• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I have and have not considered
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to find her son, Y, a place at a special school in the last four to five years. She also says the Council has failed to pursue a place at her preferred school. Mrs X complained the Council failed to provide the intervention therapy specified in her sons Education and Health Care Plan for the past two years. Mrs X says this has caused her and her family distress. We have found fault in the actions of the Council for failing to provide part of the provision set out in Y’s Education Health and Care Plan. The Council has agreed to issue an apology, pay a financial payment to Mrs X, implement the provision noted in Y’s EHC Plan and complete service improvements.

The complaint

1. Mrs X complained the Council failed to find her son, Y, a place at a special school in the last four to five years. She also says the Council has failed to pursue a place at her preferred school. Mrs X complained the Council failed to provide the intervention therapy specified in her sons Education Health and Care (EHC) Plan for the past two years.
2. Mrs X says this has caused her and her family distress.

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. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

How I considered this complaint

8. I have considered the information provided by Mrs X and have also discussed her complaint with her over the telephone.
9. I have also considered the information provided by the Council.
10. Both Mrs X and the Council were invited to comment on my draft decision. Any comments received have been considered before a final decision was issued.

Back to top

What I have and have not considered

11. I have considered Mrs X’s complaint back to the issuing of Y’s EHC Plan in September 2022. Mrs X brought her complaint to the Ombudsman in April 2024 which would mean we could investigate back to April 2023 without exercising discretion. However, as this is midway through the period Y’s EHC Plan covers I have exercised discretion to look back to when the plan was issued.

Back to top

What I found

12. 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.
13. 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)
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).
15. 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))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
17. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines 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)
20. The law does not define full-time education but children with health needs should have provision which is 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 as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).

EHC Plans

21. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
22. 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 name and/or type of educational placement 

23. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).  

24. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

Placement and Alternative provision

25. The Council issued a final EHC Plan for Y in September 2023 which named a specialist type setting in Section I but did not name a specific setting. A further final plan was issued in May 2024.
26. The Councils began consultations in September 2023 and consulted with five schools. The Council sent further consultations in October 2023 to two more schools. The outcome of these consultations was that the schools said they could not meet Y’s needs.
27. The Council also sought Mrs X’s parental preference and consulted with the setting Mrs X suggested. However, the school said it also could not meet Y’s needs.
28. The Council has arranged an Educated Other Than at School (EOTAS) package for Y while it finds a suitable setting. This includes Speech and Language Therapy (SALT), Occupational Therapy (OT) and one to one tuition. The Council says Y currently receives 22 hours of provision per week plus 9 hours of OT direct support per year.
29. Mrs X raised a complaint with the Council in early 2024 and the Council issued a response in February 2024. The Council did not uphold Mrs X’s complaint about its failure to find a place for Y in a specialist type setting.
30. I understand a statutory needs re-assessment is currently being completed following a request by Y’s parents. The Council has said once this process is complete and the information reviewed, if agreed, it will issue further consultations.

EHC Plans

31. The Council issued a final EHC Plan for Y in September 2022. Several items were included in Section F. One of these was that ‘Intensive Interaction’ approaches should be implemented. The council issued a further EHC Plan in September 2023.
32. The Council say the request for this was approved at Panel in September 2023 and it sent an email to Mrs X to confirm her preferred provider. The Council say it asked Mrs X to confirm how she wanted to proceed with the provider, but Mrs X did not confirm this.
33. Mrs X complained to the Council in early 2024 about Y not receiving this part of the provision outlined in Section F. The Council initially responded in February 2024 to say as it had asked Mrs X about how to proceed and had not received an answer. The Council said because of this, it was not solely responsible for the provision not being actioned.
34. In response to enquiries made by the Ombudsman the Council has said that on reflection it could have been more proactive in securing the provision. The Council say it does not believe the provision has begun.
35. Y’s EHC Plan’s also note in Section F that he should receive SALT provision and OT provision among other items which are delivered each day. The Council has shown that it is providing SALT and OT provision.

Analysis

Placement and Alternative provision

36. The Council named a type of setting in Y’s EHC Plan in September 2023. The Council has shown it has consulted with several schools but has unfortunately been unable to secure a place for Y.
37. The Council has a duty to provide suitable education for a child either at school or elsewhere. The Council is meeting this duty by providing EOTAS provision while it attempts to secure a placement for Y.
38. While the Council has been trying to find a suitable placement for Y it has put in place EOTAS provision. While I appreciate Mrs X may be unhappy with the provision which is in place, the Council has said Y receives 22 hours of provision per week.
39. The law does not define what full-time education equates to and it is accepted that one-to-one tuition is a more concentrated form of education and as such the number of hours provided may be less.
40. I understand the Mrs X would like the Council to secure a placement for Y to allow him to attend school. Both the Council and Mrs X have said they feel the best place for Y to receive education would be at school. However, despite its attempts the Council has not been able to find a school which can accept Y.
41. I accept this is very frustrating for Mrs X, but I can see the Council tried to secure a place for Y and will continue to do so. The Council has also put in place alternative provision for Y to ensure he receives some education. As such, there is no fault in the actions taken by the Council.
42. Additionally, if Mrs X disagrees with the Council’s decision to not name a specific placement in the EHCP, she can exercise her right to appeal to the SEN tribunal.

EHC Plans

43. Y’s EHC Plans issued in September 2022, September 2023 and May 2024 all say ‘Intensive Interaction’ approaches should be implemented. The 2023 EHC Plan suggests sessions should be for three hours weekly.
44. Mrs X says the provider she wished to use for this has tried to contact the Council numerous times to begin to work with Y but has not received confirmation they can begin.
45. The Council said it had not received confirmation from Mrs Y how she would like to proceed with the approach but has now acknowledged it should have been more proactive in securing the provision.
46. The Council has a duty to secure provision set out in Section F of an EHC Plan and has not done so. This is fault and has caused Y to miss out on provision and Mrs X distress.
47. While Y has missed out on this element of the provision noted in Section F of his EHC Plan, he has still received other elements. The Council arranged an EOTAS provision for Y which I have considered when deciding a recommendation.

Back to top

Agreed action

48. Within one month of a final decision being issued, the Council should:

• Write to Mrs X to apologise for the faults identified.
• Pay Mrs X £1,200 to recognise the missed provision from Section I. This is calculated at roughly £200 per term for six terms.
• Implement the ‘Intensive Interaction’ approach provision in line with Section F of Y’s EHC Plan.
• In writing, remind staff of the importance of ensuring that all provision in Section F of EHC Plans is implemented.

49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have found fault in the actions of the Council for failing to provide part of the provision set out in Section F of Y’s EHC Plan.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page