Summary: Mrs X complained the Council failed to provide her child with an education or the provision set out in their education, health and care plan, delayed issuing a plan, and wrongly applied the law. Mrs X said this caused unnecessary and avoidable distress and frustration. We find fault and service failure which caused Mrs X and her child injustice. The Council has agreed to apologise and make a payment to remedy the injustice.

The complaint

1. Mrs X complained about the way the Council handled her child’s special educational needs. Specifically, she complained the Council:
1. failed to provide her child with an education or alternative educational provision;
2. failed to provide the provision in her child’s education, health and care plan while they were out of school;
3. delayed issuing an updated education, health and care plan after a review; and,
4. incorrectly applied the law when responding to her complaint.
2. Mrs X said the delay issuing the plan meant a delay consulting with alternative settings, which delayed her child getting an appropriate placement. She said it caused her unnecessary and avoidable distress and frustration. She said she had to cancel appointments for her own care because her child was at home, and it had a financial impact. She said there has been an impact of the lost education and provision on her child and their mental health.

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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 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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How I considered this complaint

8. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on earlier drafts of this statement. I considered all comments and further information received before I reached a final decision.
9. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Alternative educational provision

10. 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 section 19 or alternative education provision.
11. 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)

Education, health and care plans

12. A child or young person 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.
13. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. If, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible and within 12 weeks of the review meeting.

What happened

14. Mrs X’s child, B, has an education, health and care (EHC) plan. B stopped attending school in September 2023.
15. In October, the Council reviewed B’s EHC plan. The Council decided to amend the plan.
16. In November, the Council arranged alternative educational provision for B. This was made up of 15 hours of tutoring a week and 10 hours of mentoring a week.
17. In March 2024, the Council issued the final EHC plan after the review.
18. Also in March, Mrs X complained about delays issuing the EHC plan and that B had not received any tutoring.
19. The Council apologised for the level of service regarding B’s alternative provision. It said it had contacted the tutoring and mentoring services about how to improve. The Council said it was difficult to secure the provision and the hours B needed.
20. In May, B started a new placement.

Analysis

Alternative educational provision

21. Mrs X complained the Council failed to provide her child with an education or alternative educational provision (part a of the complaint).
22. The Council said it did not consider its duties to provide alternative education were triggered when B stopped attending school in September. This was because the school did not tell the Council it could not meet B’s needs. The Council said it hoped B would be able to return to the school. However, the Council said it became clear this was not going to happen so it arranged alternative provision for B.
23. As I have said above, 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. In this case, the Council decided B’s school placement was “available and accessible” to them between September and November.
24. The Council was entitled to make this decision. The Council decided it needed to provide alternative provision for B when it became clear they were not going to return to the school. The Council then arranged alternative provision in November. This was appropriate.
25. Mrs X said the Council knew the school could not meet B’s needs between September and November because the school told the Council in the EHC plan review in October that it could not meet B’s needs. I do not consider this automatically meant the Council had a duty to provide alternative education from October. The Council’s duty to provide education to children out of school is not exactly the same as its duty to provide educational settings appropriate for a child in line with their special educational needs and EHC plans. These are different.
26. I find the Council considered that the school could not meet B’s needs for all of their education long-term. However, the Council was still entitled to decide that B’s school placement was available and accessible to them between September and November.
27. Mrs X said the tutoring did not begin until at least April 2024, a month before the new placement started. She said by this time, it was too late.
28. Mrs X said the mentoring barely happened at all. She said there was a constant change of mentors which meant no consistency. She said the mentors would often cancel sessions or not turn up at all. She said B only had a few sessions in total.
29. The Council’s evidence shows a third of the tutoring was available to B, but two thirds was not provided. This means B did not get the majority of the tutoring they should have. This is service failure (see paragraph four).
30. The Council accepted there was a lack of continuity with mentoring and tutoring staff. It accepted this meant B missed sessions. The Council told the Ombudsman it was seeking information from providers about specific gaps in provision. However, at the time of writing, I have not received any information from the Council about the mentoring provision.
31. As I have said above, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. In this case, there is a lack of evidence about the mentoring provision. Given Mrs X’s account, the Council accepted there was inconsistency and missed sessions, and the lack of evidence, on balance I find it more likely that B did not get the majority of the mentoring provision they should have. This is service failure.
32. I find the service failure caused B injustice because they missed provision they should have received. I find it also caused Mrs X injustice in that it caused unnecessary and avoidable frustration and uncertainty.

Provision in the education, health and care plan

33. Mrs X complained the Council failed to provide the provision in her child’s education, health and care plan while they were out of school (part b of the complaint).
34. I have considered the same period for this part of the complaint as for part a, above. There were two EHC plans in place during this time, as an amended EHC plan was issued in March. Both plans set out the provision to be provided while B was in a school environment. Neither of these plans contained any provision to be provided outside the school environment.
35. B was not in a school environment for this period. Therefore I find the Council could not have provided the special educational provision set out in B’s EHC plans. For this reason, I cannot find the Council at fault.

Delaying issuing an education, health and care plan

36. Mrs X complained the Council delayed issuing an updated education, health and care plan after a review (part c of the complaint).
37. As I have set out above, councils must issue an amended EHC plan within 12 weeks of a review meeting. In this case, the review meeting was in mid-October 2023. The Council should have issued the amended EHC plan in mid-January, which was 12 weeks after the review meeting.
38. The Council issued the plan in March. This is a delay of two months. The Council said this delay was due to an admin error.
39. I find the Council at fault for the delay issuing B’s EHC plan. This fault caused Mrs X injustice because it delayed her right to appeal the plan.

How the Council applied the law

40. Mrs X complained the Council incorrectly applied the law when responding to her complaint (part d of the complaint).
41. Mrs X said in one of its complaint responses, the Council said it had to wait to get all the consultations back from various educational placements and go to panel before it could name a placement, despite B having an offer of a suitable placement.
42. Mrs X said the law says if an appropriate setting has been found, and a place offered, a council should not wait to name the placement and should not wait for further consultation responses.
43. Mrs X said the part of the law she refers to is section 39 (3) of the Children and Families Act 2014. This says:

“39 (3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.”

44. I do not agree with Mrs X’s interpretation of the law. The law says councils can only refuse to name the parent’s choice of school or placement in limited circumstances. It is not accurate to say the law says councils cannot wait for other responses before deciding which placement to name. For this reason, I do not find the Council at fault.

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Action

45. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the unnecessary and avoidable frustration and uncertainty caused by the service failure with B’s alternative provision, and for delaying her appeal rights by delaying issuing B’s EHC plan.
46. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making its apology.
47. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £2900.
• £2700 is to remedy B’s missed provision. Our guidance on remedies sets out a range of £900 to £2400 per term of missed educational provision. I consider £1800 per term of missed provision is appropriate and proportionate in this case. In arriving at this figure, I have considered that B did receive some of the provision, but not the majority. I find B missed a term and a half of provision (spring term and the first half of summer term). £1800 multiplied by one and a half terms is £2700.
• £200 is to remedy the delayed appeal rights by issuing B’s EHC plan late. I consider a payment of £100 per month of delay is appropriate and proportionate to the level of injustice caused here. £100 per month multiplied by two months of delay is £200.
• £2700 plus £200 is £2900.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I uphold parts a and c of Mrs X’s complaint because I find fault causing injustice. The Council will apologise and make a payment to remedy the injustice caused.
50. I do not uphold parts b or d of Mrs X’s complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman