Summary: Miss X complained the Council failed to ensure her son, Y received a suitable education after he stopped attending school in January 2024 due to anxiety. The Council accepted it should have put alternative provision in place for Y between May and July 2024. It agreed to apologise to Miss X and make payments to her to recognise Y’s missed education and for the distress and frustration caused.

The complaint

1. Miss X complained the Council failed to ensure her son, Y, received an education or the specialist provision in line with his Education, Health and Care Plan between February and July 2024 after he stopped attending school due to anxiety.
2. Miss X wants the Council to provide suitable alternative provision until Y is able to attend an appropriate school.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

9. 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 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.
10. 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.

Annual reviews

11. 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. A review can take place sooner than 12 months at any time if there appears to be a need to change the child or young person’s EHC Plan. This could take place for example if the child or young person’s placement has broken down or a child’s needs have changed.
12. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

SEND tribunal

13. 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.
14. There is a right of appeal to the 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.

Section 19 Duty

15. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. 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).

What happened

17. Miss X has a son, Y who is of primary school age and has autism and learning disabilities. He has an EHC Plan which sets out the specialist provision he is entitled to. Y attended a special school (School 1) which was named the Plan. Y had attended School 1 since 2019. A SEND tribunal appeal hearing took place in January 2024 which found School 1 remained appropriate.
18. In early 2024 Y started struggling to attend school due to anxiety related issues. Y’s last day was at the end of January 2024. Records show School 1 first notified the Council of Y’s absence towards the end of February 2024, however it was not communicated to the SEND team until early March.
19. School 1 arranged an early annual review in March 2024. Records of this show School 1 remained of the view that it was an appropriate setting for Y and that it could meet his needs and deliver the provision in the Plan. Records show School 1 was providing some work for Y to complete at home and had conversations with Miss X about trying to get him back into school by offering to transport him. Members of the pastoral team also visited Y at home but these stopped as Miss X said it was causing him further anxiety.
20. The Council considered the information from the annual review and decided at the time to not amend Y’s EHC Plan. It sent Miss X a letter with this decision which outlined how she could appeal to the SEND tribunal.
21. In May 2024 School 1 held another early annual review which an officer from the Council’s SEND team attended. Y was still not attending school and reintegration attempts had failed. Records from the review show Miss X felt School 1 was no longer appropriate and wanted an EOTAS (Education other than at school) package put in place. School 1 however remained of the view that it was an appropriate setting and it could still meet Y’s needs.
22. In June 2024 the Council sent Miss X a decision letter stating it was not amending Y’s Plan and again set out her appeal rights.
23. The Council’s placement panel considered Miss X’s EOTAS request during June 2024 and declined the request. It wrote to Miss X advising her of the decision.
24. In early July 2024 the Council advised School 1 to look into commissioning an alternative package of education for Y.
25. In July 2024 Miss X complained to the Council. She complained that it had declined her EOTAS request and about Y’s lack of education. The Council responded a few days later and said EOTAS was declined as the panel decided School 1 could meet Y’s needs. It said School 1 had remained available for Y to attend and it had received no medical evidence to support his absence. It said it had however now asked School 1 to look for suitable alternative provision to help Y reintegrate back into a school environment. Miss X asked the Council to escalate her complaint to stage 2 but it declined.
26. Miss X remained unhappy and complained to us.

The Council’s response to us

27. The Council said it was satisfied following the March 2024 annual review that School 1 remained appropriate and accessible to Y and that School 1 was also making attempts to reintegrate him back into school. It accepted however that it was clear from the May 2024 annual review that reintegration attempts were not working and at this point it should have put alterative provision in place. The Council said it would offer Miss X £1180 to acknowledge Y’s missed education between May and July 2024 and also £150 to recognise the distress and frustration caused to her.
28. The Council said it has improved internal processes for considering its Section 19 responsibility and making the necessary arrangements in a timely manner.
29. The Council confirmed Miss X has a new ongoing complaint about Y’s education from July 2024 onwards.

My findings

30. School 1 appropriately arranged an annual review after Y stopped attending School 1. Based on the evidence at the time the Council decided not to amend Y’s EHC Plan and that School 1 remained suitable and accessible to Y. School 1 was carrying out attempts to help Y back into school. There was no fault by the Council and Miss X could have appealed to the SEND tribunal following receipt of the decision letter.
31. However, the Council has accepted it should have acted earlier following the May annual review to put alternative provision in place under Section 19. While it was satisfied School 1 remained suitable and could deliver the specialist provision it was clear at that time it was not accessible to Y. I note the Council advised School 1 to seek alternative provision, however the duty lies with the Council, not the school. So, the failure to put alternative provision in place between May and July 2024 was fault.
32. Following our enquiries the Council has offered a remedy which is in line with our guidance and recognises the injustice caused. Further investigation by us will not achieve anything more for Miss X for the period investigated.

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Agreed Action

33. Within one month of the final decision the Council agreed to take the following actions:
1. Apologise to Miss X and pay her the £150 offered to recognise the distress and frustration caused by the failure to put alternative provision in place for Y between May and July 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Miss X the £1180 offered to recognise Y’s loss of education between May and July 2024.
3. The Council said it has improved internal processes for considering its Section 19 responsibility and making the necessary arrangements in a timely manner. It should provide us with an explanation and evidence of how it has carried this out.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman