Summary: Mrs X complained the Council did not provide suitable education and special educational needs support for her child D. There was fault by the Council which caused D to miss suitable education and SEN support, and avoidable distress for D and their parents. The Council agreed to apologise and pay a financial remedy. It will also make an action plan of how it will avoid recurrence of the same faults and report this to its relevant oversight and scrutiny committee.

The complaint

1. Mrs X complains the Council did not provide suitable education and special educational needs (SEN) support for her child D in 2023 and 2024. She says the Council:
1. used reports Mrs X paid for privately in D’s Education, Health, and Care (EHC) needs assessment but did not repay Mrs X the costs;
2. failed to ensure D received the SEN provision in their EHC Plan after it issued this in October 2023;
3. failed to ensure D received suitable alternative education when they were out of school in 2023 and 2024; and
4. provided a confusing and inaccurate response to Mrs X’s complaint about these issues.
2. Because of this Mrs X says:
• D missed education and SEN support, which impacted their mental health;
• Mrs X and her husband Mr X experienced stress, and time and trouble in complaining; and
• Mrs and Mr X experienced financial loss in paying privately for SEN assessments, occupational therapy, and physical education. Also, only one of them could work while D was out of school.
3. Mrs X wants the Council to apologise, provide suitable education and SEN support for D without delay, and repay the family for financial loss.

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The Ombudsman’s role and powers

4. 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)
5. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)

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How I considered this complaint

9. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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

Legislation and guidance

Alternative education for a child out of school

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
17. 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. 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
18. 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.

Education, Health, and Care (EHC) Plans

19. A child or young person with special educational needs (SEN) 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.
20. The EHC Plan is set out in sections including Section F, the special educational provision needed by the child or the young person. 
21. 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)  

EHC needs assessments and advice

22. 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.
23. As part of an EHC needs assessment to decide whether it should issue a Plan, a council must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
24. Those consulted have a maximum of six weeks to provide the advice.
25. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

EHC Plan appeal rights

26. 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.
27. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal about the description of the child’s SEN, the SEN provision specified, or the school or placement specified.

What happened

28. In early 2023 when D was in year 8, they stopped attending their mainstream school, following a deterioration in their mental health. At the start of the final term, D’s school tried to reintegrate them on a reduced timetable, but this was not successful.
29. In May 2023, Mrs X asked D’s school why no alternative education had been arranged for D given they were out of school unwell. The school asked the Council’s attendance team to contact the family. The following week Mrs X spoke to the Council’s attendance team, and in June she wrote to Children’s Services asking for alternative education.
30. Also in June 2023, Mrs X applied to the Council for an Education, Health, and Care (EHC) needs assessment, as she wanted D to have an EHC Plan.
31. In September 2023, D started year 9 and was still out of school. The school arranged some online tuition, intended to supplement part-time attendance at school. However, Mrs X says there were clashes between the online and face-to-face timetables which limited D’s engagement.
32. In October 2023, the Council issued a final EHC Plan for D, within the correct statutory timescales. Following contact from Mrs X, the Council quickly accepted it had missed key information and so issued an updated final Plan in November 2023. Mrs X did not appeal the Plan to the SEND Tribunal because she agreed with the educational provision in Section F, and with D’s continuing mainstream school placement. The Plan included:
• a return to school plan to transition D back into full time education at their mainstream school;
• a sensory profile to be shared with all staff working with D; and
• some direct SEMH (social, emotional, and mental health) interventions including continuous check-ins with a trusted person, and direct therapeutic support such as art therapy, talking therapies, or cognitive behavioural therapy.
33. In February 2024, Mrs X complained to the Council the school was not delivering the EHC Plan. She continued to raise this with the Council and said there was no return to school plan in place, as specified in Section F of the EHC Plan.
34. In May 2024 the Council responded to Mrs X’s complaint at Stage 1. It said it had asked the school to arrange an early annual review of the EHC Plan to address the issues with D’s lack of education and SEN provision. It also said it would consult with alternative education providers. Mrs X escalated her complaint to Stage 2 because the Council had provided no timescale for when suitable provision would be in place.
35. In June 2024 the Council issued its Stage 2 complaint response. It said the early EHC Plan review meeting had now taken place and new provision would be put in place once it issued a final Plan. Mrs X came to the Ombudsman.
36. In October 2024, after the start of year 10, the Council issued an amended final EHC Plan for D. This named D’s mainstream school and included new details of an alternative education package for when D could not attend. Again, Mrs X did not appeal to the SEND Tribunal because she agreed with the content of the Plan.

Time period investigated

37. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in July 2024, so we would usually only look at what happened after July 2023.
38. I have investigated events after April 2023, when D started the final term of year 8. The Council failed to accept a complaint from Mrs X until April 2024 even though she first complained in February 2024. I therefore consider the Council delayed Mrs X in coming to the Ombudsman by around two months. However, I am satisfied Mrs X could have complained to us sooner about events before April 2023.
39. I can consider any continuing injustice caused by the Council’s faults before Mrs X brought her complaint to us in July 2024. However, I cannot consider any new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. If Mrs X wants to complain about how the Council ensured D received suitable education and SEN support after the October 2024 amended EHC Plan, she would need to make a new complaint to the Council about this first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

My findings

Private reports used in EHC Plan

40. Mrs X said the Council used two reports she paid for privately in its assessment of D’s EHC needs, an autism assessment and a sensory/ Occupational Therapist (OT) assessment.
41. Where a family has paid for private reports, we may recommend a council should repay some or all the costs. However, this is only where we decide a council accepted the advice and used it to write the EHC Plan, and the family has not appealed to the SEND Tribunal about the final Plan.
42. I decided the Council should not repay the family for these reports.
43. Mrs X chose to arrange these assessments, before she applied to the Council for an EHC needs assessment. She says she did so because the NHS waiting list for an autism assessment was around three years, and D’s school had refused to pay for a sensory/OT assessment. Mrs X did not arrange the assessments because she felt she had no choice but to do so, due to fault by the Council in its assessment process.
44. As part of the Council’s EHC needs assessment, it had to gather advice from relevant professionals with a turnaround time of six weeks to meet statutory timescales. If Mrs X had not arranged a private autism assessment and had instead joined the NHS waiting list, the Council would have consulted the NHS and been told D was on the waiting list. Because Mrs X had arranged a private report, the Council considered this. However, I do not consider recommendations from the autism report directly informed Section F of the final EHC Plan. The report recommended the family should seek an EHC needs assessment from the Council to obtain the advice of an Educational Psychologist.
45. If Mrs X had not arranged a private sensory/OT assessment, once the Council started its EHC needs assessment, she could have asked it to consider seeking advice from an OT. Because Mrs X had already arranged a private report, the Council considered this. However, I do not consider recommendations from the sensory/OT report directly informed Section F of the final EHC Plan.

Alternative education while out of school

46. The Ombudsman cannot investigate complaints about the actions of schools, unless it relates specifically to actions taken on behalf of a council in securing educational provision set out in Section F of an EHC Plan. I cannot investigate the actions of D’s school in terms of whether it should have told the Council sooner of their attendance issues. I can only consider the actions of the Council, once it became aware D was out of school.
47. The Council knew D had been out of school for 15 days or more, with no education in place, after the school raised this with the Council’s attendance team in May 2023. Mrs X also spoke to the Council about this a week later, and wrote to Children’s Services shortly after. From the point it was aware, the Council should have considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996.
48. In response to Mrs X’s complaint, the Council accepted the section 19 duty to provide alternative education applied in D’s case, but its view was this was the school’s responsibility. The Council may delegate the arranging of alternative education to the school, but the law says the duty to provide this lies with the Council. It should therefore keep proper oversight to assure itself suitable education is in place, and properly investigate when a family raises concerns that it is not.
49. When the Council became aware D was out of school in May 2023, it did not enquire about whether the school had arranged a suitable alternative, or consider if it should take further action to meet its section 19 duty. Also, the Council should have regularly kept the case under review to consider whether D’s circumstances, or capacity for engaging with education, had changed. The Council was not proactive in monitoring D’s education or keeping its section 19 duties under review.
50. Although D’s school arranged some alternative education, Mrs X says this was not suitable for D’s needs, it clashed with their part-time school timetable, and their engagement with it was limited. In the absence of any evidence that the Council satisfied itself the provision was suitable, I decided it was not.
51. When the Council issued a final response to Mrs X’s complaint in June 2024, it said it was “confident that the school [was] commissioning appropriate support” for D. However, the Council still did not properly consider what was in place, and whether it was suitable for D’s age, ability, aptitude, and SEN.
52. I am not satisfied the Council gave due consideration to its section 19 duty, which was fault. This caused distress and frustration to Mrs X. I have considered injustice to D separately, later in this decision statement.

Delivery of EHC Plan

53. After the Council issued a final EHC Plan in November 2023, section F set out the special educational provision D must receive. The Council had an immediate duty to ensure this was in place under section 42 of the Children and Families Act.
54. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that provision is not in place at any time. 

55. The Council took no steps to assure itself D’s new EHC Plan was in place after November 2023. Section F focused around implementation of a suitable return to school plan to integrate D back into school. The Council did not check such a plan was in place. It also did not investigate or address the issues in good time after Mrs X started to raise concerns in February 2024. This was fault.
56. The Council’s failure to properly investigate and resolve Mrs X’s concerns caused her distress, for which it should provide a remedy. I have considered injustice to D separately, later in this decision statement.

Injustice caused to D

57. The duty to provide alternative education is not immediate, councils must ensure this is in place as soon as possible and act without delay. If the Council had properly considered its duties, I consider it reasonable suitable education would have been in place from June 2023, the start of the final half term in year 8.
58. The duty to ensure Section F of a final EHC Plan is in place is immediate. The Council’s failure to ensure the November 2023 EHC Plan was in place, (including the return to school plan), meant D missed SEN support and continued to miss education.
59. I consider the Council should provide a remedy for the injustice caused by:
• the four terms of education D missed from June 2023 up to the new EHC Plan in October 2024; and
• the three terms of SEN support D missed from the point of the final EHC Plan in November 2023, up to the new EHC Plan in October 2024.
60. Mrs X told me she paid privately for physical education and occupational therapy while D was out of school without support. She provided a breakdown of these costs. I cannot say, even on the balance of probabilities, what the Council would have decided about what alternative education D should receive if it properly considered its section 19 duties. Also, D’s final November 2023 EHC Plan did not include direct occupational therapy. Therefore, I cannot recommend the Council should repay Mrs X for the money spent. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend extra remedies for loss of SEN support such as direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
61. In deciding a suitable financial payment to recognise the education and SEN support D missed, I considered the following.
• As set out in our guidance on remedies, we do not consider years 8 and 9 to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• Although the school arranged some alternative education this was not suitable for D, and they could not meaningfully engage with it. However, I cannot say, even on the balance of probabilities, how much D would have engaged with if suitable alternative education had been available from the start.
• Once D’s final EHC Plan was in place, they did not receive any of the provision in the Plan. This included some direct therapies and interventions, and a return to school plan, without which D could not return to school.
62. Based on these factors, I decided the Council should provide a remedy of:
• £1,500 per term for the four terms of education D missed from June 2023 to October 2024; and
• £500 per term for the three terms of added SEN support D missed from November 2023 to October 2024.

Complaint handling

63. In its Stage 1 response to Mrs X’s complaint in May 2024, the Council said it would consult alternative education providers. When it responded at Stage 2 six weeks later, it then said D’s school would be contacting providers instead. Mrs X then chased up the school and found this had not been communicated to the school. I consider this part of the Council’s complaint response was confusing, so was fault. This caused Mrs X further distress.

Recurrent fault by the Council

64. Ofsted and the Care Quality Commission (CQC) inspected the Council’s special educational needs and disability (SEND) service in 2023 and identified five areas of priority action and four areas of improvement. In November 2023, the Department for Education (DfE) then issued a SEND Improvement Notice. In December 2023, the Council published an Improvement Plan which set out specific actions for improvements to its SEND services. Delivery of the plan is being monitored by the Council’s ‘SEND Strategic Improvement and Assurance Board’.
65. We have repeatedly found fault with this Council for failing to recognise its non-delegable duty to ensure Section F of an EHC Plan is delivered and have previously made recommendations to address this. The Council’s December 2023 Improvement Plan included an action to effectively monitor delivery of EHC Plan provision, by September 2024. The Improvement Plan is being monitored by DfE, so I do not consider it appropriate to make further recommendations about this now. We will be sharing a copy of this decision with Ofsted.
66. We have also repeatedly found fault with this Council for failing to recognise that the section 19 duty to arrange alternative education for children out of school is a Council duty. The Council has repeatedly, because of our recommendations in other cases, issued reminders/training to its staff about this, and reviewed its procedures. Nine of these cases were during the period Mrs X complains about but did not prevent the faults in her case. Therefore, I have recommended the Council takes further action.

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Agreed action

67. Within one month of our final decision the Council will:
1. apologise to Mrs X and D for the faults identified and the impact of those faults. 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;
2. pay the family a total of £7,900, comprising of:
1. £7,500 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £200 to recognise the avoidable distress caused to D’s parents by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
68. Within six months of our final decision the Council will review thirteen cases in the past two years where we found fault with its section 19 duty to provide alternative education to a child out of school. It will:
1. produce a dated action plan of how it will avoid recurrence of the same faults by making changes to practice and procedure or staff training; and
2. report this review outcome and action plan to its relevant scrutiny and oversight committee, so it can decide how progress against the plan should be monitored.
69. The Council will provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. There was fault by the Council which caused D to miss suitable education and SEN support, and avoidable distress for D and their parents. The Council agreed to our recommendations to remedy this injustice. It will also make an action plan of how it will avoid recurrence of the same faults and report this to its relevant oversight and scrutiny committee.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman