Summary: Mr X complained the Council failed to provide his child with a suitable education. Due to limitations on our powers, there are elements of Mr X’s complaint we cannot investigate. We have found the Council was at fault for the delay in arranging a suitable education and failing to communicate effectively with the family. This caused a loss of education and frustration. The Council has agreed to apologise and pay a financial remedy.

The complaint

1. Mr X complains the Council failed to respond appropriately to his complaints regarding his child, Y’s education. Specifically, he complains the Council failed to:
• Investigate his complaint about a matter that occurred more than 12 months ago;
• Provide Y with a suitable education when they were unable to attend school;
• Monitor the provision Y was receiving;
• Agree and secure a suitable education for Y in a timely manner;
• Complete the complaint resolution it proposed in November 2024.
• Provide a remedy to his complaint that covered the costs he incurred; and
• Communicate with him effectively.
2. Mr X says Y has not received a suitable education since 2021 and would like compensation for missed education and the distress caused to the family.

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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. 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. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
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 have and have not investigated

10. Mr X complains of events from 2021. I can see no good reason for my investigation to go as far back as this but I have used my discretion to investigate Y’s education from the annual review in February 2023 because it is a reasonable starting point and I have sufficient information to make findings with confidence.
11. I have not investigated Mr X’s complaint about his dissatisfaction with the content Y’s EHC Plan. Mr X has the right to appeal to the SEND Tribunal and it is best placed to consider this matter.

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How I considered this complaint

12. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
13. Mr 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

Relevant law and guidance

Education, health and care Plans

14. 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. 
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
16. 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)  
17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative education

18. 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.
19. 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)
20. 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)
21. 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
22. 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.

23. 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.

Limits to jurisdiction

24. The courts have established that if someone has appealed, or could have 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)
25. 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.
26. 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). 

What happened

27. Mr X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Y had a place at a specialist school but they were unable to attend due to anxiety. The school arranged one to one tuition at school but this was unsuccessful.
28. On 20 February 2023, an annual review meeting of Y’s EHC Plan was held. The annual review documentation shows that Y’s attendance at school was low, around 50% on Fridays for provision at a farm and around 17% the rest of the week. The annual review highlights the school is concerned about its ability to deliver the outcomes in Y’s EHC Plan due to their lack of attendance.
29. Mr X arranged for Maths and English tutors to work with Y. This commenced in September 2023 until June 2024. The reports from the tutors demonstrate Y’s attendance, progress and engagement with them was positive. Mr X has asked the Council on several occasions to reimburse him with the cost of the tuition he arranged but the Council refused. Mr X also requested from the Council that it redirect the funding it was providing to the school to pay for the tuition he arranged. Mr X says the Council did not respond to this.
30. The Council issued Y’s final EHC Plan in March 2024.
31. The Council arranged an ‘awaiting placement’ package of education which began at the end very end of June 2024.
32. An EOTAS package was agreed and commenced in September 2024.

The Council’s response to Mr X’s complaints

33. The Council acknowledged it was responsible for Y’s educational provision and this was not followed up by the caseworker and nothing additional was offered to Y which resulted in Mr X arranging and funding tuition.
34. The Council said it would respond to Mr X’s request for Education Other Than At School (EOTAS) by 12 December 2023 but it never did and it did not process the EOTAS request in a timely manner. The Council acknowledged this impacted on the provision that was available to Y and resulted in Mr X continuing to fund the tutoring.
35. The Council offered Mr X a remedy of £2250 for missed provision and to acknowledge the frustration and distress caused. It also apologised. Mr X is of the view this remedy is not appropriate because it does not cover the costs he has incurred. Mr X has requested £12,680 from the Council as a suitable remedy. The Council increased its offer of a remedy to £5050 and said it considered this to be appropriate.
36. The Council identified two actions that it would complete as part of the complaint resolution. It said it would meet with Mr X by 29 November 2024 to discuss a communication agreement and it would gather reports from the annual review and share them with the Educational Psychologist. Mr X says the Council has not met with him with to discuss a communication agreement and he remains unhappy with the Council’s proposed remedy.

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Analysis

Y’s EHC Plan

37. Y was in her final year of secondary education in the summer of 2024. The Council should have reviewed and amended her EHC Plan, specifying the post-16 provision by 31 March 2024. The Council issued Y’s final EHC Plan before this deadline and therefore I do not find fault. Mr X is unhappy with the contents of the Plan and says the Council issued it to meet the statutory deadline and it does not accurately reflect Y’s needs. The contents of the EHC Plan are a matter for the SEND Tribunal. Mr X had the opportunity to use his right of appeal. I do not find the Council at fault.

Y’s education between March 2023-March 2024

38. Due to limitations on our jurisdiction, I am unable to investigate matters from March 2024 onwards because the Council advised Mr X of his right to appeal when it issued Y’s final EHC Plan on 12 March 2024. The lack of education/alternative provision is linked to the placement named in Section I of the Plan and therefore it was reasonable for Mr X to use his right of appeal. I am unable to investigate or make findings on the education/alternative provision Y received after this Plan was issued. Therefore, any findings I make regarding Y’s education relate to the period March 2023 to March 2024.
39. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise. When a child does not attend school due to anxiety, the Council needs to consider whether the education offered to the child is ‘reasonably available and accessible’.
40. It is evident the Council was aware in February 2023 that Y was not attending school full time and she was not receiving the provision as outlined in her EHC Plan. In the annual review report the school clearly states it is unable to successfully put the provisions in Y’s EHC Plan in place due to low attendance. I have not seen any evidence the Council considered its Section 42 duty at this point. The Council has not provided me with any evidence it considered its Section 19 duty at this point either. The Council had sufficient information from the annual review to consider whether it owed Y a Section 19 duty. The Council did not do so. This is fault.
41. The Council did not arrange any education for Y until June 2024. During this period, Y received some alternative provision at a farm and drama therapy arranged by the school and also Maths and English tuition arranged by Mr X. There is no evidence Y was receiving all the provision as outlined in her EHC Plan between March 2023 and March 2024.
42. The annual review in February 2023 highlighted that if Y does not increase her attendance in Maths, English and Science soon, it may not be possible for her to sit her GCSE exams. The Council did not attend the meeting but it did receive the paperwork and was therefore aware of Y’s low attendance and lack of engagement with education. The Council has not provided me with evidence it took relevant action in response to this. The Council says it does not know what provision Y received during this period because the school did not respond to an email it sent. The Council has acknowledged it did not follow this up and no additional education was offered. The Council should have monitored Y’s education as soon as it became aware of the attendance issues.
43. Therefore, I consider it reasonable for the Council to reimburse Mr X for the English and Maths provision he arranged because there was no educational provision arranged by the Council that Y could access. There would only have been the provision at the farm arranged by the school.
44. The Council has accepted that the fault resulted in missed provision and in recognition of this it offered Mr X £2250 and it later increased this to £5050. I have considered whether the Council’s remedy is in line with the expectations in our Guidance for Remedies. In my view, the Council has considered the missed education but it has not considered the significance of Y’s situation or the impact on her education and wellbeing. Given Y’s circumstances, I consider an increased remedy is appropriate.
45. I consider the Council should make a payment of £1720 to Mr X for the Maths and English tuition Y received until March 2024. I also recommend a remedy for the loss of provision from March 2023 to March 2024 for the periods where no educational provision that Y could access were secured (March 2023 – July 2023) and where the educational provision in Y’s EHC Plan was not secured or accessible for Y. When calculating a remedy for the loss of provision I have taken into account the limited provision she did receive and also Y’s age, the stage of her education (a transition year) and her special educational needs. I consider an appropriate remedy for the loss of education between March 2023 to July 2023 is £1960 and for the period September 2023 to March 2024 is £2000.
46. Mr X has requested the Council reimburse £1695 for a ‘consultant’ he arranged to help him secure an EOTAS package for Y. I will not be recommending the Council reimburse the cost of the consultant because the EHC Plan process, the Council’s complaints process and bringing a complaint to the Ombudsman are designed to be accessible to members of the public without the requirement for legal representation, costly advice or consultants. Appointing a consultant was a choice Mr X made, it was not a requirement.
47. I have not recommended any service improvements because the Council recently agreed to make improvements with regards to alternative provision in response to a different investigation by the Ombudsman.

Lack of effective communication and delays

48. The Council has acknowledged there had been delays in responding to email and telephone requests and it has apologised. Mr X requested an EOTAS package from the Council in December 2023 but the Council did not put this forward to Panel until 9 May 2024 where more information was requested. A decision was not made on this until 20 June 2024. I find the Council failed to act quickly. This delay is fault. It was a significant period of uncertainty for the family and they felt they had no choice but to arrange education themselves because the Council had not put anything in place. This injustice warrants a remedy for the avoidable distress caused.
49. Mr X is also dissatisfied the Council has not fulfilled its promise to meet with him to discuss a communication agreement by 29 November 2024. The Council’s stage 1 complaint response sets out this action and I have not seen any evidence the Council has completed it. The delay has caused frustration to Mr X. I recommend the Council should complete this action as soon as possible.

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Agreed Action

50. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mr X in writing;
• Make a payment of £1720 to Mr X for the alternative provision he arranged;
• Pay Mr X £3960 for loss of provision from March 2023 to March 2024. This is to be used by Mr X for Y’s educational benefit.
• Pay Mr X £500 for the avoidable distress caused to the family by the identified faults.
• Ensure it has completed the two actions it said it would complete as part of the complaint resolution (as explained at paragraphs 36 and 49 above).
51. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman