Summary: Ms X complained the Council failed to provide her child with education after a mental health crisis. I find no fault. While Ms X’s child has not been able to access much in the way of education, this is not because of fault by the Council. The Council has offered a full range of educational provision in and out of school, but Ms X’s child has not been able to benefit from it.

The complaint

1. Ms X complains the Council has failed to provide her child, Y, with suitable fulltime education for many years. Ms X says Y has missed education, including special educational provision in an Education, Health and Care (EHC) Plan, and missed out on free school meals.

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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 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)
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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)

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What I have and have not investigated

8. I have investigated education provision for the period from January 2023. While this is more than twelve months before Ms X brought her complaint to the Ombudsman, I have exercised discretion to look at this period because:
• Ms X needs a representative to assist her with communications with the Council;
• The Representative has been proactively pursuing the complaint since their involvement;
• Part of the delay is due to delay in the Council’s own complaint process; and
• January 2023 is when Ms X’s child had a mental health crisis that led to them being unable to attend school and this change in circumstances is a natural point to begin the investigation.
9. I have not investigated loss of education prior to 2023; this complaint is too late for us to consider. Ms X also had appeal rights she could have used if she disagreed with the provision in Y’s EHC Plan.
10. I have not investigated the actions of social care. A complaint about social care is being considered separately under the statutory children’s complaints procedure.

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How I considered this complaint

11. I considered evidence provided by Ms X’s Representative and the Council as well as relevant law, policy and guidance.
12. Ms X’s Representative 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

Relevant law and guidance

13. 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.
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. 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. 
16. 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.
17. 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). 
18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Councils can hold an early review or carry out a reassessment if they consider it necessary, for example where there has been a significant change in circumstances.

What happened

19. In 2022, Y started at School A, an independent special school, and the Council amended the EHC Plan. Ms X had a right of appeal to the Tribunal if she disagreed with this placement.
20. In early 2023 Y had a mental health crisis and was admitted to hospital. There was consideration of a secure unit, but instead carers were arranged so Ms X child could return home. Y had a further crisis and was readmitted to hospital.
21. School A called held an emergency review of the EHC Plan. It said it could not keep Y or other pupils safe, or meet Y’s needs, given Y’s mental health crisis. Medical staff had decided Y needed 2:1 support and so at least the same level of support would be required for Y to return to school. There had also been a breakdown in the relationship with School A.
22. The Council’s decision after the review meeting was to amend the Plan and find a new placement specialising in autism. In the interim the Council’s panel agreed funding for 2:1 support at School A, and on school transport, once Y was fit to attend. This was agreed within a fortnight of the hospitalisation. Following a second crisis it was considered as much as 4:1 support, or a secure unit, might be needed.
23. A professionals meeting was held in March, two months after the initial crisis. It was confirmed funding was in place for two carers to escort Y to School A and a start date agreed. Training in proactively managing Y’s behaviour was to be provided to all staff working with Y. The Council also agreed to continue seeking an alternative placement.
24. The Council said between March and May 2023 it sought to put tuition in place but due to risk assessments, and concerns Ms X raised about venues, this was delayed. Tuition was available from June. Due to the gap in education the Council offered to continue tuition through the Summer holidays as catch-up provision, however tuition was then put on hold as a new tutor needed to be found. The Council says individual tuition was agreed in time for September, but Y was only able to access this for a very short period. In October an offer of online tuition was offered but declined as it was considered Y needed to spend time out of the house.
25. The Council says it was liaising with Ms X about amendments to the EHC Plan and Ms X did not want it to consult schools until the Plan was finalised to her satisfaction. Consultations took place from November 2023, but despite the Council being willing to fund highly specialist independent placements the consults were not successful. In April 2024 the Council offered a place at a residential special school which stated it could meet Y’s needs, but Ms X declined. The Council agreed to continue to look for a day placement.
26. In June 2024 the Council secured provision at an independent special school’s (School B’s) farm site 1 to 2 hours per week and amended the EHC Plan. It says the level of provision has been led by Y and agreed with Ms X. Y was then unable to attend due to anxiety, and online provision was offered and accessed two hours per day. Y asked to also try a vocational course at School B, which was agreed, but Y could only manage 1 hour with 2:1 support. The Council reviewed the provision in meetings in October 2024 and April 2025. It told me it was planned that Y would increase attendance after Easter 2025.
27. The Council says as the placement based at a farm is considered an independent school there is no requirement for the Council to provide free school meals. The Council says free school meals were requested from Spring 2024 until this placement started and it has agreed to refund 13 weeks of vouchers to Ms X for this period. This offer was made very recently and has resolved this part of Ms X’s complaint.
28. The Council says it continues to work with School B and the family to agree what education, including special educational provision, Y can access. It says that while it has been an extremely slow process getting Y to the current point, this has not been for ‘lack of trying’. It has worked with the family, and at Y’s pace, and School B has been supportive.

Analysis

29. The free school meals issue is now resolved.
30. This decision deals only with education matters. Ms X has a separate complaint about the social care support provided to Y and the family over this period which is under separate investigation.
31. Under its s19 duty, the Council must make suitable arrangements for education for any child who cannot attend school for reasons of illness, exclusion or ‘otherwise’. As Y has an EHC Plan the Council also had a duty to provide the special educational provision in the Plan to the extent this is possible when a pupil is unable to attend their usual placement (s.42 duty).
32. It is clear the Council accepted a s.19 duty soon after Y’s mental health crisis. There was no delay in holding an emergency review or agreeing emergency additional funding to support Y continuing at School A, if, and when, Y was fit to return. Y’s case has been kept under regular review by the Council. There was a delay in consulting schools, but the Council says this was Ms X’s choice as she wanted to wait for the EHC Plan to be updated and additional advice was required. There was a delay in arranging tuition when it became apparent Y could not return to school in Spring 2023, however the Council offered an appropriate remedy for catch-up tuition through the Summer. I note however this offer had to be withdrawn when a tutor left.
33. Tuition was again available from Autumn 2023, face to face and then online tuition was offered but Y was not able to access this for health reasons. Information in the updated 2024 EHC Plans indicate Y was accessing mental health support throughout this period and often struggled to leave the house for appointments or outings. A complaint from Ms X’s representative in January 2024 referred to Y having been out of education for one year but acknowledged tuition had been tried but not worked. In April 2024 a residential school was offered but declined.
34. In June 2024 a new independent special school day placement was secured. The Council correctly updated the EHC Plan giving Ms X a new right of appeal if she disagreed with this placement. Ms X did not appeal the final Plan to the Tribunal.
35. There is evidence the Council has kept education under review with a view to increasing it when possible, especially since School B has been named on the Plan.
36. I acknowledge Y has received little education since January 2023, but this does not mean the Council is at fault. The Council has explored and offered the full range of options available to it, including offering to fund residential special school provision. It is clear Y’s level of difficulties make it very difficult for Y to engage in education, and it is understandable the family did not want a residential placement, but I cannot say the Council has failed in its s.19 or s.42 duties. While there have been periods when tuition has broken down, even when there has been tuition in place Y has only been able to benefit from it at a very low level or for very short periods.

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Decision

37. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman