Summary: Mrs X complained about the Council’s alleged failure to provide her child, Y, with suitable education and alternative provision. There were some faults by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s alleged failure to provide her child, Y, with suitable education and with alternative provisions from November 2023 to July 2024.
2. Mrs X said as a result Y lost out on education, provision, and support during this period. Mrs X said the matter also caused her frustration and financial strain on her family because she had to stop work so she could support Y.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

9. I have investigated matters from November 2023 to July 2024. This covers the period from when an emergency review of Y’s EHC Plan was held to when Mrs X made a complaint to the Ombudsman.

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How I considered this complaint

10. I discussed the complaint with Mrs X. I also considered the information Mrs X and the Council provided about this complaint.
11. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

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 document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
13. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. There may also be situations when an emergency review is required. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Once the decision letter is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Alternative Provision

17. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
18. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
19. 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)
20. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.
21. 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? updated August 2023
22. 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 that prevents them 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.

Flexi-schooling

23. Flexi-schooling describes an arrangement between the parent/guardian and a school, whereby children are registered on the school roll but only attend for part of the week.
24. Flexi-schooling is not an automatic right unlike full-time home education. It is entirely at the discretion of the child/young person’s school head teacher to accept a flexi-schooling request.

Key events

25. Mrs X’s child, Y, has some health conditions. Y attended a mainstream school, and he had an Education, Health and Care (EHC) Plan with full-time 1:1 support provided to Y.
26. In November 2023, an emergency review of Y’s EHC Plan was held due to concerns about Y’s progress at school, his self-regulation and his increased anxiety levels. Y’s school said despite its best efforts to work on his self-regulation and with his full-time 1:1 support, Y had been unable to access the curriculum and the provisions of his EHC Plan. Y’s school said it had put in place lots of adaptations for Y to help him engage but they were not effective and as a result it was not meeting his changing needs. Some of the action plans agreed at the emergency review meeting to support Y included:

• weekly counselling sessions
• referral to SEND support services (SSS)
• conduct a review in February 2024
• conduct Y’s secondary school transfer review in June 2024.

27. The Council said the agreed action plans were to be completed by Y’s school and/with Mrs X. The Council also confirmed the February 2024 review was not scheduled to be an interim/emergency review but instead it was a review to have been held by Y’s school and Mrs X.
28. The Council said a referral to SSS was made in January 2024.
29. In February 2024, Y’s review which was agreed following the November 2023 meeting was not conducted. Mrs X said she informed the Council that no support was provided to Y.
30. Mrs X said because Y was not provided with the appropriate support he needed, she made a formal request to Y’s school in March for Y to be flexi-schooled, one day a week. Mrs X said this was to enable Y work on some life skills.
31. Y’s school liaised with the Council about Mrs X’s flexi-schooling request. This was because Y had an EHC Plan. Y’s school said the Council was of the view Y would benefit more attending school on a full-time basis. Y’s school told Mrs X it refused her request based on the Council’s advice.
32. Mrs X informed the Council that Y continued to struggle to cope at school due to the lack of appropriate support. For example, Mrs X said Y had not received any counselling sessions as agreed at the November 2023 meeting. Mrs X explained flexi-schooling would support Y’s social and life skills and prevent burn-out from attending full-time school. Mrs X asked the Council for its reasons for refusing her flexi-schooling request.
33. The Council said although flexi-schooling arrangement was unusual for children with EHC Plans, it was happy for Mrs X and Y’s school to further discuss the flexi-schooling option for Y. Mrs X said the Council failed to provide Y with the provisions in his EHC Plan and she maintained the flexi-schooling was a practicable option for Y regardless of his EHC Plan.
34. In March, the Council (SSS) conducted its initial visit to Y’s school. The school confirmed Y was not accessing the curriculum and had minimal peer interaction. It said it would be appropriate for Y to spend time outside the classroom with adult-led activities to meet his needs. The SSS observed Y and provided Y’s school with advice and strategies to help support and regulate his emotions at school. This included 1:1 emotional regulation intervention, daily access to a sensory circuit, turn-taking games with peers and visual support/prompts.
35. An education psychologist (EP) also assessed Y in March and issued its report in April. The EP report stated despite Y’s receipt of a full-time 1:1 support, daily speech and language therapy (SALT) and a highly bespoke timetable which was regularly adjusted to his needs, Y was not accessing the curriculum.
36. The SSS further observed Y and reviewed its recommended strategies in May. Y’s school confirmed not all the strategies had been implemented due to staff changes. But the SSS report stated the strategies that were implemented such as Y’s access to sensory circuits and to an outdoor learning centre were working well and Y had responded positively. The SSS advised Y’s school to continue working through the strategies to support Y.
37. Mrs X made a formal complaint about the Council’s failure to respond to her concerns about Y not receiving suitable education/support and the refusal of her flexi-schooling request. Mrs X asked the Council if and how Y could be provided with alternative provision placement to support his social and emotional needs.
38. On 10 May, Y stopped attending school. Mrs X said this was due to placement breakdown and Y’s heightened anxiety levels after a safeguarding incident happened at school. Mrs X informed the Council on 13 May that Y had stopped attending school and there was no intention of him returning. Mrs X said Y’s school had also confirmed he was not accessing the classroom and was struggling at school, so she asked if the Council could provide Y with alternative provision.
39. In its responses to Mrs X’s complaint, the Council:

• apologised to Mrs X for its delayed response to her flexi-schooling request.
• said flexi-schooling was not a terminology usually used in cases where a child/young person had an EHC Plan because it was the Council’s duty to ensure the provisions in the Plan were provided. The Council said the flexi‑schooling arrangement was to be made by Y’s school and Mrs X.
• said if Y’s school and Mrs X decided a portion of the provisions in Y’s EHC Plan was best met through an alternative provision for an agreed period, then it was happy for it to be put in place. It said Y’s school and Mrs X should work together to find an appropriate alternative provision for Y once they make the decision.
• said Y was still on his school roll and that the school had not formally told the Council it could not meet Y’s needs.
• confirmed Y’s EHC Plan annual review was scheduled for early July 2024. It said if Y’s school confirmed it was unable to meet his needs during the review meeting, then next steps on how to support Y would be discussed.
• acknowledged Y’s school placement seemed to have broken down and the Council said it was already in consultation with another school (Mrs X’s suggested preference) to find out if it could meet Y’s needs.

40. Mrs X remained dissatisfied with the Council’s responses, and she made a complaint to the Ombudsman.
41. In July, Y’s EHC Plan annual review was held, and the Council issued his final Plan in August 2024 with another school (Mrs X’s preferred school) as the named setting.
42. Mrs X said Y started the new named setting in September 2024.

Analysis

43. Following the emergency review of Y’s EHC Plan in November 2023, I note the review document indicated the Council would maintain Y’s Plan. However, there was no evidence to show the Council issued a letter to Mrs X setting out its decision to maintain Y’s EHC Plan and her right of appeal. This was not in line with the statutory guidance, and it was fault. A parent/guardian or young person’s appeal right to the Tribunal is engaged when the Council issues its decision letter following an EHC Plan review. While I cannot say whether Mrs X would have appealed the Council’s decision to maintain Y’s Plan, I have exercised discretion to investigate this matter. This is because I find the Council’s failure to issue its decision letter, denied Mrs X of her right of appeal to the Tribunal if she disagreed with the Council’s decision to maintain Y’s Plan.
44. With the action plans agreed at the emergency review to support Y, there was no evidence the weekly counselling sessions and the February 2024 review for Y were completed. I note these actions were for the school to complete. But, given the concerns about Y not being able to access the curriculum, it would have been good practice for the Council to check the agreed actions were being implemented and to have monitored the impact of this. Because Y’s EHC Plan was not amended following the emergency review to include the actions identified, ultimately the responsibility sat with Y’s school. Mrs X could not challenge the Council’s decision not to include the actions in Y’s Plan for the reasons outlined in paragraph 43.
45. The SSS referral was sent in January 2024 and the initial visit to Y’s school and strategies to support Y were not recommended until March 2024. This took approximately four months (December 2023 to March 2024). This was fault and it meant during this period Y lost out on the additional recommended support made by the SSS.
46. However, Y continued to receive some provision and support after the emergency review to help him progress on his EHC Plan targets. Y also received further interventions following the recommendations made by the SSS in March. These included full-time 1:1 support, daily SALT, bespoke timetable, visual prompts and sensory circuits. Therefore, I find these mitigated the injustice caused to Y.
47. I also note the professionals’ reports confirmed that despite the provision and support Y received, he was still not able to access the curriculum. While I acknowledge how distressing this may have been for Mrs X, I consider it was reasonable for the Council to have allowed some time to be given for the reintegration strategies recommended by the SSS in March to work. This was subsequently evident from the SSS review that Y had responded positively to the strategies implemented by his school.
48. Y stopped attending school on 10 May 2024 and Mrs X informed the Council on 13 May 2024 about his absence and the likelihood of him not returning to school. There was no evidence to show the Council considered whether it had a duty to provide Y with suitable education/alternative provision under section 19 of the Education Act. Neither did it consider its duty to provide the provision detailed in Section F of his EHC Plan when Y was no longer attending his placement.
49. The Council should have considered if the school remained available and accessible to Y. The fact it began to consult alternative placements once aware he was no longer attending indicates it accepted that the school named in the EHC Plan was no longer available and accessible to him. This was fault. This meant Y was out of school and lost out on education and provision from May to July 2024. This also caused distress, frustration and worry to Mrs X.
50. We have recently made service improvement recommendations in other decisions that the Council should offer training and/or guidance to all relevant staff on the requirement to consider its duty under section 19 of the Act. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made any service improvement recommendation in this case. This identified issue is already being addressed through other cases we have investigated.
51. I cannot make a finding about Mrs X’s flexi-schooling request. This is because it is a decision for schools to make and school matters are out of the Ombudsman’s jurisdiction.

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Agreed action

52. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X and make her a symbolic payment of £250 to acknowledge the injustice caused to her by the Council’s faults as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make Y a symbolic payment of £1,500 for loss of educational provision from May to July 2024 caused by the Council’s failure to consider if it had a duty under section 19 of the Education Act 1996. This amount is based on a monthly calculation at £500 per month because the period (May to July) does not cover the entire summer term.

53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman