The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide her daughter, Y, with a suitable education and provision set out in her Education, Health and Care Plan. We have found fault because the Council failed to fully consider how it could deliver alternative education to Y and failed to deliver some of the provision she was due. Mrs X and Y suffered avoidable distress and frustration and Y missed out on the opportunity to access education she was due. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mrs X and share guidance with relevant officers.
The complaint
Mrs X complains the Council has failed to provide her daughter, Y, with suitable education since February 2022 and with specialist services included in her Education, Health and Care Plan (EHC Plan), since July 2022. She also complains the Council did not give her the opportunity to comment on Y’s EHC Plan before issuing the final (updated) version in May 2023.
Mrs X says this means Y has missed out on education provision she was due. She also says this has caused distress and frustration for the family and affected her and Y’s mental health.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) 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) 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.
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 have and have not investigated Paragraph four (above) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to February 2022. This is when the Council became aware of Y’s non-attendance at her secondary school and she was referred to its Medical Education Service (MES). It is reasonable to include this period in my investigation.
My investigation ends in early June 2023 which is when Mrs X brought her complaint to us.
How I considered this complaint
I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.
What I found
Special educational needs A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person.
The Council is responsible for making sure that arrangements specified in Section F of the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
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). We refer to this as S42.
Under Section 38 of the Children and Families Act 2014, when issuing a draft EHC Plan, councils must give parents 15 days to comment or suggest amendments.
Alternative provision - general section 19 duty 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 S19 or alternative education provision (AP).
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) Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any SEN she may have. (Education Act 1996, section 19(6)) 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’) Available and accessible The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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) Focus report 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 Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.
What happened I have set out below a summary of the key events. This is not meant to show everything that happened.
Ms X has a daughter, Y, who is of secondary school age. In the academic year 2021 – 2022, Y was on roll at a local mainstream school, School A. Y has various health conditions and linked diagnoses.
2022 In mid-February 2022, School A submitted a request to the Council for an EHC Plan needs assessment (the assessment). School A also advised the Council that Y was no longer attending school and her physical attendance for the academic year was at 27.5%. A referral was made to the MES.
A few days later, the Council agreed to carry out the assessment on Y to see if she required an EHC Plan.
In March 2022, the Council’s MES began to deliver two hours of home-tutoring to Y per week. It also offered Y a digital streaming device so that she could access livestreaming of lessons from School A.
At the beginning of July 2022, the Council issued a draft EHC Plan.
Mrs X asked that a different local mainstream secondary school, School B, be named in Section I of the EHC Plan. School B confirmed it could meet Y’s needs as outlined in her draft EHC Plan.
In July 2022, Y moved to School B, the plan being to re-integrate her into mainstream education. MES involvement ended at this time. Y was able to attend for one day. After this, she was unable to attend due to her health difficulties.
At the end of July 2022, the Council issued Y’s first Final EHC Plan, formally naming School B. Section F of Y’s EHC Plan listed various aspects of provision. It was designed to be delivered in a mainstream secondary school environment where Y would be supported by teachers, teaching assistants and key adults within school. The plan included support for Y with social communication skills and her social, emotional and mental health as well as skills to develop self-regulation.
In late September 2022, Mrs X advised the Council that Y was not attending school. School B advised the Council of the same in October. The Council arranged for MES to begin working with Y again. Due to network issues on site at School B, the digital streaming device was no longer an option. This meant that the available AP to Y was solely the two hours weekly home tuition.
Later in October 2022, Mrs X says Y began struggling to access tutoring on offer from MES due to a decline in her health. The Council says at this time that the MES was working with Y but that during October and November Mrs X cancelled sessions due to Y being unwell. It also says her access and engagement to the MES provision was sporadic in the lead up to Y’s second attempted re-integration to School B, in January 2023.
2023 Towards the end of January 2023, School B again attempted to re-integrate Y back into on-site provision. This was unsuccessful. After one short visit, Y was again unable to attend due to her health needs.
In February 2023, Y stopped engaging with the MES altogether, again due to her health needs, so this was put on hold by Mrs X.
At the end of March 2023, an annual review of Y’s EHC Plan was held. It discussed the idea of Y attending an alternative provision setting, Provider A, so that it could deliver a different form of AP to Y. School B offered to try teaching Y on a one to one basis, but Mrs X said this would not be an appropriate solution for Y. Mrs X wanted Y to remain on roll at School B if Y was to access Provider A as a form of AP.
Towards the end of April 2023, School B organised one afternoon session per week for Y at Provider A, until the end of the term in July. Y was able to access this and settled in well, eventually moving to two afternoon sessions per week in September 2023 after further funding was agreed.
At the beginning of May 2023, Mrs X complained to the Council. She said the Council had not delivered Section F of Y’s EHC Plan and was failing in its duty to her. Mrs X complained that School B could not meet Y’s needs.
In mid-May 2023, the Council issued its stage one complaint response. In this response, it: confirmed it had delegated its responsibility to deliver Section F provision to Y to School B in good faith; said it understood School B had organised Provider A until July 2023; confirmed that Mrs X had requested Provider A deliver two afternoon sessions per week, and had said that Y was not a candidate for special school but struggled to engage with tutors who came to the house and that tuition had caused Y significant health difficulties; explained it could not name an unregistered provider (such as Provider A) to deliver full time education; confirmed that some of Y’s Section F provision could have been delivered had she been able to access the MES tutoring more fully; partially upheld Mrs X’s complaint and offered a suggested remedy of £300 per month from October 2022 to the beginning of May 2023, at £1800 in total. This was to recognise there was a shortfall in the Section F provision it delivered to Y during this time when balanced with the provision offered by the MES.
Mrs X asked to escalate her complaint to stage two of the Council’s process. By the end of May 2023, the Council declined to escalate as it considered the outcome would not be any different. The Council signposted Mrs X to the Ombudsman.
On the same day, the Council issued Y’s updated Final EHC Plan.
Mrs X brought her complaint to us at the beginning of June 2023.
Analysis February 2022 to July 2022 School A advised the Council in February 2022 that Y was no longer attending. At this time, the Council did not have any S42 duties as there was no EHC Plan in place.
However, the Council now had a duty under S19 of the Education Act 1996 to ensure Y received a suitable alternative education if she was not attending her specified placement of School A.
The alternative 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.
The Council says that MES offered Y a digital streaming device and the two hours of weekly home tutoring. It views that this was a suitable amount of AP to be equivalent to full-time and that it was reasonably accessible to Y during the period. It has also confirmed that between March and June 2022, four tutoring sessions were cancelled due to a variety of reasons but that overall Y’s engagement was good. MES involvement stopped when Y was scheduled to move to School B.
In response to my draft decision, Mrs X commented that the Council were aware digital streaming was not suitable for Y’s needs and cited various reasons for this, including her health needs being an issue. Taking this into consideration and on the balance of probabilities, I am satisfied, that in the circumstances of this complaint, suitable AP equivalent to full time and in line with what she could access at the time, was available to Y. I therefore find no fault on the Council’s part during this period.
July 2022 to September 2022 When Y’s EHC Plan was issued at the end of July 2022, the Council’s S42 duties to deliver provision specified in Section F also began.
In July 2022, when Y moved to School B, she was able to attend for one day before health difficulties meant she felt unable to return to the site.
However, there is no evidence to suggest the Council or the MES was aware that Y was not attending School B until late September or early October 2022 when Mrs X and School B advised it.
In terms of Section F provision from July to late September 2022, the Ombudsman does not expect councils to keep a watching brief on whether provision is being delivered unless it knows there is an issue. Although we expect councils to have systems in place to check provision in a new EHC Plan is being delivered, I am satisfied the Council would have likely given time for the EHC Plan to bed in during September 2022 and therefore not yet have checked on its progress.
As the Council was unaware of Y’s non-attendance (and therefore a lack of Section F provision being delivered), I am satisfied in the circumstances of this complaint, the Council did not act with fault during this time.
Similarly, in terms of the Council’s S19 duties, as it was not aware Y was not attending, it could not be expected to organise any AP for her. Therefore, the Council did not act with fault during this time.
October 2022 to January 2023 When it became aware Y was unable to attend School B due to health reasons, this meant the Council’s duty to provide S19 AP began again. It also meant it was aware that there would be issues in delivering Section F provision to Y. The Council had a duty (see paragraph 15 above) to ensure Y’s section F provision was delivered as far as it was possible to do so outside of a school setting.
During this period the only AP on offer to Y was the two hours of weekly tutoring.
Evidence shows that Mrs X cancelled the tutoring three times during October and November 2022 as Y was unwell. The Council says that following this and through to January 2023’s re-integration attempt at School B, Y’s MES engagement was sporadic.
The Council’s £300 per month suggested remedy begins from October 2022. It was to recognise there was a shortfall in the Section F provision it delivered to Y during this time when balanced with the provision offered by the MES.
Although Y was able to access some tutoring, it was clear that this was not entirely successful. If she was not regularly receiving any form of education, then she could not be receiving proper Section F provision. This is fault. However, as Y was unable to consistently access the tutoring on offer due to her ongoing health needs, I am satisfied that there was no injustice to her during this time and will therefore make no recommendation with regard to Section F provision during this period.
When it was clear that Y was struggling to access the only AP the Council had organised, it should have taken steps to review the situation. It should have considered if there was another form of AP that would enable Y to access education and possibly be able to deliver her Section F provision. There is no evidence the Council did this. Not doing so was fault. It appears that as the MES was considered to be the Council’s ‘standard offer’ there was no consideration that any other provision may be able to allow Y to access education. As Mrs X had been asking since April 2022 for Provider A to be involved with Y’s education (due to it not being a ‘school’ type setting which was a trigger for Y), this lack of action would have caused her and Y avoidable distress and frustration. It also meant that there was uncertainty as to whether another form of AP could have delivered education and Section F provision to Y. I have made a recommendation below to remedy the injustice caused.
February 2023 to May 2023 When Mrs X paused the MES tutoring in February 2023, this meant that Y was not in receipt of any education at all.
At this time, I am again satisfied the Council should have taken more decisive action to investigate whether there was any other form of AP that Y may be able to access in an attempt to reintegrate her back into mainstream education. Not taking action was fault. As it was, things only progressed when Y’s EHC Plan annual review was held at the end of March 2023 and Mrs X again made her wishes clear that Provider A should be considered to deliver education to Y. This lack of action would have caused further avoidable distress and frustration to Mrs X and Y. It also meant Y did not have access to any education under the Council’s S19 duties as what was on offer was not reasonably practicable for her to access at that time. This also meant she had no opportunity to access Section F provision during this time. I have made a recommendation below to remedy this injustice.
I am satisfied that when Y began to attend Provider A from late April 2023 onwards, on the balance of probabilities, she would have been accessing a suitable amount of AP in line with her health needs at the time as she would have needed time to settle back into education. I am also satisfied that during this time she would have been accessing as much Section F provision that Provider A could deliver to her during the time she was attending. On this basis, I do not find any fault with the Council’s actions from the beginning of May onwards, in relation to AP or Section F provision.
EHC Plan May 2023 Mrs X complains the Council issued the Final EHC Plan without giving her the correct amount of time to comment on the draft.
As part of my enquiries to the Council, I asked it to comment on why it had issued the plan before the deadline for comments had passed.
In response, the Council said Mrs X had asked for the plan to be finalised, so it had done so. When I asked the Council to provide more detail on this, it commented the plan was not late, and that it was finalised early on her request.
Evidence from mid-May 2023 and before the draft plan had been issued, shows that Mrs X had asked the Council, as part of her complaint earlier that month, to issue Y’s Final EHC Plan. The Council then issued a draft plan in the second half of the month before issuing the final plan eight days later. This did not give Mrs X her 15-day window to comment as was her right. I am satisfied that when Mrs X asked the Council to finalise the plan, she did not mean that she did not want to have sufficient opportunity to comment on Y’s draft plan. Not giving Mrs X sufficient opportunity to do so was fault. It would have added to Mrs X’s frustration at the ongoing situation. I have made a recommendation below to remedy the injustice caused.
The Council’s suggested remedy I am not satisfied the Council’s suggested remedy of £300 per month, totalling £1800, from October 2022 to the beginning of May 2023, is sufficient to reflect the injustice caused to Y. I have made a recommendation below to reflect this.
Agreed action
To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision: apologise to Mrs X and Y for not reviewing its offer to Y under its S19 duties when it became clear she was unable to fully access the MES offer from October 2022 until Provider A began in late April 2023, for failing to deliver Section F provision from February to April 2023 and for not giving Mrs X the proper opportunity to comment on Y’s draft EHC Plan; pay Mrs X £200 for distress caused by the issues highlighted directly above; pay Mrs X £2500 to reflect the lack of access to suitable S19 AP from October 2022 to April 2023 and a lack of Section F provision from February 2023 to April 2023; remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996, especially when children are unable to access its standard offer; and consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties.
Payments made should be used to benefit Y’s education and are in line with the Ombudsman’s guidance on remedies.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman