Summary: Mrs Y complains that her son, D, was out of school during an important phase of his secondary education and the Council did not fulfil its duties to ensure he received suitable educational provision. Mrs Y also complains about some parts of the Education Health and Care planning process. For the parts of the complaint within our jurisdiction, we find fault because the Council did not act quickly enough to arrange provision once it became aware D had stopped attending school. The provision later put in place was less than agreed. To remedy the injustice caused by fault the Council has agreed to complete the actions listed at the end of this statement.

The complaint

1. Mrs Y complains about how the Council assessed and reviewed her son’s special educational needs (SEN).
2. Mrs Y also complains the Council failed in its duty under S19 of the Education Act 1996 to make suitable provision available for her son after he was unable to attend school in 2023.
3. As a result of the Council’s failures, Mrs Y says her son experienced significant injustice because his secondary education and life chances have been negatively affected. Mrs Y has also experienced avoidable distress.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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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What I have and have not investigated

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. I have investigated how the Council fulfilled its S19 duties from 29 January 2023, when D stopped attending school, and 28 April 2023 when the Council issued D’s final Education Health and Care (EHC) plan.
9. I have not investigated any concerns about the type of provision D received after 28 April. This is because Mrs Y had a right to appeal the contents of Section F and Section I of D’s final EHC plan, which she utilised in August 2023.
10. I have however considered how the Council fulfilled its duties to make the Section F provision available under Section 42 Children and Families Act as this is a matter which does not carry a right of appeal. I have not considered anything which happened after the school year ended in July 2024 because this post-dates Mrs Y’s approach to the Ombudsman and is therefore not covered in the complaint being investigated.

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How I considered this complaint

11. During my investigation I considered the information provided by Mrs Y and discussed the complaint with her by telephone.
12. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
13. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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

What should happen

Section 19 duties

15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
16. Statutory guidance, ‘Arranging education for children who cannot attend school because of health needs (Dec 2023)’ 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”. 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))
17. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)

EHC plans and delivery of Section F

18. Councils have a duty to make sure the child or young person receives the special educational provision set out in Section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. 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)  
19. 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. 

Appeal rights

20. The SEND Tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

What happened

21. Mrs Y’s son, who I will call D, was electively home educated (EHE) before being placed onto the roll of a mainstream secondary school in December 2021 via a flexi online programme. D received online lessons arranged by the school from January 2022.
22. At the end of the academic year Mrs Y asked whether the online lessons would continue from September. Mrs Y says she received an email on the last day of the school term to say that all flexi school students would need to attend school in person from September.
23. During school Year 10, D attended in-person lessons from September 2022 until 29 January 2023. Mrs Y says D was bullied and sexually harassed during his time at school. She says the school did not appropriately deal with the incidents and D became increasingly anxious and suicidal.
24. Mrs Y says the GP advised for D not attend school and to await a full CAMHS [Children and Adolescent Mental Health Services] assessment for which there was a 12-month waiting list. In the meantime, CAMHS commissioned a service offering initial assessments and ongoing support for those aged under 25 with Autism, ADHD and other mental health conditions.
25. On 18 February the service emailed the Council to support a request for ‘hospital school’ for children too ill to attend a mainstream school.
26. Around this time the Council agreed to produce an EHC plan for D.
27. Mrs Y emailed D’s school on 8 March to request 1:1 online tuition because he was unable to attend school in-person. The school arranged for 1:1 provision (English, History and Computing) to start from 18 April.
28. In April the Council’s Multi Agency Panel (MAP) considered D’s case and decided that his educational needs could continue to be met within a mainstream setting.
29. The Council issued a final EHC plan dated 28 April naming the mainstream school where D remained on roll, but with some personalised provision named in Section F.
30. Mrs Y requested a place for D at an independent college and an early Annual Review took place on 15 June. During the annual review, D’s school said it could not continue to meet D’s needs with the resources currently available. It suggested that D could access small group learning in specialist school-based provision which it referred to as a ‘school within a school’. The school told the Council it would need extra funding for that provision.
31. Mrs Y reminded the school that D’s GP had recently written a letter supporting her request for D to be educated somewhere other than school due to the trauma and suicidal thoughts which D experienced in school.
32. The Council’s ‘Complex Cases Panel’ considered D’s case in July. The Council agreed to provide additional funding for D’s school to employ a Higher-Level Teaching Assistant (HLTA). The school asked if it could use the funding flexibly to support D. The Council agreed.
33. In agreement with Mrs Y, the school said it would use the funding to continue the 1:1 online lessons for GCSE Maths, English Language, English Literature, Science and History.
34. The Council issued a draft amended EHC plan on 26 July confirming the proposed amendments following the June review. On 4 August Mrs Y submitted her comments to the draft plan and reiterated her preference for the independent college or a package of Education Other than at School (EOTAS).
35. The Council issued the final amended EHC plan on 21 August. The Council did not name the independent college requested by Mrs Y. The plan instead named the mainstream secondary school. The Council changed the provision in Section F to reflect D’s need for additional adult support, such as a HLTA.
36. D continued to receive 1:1 learning.
37. Mrs Y submitted an appeal to the SEND Tribunal regarding Sections B, F and I.
38. The SEND Tribunal made its decision on 20 December 2023. This Tribunal did not order any changes to Section I, but instead said:
• D must receive mentoring for revision advice and support from an adult outside of the home.
• Section F of D’s plan will specify that all online tutors ensure D has all relevant course material. D does not need a scribe.
39. Mrs Y made a complaint to the Council on 8 January 2024. In summary, she said:
• D was out of school between January and April 2023 with no alternative provision in place. The provision later provided was inadequate.
• The online tuition provided for D meant that a parent needed to be present at home which affected their earning potential.
• The EHC plan issued by the Council in April 2023 was inappropriate, as was the annual review held in June.
• The Council’s delays created delays in the tribunal process which meant that D received inadequate provision for longer than necessary.
40. When responding to Mrs Y’s complaint, in summary the Council said:
• Any concerns about provision delivered by the school before D had an EHC plan would need to be directed to the school, not the Council.
• There was no evidence to suggest that D needed provision to be delivered in a setting other than mainstream school.
41. D’s transition annual review took place on 1 February. On 2 April the Council issued a final amended EHC plan which named the mainstream secondary school until September 2024 and the independent college thereafter.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

Alternative Provision and Section F

42. In my view, the Council’s S19 duty became engaged from 18 February 2023 when a professional requested alternative provision for D based on him being unable to attend school. From this point, the Council had a duty to consider whether the school where D was on roll remained available and accessible and reasonable for him to attend. If not, the Council would have been obliged to consider whether reintegration was a likely prospect and whether to make alternative provision available.
43. The records show D did not receive any alternative provision between February and April 2023. In response to the complaint, the Council said that D did not have an EHC plan at this time and so it was the school’s responsibility to ensure the delivery of his educational provision. This is not the correct approach. The law says the Council remains responsible for the education of those who are unable to attend school if their absence is due to exclusion, illness or otherwise. Therefore, the Council should have considered whether it needed to make alternative provision available for D once it became aware in February 2023 of his prolonged absence.
44. We know from the records that the Council decided in March 2023 it would be appropriate for D to receive 1:1 online tuition to be arranged by his school. This is something the Council funded from April 2023 instead of a HLTA. The email correspondence shows that Mrs Y communicated with the school and the provider of the tuition to arrange which GCSE subjects D would study.
45. We asked the Council to confirm how much online tuition D received. It pointed us to a witness statement written by D’s school for the appeal which the SEND Tribunal heard in December 2023. The school said it timetabled 14 x 45 minute 1:1 sessions for D each week. This equates to 10.5 hours of lessons.
46. Mrs Y said D did not receive this level of provision, despite her requests. I have considered the attendance records provided by the school. These show that, for each full month of tuition, on average D received between six and seven hours of lessons per week. This is considerably less than the school confirmed with the Council. Email exchanges show the shortfall was often due to the unavailability of certain tutors.
47. In my view, there is fault because the Council did not make a decision about alternative provision once it became aware that D stopped attending school. Had the Council acted without fault, it is my view that – on the balance of probabilities – D would have received the online tuition sooner. I therefore recommend a remedy for total missed provision for the two months between 18 February and 18 April 2023.
48. Although our jurisdiction prevents us from considering the type and quantity of provision offered to D once he received a final EHC plan, we can consider whether the Council ensured the delivery of the agreed provision as outlined in Section F of the plan. This is because the law says the Council has a duty to ensure the delivery of this irrespective of any ongoing appeals.
49. The Council agreed to continue funding D’s online tuition instead of the HLTA. The attendance records show D received around seven hours of lessons each week. The school told the Council D received 10.5 hours. I have seen no evidence to show the Council maintained appropriate oversight of this important point and checked the lesson records once Mrs Y raised concerns. Therefore, in my view, there was a 30% loss of the agreed provision between April 2023 and July 2024.

Assessments and Reviews

50. I have not investigated Mrs Y’s concerns about the Council’s decision initially to refuse to issue the EHC plan because this decision carried a right of appeal, which Mrs Y used. This matter is therefore outside of the Ombudsman’s jurisdiction.
51. I have however considered the complaint about the Annual Review process following the meeting on 15 June 2023 and whether the subsequent decisions were made within the statutory timescales. The records show the Council issued the amended final EHC plan 9.5 weeks after the meeting and on 21 August 2023. This was within the statutory 12-week timescale and not fault.

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Agreed action

52. Pay £1,477 to Mrs Y for D’s educational benefit. This is a symbolic payment to be made in recognition of the total missed provision for the eight weeks between 18 February and 18 April 2023. This is based on a payment of £2,400 for a school term of total missed provision and in line with the approach suggested in the Ombudsman’s Remedies Guidance. The payment is at the top end of the suggested scale due to the phase of D’s education and the subsequent impact on him.
53. Pay a further £2,880 to Mrs Y for D’s educational benefit. This is a symbolic payment to be made in recognition of the 30% shortfall of the agreed provision for the four school terms between April 2023 and July 2024.
54. Pay £300 to Mrs Y in recognition of her avoidable frustration, time and trouble in pursuing matters on behalf of D.
55. The Council will provide us with evidence it has complied with the above actions within four weeks of my final decision.

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Final decision

56. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed in the section above will provide a proportionate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman