Summary: Mr X complained the Council failed to provide his son, Y with a suitable education or the provision set out in his Education, Health and Care (EHC) Plan after he stopped attending school in July 2023. The Council was at fault. It failed to provide Y with any education or the specialist provision in Y’s EHC Plan between September 2023 and June 2024. The Council agreed to apologise and make payments to acknowledge the impact this had on Y’s education.

The complaint

1. Mr X complained the Council failed to provide his son, Y, with a suitable education or the specialist provision in his Education, Health and Care (EHC) Plan between September 2023 and June 2024 after he was no longer able to attend his named placement.
2. Mr X said Y has missed out on education and social development without a suitable school place which is causing distress and uncertainty.

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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. 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)
5. 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

6. 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.
7. 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)
8. During the scope of this complaint the Council issued an amended EHC Plan for Y in February 2024. While this came with a right of appeal to the SEND tribunal I have decided it was not reasonable for Mr X to use that right at the time. This was because the Council was actively looking for an alternative special school for Y and other than that Mr X had no other concerns about the content of the Plan which would lead him to appeal. I have therefore investigated events after February 2024.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered information he provided.
10. I considered the Council’s response to my enquiry letter.
11. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

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. The EHC Plan is set out in sections including:
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
13. 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)

Section 19

14. 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. We refer to this as section 19 or alternative education provision.
15. 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

16. Mr X has a son, Y who is of primary school age. Y has a diagnosis of Autism and Attention, Deficit, Hyperactivity Disorder (ADHD). Y has special educational needs and has had an EHC Plan since 2017. The EHC Plan in place during 2023 shows he attended a special school.
17. Section F of Y’s EHC Plan shows what specialist provision he was entitled to which included:
• staff experienced in teaching children with ASD.
• Occupational Therapy.
• Exposure and access to sensory materials.
• Ongoing Speech and Language Therapy (SALT) access.
• Staff trained by SALT to deliver appropriate interventions.
• Daily small group sessions for social interaction development.
• Fine motor activities.
18. In July 2023 Y stopped attending his named school as it could no longer meet his needs. Records show the Council accepted at the time it needed to put alternative provision in place for Y while it consulted with alternative placements.
19. In September 2023 the Council attempted to put in place some home tuition for Y however following an assessment the provider said two-to-one staffing was required and so, the tuition did not start.
20. In November 2023 the Council said it agreed to fund tuition at a venue, however no suitable venue could be found.
21. In February 2024 Mr X raised concerns that putting tuition in place would not support Y’s complex needs. He raised concerns about the lack of specialist provision for Y and said what Y needed was an alternative placement.
22. The Council issued an amended EHC Plan for Y in February 2024. The provision remained the same however it named ‘day placement at special school’ in section I of the Plan. Mr X said he did not consider appealing this to the SEND tribunal as at the time the Council was actively consulting with schools and he had no other concerns about the content of the EHC Plan.
23. By this point the Council had consulted with over 20 alternative placements for Y without success.
24. Mr X complained to the Council about Y’s lack of education and school place. He said Y had not received any sort of education since July 2023 and it was affecting Y both mentally and physically.
25. In March 2024 the Council found a provider who could deliver tuition to Y at an appropriate venue which Mr X agreed to. The Council chased a start date in April however, the tuition did not begin until May 2024 which was two hour sessions, three times a week.
26. The Council responded to Mr X’s complaint. It said it was struggling to find a suitable placement who would accept Y but was doing all it could. It accepted Y was entitled to a school place and that it had not provided this for which it apologised.
27. Mr X complained to us in June 2024.
28. Since complaining to us Y has continued to receive tuition and the Council say an annual review for Y’s EHC Plan took place in November. It is open for Mr X to complain to the Council if he has any concerns from June 2024 onwards.

My findings

29. When Y stopped attending his named placement in July 2023 the Council acknowledge it had a duty to provide alternative provision while it sought to find an alternative school as he was unable to attend the school named in his EHC Plan. While the Council has made attempts to consult with and find Y an alternative placement, this was unsuccessful. In these circumstances we expect the Council to consider both its Section 19 and Section 42 duty so children do not go without education in the interim.
30. Between September 2023 and May 2024 when Mr X complained to us the Council failed to make available an educational placement for Y which was suitable to both meet his needs and for him to reasonably attend. This is a breach of the Council’s Section 19 duty and was fault.
31. Although I acknowledge the Council made attempts to put tuition in place, this is not the same as meeting its duty towards Y’s EHC Plan and the specialist provision contained within it. Section 42 of the Children and Families Act places a non-delegable duty on the Council to secure the specialist provision in an EHC Plan. Y did not receive any of the specialist provision in this EHC Plan between September and June 2024 and that was fault.
32. The faults above meant Y went without any education between September and May 2024 (when some tuition was put in place). Y did not receive the specialist provision in his EHC Plan between September and June 2024. This has had a significant impact on Y’s education and his social development. It has also caused Mr X distress and uncertainty.

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Agreed action

33. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mr X and pay him £150 for the distress and uncertainty caused by the faults above. 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 in making the apology I have recommended.
2. Pay Mr X £4500 to acknowledge Y’s loss of education and provision in line with his EHC Plan. This equates to £1800 per school term and is in line with our guidance on remedies.
3. Remind relevant SEND staff that the Council has a duty to secure the specialist provision in an Education, Health and Care Plan (section 42 Children and Families Act), not just tuition, when it has accepted an alternative provision duty (Section 19 Education Act) for a child with an Education, Health and Care Plan who is not attending school.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman