Summary: Miss X complains the Council failed to arrange suitable educational provision for her son, Z, when his placement broke down and he was unable to attend school. She complains the Council failed to promptly respond to her request that Z receive education otherwise than at school or arrange a suitable educational placement for Z. We have upheld Miss X’s complaint because we have seen evidence of fault by the Council. Miss X was caused distress and uncertainty. Z missed out on a suitable education. To remedy this, the Council has agreed to apologise to Miss X, make Miss X several payments and make some service improvements.

The complaint

1. The complainant, who I shall refer to here as Miss X, complains the Council:
1. failed to provide her son, Z, with suitable alternative provision (under Section 19 of the Education Act 1996) and the special educational provision in his Education, Health and Care Plan while he was unable to attend school;
2. failed to respond to her request from August 2021 that the Council arrange education otherwise than at school for Z;
3. failed to provide Z with a suitable educational placement from December 2021 when Miss X asked the Council to provide Z with an education; and,
4. failed to promptly respond to her contact and keep her updated.
2. Miss X says Z has missed out on receiving a suitable education. She says the situation significantly affected her and her family’s mental wellbeing and caused them significant stress and distress.

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What I have and have not investigated

3. The law says 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)
4. Miss X complained about matters dating back to March 2020. I have considered her reasons for not complaining to us sooner. However, I consider Miss X could have reasonably been expected to complain to the Ombudsman sooner if she wished to complain about these historic issues. I have, therefore, decided, as Miss X complained to us in June 2022, an investigation from June 2021 is fair and justified.
5. We cannot investigate the actions of Primary School One. This is because the law says we cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) This means I cannot investigate Miss X’s complaint that Primary School One segregated Z from his peers in a small room. It is open to Miss X to complain to the School through its complaints procedure about this, but the Ombudsman cannot consider any response from the School.

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The Ombudsman’s role and powers

6. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I spoke with Miss X about her complaint. I considered the information and documents Miss X and the Council sent to me.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Education, Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the SEND Tribunal can do this.
13. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child.  
• Section I: The name and/or type of school. 

14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Arrangements for reviewing an EHC Plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEND Code paragraph 9.176)
17. Where a 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 SEND Code paragraph 9.194)
18. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEND Code paragraph 9.176)
19. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEND Code paragraph 9.196)
20. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

General section 19 duty

21. 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.
22. 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)

Part-time timetables

23. The Department for Education (DfE) non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) 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. 
24. 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.

Elective Home Education (EHE)

25. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
26. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
27. The Department for Education (DfE) issued guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
28. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
29. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
30. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.
31. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.

Education otherwise than at school (EOTAS)

32. EOTAS applies when school or college is not appropriate for a child or young person with an EHC Plan. The decision about whether school or college is appropriate for a child lies with the Council and carries a right of appeal to the SEND Tribunal.
33. When an EOTAS package is agreed by the council, this means it can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting.
34. While both EOTAS and EHE may have the same result in that the child will be being educated at home, they each place different obligations on councils. Unlike EHE, under an EOTAS package, the council remains responsible for the child or young person's education generally and must ensure the special educational provision in the EHC Plain is secured and funded.

What happened

35. Miss X’s son, Z, has agoraphobia (a fear of being in situations where escape might be difficult or that help would not be available if things go wrong) and anxiety. During the period considered, Z was awaiting assessment for two potential neurodiverse conditions. Z has special educational needs (SEN) and an Education, Health and Care Plan (EHC Plan).
36. In June 2021, Z was in Year Four at Primary School One, a mainstream primary school. Z had been on a part time timetable for some time, accessing school during the morning only.
37. In mid-July, the Council held an annual review meeting of Z’s EHC Plan. The record of the meeting states:

• Primary School One said there had been a rapid deterioration in Z’s behaviour and ability to access his learning over the 2020/21 academic year. Z had been restrained. The School said it was essential Z was supported on at least a one to one basis at all times, including break and lunch time.

38. On 10 August, Miss X spoke with Z’s allocated EHC Plan Caseworker. Miss X asked the Council to provide home tuition for Z and behaviour therapy. Miss X requested a personal budget for Z’s home education. But, Miss X said she would like Z to stay on roll at Primary School One rather than electively home educate.
39. The next day, Z’s EHC Plan Caseworker emailed Miss X. The Caseworker said the Council could offer Z teaching support. By working with Primary School One, she said the Council would make sure Z was accessing a similar curriculum to his peers. The Caseworker gave Miss X details of the cost and would progress the referral once Miss X confirmed she was happy with this.
40. On 9 September, an internal Council email within its SEN team shows, following discussions with Primary School One, Z had received a fixed term exclusion. The School told Miss X that Z would be educated outside of the classroom with access to a teaching assistant. But, Miss X did not agree with the arrangement so Z was attending school during mornings only.
41. Several days later, a Charity, specialised in championing the rights of disabled people, contacted the Council on behalf of Miss X. The Charity said Miss X still wished for Z to remain on roll at Primary School One, but with access to Council arranged tutoring at home and a behaviour therapy service.
42. After a meeting with Primary School One and a discussion with Miss X, Z’s new EHC Plan Caseworker replied to the Charity. The Caseworker said the Council was looking into how it could support Primary School One in meeting Z’s needs. But, the Caseworker told Miss X that Z was at risk of permanent exclusion. The Caseworker said the Council was consulting Special Primary School Two, a maintained special school, about a possible placement.
43. Miss X told the second Caseworker that Z’s health needs were affecting his school attendance. The Caseworker asked Miss X to send a medical report.
44. In late September, Miss X told the Council’s SEN team that she wanted to home educate Z because she had been told Z had to attend Special Primary School Two. But, Miss X said the School told her there were no spaces available there. She was also concerned Z’s behaviour had deteriorated so significantly that the School would not be able to meet Z’s needs. She asked whether Z was eligible for free transport to the School.
45. The next day, Miss X spoke with an Education Welfare Officer. She said there was nothing more Primary School One could do. The Officer said to give it a chance before deciding whether to electively home educate (EHE). Miss X said Z was too unwell to attend school and she had chased Z’s paediatrician for a letter. The Officer emailed Miss X a copy of the Council’s EHE pack.
46. On 30 September, Primary School One wrote to the Council to say it was removing Z from the school roll because Z was “to be educated otherwise than at school”. The School attached an email from Miss X saying Z would be home educated.
47. A week later, the Council sent Miss X a draft EHC Plan.
48. In late December, Miss X told the second EHC Plan Caseworker that Z’s behaviour at home had declined. She asked the Council to consult other schools.
49. In early January 2022, Z’s EHC Plan Caseworker told Miss X that the Council would consult Special Primary School Two on its immediate availability of places as well as from September 2022.
50. Several days later, Miss X sent the Caseworker a report showing the educational work she had completed with Z at home. Miss X asked the Council to consult other schools, including Independent Special School Three, and consider whether education otherwise than at school (EOTAS) was more suitable for Z.
51. In early February, the Officer sent out consultation letters to the schools Miss X had requested.
52. On 9 February, the Council held an annual review meeting with Miss X.
53. The same day, the Council sent Miss X a draft EHC Plan. In the draft Plan, the Council said:

• Z wanted to have some friends. But, the draft said “[Z was] very isolated and at home all the time. He does not socialise with other children and can be demanding of his parents time, which is very difficult for them.”
• Miss X wished for Z to attend a school, but she struggled with Primary School One keeping Z for one or two hours at a time before asking her to collect him.
• Z was missing a significant amount of schooling. None of the outcomes in Z’s Plan had been achieved. He was increasingly worried about returning to any formal schooling.

54. On 15 February, the Council sent a final EHC Plan to Miss X.
55. On 11 March, Miss X complained to the Council.
56. On 20 April, the Council sent its stage one complaint response.
57. On 22 April, Z’s EHC Plan Caseworker consulted Special Primary School Two. The Officer said Miss X had contacted the Council in December as she was no longer able to educate Z at home. Special Primary School Two sent the Council its original response from September.
58. In late April, the Council chased Independent Special School Three.
59. Miss X requested a stage two complaint response from the Council. She said the Council had failed to adequately respond to her complaint. Miss X chased the Council to make a decision about Z’s education, including setting.
60. The next day, Miss X called the Council. She said she felt frustrated and let down by the Council. She requested the Council name Independent Special School Three. But, if this was not an option, she asked the Council to arrange EOTAS.
61. In early May, the Council chased Independent Special School Three to confirm whether it was able to meet Z’s needs and offer him a place.
62. In mid-May, the Council sent a second final EHC Plan. This named Independent Special School Three in Section I. Z began attending the School in May (initially on a part time basis, increasing to full-time by the end of summer term 2022).
63. In late May, the Council sent Miss X its stage two complaint response.
64. In June, Miss X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Alternative provision and Z’s annual review

65. Miss X complains the Council failed to provide her son, Z, with suitable alternative provision (under Section 19 of the Education Act 1996) and the special educational provision in his EHC Plan while he was unable to attend school (part a of the complaint).
66. In July 2021, the Council arranged an annual review of Z’s EHC Plan. This was attended by Miss X, three representatives from Primary School One and Z’s allocated Council EHC Plan Caseworker. The record of the meeting shows:

• Primary School One said Z had not been able to access the classroom at all for the past two terms. Instead, he was left walking up and down the school corridor. It said Z’s behaviour had become increasingly violent and the amount of exclusions Z had received had increased dramatically. The School said the situation in school was worsening and Z was at high risk of permanent exclusion.
• regarding identified needs, Z was considerably behind his peers because he was not accessing the classroom environment and regular teaching. He was not making progress with basic functional literacy skills because of this.
• regarding outcomes, these were largely noted as not achieved.

67. The record of the July 2021 annual review meeting also states “After many lengthy and detailed discussions with all involved with [Z], all are in agreement that he would benefit greatly from a place at a specialist setting from Year 5 onwards.” In my view, this shows an implicit acceptance that the Council did not consider Primary School One was suitable and could meet Z’s needs. This is further shown in Council records from early September 2021, when Z’s new EHC Plan Caseworker told the Charity that the Council was consulting Special Primary School Two about a possible placement because Miss X’s preference of Primary School One was incompatible with the efficient education of others.
68. This decision should have triggered the ‘Amending an existing plan’ process set out in 9.193 of the SEND Code, which should have resulted in the Council sending a new final amended EHC Plan in early October. But, the Council failed to issue a final amended Plan until February 2022. This delay is fault. Mrs X was caused distress and uncertainty about what placement, if any, the Council considered suitable for Z. She was denied SEND Tribunal appeal rights during the period of delay.
69. In these circumstances, when it was not reasonably practicable for Z to attend a school which everyone agreed was unsuitable, we would expect the Council to promptly consult other possible placements and, in the meantime, arrange suitable alternative provision, including the provision in Z’s Plan. Z’s circumstances here fell within the definition of ‘otherwise’ unable to attend school.
70. In the Ombudsman’s focus report Out of school … out of sight?, we explained that the duty to make alternative arrangements for children unable to access education under the category ‘otherwise’ has a broad definition. It would include the scenario where a child is unable to take advantage of any available suitable schooling. Due to a breakdown in his placement and potentially unmet SEN, Z was not accessing regular teaching and for the last two terms Z had been unable to attend any classroom-based learning with his peers. In these circumstances, the Council should have considered whether Z’s circumstances fell within the scope of the “otherwise” category and promptly put in place suitable alternative provision.
71. Over the summer holiday, Z’s first EHC Plan Caseworker began looking into possible home tuition for Z. But, I have seen no evidence this was promptly arranged. This is fault (part a of the complaint). Z missed out on alternative provision, including the special educational provision in his Plan, arranged by the Council during September 2021 (until Miss X decided to home educate Z).
72. Up until Miss X decided to home educate Z, I find the Council was taking steps to arrange temporary provision while Z remained on roll at Primary School One, which would constitute a similar curriculum to his peers, and it was also consulting with Special School Two, and encouraging Miss X to work with Primary School One. Special School Two raised concerns with Miss X about whether it could accommodate Z, but a formal decision was never made about this as Miss X decided to home educate. Based on this, the Council was taking the steps we would expect to secure a new placement while arranging temporary support. I am, therefore, not persuaded that the fault identified in relation to delays by the Council in completing Z’s annual review and promptly arranging alternative provision caused Miss X to opt for electively home educating Z.
73. As explained above, this meant, while Miss X was electively home educating, the Council was no longer under the section 19 duty to arrange alternative provision for Z or arrange the provision in his Plan.
74. But, based on the evidence I have seen, once Miss X decided to home educate Z, the Council failed to show how it had satisfied itself whether the home education Z was receiving was suitable and Z’s special educational needs were provided for. This is fault. This caused Miss X and Z uncertainty.
75. In late December, Miss X asked the Council to consult possible placements as she was struggling with trying to educate Z at home. Council records show, in April 2022, the second Caseworker consulted Special Primary School Two because Miss X told the Council in December that she was no longer able to educate Z at home.
76. Once Miss X said she was unable to home educate, the Council should have resumed a search for a school place and arranged alternative provision if this was not quickly identified. But, I find there was a clear delay in this, with the Council not securing a school place or section 19 provision until May 2022 when the Council issued a second amended Plan and Z began attending Independent Special School Three. This included a delay of around two and a half months between Independent Special School Three confirming it could meet Z’s needs and the second Caseworker chasing it to confirm if could offer Z a place before naming the School in the Plan. This is fault (part c of the complaint). Miss X and Z were caused distress and uncertainty. Z missed out on suitable educational provision.
77. I find, because of the fault by the Council, Z missed out on suitable provision during September 2021 (one school month) and again between early January 2022 and mid-May 2022 (three and a half school months after deducting holidays). Z missed out on the Council arranging the provision in his Plan. Miss X was caused distress and put to time and trouble trying to get the Council to arrange alternative provision for Z.
78. The EHC Plan from May 2022 provides details of the provision the Council should have arranged if it had completed the final Plan within the statutory timescales. The provision was largely aimed at supporting and managing Z’s social, emotional and mental health needs and relationships as well as targeted support in achieving tasks at school. This included: a key worker to support Z with his learning, and who could build a relationship in a manner which allows co-regulation; a mentor, unconnected with school work and with whom Z could build a trusting relationship to talk through challenges with him; peer support during unstructured periods; and teaching approaches that include structured, consistent routines and guidelines and noticing and commenting on Z's emotions, so he could learn to connect feelings with behaviours.
79. Throughout the periods of missed education, Z became socially isolated from other children and the support from staff the Council should have arranged to support his social, emotional and mental health needs. At the July annual review meeting, Miss X said it was a constant worry for Z that he had no friends. Miss X and Z’s father were, instead, left to provide significant care and support for Z while he was without alternative provision and special educational provision. This likely had a significant disruptive impact on Z and Miss X’s life, including their family life. Taking this all into account, I find this meant the Council failed to have due regard to its duties under Article 8 of the Human Right Act 1998 to respect Z’s right to respect for his private and family life. In my view, if the Council had promptly arranged Z’s provision while looking into alternative placements, then it would have been able to decide how it could promote good family and other relationships for Z while he was at home.
80. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
81. I consider the payment for September 2021 and again from early January 2022 until mid-May 2022 (when Z began attending Independent Special School Three) should be at the high end of the scale (£600 per month). This is because the Council did not make any educational provision at all, including special educational provision, for Z during this time.

Education otherwise than at school

82. In August 2021, Miss X requested a personal budget for Z’s home education and said she would prefer Z remained on roll at Primary School One rather than electively home educate him. I understand Miss X requested “education otherwise than at school” (EOTAS) here. The first Caseworker’s response said this was something the Council could consider and a Council Panel would decide whether to agree to the request.
83. Based on the case records the Council shared with me, it is not clear whether Miss X’s request for EOTAS was considered by the relevant Panel. I have seen no evidence that a decision was made by the Panel. This is fault (part b of the complaint). Miss X missed out on a clear and prompt decision from the Council.
84. Rather, I find the Council failed to make a clear decision about this request until February 2022 when it issued a final EHC Plan naming the type of setting as “Special SEMH [social, emotional and mental health focused setting]”. In my view, this shows the Council considered it was appropriate for Z to access his education and receive the provision in his Plan in a school (as opposed to at home or otherwise). The Council’s delay in reaching this decision is fault. Miss X was caused uncertainty.

Council communication with Miss X

85. Miss X complains the Council failed to promptly respond to her contact and keep her updated. More specifically, this relates to consultations with possible placements following her requests in early 2022 that the Council consult other schools (part d of the complaint).
86. In the Council’s complaints responses to Miss X, it accepted there had been a lack of response from its EHC Plan team to some of her communications. It said the “service is under considerable pressure at present which has led to communication not being what we would want or expect. This has led to delays in some instances in responses.” It accepted it had failed to keep her updated on any progress made on identifying a suitable school placement for Z. The Council apologised for the fault. In May 2022, it said that it had put in place a 12-month quality plan in the SEND Team to review procedures and improve the EHC Plan customer experience. I find this suitably remedies the fault causing injustice to Miss X, which the Council has accepted.
87. Miss X also complained the Council’s Early Help and Prevention team failed to respond to her request for help several days after she changed her mind about the offer. The Council did not uphold Miss X’s complaint because it said she declined the Team’s original offer of support in September 2021.
88. But, I find the Council has failed to consider Miss X’s clear request in her complaints to take up the support offered.
89. From December 2021, Miss X told the Council she had seen a decline in Z’s behaviour at home and she was concerned his agoraphobia was becoming worse.
90. During the February 2022 annual review meeting, Miss X said she was struggling with Z at home. She said she and Z’s father needed respite from caring for Z. She said they had no support from others with the care they provided for their children, which they were finding difficult. Miss X explained that, due to significant health conditions, she was in regular pain, which she needed to manage alongside caring for Z.
91. In my view, the Council missed several opportunities where it could have offered Miss X support through its Early Help and Prevention team. This would have likely included an Early Help Assessment whereby the Team assesses the whole family situation and identifies the needs of both the children and adults in the family. Based on the evidence I have seen, it failed to respond to Miss X’s requests for respite support or consider offering her a carer’s assessment given the points she had raised. This is fault. This caused Miss X significant distress, uncertainty and confusion about what support and advice, if any, the Council could provide.

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Agreed action

92. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Miss X for the fault causing injustice identified above in relation to parts a to d of Miss X’s complaint;
2. make Miss X a payment of £300 to acknowledge the significant distress, uncertainty and time and trouble she was put to chasing the Council for her SEND appeal rights and suitable educational provision for Z and requesting support for her family;
3. make a payment to Miss X of £600 for each school month the Council did not make any educational provision for Z during September 2021 and again between early January and mid-May 2022 (three and a half school months after deducting school holidays). This comes to a total of £2,700. This payment should be used for Z’s educational benefit; and,
4. provide Miss X with clear information on support the Council offers to carers, including through its Early Help and Prevention team. It should offer Miss X a carer’s assessment and decide on Miss X’s requests for respite support for her and Z’s father. The Council should report back on the outcome of these actions and put this in writing to Miss X.
93. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments.
94. Within three months of my final decision, the Council has agreed to make the following service improvements:

• issue timescales for deciding whether a request for EOTAS was suitable or not. This should include a reminder to staff of the need to maintain robust records of any reasons for EOTAS decisions and these should be communicated to parents/guardians and young people; and
• circulate guidance to staff on keeping parents/guardians updated on any progress made on identifying a suitable school placement during the annual review process with details of any schools consulted.

95. Within six months of my final decision, the Council has also agreed to:

• review its policies and procedures to ensure it is clear to staff that the section 19 duty to make alternative arrangements for children who cannot access education under the category ‘otherwise’ has a broad definition. It would include the scenario where a child is unable to take advantage of any available suitable schooling. The Council should consider the findings in the Ombudsman’s focus report Out of school…out of mind? as part of the review and incorporate any relevant points of learning.

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

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Final decision

97. I have completed my investigation.
98. I have decided to uphold parts a to d of Miss X’s complaint. This is because I have seen evidence of fault by the Council causing injustice to Miss X and Z. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman