Summary: Miss X complained the Council has failed to make appropriate educational provision available for her daughter. She also said the Council’s communication has been poor. We find the Council was at fault. This caused significant distress to Miss X and her daughter missed out on education. We make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make appropriate educational provision available for her daughter. She said the Council’s communication has been poor. She also said the Council has failed to apply for post-16 placements for her daughter.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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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What I have and have not investigated

8. I have investigated Miss X’s complaint about the failure to make appropriate educational provision available for her daughter and whether the Council’s communication has been poor.
9. I have not investigated whether the Council has failed to apply for post-16 placements. This is because the Council is not aware of this complaint, and it has not had the opportunity to investigate and reply. As stated in paragraph 4 we cannot investigate. I think it would be unreasonable to not give the Council the opportunity to first respond.
10. I have investigated between June 2022 and May 2024. Miss X complained to us in June 2024. I have exercised discretion to investigate back to June 2022. This is because Miss X made her complaint to the Council in June 2023, but the Council did not respond until March 2024.

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How I considered this complaint

11. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

13. 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. 

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. Where the 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, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

General section 19 duty

17. 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.
18. 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)
19. For excluded pupils, education must begin no later than the sixth day of exclusion.

Educational provision- available and accessible

20. 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)

Part-time timetables

21. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
22. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Summary of the key events

23. Miss X’s daughter, Y, has an EHC Plan. The Council spoke with Miss X in June 2022. She said she was not happy with Y’s school as they kept excluding her. Miss X said Y was now at home for three days a week as the school had stated she could not be in school fulltime until she was properly medicated.
24. The Council asked the school to send it the annual review paperwork.
25. The school completed an annual review in early July 2022. It was noted that:
• Y had many interventions over the past two years. This included 1:1 support, a dedicated workspace when she was unable to manage in class, highly personalised curriculum and offered very regular movement breaks;
• Y had been on a part-time timetable since part way through 2022;
• Y had made very little progress and the school was unable to meet her needs; and
• Y attended school twice a week. They were unable to reintegrate her fulltime due to the significant risk to the learning and well-being of others.
26. The school sent the review paperwork to the Council on the 7 July 2022.
27. The school contacted the Council shortly after. They stated Y had been on a part-time timetable since February 2022. They said they were unable to meet her needs and asked for a decision to be made as soon as possible. They said they thought home tuition was required until an alternative school could be found.
28. The school chased the Council for a response in July and September 2022. They reiterated they were unable to meet Y’s needs and stated she needed an urgent move to a different placement.
29. The Council started to consult with other schools in September, October and December 2022. This included an independent tuition agency.
30. In October 2022, the Council advised Miss X it would be amending the EHC Plan.
31. In January 2023, the school wrote to the Council. They asked whether there were any steps to take to progress the move to a new placement. They said they were concerned that Y was at risk of permanent exclusion. They also said Miss X had refused a tutor on several occasions as Y did not want one. It was noted that remote learning was set but not completed.
32. In March 2023, the Council’s notes state three schools had said they were unable to meet Y’s needs. The tuition agency consulted in December 2022 stated they had been unable to contact Miss X.
33. The school asked for an update in March 2023. They said Y had been suspended for 10 days.
34. The Council consulted further schools in April 2023 and updated Miss X.
35. Y was permanently excluded from school on the 25 April 2023. Miss X called the Council. She said Y had not been getting the support she was entitled to.
36. The Council made a referral to its education programme on the 12 May 2023. But it was noted Miss X declined the offer of tuition.
37. Miss X complained to the Council in June 2023. She said:
• despite the school and Council agreeing the school could not meet Y’s needs, she remained there for two days per week;
• there was no additional education provided for the days that Y was not allowed to attend school;
• Y had GCSE’s coming up and was now very behind due to the impact this has had on her; and
• an offer of tuition had been made which involved Y being picked up and taken to someone’s house. But Miss X said Y would not cope with this.
38. In the following month, Miss X told the Council they had viewed a new school who could meet Y’s needs. The Council named this school in the finalised EHC Plan on the 2 August 2023.
39. An annual review was held in November 2023. It was noted that:
• Y had settled in well to the new school;
• a part-time timetable remained appropriate for Y to achieve the learning and qualifications she needed for post-16 placement; and
• post-16 options were discussed with Y.
40. The Council responded at stage one of its complaints process in March 2024. It said:
• it apologised for the delay and said it was taking urgent steps to improve all aspects of the SEND service, specifically its communication with parents and carers;
• the school was asked to send in the review paperwork in June 2022;
• in June 2022 the Council spoke with Miss X who said Y was at home three days a week. It attempted to contact her multiple times during this time but could not get through. It said it understood that Y was in school at this time;
• when Y was excluded in April 2023, it made a referral to the education programme. This was declined by Miss X, so they closed the case; and
• a placement was arranged in September 2023 and named in the EHC Plan.
41. Miss X asked for her complaint to be escalated. She said its failed to consider the points she raised.
42. The Council responded at stage two of its process in May 2024. It said:
• after the July 2022 review, it should have issued a decision to cease, maintain or amend the EHC Plan within four weeks. But said it did not notify Miss X of its decision until October 2022;
• following the agreement for a placement change, it consulted three schools who could not consider Y for a placement at that time;
• in December 2022 the tuition agency was secured as an interim arrangement whilst an alternative provision was identified. But the agency stated they were having difficulty contacting Miss X;
• in April 2023 following the exclusion, the Council made a referral to the education programme which Miss X declined; and
• in recognition of the delays in issuing the final plan, the Council offered Miss X a payment of £600.

Analysis- was there fault by the Council causing injustice?

43. Miss X told the Council in June 2022 that Y was on a part-time timetable. She raised concerns with the school. In response the Council asked the school to send it the review paperwork, but the review was not held until July 2022. The review noted the school were not able to meet Y’s needs and stated they thought home tuition was required until a suitable alternative was found. It was also noted Y had been on the part-time timetable since February 2022.
44. The school continued to contact the Council in July and September 2022 reiterating their concerns. They stated Y needed an urgent move. From the evidence seen, the Council began consulting schools in September 2022. Between September and December 2022, it consulted three schools and the independent tuition agency. The notes state in March 2023 the tuition agency could not get hold of Miss X.
45. We asked the Council whether it considered the part-time timetable to be suitable. In response it said, whilst it looked for placements, the school remained responsible for Y's education. This is fault. The section 19 duty 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. The school continued to raise concerns throughout. Given that the Council was consulting other schools, this indicates the Council did not believe the school was suitable for Y. But from the evidence seen, the Council did not properly consider whether the section 19 duty applied. This is fault. This meant Y went without education.
46. I acknowledge that the Council did refer Y to an independent tuition agency in December 2022. But in March 2023 it noted the agency could not get hold of Miss X. There was a three-month delay in the Council seeking this update and there is no evidence to suggest the Council acted on this. It did not contact Miss X or seek alternative options. This is fault.
47. Y was excluded on the 25 April 2023. Guidance states councils must arrange education for excluded pupils from the sixth day of exclusion. In this case, the Council made the referral to an education programme on the 12 May 2023. Therefore, this is not in line with the guidance and is fault. I note Miss X declined this offer as she said it was not suitable for Y. But there is no evidence to suggest the Council considered looking into other options. This is fault and Y remained out of education.
48. In acknowledgement of missed education, we recommend a payment per term. In this case, as a result of fault by the Council, the lack of education amounted to three terms and an extra month [between July 2022 and July 2023]. I consider a suitable remedy in this case to be £7000. In determining this figure, I have taken into account that Y was in year 10 and therefore preparing for exams the following year. I have also taken into account that between July 2022 and April 2023, she received two days per week of education. But between April 2023 and July 2023, she received no education.
49. There is evidence of further fault. Guidance states within four weeks of a review meeting, the Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. In this case, the review was in July 2022, but the Council did not issue its decision to amend until October 2022. The EHC Plan was not finalised until August 2023. The Council has acknowledged this delay in its complaints response and recommended a payment of £600. This caused significant distress to Miss X and frustrated her right of appeal. I note Miss X has not accepted this, but in my view, this is an appropriate remedy.
50. The Council finalised the EHC Plan in August 2023 naming a new school from September 2023 which was Miss X’s preference. A review was held in November 2023. It was noted Y had settled in well and remained on a part-time timetable. I asked the Council whether it considered this to be appropriate. It said the school had determined the level of attendance Y was able to cope with at the time. Strategies were put in place to support her engagement. It said Y was building up the number of days she attended school. It believed the timetable with the support in place to increase her attendance was suitable at the time. This was a decision the Council was entitled to take, and I could not criticise it. There is no fault in how it reached this decision.
51. Miss X also raised concerns about the Council’s communication. She raised a complaint in June 2023 and the Council did not respond until March 2024. This is fault and not in line with the Council's policy. The complaint response also fails to consider all the points Miss X raised. This caused Miss X significant distress.

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Agreed action

52. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £7000 for the educational benefit of Y, to recognise the impact of its failings on Y’s education;
• pay Miss X £600 in recognition of the distress caused by the delays in finalising the EHC Plan; and
• pay Miss X £200 in acknowledgement of the distress, time and trouble caused to her by the delay in responding to her complaint.
53. Within two months the Council should:
• remind relevant staff of the guidance which states within four weeks of a review meeting, the Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan;
• by training or otherwise, remind staff of the importance of adhering to the Council’s complaints procedure; and
• provide training or guidance to all relevant staff on the Council’s duties when a child is unable to attend school.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman