Summary: Mrs X complained the Council failed to provide a suitable education for her daughter Z. Based on the information we have seen, there was fault in how the Council failed to consider whether it needed to arrange alternative education for Z when she stopped attending school. This caused Z to miss out on education and caused Mrs X avoidable distress. The Council should apologise, pay Mrs X a financial remedy and remind it staff of the Council’s legal duties.

The complaint

1. Mrs X complains the Council has failed to provide a suitable education for her daughter, Z, since 2023. She says the Council:
• refused to carry out an Education Health and Care needs assessment in 2023;
• did not respond to her request for more time to submit evidence in support Z’s needs;
• failed to provide suitable alternative education when Z stopped attending school in late 2023; and
• communicated with her poorly and ignored messages from her.
2. As a result, Mrs X says Z went without suitable education and missed opportunities to develop, and both she and Z were caused significant upset, frustration and inconvenience, which affected Mrs X’s mental health. She wants the Council to apologise, arrange suitable education for Z and make up for the education Z missed.

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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. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
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. 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.
9. 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)

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What I have and have not investigated

10. I have not investigated how the Council decided not to assess Z’s special educational needs in 2023. Mrs X had the right to appeal that decision to the SEND Tribunal and I have not seen any evidence that it would have been unreasonable for her to have done so. Therefore, the law does not allow me to investigate how the Council made that decision.
11. I have investigated the other parts of Mrs X’s complaint.

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How I considered this complaint

12. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint any the supporting information it provided; and
• relevant law and guidance.
13. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
14. 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 found

Education health and care plans

15. 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.
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
17. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Alternative education provision

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. 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
21. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason the prevents them from attending;
• 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.

22. 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.

Background

23. Mrs X’s daughter, Z, has special educational needs and has struggled to attend school for several years. Mrs X asked the Council to assess Z’s special educational needs several times, in 2022, 2023 and 2024.
24. In early 2023, the Council decided that Z did not need an education health and care needs assessment. It told Mrs X about its decision in April 2023, and that she had the right to appeal if she did not agree.
25. Mrs X said that, from the start of the school year in September 2023, Z stopped attending school at all. In January 2024, Mrs X asked the Council to arrange alternative education for Z, such as a tutor, and that all Z would likely be able to cope with would be a few hours a week, because of the time she had been out of school.
26. An elected member of the Council replied to Mrs X in April 2024, telling her that since Z was still registered at her former school and did not have an EHC plan, it did not need to arrange any education for her. The Council suggested Mrs X reapply for a needs assessment for Z, which Mrs X did.
27. The Council agreed that Z needed an EHC plan and issued a final EHC plan, just inside the statutory timescale of 20 weeks, in September 2024.

My findings

28. I am satisfied the Council told Mrs X about her right to appeal its 2023 decision not to assess Z’s special educational needs. I have seen no evidence it would have been unreasonable for Mrs X to use her appeal rights. Therefore, I cannot investigate how the Council made that decision or the consequences of that decision.
29. After the Council agreed to assess Z’s needs in 2024, it agreed to issue an EHC plan and did this within the legal timeframes. Therefore, I am satisfied there was no delay during that process. If Mrs X is not satisfied with the content of Z’s EHC plan or the school the Council named (or that it has not named a school) she has the right to appeal to the SEND Tribunal about this.
30. However, I am satisfied there was fault with how the Council responded to Mrs X’s request for alternative education in early 2024.
31. At that time, the Council became aware that Z was not attend school at all or accessing the education which was otherwise available to her. It has also decided, in 2023, that she did not have special educational needs which required an EHC plan.
32. Although Z was registered on the roll of a school, the Council still had a duty to consider whether it needed to make alternative arrangements itself. There is some evidence to show the Council offered Mrs X alternative education for Z in early March 2024. Mrs X refused that placement as she did not consider it suitable for Z.
33. Mrs X asked the Council for a different alternative education placement in late May 2024 and explained why she considered it was more suitable for Z. However, there is no evidence the Council either considered the alternative placement Mrs X asked for or told her why it did not consider it suitable. The Council later agreed to name the alternative placement in Z’s EHC plan and she started attending for 10 hours a week in November 2024.
34. I am satisfied the Council had reason to believe Z might not receive an education if it did not make arrangements from February 2024. The Council’s failure to properly consider its duties under section 19 was fault.
35. Had the Council properly considered whether to arrange alternative education for Z, on the balance of probabilities I am satisfied it would, more likely than not, have decided it needed to make its own arrangements. There was evidence available at the time to suggest that Z would take part in some education, and this would need to be tailored and low demand. The efforts of Z’s school had not been successful in reintegrating her into education and the Council later agreed to the placement Mrs X asked for.
36. Therefore, I am satisfied that the Council’s failure to properly consider its section 19 duties likely led to Z missing out on some education. Had the Council properly considered Mrs X’s preferred placement in late May 2024, Z would likely have started at that placement in June 2024. Therefore, I am satisfied Z missed around two terms of education between June and October 2024, inclusive.
37. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Taking into account the available evidence, I am satisfied that any education Z took part in would have been for a small number of hours a week. However, she had already missed a significant amount of education, so any education would have been quite meaningful for her at that time. Balancing these factors, I consider a remedy of £900 a term is a suitable remedy.
38. There was also a significant delay in responding to Mrs X’s January request for alternative education for Z. That was fault which I am satisfied caused Mrs X avoidable frustration and worry.

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Recommended action

39. Within one month of my final decision, the Council should:
• apologise to Mrs X for the education Z missed and the distress it caused her by the delay responding to her request;
• pay Mrs X £1,800 to recognise the education Z missed between June and October 2024 (inclusive). This is intended for Z’s future educational benefit; and
• pay Mrs X £200 to recognise the distress caused by the delays in responding to her January 2024 request.
40. 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 I have recommended in my findings.
41. Within three months of my final decision, the Council should produce and circulate a briefing to its SEN and education staff, and relevant elected members, of the Council’s duties to arrange alternative education under section 19 of the Education Act 1996. This should include, but not be limited to, the Council’s legal responsibilities, its expectations for staff when concerns are raised that a child or young person is not accessing the education otherwise available to them and Ombudsman’s Out of school, out of sight report.
42. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

43. Subject to further comments by Mrs X and the Council, I intend to complete my investigation if the Council agrees to my recommendations. There was fault in how the Council failed to consider whether it needed to arrange alternative education for Z when she stopped attending school. This caused Z to miss out on education and caused Mrs X avoidable distress. The Council should apologise, pay Mrs X a financial remedy and remind it staff of the Council’s legal duties.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman