the School that this would be possible on 31 July.
44. Mrs D complained to the Council on 3 June that it had failed to provide J with a suitable education. She said she was unable to use J’s social care provision to support him with accessing school as she has been advised that “during school hours J is the responsibility of the educational setting.”
45. There was a second early annual review meeting on 27 June. The SEND team did not attend. The review recommended changes to J’s EHC plan.
46. The Council replied to Mrs D’s complaint on 24 July. It apologised for the delay. The Council partly upheld the complaint as there had been delays in signing off the additional funding for the School and gaps in communication. It said it was working with the School and other professionals to try and provide more education for J. It hoped that the multi-disciplinary meetings would identify further provision that J could access.
47. In August, Mrs D asked for her complaint to be escalated. The Council issued an EHC plan amendment notification on 15 August.
48. The final complaint response was sent on 5 September. The Council said it was funding the TA and taxi and the alternative provision. J was not missing from education as he was on roll at the School, which should be providing him with an alternative education. The School could ask for support if required. The provision outlined in section F of J’s EHC plan was available to him at the School. The Council had not refused to amend the EHC plan.
49. The alternative provision of two sessions a week started in September, along with two extra days a week of the TA trying to encourage J to use the taxi. Mrs D came to the Ombudsman.

My findings

50. The Council became aware in October 2023 that J was not attending school full-time. At this point it should have considered whether it owed J a duty to provide alternative provision under section 19. It should have considered if he was too ill to go to school and whether school was accessible to him. As he was out of school, it should also have considered if he was receiving a suitable education.
51. I have seen no evidence it did so, which is fault. However, I consider it unlikely that if the Council had considered these matters in late October 2023, it would have decided it owed a section 19 duty. This is because it would have been reasonable to allow the School to try to reintegrate J by trying a new transport arrangement and a part-time timetable. This was, in effect, the School’s reintegration plan.
52. However, the new transport arrangement did not start until January 2024. I find this was delay because the Council should have worked with the School to put the reintegration plan into place in November 2023 but instead referred the School to its transport team. However, this delay did not cause a significant injustice because on balance I do not consider J would have been able to get into the taxi even if the TA had started visiting in November, rather than January.
53. Once the reintegration plan started in January 2024, the Council should have reviewed how it was working. The multi-disciplinary meeting said the part-time timetable would be reviewed every six weeks, but I have seen no evidence it was. Nor I have seen any evidence that the Council considered whether the TA’s visits were helping J to increase his attendance at school. This is fault.
54. There were CiN and DSR reviews, multi-disciplinary meetings, and two interim annual reviews but I have seen no evidence that the Council decided what J's educational needs were, how these were being met, and whether he was getting a suitable education. It did not consider whether alternative provision was needed, and if so how much education he could cope with. As a result, the Council failed to develop a plan for J's education. This is fault.
55. There was contact with an educational psychologist but I have seen no evidence the Council requested or considered whether there was medical evidence about whether J was too ill to attend school. This is fault.
56. In response to my enquiries, the Council said it considered the School was suitable and available and accessible to J, but I have seen no evidence of how it has determined this, given that he could not travel there most days. This is fault.
57. The Council agreed to fund two sessions a week of alternative provision. It is unclear whether this was education or support for J to access the taxi. But in any case, although this was requested in March it did not start until September due to a delay in approving the funding. That was fault.
58. J has not had the provision specified in his EHC plan as he was not in school most of the time. In situations where a child is medically or otherwise unable to attend the school named on the EHC plan, the Council should consider how to make the provision away from the school. I have seen no evidence the Council considered how to secure this, which is fault.
59. My view is that these faults have caused uncertainty to J and Mrs D because we cannot now know, even on balance of probabilities, what provision, if any, could have been made for J or whether he would have been able to access more education.
60. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that to remedy uncertainty and distress caused by fault, a moderate, symbolic payment may be appropriate.
61. Since September 2023, there have been 11 cases where we have made service improvement recommendations to the Council in relation to its section 19 alternative provision. I understand the Council has been reviewing its “children not in school” policy. I therefore do not make any further service improvement recommendations.

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Action

62. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs D and pay her £500 to remedy the uncertainty caused by fault.
• Share this decision statement with the staff involved in the development of the children not in school policy.
63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. 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