The Ombudsman's final decision
Summary: Mrs C complained the Council failed to provide her son with suitable education for the period January 2022 to April 2023 when he was not attending school or the education provision set out in his education, health and care plan. We have found fault by the Council but consider the agreed action of an apology and symbolic payment provides a suitable remedy.
The complaint
The complainant, whom I shall refer to as Mrs C, complains the Council failed to provide her son (X) with suitable education for the period January 2022 to April 2023 when he was not attending school or the education provision set out in his education, health and care plan it issued in February 2022.
Mrs C says because of the Council’s fault, her son missed 18 months of education and social contact with his peers which had a harmful impact on his mental health and caused distress to the wider family.
The Ombudsman’s role and powers
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) 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) 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.
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)
How I considered this complaint
I read the papers provided by Mrs C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Background and Legislation Special educational needs 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.
The EHC Plan is set out in sections which include: Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement 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) 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.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
Alternative provision 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.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) 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) 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) The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) Key events The following is a summary of key events. It does not include everything that happened.
X was on the school roll for a mainstream junior school but had been attending a pupil referral unit (PRU) since November 2021. The PRU placement was due to end on 21 January 2022 with X returning to his school. Both the school and PRU advised the Council that X would not manage in a mainstream school.
It was suggested that X receive 1 or 2 hours education on site at the mainstream school initially. Mrs C advised this would cause X undue mental distress and she sought alternative provision for X in the interim period until a suitable specialist school placement could be identified. Mrs C suggested a home tutor or a therapeutic placement for X. It was highlighted to the Council that home learning was a trigger for conflict at home.
Mrs C raised concerns with the Council on 3 February that X remained out of school since the ending of the PRU placement and had received no educational provision for two weeks.
The Council issued the final EHCP for X dated 7 February to Mrs C on 8 February. This named the state-funded mainstream junior school. The section F provision set out that X would receive teaching assistant time for 25 hours per week (pro-rata for part-time attendance) for individual, paired and small group intervention in a state funded mainstream school. There were no therapies included in X’s plan and the support outlined was around accessing the curriculum.
Mrs C advised the Council the same day that she did not agree with the plan. Mrs C did not appeal the plan. X did not attend the named placement on his EHCP.
The Council confirmed to Mrs C in mid-February that the school should use the EHCP funding to support X while an alternative placement was found.
The Council contacted the school in early March to discuss the provision that it could or could not put in place for X.
The school provided an update to Mrs C in early March about progress for the alternative provision and apologised for the delay and impact on X.
Mrs C chased the school at the end of March for a timetable of the alternative provision due to start after the Easter break. The school sent a timetable to Mrs C and the Council on 28 April. This consisted of an online school session on Monday mornings with morning sessions at alternative providers each of the remaining days.
Mrs C confirmed X did not want to do any more online sessions with the school on 7 June. This was replaced by a different alternative provider.
Mrs C contacted the school and the Council at the end of June about funding for the alternative provision to be continued in the September term as there was no update on a school place for X.
Mrs C received a holding response about funding for the September term onwards at the end of August. It was confirmed the alternative provision could not be booked for the next term until a funding decision had been made. The funding decision was confirmed on 1 September to run until the half-term.
The Council wrote to Mrs C on 15 September to confirm that it had been unable to find a specialist placement for X following consultations with several named schools. Mrs C had turned down the offer of an assessment from another school as it was too far away.
The Council noted on 22 September that X was making good progress, but the alternative provision was not meeting his education needs.
Mrs C contacted the Council on 25 October concerned there had still been no agreement about arrangements after that half-term ended. The Council confirmed to Mrs C on 10 November that the funding had been approved to continue with the current provision and arrangements until Christmas and apologised for any distress the process had caused. The Council confirmed arrangements with the school as well recognising that X needed more education provision.
The Council wrote to Mrs C on 15 December to confirm the offer of a placement for X at a specialist school which was designed to meet the needs of students who were not able to engage with education and to reintroduce them into education. Mrs C was due to visit the school to decide whether to accept. If so, the Council would arrange a transition plan with the school with support from one of the existing alternative provision providers.
Mrs C contacted the Council to confirm she had a successful visit to the placement with X on 5 January 2023.
Mrs C contacted the Council on 8 February to ask about funding for the alternative provision after the half-term as the school had not yet completed its assessment process ahead of a formal offer. The Council confirmed the following day that funding had been agreed for the second half of the Spring term.
X started attending this school in April 2023.
In its response to the Ombudsman, the Council has explained that the provision put in place for X was in line with what he was able to access and was increased as appropriate. The Council considered this allowed X to engage and build relationships without undue impact on his mental health and well-being. The Council says X struggled to engage with the alternative provision but a particular provider was successful which was continued to support X’s transition to the specialist school.
My consideration Based on the information provided, I consider the Council’s section 19 duties applied from the end of January 2022 when X’s PRU placement ended. This duty can apply where a child is ‘otherwise’ unable to attend school. The test the Council should apply here is whether the school place is available and accessible to the child. In this case, there was clear information from both the PRU and the school that X would be unable to attend a mainstream school.
There was a delay between X’s PRU placement ending towards the end of January 2022 and the start of alternative provision towards the end of April. This is fault. X did not receive alternative provision during this period.
When a pupil of compulsory school age is unable to attend school for physical or mental health reasons, or otherwise, it is accepted section 19 of the Education Act may apply as in this case. However, where the pupil also has an EHC Plan we also expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting under its section 42 duties.
X had an EHC Plan from February 2022. The Section F provision was focussed on supporting X to access the curriculum at a mainstream school. During the period April 2022 to April 2023 X was receiving alternative provision using several different providers. There is evidence the arrangements were working well in supporting X and he was making progress. On balance, I do not consider we can reasonably say the Council was at fault in relation to its section 42 duties.
Although there remains a degree of uncertainty around what education provision X would have been able to engage with and access during this period it was accepted the alternative provision was not meeting his education needs. Although a finely balanced decision, I consider this is fault which will have caused Mrs C uncertainty.
Finally, there is evidence that decisions about the funding arrangements were often not made or communicated to Mrs C in a timely way. Taken together I consider this is fault which will have caused avoidable anxiety during an already difficult time.
Agreed action
The Council will take the following action to provide a suitable remedy within one month of my final decision: provide an apology to Mrs C for the delay in arranging alternative provision for X between the end of January 2022 and the end of April 2022; the uncertainty around X’s education provision for the period April 2022 to April 2023 and the poor communication around funding arrangements; and provide a symbolic payment of £1,250 to recognize the above and the avoidable distress to Mrs C and her family.
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.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation as I have found fault but consider the agreed action provides a suitable remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman