The Ombudsman's final decision
Summary: Mrs X complained that the Council failed to provide her daughter with education when she was unable to attend school. She also complained about the Council’s poor communication. We find the Council was at fault. This caused significant stress to Mrs X and her daughter was out of education. We make several recommendations to address the injustice caused by fault.
The complaint
The complainant, Mrs X, complains that the Council has failed to provide her daughter with education when she was unable to attend school. She also complains about the Council’s poor communication.
Mrs X said this has had a detrimental impact on her daughter and caused her significant distress.
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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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) 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.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)
What I have and have not investigated I have investigated whether there was any fault in the Council’s actions between September 2022 and July 2023 when the final EHC Plan was issued.
I have not investigated the Council’s actions regarding providing alternative provision after the plan was finalised in July 2023. The reasons for this are detailed in paragraphs 6, 19, 20, 21 and 22.
I have also not investigated matter prior to September 2022. This is because we would not usually investigate complaints that occurred more than 12 months before a person complains to us. Mrs X complained to us in November 2023. I think it would have been reasonable for Mrs X to have complained to us sooner.
But I have exercised discretion to investigate from September 2022 as this was the beginning of the school term.
How I considered this complaint
I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
EHC Plan 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.
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. [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.
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) Law and guidance 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) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
Summary of the key events Mrs X contacted the Council in August 2022. She said her daughter, B, had struggled with school. She said B wanted to attend school but couldn’t.
The Council contacted B’s school the following month. It said it had spoken with Mrs X who said B wanted to go to school and was willing to try on a limited timetable. The school said they had tried to implement this. But it was noted that they said B refused to engage. Mrs X said B did not refuse to engage, the setting did not meet her needs.
In September 2022 the school told Mrs X an education provider (Y) had offered to give the school some support with B. This would mean B would be allocated a 1:1 member of staff. But Mrs X said this offer did not happen as Y said they could not support B due to the nature of her behaviour.
The school put a plan in place in October 2022 to help B back into school. But Mrs X said B attended school twice and the plan failed.
The following month, the school sent the Council and Mrs X the plan and targets that had been discussed. It was agreed B would start school at 11:30. But Mrs X said this plan failed.
In January 2023, the Council contacted Mrs X following a meeting. It said: at this stage the school could not meet B’s needs; school would support in providing alternative provision; and staff were to provide B with a new timetable whilst waiting for an EHC Plan.
The school sent the Council a GP letter in February 2023. This stated B was unable to attend school due to her mental health. The Council asked the school to make a referral to the education provider, Y.
In the following month, Mrs X told the Council B would not be returning to school. She said she had tried numerous timetables. But said this was having a detrimental effect on B’s mental health.
The Council responded and said it trusted the school would support B.
The Council asked the school to arrange a meeting to discuss arrangements for B.
B’s EHC Plan was finalised in July 2023. This named a different school, school Q. Mrs X appealed to the Tribunal.
Mrs X contacted the Council in late September 2023. She said B had tried to access school Q. But said due to the class sizes, it was not appropriate. She said a separate room had been offered for 1:1. But said this was not a quiet space for learning.
In the following month, a tutor was allocated. The Council told Mrs X the tutor was finding it difficult getting access to a regular room. In the interim it asked if they would like tutoring in the home whilst it considered other options. But it was noted Mrs X said B would not engage at home.
School Q provided Mrs X with details of a possible room available in November 2023 which Mrs X agreed to. But it was noted this room became too noisy and another room was sought.
In December 2023, it was noted the room was no longer suitable. Mrs X was advised to visit any preferred venues prior to the Council making contact with them.
Complaint to the Council Mrs X complained to the Council in July 2023. She said: B had not received any education since February 2022 with no alternative provision; she asked the Council for help in October 2022, but said this was ignored; during the appeal process she emailed the tribunal officer requesting alternative provision but had no response; and she sent a pre-action letter requesting an urgent remedy to several people including the Council but had no response.
The Council responded at stage one of its complaints process in September 2023. It said: the email she sent in October was responded to. It said it told her about its local offer and early help services. It also said the case officer met with school in October to discuss the support plan for B; in January 2023 officers were working with the school to support B back into education. But said the Council did not contact Mrs X to explain the action that was being taken; the tribunal officer should have referred the email to the correct team; in regard to the letter sent, the Council acknowledged it should have responded. But said it contacted the school who were taking steps to reintegrate B; and it understood school Q had been named and the case officer was working with the school to facilitate B’s transition back into education.
Mrs X asked for the complaint to be escalated and said B remained out of education. In response the Council said: the issues raised had previously been addressed appropriately so it could not take it to stage two of its complaints process; and in response to Mrs X’s request for tuition, it would be in touch to discuss how this could be implemented.
Analysis- was there fault by the Council causing injustice?
Alternative provision In September 2022, it was noted the Council spoke with Mrs X who said B wanted to go to school and was willing to try on a limited timetable. The school stated they had tried to implement this before with no success. But the Council’s educational psychologist worked with B in school in October 2022 and a reintegration plan was put in place.
In November 2022 the school sent the Council and Mrs X a plan and targets that had been discussed. A start time of 11:30am was agreed for B. The Council was entitled to first see if the reintegration plan was successful. I therefore cannot criticise this.
In January 2023, an action plan noted B’s attendance was 10%. We would expect the Council to provide evidence it has considered whether the education arranged by school was suitable. In this case in January 2023, the Council noted the school could not meet B’s needs and said the school had agreed to support in providing alternative provision.
In the Council’s complaints response, it said it was working with the school in January 2023 to support B back into education. But it was clear from the records that B’s attendance was not increasing. This was because the reintegration plan had not been successful. Mrs X told the Council in March 2023 B had tried multiple timetables and would not be attending. In response, the Council said it trusted the school would be supporting B. This is fault. Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. The guidance applies to all children of compulsory school age, whether or not they are on roll of a school.
Because of the fault, this meant B was out of education for two school terms [between January and July 2023]. In acknowledgement of missed education, we recommend a payment per term. I consider an appropriate figure in this case to be £2000. In determining I have taken into account that this was a significant year for B as it was leading up to her GCSE’s. I have also taken into account that B received little education.
Communication The Council has acknowledged some poor communication in its complaint’s response. This was mainly due to the Council not responding to an email, not providing an update and not redirecting Mrs X’s query to the relevant team. This is fault and caused significant stress to Mrs X at a time she was seeking help for B.
Agreed action
To address the injustice caused by fault, within one month of my final decision, the Council has agreed to: write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation; pay Mrs X £250 for the avoidable distress, time and trouble caused by the Council’s actions; and pay Mrs X £4000 for the educational benefit of B, to recognise the impact of its failings on B’s education.
Within two months issue written reminders to relevant staff to ensure they are aware of the guidance that states any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. The guidance applies to all children of compulsory school age, whether or not they are on roll of a school.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman