Summary: Mrs X complained the Council has not provided any education or provision set out in the Education, Health and Care Plan (EHCP) for her son, Y, since the family moved to the area. Mrs X says Y has missed out on education and provision and this has affected the mental health of her and her family. There was fault in the way the Council did not provide any education or provision from the plan. Y did not receive any education or EHCP provision for two academic terms and Mrs X suffered distress dealing with this matter. The Council should apologise, make a financial payment and remind staff of the Council’s responsibilities.

The complaint

1. Mrs X complained the Council has not provided any education or provision set out in the Education, Health and Care Plan (EHCP) for her son, Y, since the family moved to the area. Mrs X says Y has missed out on education and provision and this has affected the mental health of her and her family.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have investigated

5. I have investigated Mrs X’s complaint until May 2022 when the Ombudsman investigation started.

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How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Mrs X and the Council.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
12. Where a child or young person moves to another council, the ‘old’ council must transfer the EHCP to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014) 
13. When a child or young person moves to another council, the new council should inform the child’s parents or the young person within six weeks, the plan has been transferred and if it proposes to make a new EHC needs assessment or review the EHCP.
14. The new authority must review the EHCP either:
• within 12 months from the last plan, or the previous review, or
• 3 months after the date of the transfer.
15. The council has a duty to secure the specified special educational provision in an EHCP 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)
16. The courts have established that if someone has or could have 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 EHCP 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).
17. 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.
18. 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)
19. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
20. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
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

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
24. Y has complex special educational needs. Mrs X and her family moved to the area in September 2022. Mrs X told the Council Y would need an education and support when the family moved.
25. Mrs X chased the Council for a response at the end of September 2022. The Council confirmed it had received Y’s EHCP from the previous Council. The plan was dated December 2021. The Council confirmed it would contact two local schools to check if either could meet Y’s needs.
26. In October 2022, both of the local schools confirmed they could not meet Y’s needs. Mrs X approached two other schools. Both advised they were full and could not offer Y a place.
27. Mrs X chased the Council in November 2022. She expressed frustration Y was not receiving an education or the provision in his EHCP. The Council apologised and asked Mrs X if Y would be able to access an online tutor. Mrs X advised the Council, due to his needs, Y would not be able to access online tuition. The Council advised it could approach a tutor who could offer face to face tuition, but there was a waiting list. I have not seen any evidence of a referral for a tutor.
28. The Council approached four schools in November 2022, but none were able to offer Y a place. Two said they could not meet Y’s needs and two reported they were full.
29. Mrs X complained to the Council at the end of November 2022. She complained Y had not received any education or his EHCP provision since moving to the area in September 2022.
30. At the end of November 2022, the Council advised it would proceed with a temporary placement at a local school. Mrs X advised the school had already said it could not meet Y’s needs. The Council then wrote to a different school, advising it to take Y as a temporary placement. The school refused, saying it could not meet Y’s needs.
31. The Council responded to Mrs X’s complaint in December 2022. The Council upheld the complaint, apologised and said it would ensure it provided some education. Mrs X was not satisfied with this response and asked the Council to escalate the complaint to stage two.
32. In January 2023, Mrs X visited a school, school B. She liked school B but advised transport would be an issue for Y. School B provided costings and a transition plan to the Council.
33. In February 2023, the Council proceeded with the placement at school B and waited legal advice about putting Y on roll at the school as it would be a temporary placement.
34. The Council issued a draft EHCP. Mrs X returned the plan with her comments at the start of March 2023. She advised the Council, school B was not happy to take Y.
35. The Council responded to Mrs X’s stage two complaint at the start of March 2023. The response upheld the complaint and apologised. The response stated the Council would provide tuition to Y until he could attend school.
36. The Council decided to name another school, school C, in the draft plan in the middle of March 2023. The Council discussed this with Mrs X who said school C refused to take Y. The Council advised school C refusing Y was unreasonable and if the school was named, it would give Mrs X appeal rights to the tribunal.
37. The Council decided to name a different school, school D, on Y’s EHCP in April 2022. Mrs X advised school D had refused previously saying it had no space. The Council advised it would name school D for Y to start there in September 2023.
38. The Council issued Y’s final EHCP in May 2023 and named school D from September 2023. This carried a right of appeal to the SEND tribunal.
39. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to learn from its mistakes and make sure this doesn’t happen again.
40. In response to my enquiries the Council stated it had not provided any provision specified in the EHCP. It confirmed it offered an online tutor in November 2022, but Mrs X declined. The Council advised it usually creates a bespoke package of interim education if a young person is unable to attend school. The Council advised it created an education package for Y in June 2023.

My findings

Moving area

41. The SEND regulations 2014 sets out what should happen when a child moves from a different area with an EHCP. The Council should provide the provision specified in the plan until the Council issues an updated plan.
42. Paragraph 13 explains the Council should have informed Mrs Y within six weeks, the plan had been transferred and if it proposes to complete a new EHC needs assessment or review the EHCP. The Council acknowledged it received Y’s EHCP, but it did not tell Mrs X what it proposed to do next. This is fault and Mrs X was distressed with the Council’s actions.
43. Paragraph 14 explains when the Council should review the plan if it is not doing a new EHC assessment. Both the timescales specified in the SEND regulations 2014, would require the Council to review the EHCP by December 2022. The Council has not held an annual review to complete this review. This is fault and Y's plan was not up to date to his needs.

Education

44. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school in September 2022. It should have ensured Y received education provision from this time. The Council has not ensured Y received any education. This is fault and Y has missed provision for two academic terms.
45. The Council stated it offered online education and this was turned down. The evidence it has provided of this is a copy of an email from November 2022. The email offered online education which Mrs X advised was not suitable for Y’s needs. The Council did not dispute online tuition would not be suitable. The Council then discussed a face-to-face tutor but advised there would be a wait for this. I have not seen any evidence the Council made a referral for tuition. Y has not received any education since the family moved to the area in September 2022. This is fault and Y has missed two academic terms of education.
46. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
47. The Council did not ensure Y was provided with an education suitable to his ability. This is fault and has meant Y has not received an education for two academic terms.
48. As explained at paragraph 16, once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education for two academic terms from September 2022 until the Final EHCP was issued in May 2023. This is when the Ombudsman investigation started.
49. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
50. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

EHCP provision

51. I have seen no evidence Y received any provision specified in section F of his EHCP. The Council has accepted it has not provided this provision. This is fault and Y has missed out on the provision specified in his plan for two academic terms.

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Agreed action

52. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not ensuring he received any education or EHCP provision for two academic terms and not reviewing the EHCP within the timescales set out in legislation. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 as an acknowledgement of the distress she has experienced while dealing with this matter.
• Pay Mrs X £4,000 for not providing any education for Y over two academic terms. This money should be used for Y’s benefit.
• Pay Mrs X £3,000 for not providing any of the provision set out in Y’s EHCP for two academic terms. This money should be used for Y’s benefit.
• Issue guidance to relevant staff to ensure they are aware of the Council’s duties detailed in the Education Act 1996 to ensure all children receive a suitable education if they are unable to attend school.
53. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

54. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman