Summary: Ms X complained the Council failed to provide suitable education for her child since May 2023. We found fault with the suitability of the education provided by the Council for two terms and six weeks from 22 May 2023 to 26 July 2024. The Council has already paid Ms X £2,250 for the missed education and £270 for missed free school meals. The Council has also offered £600 for the distress and anxiety this matter has caused Ms X and paid this to Ms X. The Council has agreed to apologise to Ms X for her distress. We consider the £600 it has paid is a suitable symbolic gesture for her distress. The Council has agreed to pay Ms X an extra £1,675 for her child’s missed education.

The complaint

1. Ms X complained the Council failed to provide suitable education for her child since May 2023.
2. Ms X says the Council failed to name her preferred school in her child’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. 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 have and have not investigated

10. I have investigated Ms X’s complaint about the Council’s failure to provide suitable education for her child from May 2023 until 26 July 2024.
11. I have considered information before May 2023 as context to the complaint but have not addressed any actions or inaction before this date.
12. The Ombudsman can only investigate a complaint when a council has had opportunity to investigate first. The Ombudsman usually considers the end point of our investigation as the date we agree to investigate a complaint. We agreed to investigate Ms X’s complaint on 24 June 2024. However, the Council issued a related Stage 2 complaint response on 26 July 2024. As such, the Council had opportunity to address the complaint up to 26 July 2024; this was after we agreed to investigate but before we had started our investigation. It is also of note that 26 July 2024 is near the end of the academic year 2023/2024 which provides a clear end point for any injustice caused before the summer holiday.
13. It is suitable in the circumstances for us to investigate up to 26 July 2024. Any issued from September 2024 onwards with providing education for Ms X’s child would be the subject of a new complaint with the Council.
14. I have also not investigated the naming of a suitable education placement for Ms X’s child in their Education, Health and Care Plan. Ms X has advised she wants the Council to name a particular school in her child’s Education, Health and Care Plan but it has named a different school. A dispute about an educational placement named in a child’s Education, Health and Care Plan is a matter for the SEND Tribunal and not the Ombudsman.

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How I considered this complaint

15. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
16. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

Education, Health and Care Plans

17. 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. 
18. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
19. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Alternative Provision of education

20. 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.
21. 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)
22. 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))
23. 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)
24. 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
25. 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.

26. 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.
27. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
28. Full time education is classified as 32.5 hours each week. This includes break times with 24 hours of actual teaching provision standard for 12 to 18 years old.
29. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

30. In November 2022, the Council produced a Final EHC Plan for Ms X’s child, who I shall refer to as Y. Y’s EHC Plan detailed the bulk of the support Y needed would be met by the school during Y’s normal school day. Most of this provision was detailed through extra support in the classroom and using specific teaching techniques. It is of note that Y’s EHC Plan detailed that Y should also receive:
• access to IT equipment, including software to help Y’s engagement with education;
• extra literacy lessons; and
• opportunities for social skills practice and support in maintaining friendships.
31. In January 2023, the Council made a referral to panel for Y to attend an SEMH school because of a risk of exclusion from the mainstream school. The panel agreed that Y needed to attend an SEMH school and recommended School 4 for consultation.
32. On 27 January 2023, the Council wrote to Ms X to confirm its decision and to advise it would be liaising with relevant schools. The Council consulted with School 4 but it had no places available.
33. On 11 May 2023, Y stopped attending School 1 following an incident. School 1 wrote to Ms X on 12 May 2023 to confirm it had permanently excluded Y from 15 May 2023. School 1 told the Council about the permanent exclusion on 15 May 2023.
34. The Council started arranging Alternative Provision of education for Y through tutoring. The Council arranged an induction meeting on 26 June 2023 with tutoring starting formally on 10 July 2023.
35. From 10 July 2023 to 27 September 2023, Y’s tutor provided 5 hours of education each week for Y. The Council suggested this level of education to allow Y to transition into the tutoring programme.
36. From 27 September 2023, Y’s tutor started to provide 15 hours of education each week for Y.
37. In October 2023, the Council issued an amended EHC Plan for Y. This EHC Plan maintained provision of the IT equipment, literacy lessons and social support and opportunities. The Council also named a school an SEMH school under Section I of Y’s EHC Plan, School 2.
38. On 1 November 2023, following an appeal, Y’s exclusion from the previous School 1 was made permanent.
39. Discussions took place between School 2, the Council and Ms X during November 2023. The Council agreed that Y would not attend School 2. Y continued to receive tutoring during this time.
40. On 7 November 2023, Ms X requested that School 3 be named in Section I of Y’s EHC Plan until a placement at School 4 was available. The Council agreed to consult School 3.
41. On 11 December 2023, the Council named School 3 in Section I of Y’s EHC Plan from 8 January 2024.
42. Y had their final session with the tutor on 19 December 2023 before the end of the Autumn 2023/2024 term.
43. In January 2024, School 3 refused to place Y on roll. Y did not start at School 3 on 8 January 2024 as scheduled.
44. Ms X made a formal complaint to the Council on 5 February 2024. Ms X said School 1 excluded her child in May 2023 and since this point Y had only received tutoring from July 2023 to December 2023. Ms X said the tutoring had now stopped and Y was not accessing any education. Ms X complained the Council was not forcing School 4 to accept registration of Y.
45. The Council acknowledged Ms X’s complaint on 7 February 2024 and promised a response within 20 working days.
46. On 6 March 2024, the Council apologised for failing to meet the Stage 1 complaint timescale.
47. In March 2024, the Council met with School 3 to discuss Y’s access to education. The Council agreed with School 3 that it should provide a timetable of education for Y on a part-time basis with the view to transitioning to a full-time education.
48. On 15 March 2024, the Council provided its Stage 1 complaint response. The Council said:
• It had consulted with various schools since Y’s exclusions and in November 2023 agreed to name School 3 in Y’s EHC Plan.
• It named School 3 but because of a dispute with the school accepted that Y received no education from January 2024. The Council offered £1,500 for this missed education until 15 April 2024.
• It offered £300 for the distress this matter had caused Ms X.
49. On 19 March 2024, Ms X told the Council she wanted Y to access full-time education from 15 April 2024.
50. On 20 March 2024, Ms X met with School 3 who put forwards a timetable of education consisting of 16 hours of education each week. This consisted of one full day at Building Zone 1, 6 hours of online learning each week, 1 hour one-to-one learning, 2 hours at Raising Aspirations and 2 hours at Mamba Gym.
51. Ms X contacted the Council on 2 April 2024 to advise School 3 had told her Y would not receive full-time education from 15 April 2024. Ms X said the online learning was not suitable for Y given the needs detailed in Y’s EHC Plan.
52. The Council acknowledged Ms X’s complaint on 3 April 2023 and said it would provide a response between 25 and 65 working days.
53. On 24 May 2024, Building Zone 1 told the Council that it was not suitable provision for Y and was stopping provision. The Council asked School 3 to provided extra Mamba Gym sessions for Y. School 3 agreed to this and increased Y’s Mamba Gym sessions to 6 hours each week from June 2024.
54. On 11 July 2024, the Council’s SEM Co-ordinator met with School 3. The Council’s SEM Co-ordinator decided School 3 was not providing enough education for Y and asked School 3 to provide at least 15 hours of education each week for Y from September 2024.
55. School 3 created a new timetable for Y from September 2024 consisting of 22 hours of education.
56. On 26 July 2024, the Council issued its Stage 2 complaint response to Ms X. The Council said:
• It was aware of the issues with Y accessing a suitable package of education and apologised for this.
• It was continuing to monitor the situation with School 3 over Y’s access to education.
• It had agreed with Y’s school for a suitable package of education to start from September 2024 consisting of 22 hours each week.
• While it recognises this package of education is not yet full-time it was working towards full-time provision and was increasing the provision with the purpose of transitioning Y back into education.
• It was continuing to consult with schools to try to find a suitable full-time school placement for Y.
• It offered a further £300 for its delays and the distress caused to Ms X.
57. On 21 November 2024, the Council paid Ms X £1,020. This was for Y’s missed education from 15 April 2024 to 26 July 2024 and for Y’s missed free school meals from 2 November 2023 to 15 April 2024.
58. On 5 December 2024, the Council paid Ms X a further £2,100. This was £1,500 for Y’s missed education from January 2024 to 15 April 2024 and the £600 total goodwill awards from the Council’s Stage 1 and Stage 2 complaint responses.

Analysis

Missed education

59. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate why School 1 excluded Y and can only investigate how the Council provided education for Y following their exclusion.
60. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed, or the Council’s knows they will miss, fifteen days of education either consecutively or cumulatively.
61. The Council first became aware of Y’s absence from school on 15 May 2023 following School 1 confirming it had permanently excluded Y. Since Y’s exclusion was permanent, it would have been clear to the Council on 15 May 2023 that Y would miss more than fifteen days of education.
62. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. This meant, the Council had to provide suitable education for Y from 22 May 2023.
63. The Council did not provide any education for Y from 22 May 2023 until 10 July 2023. This was fault.
64. The Ombudsman’s guidance for councils to fulfil their responsibilities to provide education for children who are out of school recommends the Council takes certain actions. Council’s should consider the individual circumstances of children missing school, work with school’s and parents to draw up plans for a child’s education and keep any provision of part-time education under review.
65. From 10 July 2023 to 27 September 2023, the Council decided to provide Y with 5 hours of education each week. The Council made this decision to allow Y to transition into receiving education through a tutor before increasing this to 15 hours of education each week. The Council had shown that it kept Y’s part-time education under review from 10 July 2023 to 27 September 2023 through progress reports provided by Y’s tutor. Progress reports from the tutor show Y had difficulty in engaging with the educational provision from 10 July 2023 to the end of the term with improvement in Y’s engagement from 4 September 2023.
66. Following improvements with Y’s engagement with education, the Council increased Y’s tutoring to 15 hours each week from 27 September 2023 to 19 December 2023. The Council continued to monitor Y’s access to education through the tutor progress reports. The tutors progress reports detail good engagement from Y with the education during this time. The Council ended Y’s 15 hours of tutoring each week with the view to provide education at School 3 from 8 January 2024.
67. A council does not have to provide full-time education for a child out of education and must consider provision of education on a case by case basis. The Council has justified its decision to only provide 5 hours of education first and has made a decision it was entitled to make. This was a merits decision and not one the Ombudsman can find fault with.
68. The Council has also shown it met its responsibility to keep Y’s part-time education under review. This resulting in increasing the education from 27 September 2023 in line with its monitoring to 15 hours each week. Again, an increase in education to 15 hours each week is a decision the Council was entitled to make based on the individual circumstances for Y. The Council has followed the Ombudsman’s guidance on provision of education for children out of school through its provision of education for Y from 10 July 2023 to 19 December 2023.
69. Following ending the tutoring on 19 December 2023, the Council proposed to transition Y to full-time education with School 3 from 8 January 2024. The Council has followed the relevant guidance and legislation and made decisions it was entitled to make. I cannot find fault with the Council for the provision of Y’s education from 10 July 2023 to 19 December 2023.
70. School 3 did not bring Y on roll until 15 April 2024 despite the Council naming School 3 as Y’s educational placement in the EHC Plan. Since Y was not on roll at School 3, the responsibility for providing education for Y remained with the Council. The Council has accepted its fault for failing to provide education for Y from 20 December 2023 to 14 April 2024 and paid Ms X £1,500 for this fault.
71. From 15 April 2024, School 3 proposed a package of education for Y consisting of 16 hours each week. Ms X raised concerns about the suitability of six hours of this educational provision due to this being online. It is clear from Y’s EHC Plan than Y needs educational support from teachers or tutors to support their access to education. This was something both School 1 and Y’s tutors from July 2023 to December 2023 provided. Online learning can be a suitable tool for a child’s education but may not have been suitable provision for Y given the provision detailed in Y’s EHC Plan. Despite Ms X raising concerns about this provision with the Council before the start date of 15 April 2024, the Council failed to assess the suitability of this provision until July 2024. As such, Y never accessed the online learning. This was fault and a lost opportunity of education for Y.
72. Y’s access to education through the Building Zone 1 also ended early but was replaced by extra sessions at the Mamba Gym. However, Y never received the one-to-one learning promised in the educational package.
73. The Council has acknowledged meetings between itself and School 3 did not take place as regularly as would have been expected from April 2024 to July 2024 to keep Y’s education under review. The result is that Y did not receive suitable education from 15 April 2024 to 26 July 2024. On average, Y accessed 8 hours of education each week during this time rather than the proposed 16 hours through School 3’s educational package. This was fault. The Council has accepted this fault and paid Ms X £750 on 21 November 2024 for providing unsuitable education across this term.
74. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place and a child’s individual needs, such as those detailed in an EHC Plan.
75. From 22 May 2023 to 10 July 2023 and from 20 December 2023 to 15 April 2024, Y received no education. This totalled one full-term and six weeks of missed education. During these missed periods of education, Y did not have access to the provision detailed in their EHC Plan. This included access to general education support detailed in the EHC Plan and other provisions such as social opportunities.
76. Based on the individual impact on Y from the lost education, we consider an award of £2,000 per term is suitable to reflect the lost education and EHC Plan educational provision. This totals £2,925 for the full-time and six weeks detailed in paragraph 75. Since the Council has already paid Ms X £1,500 for missed education during this time, this would be an extra payment of £1,425.
77. From 15 April 2024 to 26 July 2024, the School 3 only provided half of the education it considered suitable for Y’s needs. The Council has accepted it failed to ensure School 3 provided suitable education for Y and has already provided Ms X with a payment of £750 for Y’s missed education. During this time, School 3 failed to provide the extra literacy support detailed in Y’s EHC Plan. However, access to some provision would have given Y opportunity to access social situations. Overall, since the education provided was half what School 3 and the Council considered suitable, the impact on Y was half compared to receiving no education. We consider the Council should have paid Ms X £1,000 for this missed education and should therefore make an extra payment of £250 to reflect the lost education.

Free school meals

78. From 2 November 2023 to 15 April 2024, Y was no enrolled at any school. Y was entitled to free school meals. This entitlement did not end despite Y not being enrolled at school.
79. The Council has acknowledged the failure to provide free school meals for Y. The Council has paid Ms X the cost of these free schools from 2 November 2023 to 15 April 2024 on 21 November 2024 totalling £270. When Y was enrolled at schools the responsibility for provision of the meals lies with the school.
80. I do not consider the Council needs to take any further action to address this.

Injustice to Ms X

81. Within the Council’s Stage 1 and Stage 2 complaint response it has offered Ms X £600 for the distress and frustration it caused through its fault. The Council paid this to Ms X on 5 December 2024.
82. The Ombudsman’s guidance on remedies usually recommends awards of up to £500 for distress and frustration. Our awards are symbolic to reflect the distress a person may have been put to because of the fault of a council. We do not look to provide awards for loss of earnings as this is something better suited to the courts.
83. In some circumstances we can look to provide awards more than £500 but this is in exceptional circumstances of prolonged, over 12 months, and severe injustice to a person. The Council’s payment of £600 is suitable in this matter as it reflects the ongoing distress caused for slightly over 12 months by its actions. I consider the Council’s payment of £600 falls in line with the Ombudsman’s guidance on remedies; the Council should also provide an apology to Ms X.

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Agreed action

84. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X for the distress and frustration its fault has caused her.
• Pay Ms X a further £1,675 (in addition to the £2,250 the Council has already paid) for Y’s missed education from 22 May 2023 to 26 July 2024.
85. The Council should provide us with evidence it has complied with the above actions.

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Final decision

86. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman