Summary: Mr D complained the Council failed to provide his daughter with suitable full-time education and provision when she was unable to attend school for medical reasons. We find the Council was at fault for its delay in dealing with Mr D’s daughter’s education and provision when she was struggling to attend school. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained the Council failed to provide his daughter, E, with suitable full-time education and provision from January 2023 to February 2024 when she was unable to attend school for medical reasons.
2. Mr D says the Council’s faults have had a financial impact on the family and E suffered from further school-based trauma.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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.
6. 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)
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. I considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
9. Mr D 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 have and have not investigated

10. The courts have established that if someone has appealed to the 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). This means that 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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
11. Mr D appealed to the SEND Tribunal about the placement in E’s EHC Plan that was issued on 2 February 2024. E’s non-attendance at school is linked to the disagreement about the educational placement in the Plan. Therefore, we have no jurisdiction to investigate what provision the Council provided to E after 2 February 2024.

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What I found

Alternative provision

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)

Special educational needs

14. 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. 
15. 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)  

Part-time timetables

16. 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. 
17. 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.

What happened

18. This chronology includes an overview of key events and does not detail everything that happened.
19. E has special educational needs. Mr D contacted the Council in late January 2023 (the Council received it in early February 2023) and asked it to complete an assessment of E’s EHC needs. He said E had struggled to attend school (School X) since January 2023 because of her anxiety and was attending in the morning only via a pastoral support plan. The school provided the Council with further information about E’s needs in mid-February.
20. The Council agreed to issue E with an EHC Plan. It issued the final EHC Plan in late June 2023 and named School X as the placement to provide the provision in the Plan.
21. Mr D provided the Council with an occupational therapy (OT) report in August. The Council agreed to amend E’s Plan in early September.
22. Mr D’s wife (Mrs D) attended a meeting with School X in mid-September. Mrs D said now that E was doing full mornings at School X, she was struggling in the afternoons at home. School X said it would continue to put in place adjustments for E via the pastoral support plan.
23. E stopped attending School X completely the following week. School X sent work home for E to complete.
24. Mr D contacted the Council and said School X was not providing E with the section F provision in her EHC plan. He also said E’s anxiety had increased. The Council met with School X. School X reassured the Council it was putting the provision in place. The Council contacted Mr D and said School X would contact him to discuss E’s return and the support she needed.
25. The Council contacted Mr D a few weeks later and said School X could meet E’s needs. Mr D replied and said it was impossible to get E to attend School X.
26. Mr D emailed the Council at the beginning of November and asked it to arrange alternative provision for E. The Council agreed to make a referral to a tuition company. Mrs D contacted the Council and asked it to contact a different company that would be more suitable for E. The Council made the referral to the other company in mid-November.
27. E started receiving tuition from beginning of December. The company said E would access tuition twice a week in December and she would be on a phased start until January 2024.
28. Mr D emailed the Council in January 2024 and said E was only accessing a few hours of tutoring which was not academic and nothing for the rest of the time.
29. The Council issued E’s final EHC Plan at the beginning of February and named School X. Mr D appealed the content of the Plan to the SEND Tribunal.
30. Mr D complained to the Council in May. He said he read an article in November 2023 and realised the Council had failed to provide E with suitable alternative provision from 16 January 2023 to 9 February 2024. He said it did not resolve the matter until April 2024 when it issued a personal budget for E (backdated to February 2024). He said the worksheets School X sent home for E were inappropriate for her needs. He also said E attended the tuition it put in place for three hours per week, and it was only for engagement activities.
31. The Council responded to Mr D’s complaint. It said when it received the EHC needs assessment it became aware of E’s attendance issues. It should have referred E’s case to the child missing education team for a section 19 assessment to take place. It apologised it failed to do this. However, it said it did try and work with him to support E to return to School X.

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Analysis

32. We would usually expect a complainant to use their appeal right unless we consider it was unreasonable for them to do so. Mr D could have appealed to the SEND Tribunal about the Council’s decision to name School X in E’s EHC Plan in June 2023. I have decided it was not reasonable for him to appeal the Plan as the Council agreed to amend it not long after. It was reasonable for Mr D to wait for the Council to issue the amended EHC Plan (which he did) before appealing.
33. The Council was aware of E’s difficulties attending School X in February 2023. It did not conduct any assessments of E’s needs to determine whether School X was suitable for her or whether it needed to put in place alternative provision. This is fault. During this time, E was attending School X occasionally in the mornings only and School X was sending work home for her to complete. Part-time timetables must be in place for the shortest time necessary and should not treated as a long-term solution. I have not seen any evidence the Council kept E’s part-time timetable under review or made its own assessment of whether it was appropriate for her given her anxiety. Work set by a school to be done at home is also not the same as teaching and does not count.
34. E stopped attending School X completely in September 2023. While the Council did contact School X to see what support it could provide for E, it did not do its own assessment of her needs to determine whether School X was the appropriate setting for her given the anxiety Mr D was reporting. It largely relied on School X’s insistence it could meet E’s needs. This is fault. E also missed out on the special educational provision in her EHC Plan while she was not receiving any education.
35. The Council did eventually arrange tuition for up to 15 hours a week in December 2023. However, Mr D told the Council in January 2024 E was only attending for a few hours per week and she was not receiving academic support. The Council should have explored whether other provision would be more suitable for E’s needs. I understand it has now done so, but this period is outside the scope of my investigation.
36. The Council’s faults have caused E an injustice as she has experienced significant disruption to her education. Children have an effective right to an education and time they miss is difficult to replace later. Its faults have also caused Mr D upset, frustration and distress that E had been without the education and provision she is legally entitled to. I have made appropriate recommendations to remedy this injustice.

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Agreed action

37. By 25 February 2025 the Council has agreed to:

• Apologise to Mr D for the injustice caused by fault in this statement.
• Pay Mr D £250 for his distress, upset and frustration.
• Pay Mr D £4,600 to reflect E’s loss of education and special educational provision from February 2023 to February 2024. We would suggest Mr D uses this payment for E’s educational benefit.

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

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Final decision

39. There was fault by the Council, which caused Mr D and E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman