Summary: Mrs X complains that her daughter Y, has not access to a full-time education in a setting that it able to meet her needs. We have concluded our investigation having made a finding of fault. The Council acknowledges fault where there was delay in arranging Y’s admission in July 2023. The Council also acknowledges fault for the period between October 2023 – February 2024, where Y was without alternative provision, nor access to a full-time education until a placement secured. The Council has proposed a remedy which we consider proportionate in the circumstances and has agreed to action this.

The complaint

1. Mrs X complains that her daughter Y, has not had access to a full-time education in a setting that is able to meet her needs. Mrs X would like the Council to ensure Y is provided with full-time education in a setting that is able to meet her needs.

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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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How I considered this complaint

5. I liaised with Mrs X and considered the information she provided. I made enquiries with the Council and considered the information it provided in response. Mrs 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

6. 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.
7. 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)
8. 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)
9. 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”.
10. 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))
11. 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)
12. 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’)
13. 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)
14. 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

15. 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.
16. 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.
17. 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.

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What happened

18. I have a included a summary of some of the key events below. This is not intended to be comprehensive account of everything that took place. This does not mean I have not considered all the information available before me.
19. In November 2022, Mrs X requested the Council undertake an EHC needs assessment. In December 2022, the SEN Panel agree to the assessment.
20. Between late December 2022 – February 2023, the needs assessment is undertaken. In February 2023, the Council agree to issue an EHCP to Y. The Panel considers that Y’s needs can be supported in a mainstream school with an allocation of additional resource.
21. In March 2023, Y’s Final EHCP is issued.
22. In April 2023, a consultation with School A is made and a request for it to meet with Mrs X. Mrs X was later informed School A could not meet Y’s needs.. Mrs X agrees the Council should consult with School B for a potential placement.
23. In June 2023, the Council confirms to Mrs X it intends to confirm a placement at School B and issue an amended EHCP. Mrs X requested to visit School B before any further action. In July 2023, although Mrs X noted she had reservations, she was willing to try. The Council amended Y’s EHCP naming School B.
24. Later in July 2023, Mrs X noted that she had not heard from School B. In August 2023, the Council contacted School B to arrange admission for Y.
25. In September 2023, School B contacted Mrs X to arrange admission for the following day. Mrs X expressed concern at the short notice, meaning that some arrangements could not be made for Y including having the correct uniform.
26. In mid-September 2023, a Student Support Plan for Y is agreed.
27. Later in September 2023, Mrs X contacted the Council noting that Y has started at School B but otherwise had been struggling, managing to stay only till midday. The Council arranges a meeting with School B to work through the concerns raised by Mrs X.
28. In October 2023, the Council meet with School B and Mrs X.
29. In mid-October 2023, Mrs X contacted the Council again noting that Y’s struggles continued. Mrs X said she did not feel the placement was right for Y, in preference of a small setting with a with a more therapeutic/nurturing approach.
30. In January 2024, an early review of Y’s EHCP is held. The Council agreed to amend Y’s plan and consult for a new placement in line with Mrs X preference. Mrs X request that the Council consult with School C. The Council also consult for alternative placements at other schools including School D, and School E
31. In February 2024, the Council secured an offer for Alternative Provision for Y at Academy A.
32. In February 2024, Mrs X informs the Council she visited School E and that the visit was positive visit. Mrs X does note that the school does not offer music as a calming strategy, and that it is a full mainstream curriculum. Some days later, Mrs X informs the Council she visited School D and that the visit was also positive. Mrs X does note that the school only offer part time and that this would work for Y in the interim, but that Y wanted to access a full-time education. The Council advise Mrs X that School also offer a full-time blended model of school and off-site activities, so could be a long-term solution also.
33. Later in February 2024, the Council secures a full-time placement at School E with an immediate start. In March 2024, the Council notify Mrs X of the offer. Mrs X informs the Council that it is Y’s preference to attend School D.
34. In March 2024, Y’s EHCP is amended, and Y begins attending School D. Mrs X notes later in March 2024, that Y had been feeling overwhelmed on occasion, but that the placement has otherwise been successful to date.
35. In June 2024, it is noted that Y is attending School D for approximately 19 hours, which Mrs X is happy with. It is also noted that there are plans to increase to full-time from September 2024 with a blend of classroom learning an alternative provision.

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Analysis

36. Y’s EHCP was issued in March 2023. It is expected the Council secure this provision without undue delay.
37. From the evidence above, Y’s placement at School B is arranged in June 2023, but she does not begin attending until September 2023. The Council acknowledges delay in Y attending School B, notably because of an absence of communication from School B to Mrs X to arrange admission. This resulted in Y missing the final two weeks of term. This is fault by the Council.
38. Although Y began attending School B in September 2023, it is noted that it was not without its challenges, and despite a Student Support Plan being agreed, Y’s struggles with the placement continued. A meeting was arranged with School B to work through the issues, unfortunately to little avail. It is noted the placement had completely broken down in October 2023. When Y’s placement at School B broke down in October 2023, this should have triggered the Council’s Section 19 duty to provide alternative provision.
39. An early review of Y’s EHCP took place in January 2024, and it was agreed that the Council would source a new placement for Y, more aligned to her aspirations and Mrs X’s preferences. The Council acknowledges that following the early review in January 2024, it made a referral, and a subsequent placement for alternative provision secured in February 2024. Delay in actioning this is fault by the Council and meant that Y was without access to an education that was suitable for her.
40. The Council offered a suitable placement in February 2024 at School E but it was Mrs X’s preference for Y to be placed at School D. Y began attending School D, and it is has been noted that the placement had been not without its challenges, but was otherwise successful to date.
41. The Council acknowledges that Y has not had consistent access to a full-time education in a setting that has been able to meet her needs. I acknowledge the periods of fault to be in July 2023, and October 2023 – February 2024. The Council acknowledges lost education provision and has proposed a remedy of £1,500. I consider this to be in line with our published Guidance on Remedies and proportionate in the circumstances.
42. The Council also acknowledges distress in the form of inconvenience and frustration imposed on Mrs X as a result of events in this complaint. The Council has also proposed a symbolic payment of £300 to acknowledge this injustice. I consider this to be in line with our published Guidance on Remedies and proportionate in the circumstances.

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Agreed action

43. To prevent similar occurrences and remedy fault and injustice identified in this complaint. The Council has agreed to:
1. Pay Mrs X an amount of £1,500 to acknowledge the loss of education provision for Y, in July 2022, and October 2023 – February 2024.
2. Pay Mrs X an amount of £300 to acknowledge distress caused as a result of events in this complaint.
3. Provide Mrs X and Y with an apology. This should be in line with our published Guidance on Remedies.
4. The Council will review its alternative education policy alongside our published guidance ‘Out of school, out of sight?’ July 2022. It should consider the recommendations we made, specifically with a view to ensuring it acts without delay. The Council will provide the Ombudsman with the outcome of its review.
44. The Council will complete action points a-c within one month of the Ombudsman’s Final Decision and action point d within two months of the Ombudsman’s Final Decision. The Council will provide the Ombudsman with evidence it has completed the above actions.

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Final decision

45. I have concluded my investigation having made a finding of fault. The Council acknowledges fault where there was delay in arranging Y’s admission in July 2023. The Council also acknowledges fault for the period between October 2023 – February 2024, where Y was without alternative provision, nor access to a full-time education until a placement secured. The Council has proposed a remedy which I consider proportionate in the circumstances and has agreed to action this.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman