Summary: There was fault by the Council because it unnecessarily delayed making arrangements for alternative provision for a child not attending school. This caused frustration, for which the Council has agreed to offer a financial remedy.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P complains the Council delayed implementing educational provision for his daughter, B, after it issued an education, health and care (EHC) plan for her in July 2024.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)

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What I have and have not investigated

5. In his complaints to the Council and Ombudsman, Mr P has raised both the issue described at paragraph 2, and also a historical decision by the Council to end support it was providing to B, and the impact of this decision on her.
6. It is not clear precisely when this second issue arose. However, from Mr P’s comments, it appears to have been in either 2021 or 2022.
7. The law says a person should approach us within 12 months of becoming aware of the matter they wish to complain about. This is called the ‘permitted period’. Any complaint which falls outside this period is late, and we should not generally investigate it.
8. The law does provide us with the flexibility to disapply this restriction, where we consider it appropriate, but we must first be satisfied there is a good reason for a person’s delay in making their complaint. I have discussed this with Mr P, but I do not consider he has provided a reason to justify investigating his late complaint. My investigation will therefore cover only the point described at paragraph 2.

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How I considered this complaint

9. I considered evidence provided by Mr P and the Council as well as relevant law, policy and guidance.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

Alternative provision

11. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Mr P’s complaint

12. B has a diagnosed learning disability and special educational need (SEN), and Mr P says she has not attended school for several years. In 2024 the Council agreed to issue an EHC plan for her and began to compile one.
13. On 17 July the Council says Mr P asked it to arrange a particular alternative provider, to which I will refer as Provider 1, for B. The Council responded to say the school it was proposing to name for B could arrange and fund alternative provision if necessary. Then, on 31 July the Council issued B’s final EHC plan, naming a mainstream school as her placement.
14. During the first week of the new academic year in September, the Council and school met “to discuss suitable provision” for B. Then, at a second meeting on 12 September, which Mr P also attended, it was agreed the school would arrange alternative provision. Mr P expressed his continued preference for Provider 1; but it was agreed instead that a different provider, Provider 2, would give interim mentoring support to B, to help her reintegrate into school.
15. The Council says it had further fortnightly meetings with the school until 8 October. On 8 October, the school informed the Council it had offered B a place at its in-house SEN provision, but that Mr P had declined this. After Mr P disputed this, the school clarified B had refused to board the school transport. The Council then made a referral to Provider 2.
16. On 22 October the school confirmed Provider 2 had met with Mr P and B, and that it was shortly due to start sessions with her. The following days the Council says Mr P confirmed he was satisfied with this arrangement.
17. On 1 November Mr P submitted a stage 1 complaint. He said that, despite B’s EHC plan being in place since July, it would not start to be implemented until 6 November. Mr P complained the Council was required by law to ensure all provision was in place by the time the plan was issued.
18. The Council responded on 25 November. It said it had issued B’s EHC plan on 31 July, which was during the school holiday, but that it had met with the school when it returned in September to discuss her provision. It also noted the second meeting, which Mr P had attended, in which it was agreed the school would look for provision for B, but that this would not necessarily be Mr P’s preference of Provider 1. The Council explained the work it had done with the school since then, and that Mr P had said he was now satisfied with the arrangements for Provider 2.
19. Mr P submitted a stage 2 complaint on 5 December. He reiterated the Council was legally required to secure all provision before the issue of an EHC plan, and said B had so far only had two one-hour sessions with Provider 2 due to staff sickness. Mr P said it was clear the Council could not provide the support that Provider 1 could, and he intended to use either the Tribunal or Ombudsman to get Provider 1 to take over B’s support.
20. The Council responded on 4 February. It noted Mr P had a preference for Provider 1 because of previous work it had done with B. However, it explained Government guidance required councils and schools to work to remove barriers to a child attending school, where this was caused by mental health problems. The Council said this was the reason it had agreed to a short-term package of support from Provider 2.
21. The Council said it considered it reasonable for it to have taken from 12 September to 22 October to arrange Provider 2, but it acknowledged there had then been a further delay of “almost four weeks” from 22 October to 6 November before the package started. The Council accepted it was at fault for this, and offered Mr P a remedy of £300 in recognition.
22. In March, Mr P referred his complaint to the Ombudsman.

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Analysis

23. In its responses to Mr P’s complaints, the Council highlighted that it issued B’s EHC plan on 31 July, during the summer holiday, which meant it did not have an opportunity to discuss her provision with the school until September. While this is evidently true, it does not explain why the Council could not make arrangements itself, independently of the school, to ensure some provision was in place for B at the beginning of the year.
24. I asked the Council for its comments on this. In response, it told me that, at the point it issued B’s EHC plan, it was satisfied the named school was suitable for her, and that it expected her to attend there when the school year started. It was only in September it became clear she would not attend, and it was at this point the section 19 duty was triggered.
25. However, I do not find this persuasive. If, as the Council says, it had simply expected B to start attending school as normal in September, then it does not make sense the Council would have arranged a meeting to discuss her provision so soon – within the first week – of the academic year; nor a second meeting the following week, on 12 September.
26. Rather, this implies strongly the Council was already aware B would not attend the school, certainly not immediately, and that some other arrangement needed to be made for her in the interim period. The Council should therefore not have waited until the start of the academic year before beginning to make arrangements.
27. I note the Council has also mentioned it was providing funding to the school for B, which it expected the school to use to arrange provision for her. I acknowledge this, but it is the Council which has the legal duty to ensure provision is in place; therefore, if the school was not in a position to being making arrangements for the start of the academic year, because it was closed, then the Council should have done so instead.
28. On this basis, I find fault by the Council.
29. While the Council has already accepted it was at fault, this is because of a delay in the start of the arrangements with Provider 2 between 22 October and 6 November (which the Council says was “almost four weeks”, although it is in fact two weeks and one day). Either way, this does not properly describe the fault in this case.
30. However, I consider the identifiable injustice arising from this fault to be limited.
31. In similar cases to this one, we would normally find a failure to make timely arrangements for alternative provision had caused the child in question to miss out on a period of core education (such as English, maths and science). In B’s case though, I am conscious both proposed providers were only intended to provide a brief weekly session of mentoring. I do not, in any way, seek to dismiss the importance of this to B, but equally I cannot overlook this is not what is normally meant by alternative provision.
32. Even if the Council had sought to make arrangements for core educational provision, the evidence strongly suggests this would have been unsuccessful, given B’s reaction to the school’s offer of a place in its SEN provision.
33. I do consider B’s mentoring would likely have started a few weeks earlier than it did, had the Council made more timely arrangements. It is difficult to say what difference this may have made in the longer term for her though.
34. Taking these points together, I consider the injustice to Mr P from the Council’s fault was the frustration he was caused by the delay in making arrangements for B.
35. I consider the £300 the Council has already offered him to be an adequate remedy for this, in accordance with our guidance on remedies. However, the Council has confirmed Mr P did not accept this offer, and so I will make a recommendation for it to repeat the offer.
36. Separately, I note Mr P, in his correspondence with the Council, said he was intending to approach the Ombudsman to ensure Provider 1 took over B’s mentoring. But this is not something we can achieve, as it is not for us to make operational decisions on the Council’s behalf in this way.

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Action

37. Within one month of the date of my final decision, the Council has agreed to offer Mr P £300, in recognition of the frustration it caused by failing to make timely arrangements for B to receive alternative provision.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman