Summary: Miss X complained that the Council failed to provide education for her son when he had no school place. We find some fault resulting in the complainant’s son missing alternative education and causing Miss X avoidable frustration and time and trouble. We have recommended a way to remedy this injustice, which the Council has accepted. Therefore, we have completed our investigation and are closing the complaint.

The complaint

1. Miss X complained that the Council failed to provide her son, Y, with suitable education between March and July 2024, despite him having an Education, Health and Care (EHC) Plan naming School B. The complainant also says that the Council did provide some individual tuition but only for a limited number of hours.
2. The Council has investigated the complaint and is satisfied that appropriate efforts were made to ensure Y was in education.
3. Miss X says that she has been caused avoidable distress and time and trouble in trying to find appropriate education for Y and he has missed out on taking his General Certificates of Secondary Education (GCSEs) examinations.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
9. 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(1), as amended)
10. 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

11. I have investigated events from February to July 2024.

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How I considered this complaint

12. I considered evidence provided by Miss X and by the Council as well as relevant law, policy and guidance. I spoke to Miss X on the telephone. I issued a draft decision statement, and an amended draft decision, to the Council and Miss X and have considered the additional information before I reached a final decision.

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What I found

Education, Health and Care Plans

13. 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.
14. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The named school/college or type of setting.
• Section J: Details of any personal budget made. 

15. 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). A council can provide an Education Otherwise Than At School (EOTAS) package for pupils unable to attend an educational placement. Such a package can be supported financially by direct payments where the parent or young person is involved in securing their provision.
16. 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 take place. The process is only complete when the council issues a decision about the review. The Council sends notifications to its schools and colleges to remind them of their responsibility to arrange annual reviews.

Alternative education

17. Under section 19 of the Education Act 1996, councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
18. The courts have found that it is a judgement 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])
19. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
20. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.

Key facts

21. Y had an EHC Plan during his secondary school education. He has Attention Deficit Attention Disorder (ADHD), significant difficulties with language and communication and a mixed cognitive profile. He attended School B, a secondary mainstream school. This was the named school on his EHC Plan.
22. Miss X says that Y went to live abroad for a short period at the end of 2023 to early 2024. In February 2024, Miss X says she told the Council that Y had returned but he had no school place.
23. The Council says that School B removed Y from the school roll in March 2023. It is not clear whether this is because Y had left to live abroad, or for another reason. School B did not tell the Council, as it should have, that Y was no longer on the school roll. The Council is looking into this further with the school.
24. Miss X says that, when Y returned from abroad in February 2024, he did not have a school place given School B had removed him from the school roll. Miss X was concerned that Y had no school place, particularly as it was his GCSE year. She says that she asked the Council to help her find Y education.
25. Once the Council became aware of Y’s situation, it arranged a review of Y’s EHC Plan in March 2024. This was because Y would be transferring to post-16 education in September 2024.
26. After the annual review, the Council issued an amended EHC Plan in March 2024. The Council told Miss X that it had issued an amended EHC Plan, and she had a right of appeal to the SEND Tribunal if dissatisfied.
27. The Council then started to consult several post-16 educational placements. In the meantime, Y remained without education.
28. Miss X says that the Council did little to help until mid-June 2024 when it agreed that Y should receive individual tuition. The Council says that it arranged for Y to receive fifteen hours tuition per week which it says is its standard practice for young people accessing interim education. This started in mid-July to early October 2024.
29. The Council provided this tuition under the umbrella of Education Otherwise Than At School (EOTAS) because section 19 applies to statutory education which ended for Y at the end of the 2024 school year. By this stage, Y was sixteen. But the Council still had a duty to provide education to Y in accordance with his EHC Plan.
30. Miss X says that Y only received two hours tuition per week, which was insufficient. Miss X considers that this prevented Y from taking his GCSEs.
31. In September 2024, a college agreed to offer Y a place post 16. However, I understand that Y returned to live abroad. The Council has now ceased his EHC Plan. Miss X could have appealed to the SEND Tribunal if she disagreed. But I understand that she has not.

Findings

32. When Y returned in February 2024, he had no school place. I recognise that it would have been very difficult for the Council to find a school place given Y was in his penultimate term before the GCSEs examinations.
33. It is also the case that Y would inevitably be behind in his academic studies having been abroad and, on the balance of probability, it is very unlikely he would have been in a position to take his GCSEs even if the Council had found him a school place.
34. I am also mindful that the Council consulted a number of post-16 colleges and successfully found Y a college place starting in September 2024. Had Y taken up this place, he would have had the opportunity to take at least his English and Mathematics GCSE.
35. However, Y’s EHC Plan was still current in February 2024, and the Council had a duty to provide the required provision either in a school place or through alternative education.
36. I consider that the Council should have provided alternative education before mid-July 2024. Y was without a school place so there was no available or accessible educational placement. In these circumstances, the Council had no other option but to provide alternative education. So, this should have been made available between March and July 2024, approximately three school months (taking into account holiday periods).
37. This failure amounts to fault causing injustice to Y and Miss X.
38. In mid-June the Council agreed fifteen hours of tuition and this started in mid-July. The Council says that this is its standard provision when providing interim education to pupils out of school under an EOTAS package. However, Miss X says that Y only received two hours per week.
39. The Council has confirmed that it paid for fifteen hours per week. But it cannot say whether Y availed himself of this tuition. In the absence of any further information from Miss X, I accept the Council’s account.

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Action

40. I consider that the Council delayed in providing alternative education between March and mid-July 2024.
41. In respect of the interim education, I am satisfied this was provided to Y.
42. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
43. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
44. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
45. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

46. Within one month of the final statement, the Council will:
1. apologise to Miss X for the fault and injustice identified. 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; and
2. make a symbolic payment of £1,000 for Y’s lost education, which Miss X should use for his benefit. I have recommended an amount at the lower end of our tariff because Y did have a place at a college starting in September 2024 where he had the opportunity to pursue his education.

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Decision

47. I find fault in the delay in providing alternative education. But it is unlikely this would have affected Y’s GCSE opportunities. However, I recognise that Miss X would have gone to some time and trouble in trying to ensure Y received the required education.
48. I do not find fault in respect of the provision of interim education.
49. The Council has agreed to remedy the injustice, as recommended. Therefore, I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman