Summary: Mrs X complained the Council failed to provide alternative provision support for her son when he stopped attending school. Mrs X’s appeal to the Special Educational Needs and Disability Tribunal limits the scope of our investigation. We found the Council at fault for not considering alternative provision sooner during the period we can consider. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Mrs X complains about the Council’s actions and communication with her after an annual review of her son’s Education, Health and Care Plan (“EHC Plan”). She says the Council has not provided him with education or support for him since he stopped attending school in March 2023.
2. Mrs X says this has impacted on her son's wellbeing; he has been struggling without support in place, with attempts to hurt himself on some occasions. This is causing significant frustration, distress, and uncertainty to the family.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. The courts have established that if someone has 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)
6. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
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).

Back to top

What I have and have not investigated

10. I have investigated matters from March to May 2023. During the time period and events covered in Mrs X’s complaint, she lodged an appeal with the SEND Tribunal after the Council issued a final Education, Health and Care Plan in May 2023. From this point onwards, this period is outside of the Ombudsman’s jurisdiction. The term “jurisdiction” refers to our legal powers to investigate a complaint. Paragraphs 5 to 7 refer to the reasons for this, and the “Jurisdiction” section expands on this later.

Back to top

How I considered this complaint

11. I discussed the complaint with Mrs X and considered her views.
12. I made enquiries of the Council and considered its written responses and information it provided.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and administrative background

Education, Health and Care Plans (EHC Plan)

14. A child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.
15. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with:
• the description of a child or young person’s Special Educational Needs, the special educational provision specified, and/or the school or placement specified.
17. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

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. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
20. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children receive suitable full-time education.

Background

21. Mrs X’s son (“Y) has special educational needs and anxiety. Prior to the events of this complaint, he attended the “School”, an independent specialist school.
22. In July 2022, the School was named for Y to attend from September 2023 for his transfer to secondary school.

Summary of key relevant events

23. Since the beginning of March 2023, Mrs X said Y stopped attending the School due to a deterioration in his mental health.
24. In mid-March, the School held an annual review of Y’s EHC Plan. It said it could no longer meet Y’s needs. The School requested for one-to-one funding to support him with a personalised timetable from April until July 2023. The Council agreed.
25. From mid-April (after the Easter holidays), Y did not return to the School due to his high anxiety and he felt unable to access school. The School informed the Council about Y’s situation.
26. Between April and May, the School sent at least three updates to the Council. It said it sent work home to Y, but he refused to do it. It supported that an Education Otherwise Than At School (“EOTAS”) package may be suitable for Y, away from a school based environment. It said it also called Mrs X regularly for welfare checks on Y. The School asked for advice and support.
27. The Council sent consultations to several schools for a place for Y, with no positive offers. The Council agreed an EOTAS package may be appropriate for Y.
28. At the end of May, the Council issued a final EHC Plan. It named the School for Y to attend until July 2023 in Section I. It said it issued it so Mrs X had her appeal rights, but it would continue to liaise with her to try and come to an agreement with the proposed EOTAS package during any ongoing appeal.
29. At the start of June, Mrs X appealed Sections B, F, and I of the final EHC Plan.
30. In mid-June, the Council responded at Stage One to a formal complaint by Mrs X raising a number of issues and her concerns for Y’s deteriorating mental health. Relevant to this complaint:
• Mrs X said Y had no education support in place. The Council said the School was fully responsible for Y’s education until the end of July, so the expectation was for it to be working with Mrs X to explore ways for Y to access provision until the end of the summer term. The Council was currently working to secure an EOTAS package.
• Mrs X said she did not receive responses from the Council in a timely manner. The Council said its communication strategy expected it to respond to emails within five working days. Its records showed it met this consistently. It said it had an individual agreement with her for the SEND team to send a weekly update.
• Mrs X also raised concerns about the Council sharing inaccurate information, how it discussed changes to the EHC Plan with her, and the Council did not get social care advice despite a social worker being involved with Y at the time. The Council said it addressed this.
31. Mrs X escalated her complaint. She added she disagreed with the Council’s position that the School was responsible for provision. She provided supporting evidence from previous LGSCO decisions, which the Council acknowledged. She chased for progress of the complaint.
32. At the start of August, the Council responded to Mrs X’s complaint at Stage Two. It acknowledged it did not meet the legal timeframe to respond to Y’s annual review. It accepted it delayed in considering her complaint through its process. It evidenced some poor standards of communication as Mrs X had chased the Council for delayed promised updates. The Council upheld her complaint, acknowledged learning it would put in place, and apologised for the faults.
33. Mrs X then complained to us. Mrs X said to me the School organised three out-of-school sessions for Y to attend in July and he had no other provision.
34. Mrs X said she expedited the original SEND Tribunal date from early 2024, to December 2023.

Analysis

Annual Review

35. The Council said it was at fault for a delay with responding to Y’s annual review. As the Council decided to amend the EHC Plan, it should have issued this decision, along with a draft plan, within four weeks of the review. I cannot see evidence the Council did this. This is fault. However, I do not consider this specifically resulted in injustice as the Council issued a final EHC Plan at the end of May 2023. This met the legal timeframe of within 12 weeks of the annual review and gave Mrs X her appeal rights without significant delay. Therefore, I do not find further fault with this.

Jurisdiction

36. Mrs X appealed against the May 2023 final EHC Plan as she disagreed with Sections B, F, and I. This is the correct way to challenge decisions the Council makes about the content of EHC Plans. This point onwards is outside of the Ombudsman’s jurisdiction to consider, as explained in Paragraphs 5 to 7. While the Council agreed to EOTAS provision for Y, the Council did not later formally concede. I am unable to investigate the period from this date because the appeal was ongoing.
37. I recognise Mrs X’s dissatisfaction with the accuracy of information and reports the Council obtained, or did not add, towards the EHC Plan (such as social care), along with information for school consultations. These matters, before the appeal right started, could be considered as part of the Tribunal. Any potential injustice caused relates to disagreements of Y’s needs, his provision, and placement as outlined in the EHC Plan, which is the subject of appeal. Therefore, this is also outside our jurisdiction to consider.
38. I do not know the outcome of the SEND Tribunal; however, this is not relevant in my consideration of this complaint. This is because Mrs X brought her complaint to us before an appeal concluded. Therefore, anything after this should be considered a new matter of complaint for the Council to consider through its complaints process first.

Alternative provision – March to May 2023

39. I can consider the period between March (when the Council was aware of Y’s non-attendance at the School) and the end of May 2023 (before Mrs X had formal appeal rights).
40. Councils have a section 19 duty to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness, or otherwise may not receive a suitable education unless the council arranges it for them.
41. At the March 2023 annual review, the Council knew Y was not attending School. It took forward the School’s request for funding to support Y until the end of summer term. The Council’s internal Panel heard it within two weeks, shortly before the Easter holidays and it arranged the funding to start for Y after the break. On balance, considering these timings, in my view this was appropriate. I do not consider the Council significantly delayed at this point in taking action for Y. This was based on the information it had at the time, and on the expectation Y would return to the School.
42. However, by mid-April, the School informed the Council Y did not return. Between April and the end of May, I cannot see the Council proactively liaised with the School to assess the suitability of what the School had been providing for him or if it should make other alternative arrangements for Y. I cannot see evidence if the Council considered or concluded if Y was unable to have education at all, whether the School remained accessible for Y, or records properly assessing or considering what alternative provision could be provided. This is fault.
43. Mrs X made her concerns about the lack of alternative provision known to the Council on several occasions and advised it of the detrimental impact it was having on his mental health. The Council’s response to Mrs X’s complaint appeared to shift the responsibility onto the School. This is incorrect. This duty and ultimate responsibility for education and provision lies with the Council and indicates a clear training need.
44. To conclude, I am not satisfied the Council properly considered its duty to arrange suitable alternative provision for Y while he was not attending school during the period I can consider. This lack of robust action from a section 19 perspective between April and the end of May 2023 is fault. This caused injustice to Y with no provision in place during this period. It also caused Mrs X distress and uncertainty at trying to manage the situation.
45. I note during this period, the Council was in contact with Mrs X about changes and amendments to the proposed EOTAS package for Y (linked to the placement Mrs X was appealing). While appropriate, this is separate to its section 19 duty.
46. We recently highlighted issues with the Council’s failure to fully consider its section 19 duties for children missing education in other cases and we recommended service improvements. With this, we asked the Council to provide training and guidance to relevant staff on its responsibilities to prevent future recurrence, which covers my concern in Paragraph 43. It has already done this since Mrs X’s complaint to us. Therefore, I have not considered it necessary to repeat the same service improvements in this case.

Complaint handling

47. The Council delayed responding to Mrs X’s Stage Two complaint, nearly 20 working days longer than its complaint policy says. This is fault. The Council apologised for this, along with poor communication with Mrs X. This is appropriate. I also note Mrs X went to time and trouble to provide evidence to the Council of its own section 19 duties, which it should already know and act in line with. The Council also did not address this specifically in its final response to her or how it applied to Y’s case. This caused further injustice to Mrs X with avoidable further frustration and uncertainty.

Back to top

Agreed action

48. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
49. Within one month of the final decision:
• Apologise to Mrs X in writing for the lack of alternative provision for Y between April and May 2023;
• Pay Mrs X a symbolic payment of £150 to recognise her frustration, distress, and uncertainty during the same period, and her injustice with the Council’s complaint handling; and
• Pay Mrs X £700 to recognise the impact to Y for the lack of provision between April and May 2023. This can be used for Y’s educational benefit.
50. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

51. For the period I can consider, I found fault with the Council which caused injustice to Mrs X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman