Summary: Mrs X complained the Council failed to make suitable education provision for her son, who has special educational needs. We upheld the complaint, finding the Council failed to properly consider contacts from Mrs X asking for more education provision for her son. We consider on balance this led to him missing education provision. It also caused distress to Mrs X. The Council accepts these findings and at the end of this statement we set out the action it has agreed to remedy this injustice and improve its service to avoid a repeat.

The complaint

1. I have called the complainant ‘Mrs X’. She complains the Council has failed to make suitable education provision for her son, who I will call ‘Y’, a child with special educational needs. Y has not received full time schooling since November 2021, being on a reduced timetable. Mrs X says despite repeatedly raising her concerns with the Council about his lack of education it has failed to ensure he receives a full-time education or equivalent. She also says its communications have been poor.
2. Mrs X says the shortfall in Y’s education has had negative effects for him, which will make it harder for him to re-integrate into education moving forward. Y’s circumstances have also caused distress for Mrs X and strain for her and her family, arranging childcare for Y when he is out of school.

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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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Mrs X and the Council about the matters forming the complaint, which pre-dated our investigation;
• information provided by the Council in response to my written enquiries;
• relevant law, Government guidance and council policy as referred to in the text below;
• relevant guidance produced by this office.

9. I gave Mrs X and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments they made before finalising this decision statement and completing my investigation.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legal and Administrative Background

Relevant law and guidance re: special education needs

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments. The notice should include copies of any evidence to support the proposed changes. It should do this within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable. In any event this should be within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal becomes engaged when the council issues the final amended plan. A parent can appeal the decision to maintain or cease an EHC plan following an annual review, to the SEND Tribunal.

Relevant law and guidance re: alternative provision

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. The provision should usually 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.
17. 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)
18. The education provided by the council must be full-time unless the council decides that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. The law does not define full-time education but children with health needs should have provision equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer, because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. 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
21. We recommended Councils should:

• consider the individual circumstances of each case. They may need to act whatever cause of the 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;

Council policy

22. The Council publishes a policy “for the education of children and young people unable to attend school because of health needs”. This refers to the Council’s duties under Section 19 of the Education Act 1996 as summarised above.
23. The policy refers to children with special educational needs who have an Education, Health and Care (EHC) plan. It says in cases where the Council is “concerned about the suitability of the education being provided” for such children, that their “provision will be considered and agreed by the Special Educational Need and Disability (SEND) Team”.
24. The policy puts an emphasis on reintegration into school being the Council’s preference. It says an education setting will usually be in the best interest of the child. It says for pupils with an EHC plan, it will consider calling an emergency review of the plan and amending it if necessary.
25. The Council also publishes a policy on circumstances where it will issue penalty notices to parents for a child’s non-attendance at school. In this, it says such notices are not suitable for children missing schooling where they have an EHC plan. It suggests its role in such cases is to “support schools in partnership with other services and professionals, to support children and their families to achieve acceptable levels of school attendance”.
26. Finally, the Council also publishes a policy entitled “Effective Support for children and young people with special educational needs and disabilities (SEND)”. This explains that for pupils with an EHC plan the Council will review their plan annually, but it can bring forward a review where a child’s needs “change significantly”.
27. During my investigation I asked the Council, which service was responsible for considering education arrangements made for a child with an EHC plan who was not accessing the education set out in their plan. It told me that it shared its responsibilities with the school.

Key facts

28. I have treated the beginning of events in this case as January 2022. At the time Y was in Year 5 of his education. Y has special educational needs as he is autistic and has emotional dysregulation. Y had an EHC plan and attended a specialist primary school.
29. There was an annual review of Y’s EHC plan in November 2021. Mrs X told me that because of incidents at school involving Y he was on a reduced timetable at this time. The significance of the January 2022 date is that this is when the Council completed its consideration of the annual review paperwork. It decided not to amend Y’s EHC plan. Mrs X did not appeal this decision.
30. The Council’s reasoning, which it put in an email to Mrs X, was that it thought Y’s school should try and gradually reintegrate him into full time education. It could do this using support services available to it. For example, through consultation with its specialist Autism and Communication Team and / or an Educational Psychologist linked to the school.
31. In May 2022 Y’s school contacted the Council. It said it wanted a meeting to discuss Y’s case following a further incident at the school. The Council contacted the school, which told it that it had implemented strategies in line with the gradual approach to reintegration. However, it no longer thought it could meet Y’s needs because of incidents such as this one. It told the Council that Y attended the school for two hours a day, three days a week. He also attended an alternative provision setting on one day a week.
32. The Council agreed there should be a further emergency review of Y’s EHC plan, which was held in June 2022. This recorded Y’s school attendance around 50%. At that meeting the Council recorded a request, from Mrs X and the school, to support Y to attend the alternative provision setting twice a week. A note on the file said the Council would discuss funding for this request. There is no record of such discussion or its outcome.
33. In July 2022 the Council assigned Y’s case to an officer in its SEND service, who soon after spoke to Mrs X. He recorded that she wanted Y to attend the alternative provision setting twice a week. Later that month, a second note recorded Mrs X’s frustration at Y’s lack of education. That note recorded Y did work sent home from school.
34. Later in July 2022 the Council sent out a draft version of an amended EHC plan. It invited Mrs X’s comments. She agreed the content of the plan and the Council began consulting schools. While this was ongoing, in August 2022, the Council recorded further messages from Mrs X concerned at Y’s limited education.
35. Y remained on the roll at his primary school and returned there in September 2022. The Council has recorded he now attended for one hour a day three days a week. He continued to attend the alternative provision one day a week.
36. In September, October and November 2022 the Council recorded further frustration from Mrs X about Y’s lack of schooling.
37. By December 2022 the Council had identified a school that said it could accept Y and it proposed naming this on his EHC plan. However, the school only had a place for Y from the start of Year 7, in September 2023. The Council told Mrs X during the month there would be a meeting to discuss Y’s case, but she heard nothing further until she made a complaint to the Council in January 2023.
38. The Council sent Mrs X a holding reply to her complaint. It recognised her concern at Y’s lack of education. It said it would liaise with Y’s school about his part-time timetable. The Council then contacted the school to discuss paying for more alternative provision for Y from the budget it had to meet his needs.
39. In mid-February 2023 Y began attending the alternative provision setting for two days a week. He attended school on another two days for two hours a week. In the same month the Council issued an amended final EHC plan for Y. This named his existing school until July 2023 and his new school from September 2023.
40. In March 2023 the Council replied to Mrs X’s complaint. It apologised for the time taken to finalise Y’s EHC plan, which it attributed to the consultations it undertook with schools. It recognised “a significant area of concern” was the education Y received in the meantime. It said that it would ask an officer from its Inclusion Partnership to set up a meeting with Mrs X and the school to address this.
41. Mrs X escalated her complaint, saying she thought the Council should have done more to address her concerns and provide more alternative provision for Y.
42. Later in March 2023 the officer from the Council’s Inclusion Partnership became involved in Y’s case. They did not contact Mrs X but contacted Y’s school and had discussion about him attending a second alternative provision setting. The notes record advice that not all alternative provision was suitable for Y because of his needs.
43. The Council gave its final reply to Mrs X’s complaint in April 2023. It recorded Y’s education arrangements as I described in paragraph 35. It apologised for not contacting Mrs X through its Inclusion Partnership as promised. It said the Council was trying to find more alternative provision for Y from a second provider. It recognised flaws in its communications with Mrs X. It indicated it had issued advice to relevant officers on the importance of timely responses to complaints and EHC plan reviews, as well as more generally keeping parents ‘in the loop’.
44. Case notes record further comments from the Council’s Inclusion Partnership Officer from June 2023. They said they had received no contact from Y’s school “since April” (there is no record of contact from April 2023 with the previous notes dating from March as I described in paragraph 42). The note said, “I have not heard from the SEND team or [Y’s school] that there are still issues regarding provision”. The note added the officer’s understanding that Y’s school planned on increasing Y’s alternative provision.
45. In late June 2023 the Council recorded Y was now accessing further alternative provision but did not include details. When I spoke to Mrs X in June 2023, she told me that Y had recently begun attending a second alternative provision setting for half a day a week. He was also having swimming lessons off the school site, although she reported some cancellations due to a lack of staff to support Y.

Findings

The Ombudsman’s jurisdiction

46. The term jurisdiction refers to our legal powers to investigate complaints. I have decided that I can only investigate the Council’s actions in this case from June 2022. My reasons are as follows:

• In January 2022 the Council wrote to Mrs X saying it would maintain Y’s EHC plan. It also sent her an email explaining its reasoning.
• Mrs X had the right to appeal that decision to a SEND Tribunal. So, she could have appealed to argue that Y needed education in a different setting to the school named on his EHC plan, given that school was not providing him a full time timetable.
• I consider it reasonable to expect Mrs X to have used that right, if unhappy with the approach suggested by the Council of encouraging Y’s gradual integration back into school. There is no record of any contact from Mrs X with the Council between January and June 2022. This suggests she accepted the ‘gradual integration’ approach at the time.

47. I consider the position changed in June 2022 as the Council reacted to changing events. Properly, when the school told it that it no longer considered it could meet Y’s needs, the Council arranged an emergency review of Y’s EHC plan.
48. From that time on, until March 2023, Y’s EHC plan was being re-written with particular focus on what school (s) he would attend moving forward. There was no current EHC plan Mrs X could appeal, therefore.
49. Further, when the Council did issue the final amended EHC plan for Y in February 2023, Mrs X had no dispute with the content and accepted the new placement proposed for September 2023. While she clearly still had concerns about Y’s education in the meantime, I do not consider it reasonable to expect her to have appealed to a SEND Tribunal in these circumstances. The only purpose of this would be to pursue alternative education provision for the limited time remaining in Y’s primary education phase. But time was too short for any appeal hearing before Y started his secondary education phase.

Findings on the substance

50. Was the Council at fault therefore for its actions from June 2022 onward? I note the lack of detailed advice that explains how the Council should respond to pupils in Y’s position. The Council’s current guidance covers pupils who miss schooling because of illness, its enforcement duties for absence and when it might carry out emergency EHC plan reviews. But it says nothing about those missing schooling who have an EHC plan, but who cannot receive the provision set out in the plan.
51. I consider for such pupils the Council must consider whether it owes a duty to them under Section 19 to make some ‘alternative provision’. The section 19 sickness policy points towards the Council’s SEND Team having responsibility to consider this. But this is not spelled out clearly. This case shows why having a clear policy to address this situation is necessary.
52. Because from June 2022 onward the Council knew Y received significantly less education than the full-time provision set out in his EHC plan. It recorded repeated contacts from Mrs X over several months raising her concerns. But it did not respond to these concerns properly.
53. It is important to stress the Council was not obliged to make alternative provision for Y in June 2022 simply on Mrs X’s request. But it was obliged to consider making such provision available to him. I cannot see records the Council undertook a meaningful consideration of Y’s potential need for alternative provision for several months. I commented in paragraph 51 that policy ‘points towards’ this being the responsibility of its SEND team. However, the case notes give no indication the officer assigned to Mrs X’s case knew what procedure to follow. And the later involvement of the Inclusion Partnership, may suggest the SEND Team should have invited that service to become involved sooner. But wherever internal communications broke down here the consequence was that Mrs X’s repeated requests for an extension of Y’s placement at an alternative education setting were not replied to. This pattern of a lack of consideration was fault.
54. I note the Council began taking more interest in Y’s case from January 2023. This did result in an increase in his alternative provision from one day to two days. And following the March 2023 involvement of the Inclusion Partnership officer, this ultimately led to Y receiving another half-day of provision from June 2023. But I consider this was all too little, too late. The fault in consideration of Y’s need for alternative provision therefore extended into the summer term 2023.
55. I consider this fault will have caused injustice to Y in a lack of education provision. I take account that Y’s school continued to offer some classroom and home-based learning throughout events. I also reiterate that I cannot say the Council was under an obligation to do more than properly consider Y’s need for alternative provision from June 2022 onward. But on balance I am persuaded that a proper consideration would have resulted in it ensuring an increase in Y’s alternative provision sooner, possibly even beyond that he was receiving by June 2023.
56. I have come to this view as by June 2022 the Council recognised the gradual approach to reintegrating Y into school had not worked. Also, because when the Council did begin considering Y’s need for alternative provision, even while inadequate, this still resulted in him having more provision. I recognise the point made in Y’s case notes, that his needs will mean he cannot necessarily access all alternative provision. But the facts show that he could access certain alternative provision and cope with more of that provision, than he was receiving before June 2023.
57. Y’s absences from school will also be a source of distress to Mrs X. And I accept she and her wider family will have had significant disruption to their work and routines because of Y’s absences. However, I am not persuaded this would be significantly different had the Council stepped in and made more alternative provision, given Y’s needs. I therefore consider Mrs X’s injustice limited to that of distress.
58. Before setting out the action agreed by the Council to remedy this injustice, I also note the lengthy delay in its finalising of Y’s EHC plan in February 2023. I note the Council has already recognised fault here and apologised to Mrs X. I do not consider further commentary on this point needed as I cannot separate any injustice arising from this fault over and above the failure to consider alternative provision for Y.
59. Further, I have noted a pattern of poor communications in the Council’s dealings with Mrs X. The case notes show that messages she left while sometimes acknowledged, were not always followed up. While the Council also delayed in answering her complaint and did not arrange a meeting it promised her in its stage one response. I consider the communication failings here stem in a large part from the absence of a satisfactory procedure to consider alternative provision requests. So, while these matters will have caused understandable frustration to Mrs X I do not consider a separable injustice arises. I also note that in its stage two reply to Mrs X’s complaint the Council acknowledged communication failings and pledged to take action to learn from these. I do not consider it necessary therefore to ask for further service improvements to address this particular failing.

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Agreed action

60. The Council accepts the findings set out above. It has agreed recommendations to provide a personal remedy to Mrs X as well as a service improvement recommendation designed to prevent a repeat of some of the fault found in this case. These are detailed below.

Personal remedy

61. To remedy the injustice caused to Mrs X and Y the Council has agreed that within 20 working days of this decision it will:
1. apologise to Mrs X in line with our published guidance on remedies (section 3.2); Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment of Mrs X of £4000.
62. The sum agreed at 61b) takes account of our guidance on remedies. This 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”. We base a specific recommendation on the impact on the child and take account of factors such as:

• the severity of the child’s special education 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.

63. In this case I have noted:

• that the period concerned was mainly in year 6 of Y’s education;
• that he has significant special education needs which necessitate an EHC plan; but those needs make it unrealistic to presume he could have accessed full time education or equivalent throughout the time covered by this complaint;
• that during the 22/23 academic year Y still received some support from his school with limited class time learning and home work; he also received alternative provision for 20% of this learning time rising to 40% around half-way through the school year and 50% by the end; and
• that additional provision cannot now remedy some or all the loss given the passage of time and that matters have now moved on with Y having now begun his secondary education.

64. Taking account of these factors I considered a mid-range payment of £1200 per term appropriate for the 2022/23 academic year. I have rounded this payment up to £4000 to take account also of the lack of consideration given to Y’s potential need for alternative provision at the end of 2021/22 academic year when his continued inability to attend his school came to light.
65. I considered this symbolic payment would also recognise the distress caused to Mrs X.

Service improvement

66. The Council has agreed that within three months of a decision on this complaint it will:

• draw up a policy, or amend existing policy, to address how it will deal with requests for alternative provision for children with special educational needs (whether or not they have an EHC plan);
• ensure that all officers who are likely to receive contact from children or young people with special educational needs, their parents or carers, schools or other professionals are briefed on that policy, so they understand the Council’s legal duties and its policy expectations.

67. The Council will provide us with evidence it has complied with the above actions.

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Final decision

68. For reasons set out above I upheld this complaint finding fault by the Council causing injustice to Mrs X and Y. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman