Summary: We upheld a complaint about Y’s alternative education provision. The Council failed to discussed changes to the package and failed to consult with relevant health professionals to see if Y could cope with more hours. This caused avoidable uncertainty. The Council will apologise and make a symbolic payment of £150.

The complaint

1. Mr X complained the Council:
1. Only provided his daughter Y with three hours a week of education in English and Maths
2. Did not reimburse him for science lessons
3. Delayed meetings that should have taken place to plan Y’s future.
4. Did not reimburse him for private counselling he funded when this was in his child Y’s Education, Health and Care (EHC) Plan
2. Mr X said this caused avoidable distress and damaged Y’s prospects of getting GCSEs despite being very intelligent.

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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. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The court confirmed if someone has appealed to the SEND 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 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, or if the appeal is withdrawn or conceded.

8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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(i), 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 complaint (a) from September to November 2023 which is when the Council issued Y’s final EHC Plan. I did not investigate after November 2023 as Mr X has appealed the special educational provision and the placement named in the Plan. He said Y could not attend the placement named because of her anxiety and he sought a placement in one of two special schools or EOTAS (Education Other Than At a School). My provisional view is the reason Y isn’t attending school is a consequence of Mr X and Y’s disagreement over its suitability as a placement. The Millburn case in paragraph four applies. This also means Y will be without a remedy from November 2023. The courts have confirmed this does not mean we can investigate (see paragraph eight)
12. I investigated complaints (b) and (c).
13. I did not investigate complaint (d) because Mr X confirmed he had been repaid so there is no injustice.

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How I considered this complaint

14. I considered the complaint to the Ombudsman, the Council’s responses to the complaint and documents described in this statement. I discussed the complaint with Mr X.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

16. 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. 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.

17. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
18. 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 2014).

19. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

20. 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))
21. 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. We made six recommendations. Councils should:
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• 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:
22. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called Access to Education (A2E). Once A2E receives a referral and it agrees to provide education, it completes an academic assessment and formulates a plan for education.

What happened

23. Y was in Year 11 for the period of my investigation. She has not attended school for several years due to anxiety related to her autism and she has been receiving AP through A2E. Until the end of the summer term of 2023, Y had been receiving in-person tuition through A2E for three hours a week providing Maths and English. The A2E tutor left in August 2023 and was not replaced. Y’s AP was switched to three hours a week of on-line schooling.
24. In 2023, the SEND Tribunal ordered the Council to issue an EHC Plan for Y. The EHC Plan of November named, School A a mainstream secondary school as Y’s education setting.
25. The Council’s attendance and support officer met with staff at School A in October and December 2023 to check on progress of all students with attendance issues and those receiving AP. The record of the meeting included a brief discussion of Y. The attendance and support officer told School A to check Y was engaging with on-line schooling and ensure she was completing learning.
26. Mr X complained to the Council about the matters he has raised with us and about other matters. The Council’s first response to the complaint said:
• There was no written evidence that A2E agreed to reimburse him for science lessons. The Council would request funding from its Education Governance Board (EGB: this is a group of senior council officers who agree funding requests)
• There was no documentary evidence he had asked for funding for additional subjects (Art and History). This request could also be put to the EGB.
27. The Council’s final response to the complaint said the Council would consider his request to fund Science.
28. Unhappy with the Council’s responses to his complaint, Mr X complained to us at the end of January 2024. He also appealed to the SEND Tribunal about the provision in Section F of Y’s EHC Plan and the placement named in Section I.
29. The EGB met to discuss Mr X’s request for funding for an Education Other Than At School (EOTAS) package. The EGB declined to fund an EOTAS package. It said it would consult with independent special schools for a place for Y for September 2024. Mr X received a letter from the EGB in February explaining the outcome.
30. As the start of February 2024, there was an annual review of Y’s EHC Plan. Mr X, school and the SEND case officer attended. I have summarised the record of the review meeting:
• Y could not attend school because of anxiety related to autism
• She had been attending AP
• The provision in the EHC Plan was still accurate and relevant (apart from private counselling needed to be removed from Section H)
• Mr X gave his preferred placements for post-16 education (from September 2024). These were to be consulted as part of the EHCP review process.
31. The Council issued an amended EHC Plan in February 2024.

Information from the Council

32. The Council told me the payment of £341 it had recently made to Mr X was reimbursement for science lessons from invoices dated July and October 2023.
33. The Council also told me at the time of the annual review meeting (February 2024), the agreed AP package was:
• Monday and Tuesday: Surrey Online School: English, Maths and Science 90 minutes each (four and a half hours in total)
• Thursday: Two-hour social skills session at A2E
• One-hour weekly session with a learning mentor
• Two-hour weekly girls group peer support, PHSE and post-16 planning
34. The Council told me professionals felt Y could not manage more than the above package currently.

Information from Mr X

35. Mr X told me he was happy with the in-person tutor and his complaint is about AP from September 2023. After the tutor left, A2E arranged on-line schooling in English and Maths, for three hours a week. Mr X went on to say:
• He paid for on-line lessons in Science one-and-a half hours a week.
• In February 2024, Y said virtual schooling was making her depressed and she wanted to mix with other students her age. So A2E arranged for her to attend a site and she has been doing so since April 2024. It is small classes with other pupils who are doing courses other than GCSEs.
• Y had declined virtual schooling.

Findings

The Council only provided three hours a week of education in English and Maths

36. My investigation of this complaint covers Y’s education provision from September to November 2023. Y’s A2E one-to-one tutor left in Summer 2023 and the provision changed to on-line. We expect councils to keep part-time AP education cases under review and there is no evidence of a review of Y’s case before switching to on-line learning, which was not in line with the guidance in our Focus Report and was fault. The change from in-person to on-line education was a missed opportunity to discuss the AP package with Mr X and Y to see if on-line provision would be appropriate. We expect councils to work with parents to review their child’s education. The Council suggested Y could not cope with additional hours of provision, but there is no evidence of how the Council considered the matter at the time in order to reach this conclusion, for example, by consulting with health professionals supporting Y. We would expect the Council to have evidence to support its view that Y had no increased capacity for more hours. There is therefore avoidable uncertainty about whether Y could have coped with more hours of AP.

The Council did not reimburse Mr X for science lessons

37. The Council has confirmed the payments it made were to cover the on-line science provision he paid for. There is no fault or injustice.

The Council delayed meetings to discuss Y’s future

38. The Council and School held an annual review meeting at the start of February 2024. This was in line with the SEND Code of Practice which says an EHC Plan has to be reviewed and amended by 31 March as this is a post-16 transfer year for Y. So I do not uphold this complaint.

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Agreed action

39. The Council will within one month of the date of this statement:
• Apologise for the avoidable uncertainty caused by the failure to discuss proposals to change Y’s AP from in-person to on-line schooling and for the failure to consult with relevant health professionals and
• Make a payment of £150.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. We upheld a complaint about Y’s alternative education provision. The Council failed to discussed changes to the package and failed to consult with relevant health professionals to see if Y could cope with more hours. This caused avoidable uncertainty. The Council will apologise and make a symbolic payment of £150.
42. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman