Summary: Miss B complained the Council failed to provide her son with access to suitable, full-time education. We have not found any fault in the Council’s actions when considering and providing its section 19 duty.

The complaint

1. Miss B complained the Council:
• Named an unsuitable placement in Section I of her son, Y’s, Education, Health and Care Plan (EHCP).
• Could not provide a start date for the section I placement.
• Failed to provide access to suitable, full time education when her son could not attend school from April 2023.
2. Miss B says this has impacted both her own and her son’s mental health. She also told us there has been a financial impact for her. Miss B would like the Council to compensate her and her son for the time she has spent chasing the Council, the financial pressure she has experienced and the time her son has been without access to suitable education.

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The Ombudsman’s role and powers

3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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)
5. 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)
6. 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

7. I have not investigated the parts of Miss B’s complaint about the naming of the placement in section I of the EHCP or any issues with the placement after the Council issued the final Plan. Miss B appealed section I of the Plan to the SEND Tribunal and the law says we cannot investigate matters which have been considered by Tribunal.
8. I have investigated whether the Council provided Y with access to suitable, full-time education between March 2023 and October 2023.

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How I considered this complaint

9. I spoke to Miss B and considered the information she provided.
10. I made enquiries of the Council and considered its response.
11. Miss B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Legal and administrative background

12. 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.
13. 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.

What happened

14. The Council received a section 19 medical referral from Y’s school in May 2023. The school did not complete the referral form correctly, so the Council asked for further information. The Council received the necessary information a few days later and the referral was accepted.
15. The Council asked Y’s school to arrange a meeting to plan the necessary support. The meeting took place in early June 2023 and Y began accessing the Council’s Children’s Support Service (CSS) for alternative provision the following week.
16. A review of Y’s attendance with CSS took place in July 2023. Y had been able to access 20 out of 27 sessions but it was noted that he had difficulty logging on and engaging in the sessions due to technical challenges.
17. At the beginning of September 2023, Miss B contacted the Council and explained Y was experiencing anxiety around the online sessions. Miss B asked the Council to consider a different tuition provision.
18. The Council responded to Miss B the following day and told her CSS would make contact to support with Y’s return following the summer break. The Council also agreed to explore alternatives tuition services but explained it could not guarantee a placement with Miss B’s preferred provider.
19. Two weeks later the Council agreed to change Y’s provision. The Council arranged a meeting with Miss B to gather information to support an Individual Package of Educational Support (IPES) referral.
20. The Council completed the IPES referral in early October and secured a new tuition provision for Y. The new provision began at the end of October 2023.

My findings

21. I have seen no evidence of fault in the Council’s actions following the school’s section 19 referral. The Council accepted the section 19 duty and took steps to secure education for Y. When Miss B raised concerns about the suitability of the provision the Council took steps to provide a different tuition provider more suited to Y’s needs.

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Final decision

22. I have completed my investigation. I have not found fault in the Council’s actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman