Summary: Ms X complained the Council failed to secure special educational provision for her child, Y. We find the Council at fault for failing to check on the suitability of alternative provision Y’s school arranged between March and July 2022. This caused avoidable uncertainty for which the Council has agreed to apologise and make a symbolic payment. There was also a failure to secure special educational provision in Y’s Education, Health and Care Plan between February and July 2024. The Council has already offered a payment for missed special educational provision which is in line with our guidance.

The complaint

1. Ms X complained the Council failed to secure special educational provision and/or alternative educational provision for her child, Y, for five years. She said this meant Y missed out on educational provision.

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The Ombudsman’s role and powers

2. 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).
3. We cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We call complaints that have not been through a council’s complaint procedure ‘premature complaints’. We may decide to investigate a premature complaint if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. We cannot investigate complaints where an appeal right has been used, even where there is an injustice which is unremedied (like a lack of special educational provision or alternative educational provision) because of two legal cases (Milburn v LGSCO and ex parte Field.)
5. 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)
6. 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

7. Ms X first complained to us in March 2023. We decided it was reasonable for the Council to investigate her complaint first. Because Ms X registered her complaint with the LGSCO in March 2023, the period between March 2022 and March 2023 is not late. (see paragraph two).
8. There has been an appeal to the SEND Tribunal in respect of Y’s educational placement and educational provision. The period from the date of Y’s appealed Plan to the date of the Tribunal’s decision or order is outside our remit because of the Milburn case. This means that although Y may have a loss of special educational provision or alternative educational provision for the appeal period, we still have no power to investigate.
9. The date of the appealed Plan was January 2023, and the Tribunal consent order was February 2024. January 2023 to January 2024 are outside our remit. The periods I have investigated are:
• March to December 2022
• February to December 2024.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms 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

12. Parents have a right to electively home educate their children. (Education Act 1996, section 7).
13. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Education Act 1996, section 436A,).
14. The Department for Education (DfE) issued guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
15. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal. We would normally expect to see a yearly check.
16. 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.
17. 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, including F (special educational provision) and I (educational setting or placement). 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.

18. The council has a duty to make sure the child or young person receives the special educational provision (SEP) set out in section F of an EHC Plan (Children and Families Act 2014, section 42).

What happened

2022

19. Records of Y’s attendance for year seven in the school year 2021 to 2022 indicate Y’s school coded his attendance as a B. (Code B includes a child attending alternative provision arranged or agreed by the school).
20. The Council agreed to carry out an EHC needs assessment for Y at the start of September 2022.
21. Ms X and a case officer spoke in September. Ms X said:
• She had sent an email to Y’s school saying she was going to home educate Y.
• School had agreed Y could attend the Council’s complementary education service in July 2022, but Y could not leave his bedroom and he was not ready for education.
22. Records indicate Y was taken off the school roll in September 2022. The Council’s records indicate it considered he was being electively home educated
23. A note of a child in need meeting in November 2022 said Y’s anxiety was such that he could not access a project supporting children with mental health conditions.

2023

24. Y’s first EHC Plan was issued in January 2023 when he was in year eight. The special educational provision in Section F was around social skills and emotional support and development. The placement was a special school for pupils with social emotional and mental health difficulties. Ms X appealed the placement to the SEND Tribunal.

2024

25. Y’s post-Tribunal EHC Plan of February 2024 was issued when he was in year nine. He was to receive an EOTAS (education other than in a school) package of:
• Nine hours a week of tuition rising to 12 hours from the end of October 2023 (Note: the Council said in complaint correspondence that the October 2023 date was an error and should not have been included and the Tribunal decision was 12 hours)
• Termly reviews to consider whether he is ready for on-line gaming mentoring, a referral to be made when he is ready
• Group and one to one provision around social and emotional regulation when he is in an education setting.
26. Section F of the Plan says provision was to be planned and led by a teacher and delivered by a mentor. Section F also refers to some provision being delivered by a tutor. The drafting suggests tutor and teacher are the same person and they are to deliver Maths, English and Science.
27. Records indicate the Council’s commissioning team searched for potential education providers for Y’s EOTAS package in March 2024. Ms X asked for a particular provider. The case officer updated Ms X saying the Council was going to approach tuition agencies.
28. In April, the case officer sent an email to the education provider Ms X had suggested.
29. In May, Y’s gaming mentoring started at two hours a week.
30. A case officer sent the CV of a tutor to Ms X and provided her with a summary of the profiles of three possible tutors from an agency and a link to two other education providers.
31. Case officers met with three providers in June. The decision was to proceed with two providers plus gaming mentoring. The Council agreed funding for the EOTAS package at the end of July.
32. Ms X sent an email to the case officer in August saying the provider she preferred could not recruit a tutor locally. A fourth provider (tuition company) also identified a tutor and the case officer, Ms X and the tutor met at the end of August.
33. The records indicate a start date of September 2024 for the provider and a tutor, but tuition appears to have stopped after two weeks. An email from Ms X in the middle of October said ‘I think it would be better to put it all on hold until we have a clear plan’. She went on to say the tutor did not have knowledge of SEN, the curriculum was not bespoke and Y was not engaging at all.
34. An email from Ms X at the end of November said she was concerned about the lack of education for Y. Ms X went on to say he was ‘unable to engage.’
35. At the start of December, the case officer noted no further tutors had been identified and so she sent a further enquiry to a tuition company. A tutor was identified, Ms X and the case officer met them in the middle of December and liked them. Tuition was scheduled to start in January 2025.

Ms X’s complaint to the Council and its responses.

36. Ms X complained to the Council about the issues in her complaint to us. The Council responded at both stages of its complaint procedure (November and December 2024.) It accepted it was at fault because:
• There was an error in the date October 2023 in the Post Tribunal Plan. The date was wrong. The Council had offered 12 hours of provision.
• It did not secure ‘an appropriate educational offer’ for Y between February and July 2024 and offered a payment of £2300 for 20 weeks missed provision.
37. The Council told us:
1. Y had no provision between February and May 2024.
2. Y had two hours a week of gaming mentoring between May and September 2024.
3. From September to December 2024, Y was offered 10 hours a week of EOTAS provision with an education provider specialising in activities geared to Y’s interests on physical and emotional wellbeing. He was also offered two hours a week of gaming mentoring.

Findings

March to August 2022

38. Y’s school had arranged alternative provision at the complementary education service between March and August 2022. There is no evidence the Council considered the suitability of the educational arrangements school had made for Y and if they were considered unsuitable, whether other provision needed to be arranged. This was not in line with the duty in section 19 of the Education Act and was fault causing avoidable uncertainty. I cannot say what would have happened had the Council considered whether provision was suitable. The injustice to Ms X is uncertainty about whether provision may have been different had the Council considered its duty.

September 2022 to January 2023

39. From September 2022, Y was receiving elective home education and had been removed from the school roll following Ms X’s request. The law says the parent is responsible for children who are electively home educated, and all the Council was required to do was a minimal check. But as Y had not been electively home educated for a year, there are no grounds to find any fault by the Council.

February to August 2024

40. The Council has accepted it did not secure the provision detailed in Y’s post-Tribunal EHC Plan. It has offered a payment to reflect loss of special educational provision. The payment for loss of provision already offered is in line with our Guidance on Remedies.

September to December 2024

41. The Council commissioned an educational provider to provide the mentoring element of Y’s special educational provision. This was in line with the duty in Section 42 of the Children and Families Act 2014.
42. There was a gap between the end of September and end of December 2024 with no qualified teacher/tutor for Y which should have been secured as per Section F of his EHC Plan. However, information from Ms X indicates Y was not able to engage with education at this time so I cannot conclude on a balance of probabilities that he missed out on any special educational provision.

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Recommended Action

43. Within one month of my final decision, the Council will:
• Apologise to Ms X for the avoidable uncertainty caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £150 to Ms X in recognition of the injustice caused by the faults identified.
44. The Council has already offered Ms X an appropriate payment to reflect Y’s missed provision for February to August 2024. If the Council has not already made this payment of £2300, it will re-offer this to Ms X.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. I have recommended a remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman