Summary: Ms J complained the Council did not provide sufficient alternative provision when it became apparent her child was unable to attend her school. We found the Council at fault. The Council has agreed to make a payment to Ms J and to her child in recognition of injustice caused to them.

The complaint

1. Ms J complains the Council has failed to provide suitable education for her child, A. She is seeking financial recognition of the impact on her and her child, an apology and a package of education otherwise than at school.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
5. 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)
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)
7. 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

8. I have not investigated any issues which can be considered by the SEN Tribunal.

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How I considered this complaint

9. I have considered information provided by the Council and Ms J, alongside the relevant law and guidance.
10. Ms J and the Council have had an opportunity to comment on a draft decision before this final decision was made. All comments received have been considered.

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What I found

The law and guidance

11. 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 the council can do this.
12. 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). 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)
13. There is a right of appeal to the Tribunal against 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.
14. 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.
15. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
16. 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 alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
17. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
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. [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.
19. 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)
20. 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).

What happened

21. A is a child with special educational needs. Ms J was electively homeschooling A for a period before the Council issued an EHC plan in January 2023, which named a specialist school for A to attend from February half term 2023.
22. The Council was aware A was not attending the school in March 2023, at which time the school was supporting A to attend full time.
23. A attended the school for a total of four sessions, the last of which were in July 2023. The Council was aware of this.
24. Following A’s continued non-attendance in September 2023, the school arranged sessions with a special educational needs provider (SEN provider).
25. A tutor recommended a laptop which could meet A’s needs. The school applied to the Council for exceptional funding to cover the cost of the laptop. The Council declined the request.
26. The Council had provided a budget to the school to accommodate A’s needs and was unwilling to increase this for the specialist laptop. How the school applied that budget is its own decision, as long as the Council has funded what is in the EHC plan. The laptop is not specified in the EHC plan.
27. The school agreed to provide the laptop and placed an order for a suitable laptop. This was delayed as the school sought to obtain the laptop at a lower cost. A’s sessions with the SEN provider were able to continue in the meantime.
28. Ms J contacted the school in December 2023 and stated that as she had been waiting for the laptop for some time, she would now order it and seek reimbursement for the cost. The school told her the laptop had been ordered and she would not be reimbursed if she bought it elsewhere at a higher cost.
29. Ms J reiterated that as they had been waiting for the laptop for some time at this point, she was not willing to wait for an indefinite period and she purchased the laptop.
30. Following an annual review in January 2024, an amended EHC plan was issued in March 2024. This EHC plan also names the specialist school for A.
31. Ms J has appealed the plan on the basis she believes A requires education otherwise than at school.

Findings and analysis

32. The Council has ensured that a full time education was available to A, as A is on the roll for a specialist school.
33. It is reasonable to have allowed some time for A to transition from a long period of home schooling into full time school. It is apparent the school was in contact with the Council, and it was attempting to support A with this transition.
34. The Council accepted that it should provide A with some alternative provision 7 weeks into the new school year.
35. Given that A attended only 4 sessions between mid-February until the school year ended in July 2023, it should then have been evident to the Council that further steps needed to be taken from September 2023.
36. This delay of 7 weeks is fault. There was no reason to believe A would be any more likely to attend the school in September than in the previous term, and the Council had time to put this in place from the beginning of the Autumn term. Ms J and A have suffered an injustice of 7 weeks of unnecessary uncertainty and worry about A’s provision. This is reflected in the remedy below.
37. Ms J also complained the Council has not reimbursed her for the laptop despite agreeing to provide this.
38. The laptop was not in the EHC plan, and the Council did not agree to provide it. The Council does not therefore have a duty to fund this.
39. The decision to order the laptop was made by the school. This office is not able to look at what the school did, as this is not within our jurisdiction.

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Agreed action

40. Within one month of the decision, the Council will:

• Apologise to Ms J. 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.
• Make a payment to Ms J in recognition of the impact of a delay in providing alternative provision, in the sum of £400;
• Make a payment to Ms J, for A in recognition of the impact of the delay, in the sum of £400.

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

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Final decision

42. We found the Council is at fault and has caused an injustice. The Council agreed to provide a personal remedy in recognition of this.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman