Summary: There was no fault by the Council in the limited period available to us for investigation of this complaint about a child out of school. We therefore propose to complete our investigation.

The complaint

1. I will refer to the complainant as Mr B. Mr B is represented in his complaint by Miss C.
2. Mr B complains his son, G, has been out of school since his permanent exclusion in 2017. G has an EHC plan and has had some tutoring and therapy in the years since his exclusion, but has not been receiving a full-time education. Mr B says he feels he and G have been side-lined and ignored.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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.
6. 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)

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How I considered this complaint

7. I reviewed a chronology of key events provided by the Council, G’s EHC plan and documents pertaining to the reassessment and review of the plan.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. This is called the ‘permitted period’. Miss C complained to the Ombudsman in January 2023, and so anything which happened before January 2022 falls outside the permitted period and is late.
10. Therefore, although I will refer to events from before January 2022 where necessary for context, I can only consider and make findings on things which happened since then.
11. G has a developmental condition and has been subject to an education, health and care (EHC) plan since July 2017. He has been out of school since April 2017 after being permanently excluded. Since then, he has been receiving six hours per week of tuition, and until recently was also attending a therapy centre several times per week.
12. In March 2022, the Council sent consultations to two local authority-maintained specialist schools (Schools 1 and 2), to ask if they could take G on roll. School 1 replied to say it was unable to meet G’s needs, and after consideration by its decision-making panel, the Council agreed with this.
13. The panel also decided School 2 was suitable to G, but noted there was no space available to take him at that time. The panel said it would reconsider a placement at School 2 at the beginning of the new academic year.
14. In April, Miss C submitted a stage 1 complaint to the Council on Mr B’s behalf. She complained the Council had delayed the initial process of providing G with an EHC plan, and about an incident during which G had been restrained at school before his exclusion. Miss C highlighted G had now been out of full-time education for several years and was only receiving six hours of tuition per week.
15. In May, G stopped attending his sessions at the therapy centre because he was not enjoying it. The Council decided to carry out a search of independent specialist schools to find a placement for G.
16. The Council responded to Miss C’s complaint. It acknowledged it had not met the statutory timescale to provide G with an EHC plan, and agreed he had not received the level of support he should, for which it apologised. It explained it had consulted for schools for G in March 2019 without success, and had recently begun consulting again. It also proposed carrying out a full reassessment of G’s EHC needs, although it cautioned this exercise would likely take some time to complete.
17. In June, one independent school (School 3) said it could likely meet G’s needs and invited the family to visit. Mr B and G later reported they had visited School 3 and said they would like to try some taster sessions. The school said it could not arrange these until September, and as it was now full, it could not offer G a placement until Spring 2023.
18. In July, the Council began an EHC needs reassessment of G and sought advice from relevant professionals. School 3 then reported it had decided it would not be able to offer G a place, because it was difficult to assess G’s suitability as he had been out of school for so long.
19. In September the Council decided to issue G with a new EHC plan. It reconsulted with School 2, but the school responded it still did not have any space to take him.
20. In November, the Council agreed to increase G’s tuition hours from 6 to 15 per week until a suitable school placement was secured. However, the Council’s tuition agency said it did not have a tutor available to provide this.
21. In December the Council issued G’s new EHC plan. It named education other than at school (EOTAS) as G’s placement.
22. In January 2023, Mr B submitted an appeal to the SEND Tribunal against various aspects of the EHC plan, including the named placement. Miss C also made a complaint to the Ombudsman on Mr B’s behalf, but as he had not yet completed the Council’s complaints process, we decided it was premature at that time.
23. In February Miss C made a stage 2 complaint to the Council. She complained G still had no school placement and asked for an increase in his tuition hours.
24. The Council responded a few days later. It summarised events up to that point, and explained it had been unable to secure a school placement yet due to a lack of availability. It also acknowledged the tuition agency had been unable to provide a tutor to increase G’s hours yet, although it believed this may be resolved soon.
25. In March, Miss C referred Mr B’s complaint back to the Ombudsman, and we now accepted it for investigation.
26. In April, the Council agreed a personal budget to be paid direct to Mr B, to allow him to purchase some alternative provision to help support G while he remained out school. As the tuition agency was still unable to provide a tutor for G’s increased hours, it carried out a search for a different provider, but was unable to identify one.
27. In June, the agency finally identified a tutor for G. The Council says this is “currently going well”. It also says it is working with the headteacher of School 2 to arrange a placement for G from September 2023.

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Legislative background

28. A child with special educational needs 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 which include:

• Section B: The child or young person’s 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 school. 

29. The Council is responsible for making sure that arrangements specified in 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.
30. 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.
31. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
32. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
33. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
34. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
35. 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))
36. The 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. (Education Act 1996, section 3A and 3AA)
37. 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’)

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Analysis

38. On Mr B’s behalf, Miss C complains G has missed several years of school.
39. As I have explained, due to the time limit on our powers of investigation, I am unable to consider anything which happened before January 2022. I therefore cannot consider if the Council was at fault because it did not arrange a new school placement for G after his exclusion in April 2017, or at any point in the intervening years.
40. The Council began a new round of consultation for a school placement in March 2022. Unfortunately, none of the schools it consulted with has yet been able to offer G a place, although it is continuing to work with School 2 in the hope of securing a placement for September 2023.
41. I cannot say this is because of any failing on the Council’s part. I have considered whether this amounts to a service failure instead – that is, an inability by the Council to discharge a statutory duty, despite its best efforts. However, given the specialist nature of the placement G requires, and the inevitability that such placements are limited, even under the best circumstances, I do not consider it would be proportionate to make this finding.
42. The law says that, where a council is satisfied a child is unable to attend school because they have been excluded, or because of a significant health condition, it has a duty to make arrangements for them to receive alternative provision, such as tutoring. The law also says these arrangements should be the equivalent of a full-time education, unless this is not in the child’s best interests.
43. In this case, G has been receiving tutoring for several years, and so, in the simple sense, the Council has met this duty. However, until recently this has been only for six hours per week.
44. It is not for me to decide the appropriate number of tutoring hours for G, but given the Council’s recent decision to significantly increase his hours, this begs an obvious question whether it should have done this sooner.
45. Unfortunately it is difficult for me to make a finding of fault on this basis. It appears likely there were occasions prior to January 2022 when the Council could, and perhaps should, have considered increasing his tuition hours, but these fall outside the period I am able to investigate.
46. Within the investigable period, all I am able to say is the Council made a decision to reassess G’s needs, and as part of this reassessment, it agreed to increase his hours. There is no sign of fault in this.
47. I am conscious it then took a further 6/7 months before these additional hours were put in place. Again, it is clear this was not due to any failing by the Council, but because of a lack of availability of tutors; although, again, it is arguable this therefore amounts to a service failure.
48. However, in December the Council issued G’s new final EHC plan, and in doing so it triggered Mr B’s right to appeal it, which he then used. Part of Mr B’s appeal is against the Council’s decision to name EOTAS as G’s placement.
49. As explained at paragraph 31, the courts have established that we cannot consider any matter inextricably linked to an appeal to a statutory tribunal, and that this restriction begins at the point the appeal right is engaged. We have no discretion in this.
50. This means that I am unable to consider whether there is any fault, including service failure, in the Council’s inability to provide the extended tuition hours for G from the point the appeal right was engaged in December. As this matter is part of an ongoing appeal, we have no power to recommend a remedy for it. This being so, I have no choice but to end my investigation of this issue.
51. Taking this all together, there is a limited scope to my investigation here, because of the limitations on our jurisdiction concerning time and appeal rights. Within that scope, I do not consider the Council is at fault because it has been unable to find G a new school placement, nor that this amounts to a service failure.
52. I also do not consider there is evidence of fault by the Council in its arrangements for alternative provision for G. Although it took a long time to implement the increased hours, this is covered by the period I cannot investigate because of Mr B’s use of his appeal right.

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Final decision

53. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman