Summary: Miss X complained the Council failed to provide alternative provision while her daughter was unable to attend school. She also complained the Council failed to arrange transport when a place at a special school was agreed. We found the Council’s failure to provide alternative provision for approximately two and half terms is fault. This fault caused distress and frustration and meant Miss X’s daughter missed out on an education at a significant point in her school career. The Council will apologise and make payemnts to remedy this injustice.

The complaint

1. Miss X complained the Council failed to provide alternative provision while her daughter was unable to attend school.
2. Miss X also complained the Council failed to arrange transport when a place at a special school was agreed. As a result Miss X incurred additional expense in taking transporting her daughter to school.

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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 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)
4. 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)
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 Tribunal in this decision statement.
6. 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)
7. 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

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss 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

Education, Health and Care (EHC) Plan

10. A child or young person with special educational needs may have an Education, Health and Care 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 council can do this.
11. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Alternative provision

12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
13. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. 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))
15. 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)

Home to School Transport

16. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have.
17. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration.
18. The Council’s Travel assistance policy for compulsory school aged children with an EHC Plan says that were travel assistance is agreed, setting up transport will take approximately 15 working days. The policy says applicants will need to make their own travel arrangements until this is set up and it will not reimburse any costs incurred during this time.

What happened here

19. Miss X applied for an EHC needs assessment for Y in 2022. When the Council refused Miss X appealed to the SEND Tribunal. In February 2023 the Tribunal ordered the Council to undertake an assessment. Following the needs assessment, the Council decided not to issue an EHC Plan. Miss X appealed to the SEND Tribunal again in September 2023.
20. These decisions and Miss X’s appeals to the Tribunal are not part of my investigation, but I have referred to them for context.
21. Miss X’s daughter Y attended a mainstream school. On 9 October 2023 Y’s GP signed her off as medically unfit to attend school. The Council says it only became aware Y was not attending school in November 2023 when the school requested a Time limited Inclusion Grant (TIG).
22. The TIG panel refused the school’s request and suggested the school could source alternative provision from its existing funding. It also told the school that the Education Support Service was available to support with attendance concerns. The Council says it would have considered Y’s attendance as part of the TIG panel, but it is unable to evidence this.
23. In January 2024 the Council agreed to issue an EHC Plan for Y. The Council then issued a final EHC Plan on 8 April 2024. It told Miss X the consultation period for schools was still open but it was issuing a final Plan in order to meet the statutory timeframe. This Plan did not name a school but identified the setting as a mainstream school. The Council then completed its consultations and issued a further final EHC Plan on 3 June 2024 naming Y’s current school. Miss X exercised her right of appeal to the SEND Tribunal.
24. The Tribunal approved a consent order naming a specialist school in September 2024. The Council then issued a final EHC Plan naming the specialist school on 18 September 2024.
25. Miss X arranged directly with the specialist school for Y to start on 4 September 2024, before the Tribunal had issued the consent order. Miss X transported Y to and from school until the Council arranged transport to commence on 30 September 2024.
26. In September 2024 Miss X made a formal complaint to the Council. She complained the Council had refused to provide alternative provision while Y was not at school and refused the TIG application. Miss X also complained that as the Council had delayed in naming a specialist school, home school transport was not in place when Y started at the school. Miss X asked the Council to reimburse her transport costs of £34.20 each day.
27. The Council responded in October 2024. It told Miss X that TIG funding was not used for the type of alternative provision she had requested. The Council noted Y had not attended school since October 2023 and had been marked as ill in the weeks leading up to half term. The Council said it expected the school to make a referral to the Teaching and Learning Provision (TLP) if they had concerns about Y being unable to attend due to illness. It also said the school was able to fund alternative provision without TIG funding had it chosen to.
28. The Council apologised that the school had not made a referral to TLP. As this meant the school were not supported by Education Support Services to put reasonable adjustments in place to re-engage Y in education prior to her EHC plan being in place.
29. In relation to school transport, the Council noted it had agreed to name the specialist school on 21 August 2024. However, it was unable to issue Y’s EHC Plan until it received the Tribunal order. It also noted the tribunal officer had explained to Miss X that the transport team was unable to process or organise any transport for a child/ young person until their EHC Plan names a school. The transport team received details of the named school on 19 September and transport started on 30 September 2024.
30. The Council said it would not reimburse Miss X’s transport costs as Miss X had made the arrangement for Y to start school on 4 September 2024 directly with the school. The Council had not issued an EHC Plan naming the school at that time.
31. As Miss X was not satisfied with the Council’s response, she has asked the Ombudsman to consider her concerns. In response to my enquiries the Council says it was not aware of Y’s attendance challenges until it considered the TIG request in November 2023.
32. The Council says that at that time it was not consistently identifying the need to consider whether it had a duty under s19 where it had not been explicitly requested by parents. It has improved its practice since then. The Council also says TIG panel decisions about what provision TIG funding can be agreed for is now more flexible. In addition, under its new process, if the TIG panel do not agree to funding but there are attendance concerns, the TIG chair will complete a referral to the Council’s s19 Panel. This panel will then consider whether the Council needs to make arrangements for the young person to access a suitable arrangement.
33. As this process was not in place in November 2023 these steps were not taken. The Council acknowledged it is unable to evidence sufficient oversight of the expected actions by the school to respond to Y’s illness and support her non-attendance, including referrals to its Education Support Services.
34. In relation to home school transport the Council has reiterated that it could not finalise Y’s EHC Plan and name a school until it received the Tribunal order. Once it receives a tribunal order the Council has five weeks to issue an EHC Plan. In this instance the Council issued the Plan within three working days. Transport was then arranged within a further six working days.
35. The Council says this was in line with its transport policy. Miss X chose to arrange for Y to start at the school before it was named in the EHC Plan. It considers Miss X chose to transport Y to the school before it was named in the EHC Plan and before travel assistance could be arranged. She did so at her own expense.

Analysis

36. I consider the Council was at fault in failing to ensure Y received a suitable education for approximately two and a half terms. Councils have a duty to arrange suitable education for a child it knows cannot attend school.
37. The Council was aware in November 2023 that Y was not attending school. There is no evidence the Council considered whether it had a duty to provide s19 provision at this stage or any subsequent point. The Council accepts it did not have sufficient oversight of the school’s actions or referrals to the Education Support services.
38. It has amended its policy, guidance and procedures so that situations like this should not happen again. This is to be welcomed but does not address the injustice to Y and Miss X here. Y was out of school and did not receive any educational provision for an entire academic year. This is a significant injustice.
39. 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)
40. 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.
41. The period we cannot investigate generally 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.
42. The Council issued final EHC Plans on 8 April 2024 and 3 June 2024. As the Council made it clear when it issued the Plan in April 2024 that there would be further amendments, including to name a school, we would not have expected Miss X to exercise her right of appeal at that point. Miss X subsequently exercised her right of appeal to the SEND Tribunal following the final plan issued 3 June 2024. We are therefore unable to consider any missed provision beyond 3 June 2024.
43. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. These payments would be between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
44. In the circumstances I consider a payment of £5,000 for the failure to provide a full-time education for approximately two and a half terms between October 2023 and June 2024 would be appropriate. This was a significant year in Y’s school career as she transferred from primary to secondary school.
45. I do not consider it necessary to make recommendations for service improvements as the Council has already taken action to improve its adherence the annual review timeframes and its oversight of alternative provision and its section 19 duties.
46. Miss X also complains the Council delayed finalising Y’s EHC Plan in September 2024 and arranging transport to school. I am not persuaded the Council was at fault in this respect. Although the Council had agreed to a place at a specialist school, this was subject to approval by the Tribunal. Y was therefore still on roll at the mainstream school at the start of the 2024/ 2025 academic year. Miss X, rather than the Council, arranged for Y to start at the specialist school at the start of term.
47. The Council quickly amended Y’s Plan to name the specialist school when it received the Tribunal order and then promptly arranged transport. I do not consider there to be any delay, or that the Council acted with fault in this respect.

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Action

48. The Council has agreed to
• apologise to Miss X and Y for not providing a suitable education between October 2023 and June 2024 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 Miss X £5,000 in recognition of Y’s missed education between October 2023 and June 2024. Miss X should use this for Y’s educational benefit as she sees fit.
• pay Miss X £250 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
49. The Council should take this action with one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman