Summary: Mrs X complains the Council failed to provide her child with a suitable education. The Council is at fault for failing to provide the child with the provision in her education, health and care plan and for failing to arrange alternative provision when the child was unable to attend school. The Council has agreed to apologise to Mrs X, remedy the avoidable distress caused and provide a payment to acknowledge the loss of provision.

The complaint

1. The complainant, Mrs X, complains the Council failed to provide her child, Y, with the provision in her education, health and care plan from September 2023. Mrs X also complains the Council failed to provide Y with alternative education when she stopped attending school in January 2024.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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)
4. 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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How I considered this complaint

5. I considered Mrs X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care plans

8. 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. 
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

10. 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)  
11. 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 the provision is not in place at any time. 

EHC Plan appeal rights

12. 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. Only the Tribunal or the Council can direct changes to the sections of an EHC Plan about the child’s needs, education, or the name of the educational placement. The Ombudsman cannot do this.
13. There is a right of appeal to the SEND Tribunal against:
• a decision not to amend an EHC Plan following a review; and
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
14. 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)
15. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or a consequence of, a parent or young person’s disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
17. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
18. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

Alternative education

19. 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.
20. 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)
21. 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)
22. 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
23. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

24. 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.

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What happened

25. Mrs X has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. In September 2023 Y began her final year at the mainstream primary school.
26. In January 2024, Y stopped attending school and Mrs X notified the Council. The Council contacted the school and it became apparent it had not implemented all of the provision as outlined in Y’s EHC Plan. The Council reminded the school if the provision was in the EHC Plan, the school had to implement it. The school said there had been a high staff turnover and this had led to some challenges.
27. The Council advised the school to implement the Emotionally Based School Avoidance (EBSA) Pathway. The EBSA Pathway was considered as the appropriate route to understanding why Y was not attending school and how she could be supported to return.
28. On 7 February 2024 Mrs X complained to the Council that it had not provided Y with the provision as outlined in Section F of her EHC Plan since September 2023 and she was experiencing Emotional Based School Avoidance as a result of not having her needs met. Mrs X requested alternative provision that meets Y’s needs. The Council declined and provided Mrs X with details for a mental health service for Y to access and it suggested an early help assessment.
29. On 16 May 2024, an emergency review of Y’s EHC Plan was held because Y’s attendance was not improving. On 17 June 2024 the Council agreed to reassess Y’s needs.
30. On 11 July 2024, the Council sent its Stage 2 response to Mrs X. It acknowledged the distress caused by the provision in Y’s EHC Plan not being implemented.
31. On 8 August 2024 Mrs X brought her complaint to the Ombudsman.
32. In September 2024 the Council finalised an amended EHC Plan for Y. I understand Mrs X has lodged an appeal with the SEND Tribunal.

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Analysis

September 2023 to January 2024

33. Y’s attendance during this period was 100% and there was no requirement for alternative provision.
34. During this period Y did have an EHC Plan maintained by the Council. The evidence shows that provision as outlined in Section F of Y’s EHC Plan had not been arranged by the school. It is not the role of the Ombudsman to investigate the actions of a school.
35. The evidence shows the Council was not aware the school had not implemented all the educational provision in Y’s EHC Plan. For this reason, I do not consider the Council at fault but it is a service failure because the Council had a duty to ensure the provision was in place under Section 42 of the Children and Families Act. The Council has acknowledged this failure in service and apologised to Mrs X.
36. The service failure resulted in Y not receiving all the provision in her EHC Plan that she was entitled to between September 2023 and January 2024. The loss in provision requires a remedy for the injustice it caused to Y.

January 2024 to August 2024

37. Y stopped attending school in January 2024. The Council was notified of this on 17 January 2024. It was at this point the Council should have considered whether it owed Y a Section 19 duty. I have not seen enough evidence the Council did this.
38. The Council has told me there was no evidence provided by the primary school or the family that Y’s needs would be better met at an Alternative Provision setting. What the Council should have considered was if it needed to make suitable educational provision for Y because she was unable to attend school (Section 19 duty).
39. I acknowledge the Council supported the school to implement the EBSA Pathway and although this helps to identify barriers and what support is required to enable attendance, I cannot see any evidence the Council took steps to ensure the EHC Plan provision was in place, or considered how far it was possible to do so given Y’s circumstances, while not attending school full time. I have not seen any evidence the Council has considered what provision from Y’s EHC Plan can practicably be delivered outside a school setting. This is fault.
40. The Council’s understanding is that the school was sending work home for Y to complete but Mrs X disagrees with this. The Council’s understanding is that a staff member from the school that was familiar to Y was visiting her at home twice a week. Mrs X says this was pastoral support and not educational provision. The Council does not have clear records to demonstrate what provision Y actually received. In addition to this, I have not seen any evidence of the Council assessing the amount of hours of education being delivered to Y was suitable nor have I seen evidence of the Council’s consideration that Y could not manage the equivalent of a full time education.
41. I have not seen any evidence the Council considered whether the education arranged by the school was suitable for Y and this is fault.
42. The Council should remedy any injustice caused by the fault that resulted in Y not receiving a suitable education or the educational provision as outlined in her EHC Plan from 17 January 2024 to the 28 September 2024. The Council should also provide a remedy for the distress caused to Y and Mrs X by its failure to deliver SEN support.
43. I understand Mrs X has an appeal lodged with the SEND Tribunal about the final EHC Plan issued in September 2024. As explained in paragraphs 14 to 16, there are limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan. Therefore, I cannot investigate or recommend a remedy for any lack of alternative education from the point the Council issued the final EHC Plan in September 2024.

Complaint handling

44. Mrs X complained to the Council on 7 February 2024. On 3 May 2024 Mrs X chased the Council for a response to her complaint. The Council’s investigation found the email address Mrs X provided to the Council was incorrect and for this reason she did not receive the Council’s response. I do not find fault with the Council.

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Agreed action

45. To remedy the injustice caused by the faults and service failure identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X;
• Pay Mrs X £1800 for not providing Y with a suitable education and the provision outlined in her EHC Plan from 17 January 2024 to 28 September 2024.
• Pay Mrs X £450 for Y not receiving the provision as outlined in her EHC Plan from September 2023 to January 2024.
• Pay Mrs X £150 for the avoidable distress caused.
46. The Council has agreed that within three months of this final decision, it will:
• Take relevant action to ensure it properly considers and records its Section 19 duties to arrange suitable alternative education when a child is out of school and keeps this under regular review; and
• Review its process for when a child with an EHC Plan is out of school, to ensure it meets its duty to secure the provision in the Plan as far as possible outside a school setting.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. The Council is at fault and it has agreed to appropriately remedy the injustice caused by the faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman