Summary: Mrs X complains the Council failed to provide her child with a suitable education. There were delays in arranging alternative provision after the Easter break in 2024 and this is fault. It resulted in a loss of education for a period of nearly seven weeks. The Council has agreed to remedy this injustice.

The complaint

1. Mrs X complains the Council failed to provide her child, Y, with a suitable education since February 2024.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I considered Mrs X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

8. 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. 
9. 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)  
10. 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. 

Alternative Provision

11. 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.
12. 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)
13. 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)
14. 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
15. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for 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.

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What happened

16. Mrs X has a daughter, Y, who has an education, health and care (EHC) Plan maintained by the Council.
17. Y was on roll at a mainstream secondary school, School 1. In Summer 2023 Y’s attendance at school reduced significantly. School 1 held an annual review meeting because Y did not return to school in September 2023 and she was showing signs of Emotional Based School Avoidance (EBSA). During this review, School 1 requested support from the Council to implement Alternative Provision with the intention to support Y to reintegrate to school. Tutoring was considered but this was declined by Mrs X who requested Alternative Provision input via an alternative provision provider (APP). The APP offered Y two sessions a week, each session lasting five hours, and the Council funded this until the end of February 2024.
18. An annual review of Y’s EHC Plan was held in January 2024. Y said she did not want to return to school. The annual review found that Y was building relationships with staff at the APP but not engaging with any learning activities in the setting at the time. Mrs X requested Education Other Than At School (EOTAS) but the Council refused this request and recommended that a professionals meeting should be considered to ensure the Council had a full picture of Y’s needs.
19. Mrs X requested more provision for Y in February 2024 but the Council refused this request because Y was not able to fully engage with the sessions or for the full amount of time already offered.
20. In May 2024 an annual review was held where the Council decided to amend Y’s EHC Plan to name EOTAS. Mrs X was formally notified of this in August 2024.
21. Mrs X complained to the Council about the concerns she had regarding the education Y was receiving. The Council advised Mrs X that due to Y being unable to attend all the sessions and hours already in place it was mindful of overwhelming her with more than she can manage. The Council agreed that tutoring either online or at home would be appropriate for Y and it would adopt a gradual approach to this. The Council accepted there had been a delay in arranging provision and it apologised.
22.  
23. In May 2024 the Council agreed to fund more sessions with the APP until the end of the Summer term. The APP contacted Mrs X in June 2024 to arrange for the sessions to restart week commencing 10 June 2024.
24. Y remained on roll at School 1 until July 2024. In September 2024, alternative provision was directly commissioned by the Council to support Y for 15 hours per week. Mrs X says the Council is yet to arrange a tutor.

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Analysis

25. Mrs X says Y did not receive any education from April 2024 to July 2024 because the Council did not provide the relevant funding. The Council has acknowledged there was a delay in arranging the funding and it has apologised for the impact this had on Y.
26. The Council says School 1 was directly commissioning alternative provision and it was aware there was a reduction in hours offered by the APP and that Y had missed some sessions due to illness and holidays. The Council also said it does not hold details of any specific sessions or weeks this period relates to.
27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled. The Council’s failure to do this from April 2024 to July 2024 is fault.
28. The Council should have had a mechanism in place to ensure Y was receiving an appropriate education and that the provision as outlined in her EHC Plan was being delivered. Apart from the date of one session that Y attended, the Council is unable to provide me with information about what education Y received during the Summer term 2024.
29. From information I have received from Mrs X and alongside the information I have received from the Council, it appears there was a gap in provision from 23 April 2024 to 7 June 2024. This is a period of nearly seven weeks where no provision was arranged for Y. This loss of provision is fault. Mrs X says this break in provision due to the delay in agreeing and providing the funding resulted in Y struggling to attend once the provision restarted. This has also caused avoidable distress to Mrs X. The injustice caused warrants a remedy.
30. I acknowledge Mrs X was unhappy with the Council refusing her request to increase provision. The Council refused to provide additional provision to Y because she was unable to engage fully with the existing hours of provision that were in place. The amount of education should be based on individual circumstances and this was a decision the Council was entitled to make. I do not find the Council at fault for the number of hours of education it had arranged for Y.
31. The Council was also at fault for failing to formally notify Mrs X of the decision to amend Y’s EHC Plan following the annual review meeting in May 2024 within four weeks of the meeting. The Council did not formally notify Mrs X until August 2024.
32. I have also found further fault with the Council for not sending a formal letter to Mrs X following the annual review in January 2024 to advise her of the outcome. The Council’s records of the review meeting were also conflicting. This highlights further the Council’s record keeping requires improvement. This requires a service improvement.

From September 2024 onwards

33. The Council said it would provide Y with a tutor from September 2024. Mrs X says the Council’s failure to provide Y with a suitable education and the provision outlined in her EHC Plan is continuing because the Council is yet to arrange a tutor.
34. The Council has told me it has funded a package of support delivered through Alternative Provision but it was unable to provide me with any further information. It said that it felt that provision outlined in Section F of Y’s EHC Plan was available but it did not provide me with any evidence to substantiate it. Mrs X’s concerns regarding tuition also remain. I am unable to investigate these matters as my investigation is limited to the end of the Summer term in 2024. However, Mrs X does have the option of raising the concerns she has from September 2024 and onwards with the Council formally using the complaints process. This will give the Council an opportunity to investigate those concerns and make any necessary changes or improvements.

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Agreed action

35. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this decision, it will:
• Apologise to Mrs X in writing;
• Pay Mrs X £500 for the loss of provision. I recommend Mrs X uses this for Y’s benefit.
• Pay Mrs X £250 for the avoidable distress caused by the identified faults.
36. The Council has also agreed that within three months of this final decision, it will review the mechanism/record-keeping it has in place to ensure those it owes a section 19 duty to are receiving an appropriate education and those who it maintains an EHC Plan for are receiving the provision as outlined in their EHC Plans. The Council will identify areas of improvement and take appropriate action to improve record keeping.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. The Council has acknowledged there was fault with regards to a gap in provision. There is further fault relating to poor record keeping and communication with Mrs X following two reviews of Y’s EHC Plans. The faults identified caused an injustice. The Council has agreed to remedy this injustice. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman