Summary: We upheld Ms X’s complaint about the Council’s failure to provide suitable educational provision for Y between April and July 2023. The Council will apologise and make a payment of £1500 to reflect this.

The complaint

1. Ms X complained the Council failed to provide suitable alternative educational provision for her child Y since 2020. She said this caused her a financial loss and Y a loss of educational provision.

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The Ombudsman’s role and powers

2. 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)
3. Our Guidance on Jurisdiction says:
• If someone says they are complaining to us late because they did not know about the LGSCO until recently, we should carefully consider the circumstances to decide whether it is reasonable to have expected them to complain in time.
• In making this decision we should remember a simple online search for ‘how to complain about my council/care home’ will quickly access authoritative information about our role and how to contact us. Also consumer advice organisations such as Citizen’s Advice are aware and signpost to us.
• We should therefore expect most people to be able to reach us even though we do not expect most people to know about the Ombudsman before needing to make a complaint.

However, some factors may reasonably prevent this from happening and we should consider the particular circumstances. These include when someone has legitimate reasons they haven’t found out earlier how to complain. This might, for example, be because of language, or learning difficulties, or only recent UK residence. We should consider whether these, or other reasons mean they are less likely to have understood the opportunity to complain, or understood how to complain.

4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
7. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, any fault before an appeal right started.
8. 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)
9. 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)
10. 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

The investigation period

11. The investigation starts in September 2022 and ends in August 2023. I explain why in the next four paragraphs. Where I have included information about events before September 2022 or after August 2023, this is to add context or because it sets out relevant earlier actions or events.
12. Ms X complained to us in January 2024. So, things which happened between January 2023 are January 2024 are not late (see paragraph two) and can be investigated as long as there are no other legal reasons stopping us from investigating.
13. Ms X has autism. She told me she she did not know she could complain to the Council or to the LGSCO until 2023, just before she complained to the Council.
14. I have considered Ms X’s circumstances, including her autism, which may have made it harder for her to access information about the complaint system. Ms X can use the internet and has not said she has literacy problems. An internet search ‘complaints about EHC Plans’ gives information about complaining to a council and complaining to us. I therefore do not regard her lack of knowledge of the local authority’s complaint process as a good reason for her not complaining to us on time. Regardless, the passage of time makes it too difficult to assess the injustice to Y and some of the earlier period included COVID lockdowns when different law and guidance applied. I have exercised discretion to investigate from September 2022. This is because Y should have had an annual review meeting during this term to enable the Council to complete the review process on time.
15. Ms X appealed Y’s EHC Plan of August 2023 to the SEND Tribunal. She appealed the educational placement and special educational provision. Ms X said in her complaint to the Council and in her submissions to the Tribunal that she wants Y to receive Education Otherwise than in a School (EOTAS) because she believes Y cannot cope with any school. The Council’s position is Y can attend the school named in his EHC Plan with additional temporary support to transition back to school. The reason Y is not in education is a consequence of Ms X’s disagreement with the provision in the Plan and the named placement. This means the Millburn case summarised in paragraph four applies. The reason for Y’s non-attendance at School A is because of the dispute about Y’s placement. This means we have no power to investigate Y’s lack of alternative provision under Section 19 of the Education Act 1996 or Section 42 Children and Families Act 2014 from August 2023 or recommend a remedy for any injustice after August 2023.

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How I considered this complaint

16. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement. I discussed the complaint with Ms X.
17. Ms X 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 found

Relevant law and guidance

18. 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 alternative education provision or AP.
19. 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)

20. 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? published July 2022. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that 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 councils should retain oversight and control to ensure their duties are properly fulfilled.

21. 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 council can do this.
22. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
• Section J: Personal budget.
23. If a council decides it would be inappropriate for special educational provision to be delivered in any school, it can agree for it to be delivered somewhere else. This is called Education Otherwise than in a School (EOTAS.) (Children and Families Act 2014, Section 61.) The council must arrange and pay for EOTAS. Section I of the Plan is blank where the council has agreed EOTAS.
24. 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 2014). 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)
25. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
26. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
27. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
28. Where the 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 SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
29. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
30. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)
31. A personal budget (PB) is money a council has identified to deliver provision in an EHC Plan (SEN Code paragraph 9.95).
32. A parent has the right to request a PB during an annual review. (SEN Code paragraph 9.98).
33. The SEP in an EHC Plan can include provision funded from the school’s budget share and more specialist provision funded from the council’s high needs funding. This latter funding is used for PBs. (SEN Code paragraph 9.112)

What happened

Background (2022)

34. Y has SEN. Ms X told us he had anxiety around leaving the house and getting into school. Y’s EHC Plan of February 2022 named School A (a special school) as the educational placement.
35. Y has not attended School A since November 2022.

2023

36. School A held an annual review meeting in April 2023. The record of the meeting said:
• Y’s attendance was a concern during winter.
• He had very low attendance percentages after the first half term of Autumn 2022.
• The transition from home to school was the problem and once in school, he was happy.
37. School A told the Council after sending the review record that it wished to recall the paperwork as Ms X had requested a personal budget and EOTAS. So, the Council did not complete the review process and waited to hear further from School A.
38. Ms X spoke to an officer in the SEND team in May and an officer in the health needs team. She said she was concerned about Y’s attendance (which she said was less than 50%) and spoke about a tutor for Y. The officer in the health needs team said medical educational provision was not appropriate in Y’s case as it was temporary and there was nothing that could meet Y’s SEN.
39. School A held a second annual review meeting in June. A case officer from the SEND team attended. Y’s attendance was noted to be 90% in the first half of Autumn term, but then fell dramatically. The case officer’s note said, ‘all agreed Y is capable of being in school full time.’ School A suggested an hour a week each of speech and language therapy, occupational and play therapy plus staff from school working with Y to deliver provision in Y’s EHC Plan. Y would attend school for two days a week. The plan was for Y to remain on the roll of School A with the aim of reintegrating him into school full time. Ms X signed to say she agreed with the annual review record.
40. School A recommended some amendments to Section F of Y’s EHC Plan and put these on a draft amended EHC Plan which it sent to the Council, but not to Ms X.
41. Ms X wanted a PB for Y. At the end of June, she met with an officer from the SEND team about her proposal for Y to have three hours a week of therapies at home and two days a week in school.
42. The officer from the SEND Team emailed Ms X at the start of August to say the Council had agreed the above proposal on the basis that School A needed to fund and monitor it (from the funding the Council was already paying to School A for Y’s placement.) So, the Council refused Ms X’s request for a PB.
43. However, School A did not commission the provider for Y’s therapy at this point. There is no evidence the Council was aware of this at the time.
44. The Council did not issue an amendment notice or draft Plan. Instead, it issued a final amended EHC Plan in August 2023 naming School A as Y’s educational placement. Ms X appealed Sections B, F and I to the SEND Tribunal.
45. Ms X complained to the Council in October. She said she did not consider Y could cope with any school setting; he was struggling to leave the house; she had tried many times to get him to school and she wanted a personal budget to fund bespoke AP. Ms X said she wanted 15 hours, rather than the three hours the Council had directed School A to fund at the annual review.
46. The Council’s first response to the complaint said:
• Y’s needs could be met in School A. The issue was making the transition from home to school. Temporary AP would enable this. The Council was not satisfied no school could meet his needs;
• The provider she had identified told the Council it could only do transition work;
• School A agreed to keep Y on its roll while working with the provider; and
• The Council would set up a multi-agency meeting to discuss matters.
47. Ms X was unhappy and asked to escalate her complaint. The Council provided another response (this wasn’t a stage two response, but an additional response under stage one). Ms X was unhappy with this response and complained to us in January 2024. We told her she needed to complete the Council’s two-stage process.
48. The Council’s stage two response in March 2024 said:
• Y’s attendance was at 90% in Autumn 2022. It went down the next two terms and the annual review meeting in June 2023 noted it was at 33% for the year.
• The meeting noted her preference for provision outside school as a way of delivering some of the provision in Section F;
• There was no reference to School A not being able to meet Y’s needs;
• She had signed the annual review report saying she would like Y to remain at School A;
• There was a meeting discuss her request for a personal budget. Her proposal included three hours a week from a provider and two days at school;
• On 2 August, the Council agreed this, but School A was required to fund it (from the existing funding the Council provided for Y’s educational placement at School A.) This was a reasonable solution to aid Y’s transition back to school;
• School A did not commission the alternative provider;
• The Council had no further contact from school or her until October when school emailed the Council to say it could no longer meet Y’s needs due to him not being able to leave home;
• The Council was now funding the provider until April 2024;
• She asked for an increase to 15 hours. The law says education should be full time unless not in the child’s best interests. The Council is satisfied the support has been suitably assessed and is appropriate for him now. It will carry out a review each month;
• The school should have referred Y to the health needs team after 15 days of absence. It did not. She contacted the health needs team in May 2023. A manager advised school needed to refer. It didn’t. Had regular meetings taken place, it is possible a referral could have been made earlier;
• Councils are responsible for ensuring children receive suitable education and must work with schools to make arrangements;
• Once the council was made aware Y wasn’t receiving AP in October, it acted promptly; and
• It was prepared to pay £1000 for loss of education to reflect delay in arranging AP in the Autumn Term between September and December 2023.

Findings

49. The Council should have completed or ensured completion of the annual review and issued a decision to maintain or amend the Plan by February 2023. It did not, which was not in line with paragraph 9.176 of the SEN Code and was fault. Councils can delegate review meetings to schools, but they remain responsible for meeting the deadlines in the SEN Code, which did not happen in Y’s case. School A held a review meeting in April but at its request, the Council did not process the review or issue a decision notice. This delayed matters further.
50. There was then a further review meeting held in June. The Council did not issue a decision to amend, an amendment notice or give Ms X an opportunity to comment on proposed amendments or provide her preferred placements for consultation. This was not in line with paragraphs 9.194 to 6 of the SEN Code which was fault by the Council. However, Ms X had the opportunity to provide her views on Y’s education and placement at a meeting with the SEND team at the end of June when her requests for EOTAS and a personal budget were discussed. So, the injustice is insignificant.
51. The Council has a duty to ensure Y was receiving all the SEP in Section F of his EHC Plan. We don’t expect councils to keep a watching brief over schools, but if an issue is drawn to its attention during an annual review, we expect a council to act (that is to consider the legal options available and its duties and to decide what to do. Not considering the matter of non-attendance at school is inappropriate when no other education is in place). School A made the Council aware of Y’s non-attendance in April 2023 when sending the annual review record to the Council. The Council should have considered the information from School A in April and considered its duty under Section 42 and Section 19 given Y’s poor attendance. Had it done so, on balance, the dual package of therapy and two days at school would likely have been arranged earlier and for the summer term of 2023. Y therefore has a loss of a term of educational provision.

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Agreed action

52. The Council offered Ms X a payment of £1000 to reflect Y’s loss of educational provision. This covers lost provision after the period of my investigation and so it not relevant.
53. Within one month of this decision, the Council will issue:
• An apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• A payment of £1500 to reflect the loss of a term of educational provision (April to July 2023). This is in line with the range suggested in our guidance on remedies. I have taken into account that the Council subsequently arranged AP of three hours of therapy in the home and expected Y to attend School A for two days a week.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. We upheld Ms X’s complaint about the Council’s failure to provide suitable educational provision for Y between April and July 2023. The Council will apologise and make a payment of £1500 to reflect this.
56. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman