Summary: Miss X complains about missed education, and the Council’s actions in failing to find a suitable full-time placement for Y. We have concluded our investigation having made a finding of fault. The Council failed to ensure Y received a full-time education from May 2022 – April 2024. Further, we found fault for a period of inaction in sourcing a placement for Y between March 2023 – May 2023. As Miss X has appealed to the Tribunal, any further complaint regarding the Council’s actions in sourcing a placement for Y are out of our jurisdiction. The Council has proposed a remedy in acknowledgement of fault and injustice identified in this complaint and we consider the Council’s offer to be fair and proportionate in the circumstances.

The complaint

1. Miss X complains that Y has not been in education since May 2022. Miss X says that despite the Council providing a remedy to acknowledge missed education, it has failed to find suitable full-time placement for Y that can meet his needs. Miss X would like the Council to find a suitable placement for Y as a matter of urgency.

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The Ombudsman’s role and powers

2. 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)
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 an injustice, 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).

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What I have and have not investigated

5. I have not investigated any complaint regarding the Council’s actions in sourcing a placement for Y after May 2023. This is because Miss X has an ongoing appeal where she is appealing Section I of Y’s EHCP. As per paragraph 18 below, the restriction applies from the date the appeal right arose, which is when Y’s EHCP was issued in May 2023. Therefore, this limits the scope of my investigation into this complaint point to May 2023.

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How I considered this complaint

6. I liaised with Miss X and considered the information she provided. I made enquiries with the Council and considered the information it provided in response. Miss X and the Council were offered an opportunity to comment on my draft decision, and I considered any comments submitted before making a final decision.

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What I found

Relevant law and guidance

Alternative education

7. 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.
8. 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)
9. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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)
10. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
11. Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
12. The education provided by the council must be full-time unless it decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
13. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
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?’ July 2022)
15. We made seven recommendations. Councils should:
• consider the individual circumstances of each case and be aware 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

Special Educational Needs

16. 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. It will ‘name’ a school or type of school which the child will attend.
17. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. This includes the content of EHC plans. We refer to it as the SEND Tribunal in this decision statement.
18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This restriction applies from the date the appeal right arose to the date of the appeal hearing.

Discretion to investigate

19. As described in paragraph 18, the Ombudsman cannot investigate any complaint which is ‘inextricably linked to the matters under appeal’. I note that events in this complaint coincide with an appeal lodged by Miss X to the Tribunal in November 2023.
20. I do not consider that Miss X’s complaint concerning Y accessing full-time education is inextricably linked to matters appealed to the Tribunal in November 2023. This is because this complaint point centres around the Council’s failure to provide full-time education to Y and Miss X’s appeal concerns Section I of Y’s EHCP, specifically about the named placement.
21. However, I do consider the ongoing appeal to be inextricably linked to Miss X’s complaint about failing to source a placement for Y. This is because Mrs X is appealing Section I of Y’s EHC Plan, As per paragraph 18, the restriction applies from the date the appeal right rose, which is when Y’s EHC Plan was issued in May 2023. Therefore, this limits the scope of my investigation into this complaint point up to May 2023.

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What happened

22. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place. This does not mean that I have not considered all of the evidence available to me.
23. In July 2021, Miss X submitted an EHCNA request to the Council.
24. In September 2021, the Council informed Miss X that it had decided it was not necessary to carry out an EHC needs assessment.
25. In May 2022, the Council received a referral from Early Help Service with EHCNA request forms.
26. In July 2022, the Council agreed to carry out an EHCNA. The Council sent our request for advice to Health, Social Care, School and the Educational Psychology Service.
27. In February 2023, the Council issued Y’s Draft EHCP.
28. In March 2023, Miss X advised the Council on a list of preferred schools. The Council sent consultations to Miss X’s preferred schools.
29. In May 2023, the Council informed Miss X that all preferred schools returned negative consultation responses.
30. In May 2023, the Council issued Y’s Final EHCP. The wording in Y’s Section I placement stated, ‘a special school setting to be identified between parents and the Local Authority’.
31. In June 2023, Miss X complained to the Council. Miss X set out that Y had since been out of full-time education for a year and was receiving 2.5 hours of education a week. Miss X also set out that consultations thus far had been unsuccessful in finding Y a suitable placement.
32. In July 2023, the Council issued its Stage 1 complaint response to Miss X. The Council said it was still waiting on replies from two different schools.
33. In July 2023, Miss X escalated her complaint to Stage 2 of the Council’s complaint process. Miss X set out a lack of confidence in the process, and that Y was entitled to a full-time education that he was currently not receiving, and thus having a subsequent impact on his development.
34. In August 2023, the Council issued an amended Final EHCP. The word in Y’s Section I placement was amended to a ‘state funded mainstream provision, namely School B, until Y is placed in a suitable special provision’.
35. In October 2023, the Council issued its Stage 2 complaint response to Miss X. The Council acknowledged;
• Miss X’s preferred schools had informed it that they were unable to meet Y’s needs.
• There was a period of inaction by the Council between March 2023 – June 2023 following the unsuccessful consultations, but that it had since consulted with five more schools, three of which were unable to meet Y’s needs, and two where responses were still outstanding.
• That a SEND Officer will meet with School B so that alternative provision can be discussed to be put in place whilst the search for a special school placement continues.
• That it had sent out nine further consultations to different schools who may be able to meet Y’s needs.
• That Y had missed out on education for the period between May 2022-December 2023, and awarded a remedy payment for £9,600, plus an additional remedy for time and trouble and distress of £600.
36. In November 2023, Miss X lodged an appeal to the Tribunal, where she is appealing the school/provision named in Section I of Y’s EHCP.
37. Later in November 2023, a training provider offered Y a placement, however Miss X, advised the placement was not suitable.
38. In early-December 2023, a meeting was held. It is noted that School B are providing outreach with a longer-term view to reintegration.
39. In December 2023, the Council opposed the appeal, stating that it had agreed Y requires a special school placement but has not been able to secure an appropriate placement for him.
40. In December 2023, a further consultation was made to a new school. In January 2024, the consultation response was negative.
41. In February 2024, the Council submitted a Case Review Form to the Tribunal. The hearing date is set for July 2024.
42. Later in-February 2024, it is acknowledged that Y remained without any provision.

My enquiries to the Council

43. As part of my investigation, I made several enquiries to the Council. Of note, the Council said:
• It acknowledges Y had not had access to a full-time education since May 2022.
• Y is currently attending provision for 1 day a week.
• It acknowledges it has failed to fully consider and fulfil its duties under Section 19 and did not make arrangements to provide suitable full-time education to Y.
• The Council increased its remedy offer of £10,200, to £12,250. This includes a further £400 for time and trouble and distress. And a further £1,920 to acknowledge the missed education for the period December 2023 - April 2024.

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Analysis

Failure to provide education

44. The Council accepts that it failed in its Section 19 duty to provide full time education to Y when it became aware he was no longer attending school.
45. The Council says it acknowledges that Y’s lack of access to education during this period stems from the failure if its SEND assessment service to secure suitable educational provision for Y. The Council acknowledges that Y’s absence from school prompted it to consider and fulfil its statutory duty. The Council says it had originally commissioned a tutoring service for Y which was initially successful, but following the tutor’s resignation, the provision subsequently broke down, and an alternative not put in place for Y, resulting in Y only receiving one day per week of provision. This is fault by the Council.
46. In the Council’s Stage 2 complaint response, it offered a remedy payment to Miss X to acknowledge the absence of full-time education provided to Y; this covered the period from May 2022 – December 2023. The Council arrived at a remedy total of £9,600, calculated at the top end as set out in our published Guidance on Remedies of £2,400 per term, for four of the five days at £1,920 that Y was without provision. Following my enquiries to the Council, the Council proposed to increase this remedy by a further term at £1,920 to acknowledge the absence of full-time education from December 2023 – April 2024. I consider the Council’s remedy proposal to be fair and in line with our guidance on remedies.

Sourcing a placement for Y

47. Y’s Draft EHCP was issued in March 2023, following this, the Council issued consultations to five different schools, four which were the preference of Miss X. Unfortunately, these consultations were unsuccessful and could not offer a place to Y.
48. The Council acknowledges that after responses to these consultations, there followed a period of inaction by the Council from March 2023 to June 2023, where no further work was undertaken to source a placement for Y. This is fault by the Council. This would have been distressing for Miss X, as inaction by the Council would have exacerbated the frustration Miss X was experiencing at the time and contributed to feeling unsupported by the Council.
49. I cannot consider the Council’s actions regarding sourcing a placement for Y after May 2023. This is because, as described in paragraph 18, Miss X has appealed Section I of Y’s EHCP to the Tribunal which limits the scope of my investigation. The limitation applies from when Miss X’s right of appeal rose, which is when Y’s Final EHCP was issued in May 2023.

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Agreed action

50. To resolve matters and prevent similar occurrences. The Council has agreed to:
1. Pay an amount of £11,520 in acknowledgement of the missed education Y was without between May 2022 and April 2024. The Council had originally proposed to make a payment of £9,600, and a further £1,920 for the additional term between December 2023 – April 2024.
2. Pay an amount of £1,000, in acknowledgement of the time and trouble, and distress caused to Miss X and Y. This Council had originally proposed to make a payment of £600, and a further payment of £400 for the further impact on Miss X and Y.
3. Provide an apology to Miss X and Y for fault and injustice identified in this complaint. The apology should be in line with our published guidance on remedies.
4. Complete a review of Y’s case and produce an action plan to ensure Y has access to an education that it suitable for him, until a placement is found.
5. Where the Council fails to provide a full-time education to Y after April 2024, the Council should apply the same multiplier per term thereafter.
6. Review its alternative education policy alongside our published guidance ‘Out of school, out of sight?’ July 2022. It should consider the recommendations we made, and how it can incorporate these recommendations into its policy.
51. The Council has agreed to complete action points a-d within one month of the Ombudsman’s Final Decision. The Council should provide the Ombudsman with an update on action point e, one month after the end of the summer term in 2024. The Council should complete action point f within two months of the Ombudsman’s final decision. The Council should provide the Ombudsman with evidence it has completed the above actions.

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Final decision

52. I have concluded my investigation having made a finding of fault. The Council failed to ensure Y received a full-time education from May 2022 – April 2024. Further, we found fault for a period of inaction in sourcing a placement for Y between March 2023 – May 2023. As Miss X has appealed to the Tribunal, any further complaint regarding the Council’s actions in sourcing a placement for Y are out of our jurisdiction. The Council has proposed a remedy in acknowledgement of fault and injustice identified in this complaint, and I consider the Council’s offer to be fair and proportionate in the circumstances.
     

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman