Summary: Mrs X complains the Council failed to provide suitable educational provision for her daughter and delayed in dealing with her complaint. Mrs X says this caused daughter to fall behind with her education and her behaviour to deteriorate. From the evidence provided, the Ombudsman finds fault with the Council as it failed to provide adequate educational provision for Mrs X’s daughter. The Council has agreed to the Ombudsman’s recommendations to remedy the injustice caused.

The complaint

1. The complainant, whom I refer to as Mrs X, complains the Council failed to provide suitable education for her daughter (D) when Mrs X took her out of school. She also complains the Council delayed in responding to her complaint.

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What I have investigated

2. I have investigated the Council’s educational provision for D after Mrs X took her out of school in February 2018.
3. The final paragraph of this decision statement sets out why I did not investigate other matters.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
8. 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)

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How I considered this complaint

9. As part of this investigation:
• I considered the complaint made by Mrs X and the Council’s responses.
• I discussed the complaint with Mrs X over the telephone.
• I considered the Council’s responses to my enquiries.
• I sent a draft of this decision to Mrs X and the Council and considered their comments.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

11. Section 19 of the Education Act 1996 says councils are responsible for arranging suitable education for children who cannot attend school because of exclusion, illness or other reasons. This applies to all children of compulsory school age who are resident in the local authority area, whether or not they are on the roll of a school.
12. Education is suitable for a child if it is efficient education suitable to their age, ability and aptitude and to any special educational needs the child may have.
13. The Department for Education produced statutory guidance for local authorities entitled “Alternative Provision – January 2013”. This says while there is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, local authorities should ensure such pupils are placed as quickly as possible.
14. Alternative Provision says councils should:
• Provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
• Address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school.
• If a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
15. Good alternative provision is that which appropriately meets the needs of pupils and:
• Enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology).
• Meets specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress.
• Has clearly defined objectives including the next steps such as reintegration into mainstream education.
16. The Children, Schools and Families Act 2010 clarified a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means full-time education would not be in their best interests.

Background

17. Mrs X’s daughter, D, has Autistic Spectrum Disorder (ASD). D has an Educational Healthcare Plan (EHCP) which the Council put in place in May 2017.
18. D attended School Y. Her EHCP says she needed 32.5 hours of teaching assistance time for individual, group and paired working. Mrs X says D struggled at School Y as the staff could not meet D’s needs. This resulted in School Y excluding D several times in 2017 and regularly placing her in isolation and on a reduced timetable. Mrs X says D was always in isolation throughout 2017.
19. In November 2017 the Council carried out an annual review of D’s EHCP. The review recommended School Y could no longer meet D’s needs and placed her on a reduced timetable. The Council agreed to look for immediate specialist provision for D as she was at risk of permanent exclusion.
20. In January 2018 the Council wrote to three schools to see if D could have a place. The Council also amended D’s EHCP. It listed School Y as her school until July 2018 but mentioned D would need a school from September 2018 which could offer her support.
21. In February 2018 Mrs X removed D from School Y. Mrs X says School Y gave her an ultimatum to either remove D or School Y would permanently exclude her. School Y had already excluded D a few times in early 2018.
22. The Council wrote to another school in February 2018 to see if D could have a place. The Council received responses from the schools it contacted to say there was no available place for D.
23. In late February 2018 the Council referred D for online tutoring whilst it sourced a school place for D. Mrs X became concerned D could not engage with the online learning and was not getting the support she needed as per the EHCP. Mrs X says she contacted the Council to say D was not engaging in the online school.
24. The Council explained it was finding it difficult to find a placement for D however, it identified School Z as a suitable school in July 2018. Mrs X went to visit School Z and had concerns about the special educational needs department and its ability to meet D’s needs. Mrs X put her concerns to the Council.
25. Mrs X says she contacted several state schools which specialise in educating children with autism however, none of these schools had an available place for D. Mrs X found School Q which she thought was suitable to meet D’s needs however, School Q was a private school. Mrs X says she asked the Council to put School Q on D’s EHCP.
26. The Council produced a final amended EHCP and sent this to Mrs X on 6 August 2018. The EHCP named School Z as the suitable school for D to attend.
27. Mrs X appealed to the SEND Tribunal about the name of the school in D’s EHCP. In October 2018 the Council and Mrs X signed a consent order naming School Q on D’s EHCP. D then started at School Q on 5 November 2018.
28. The Council sent Mrs X a final amended copy of D’s EHCP naming School Q in December 2018.
29. On 19 January 2019 Mrs X raised a formal complaint to the Council. She complained the Council had not provided satisfactory education for D when she left School Y. Mrs X asked for an apology and for compensation.
30. The Council responded on 18 April 2019 where it advised it would be looking into the matter. On 26 April 2019 the Council provided a stage one response to Mrs X. It asked Mrs X whether it could contact School Q to see if the Council could offer added support to D alongside school.
31. Mrs X found the Council’s response did not address her concerns so she contacted the Council on 30 April 2019. The Council agreed to consider the complaint at stage two and provided Mrs X with a response on 29 May 2019.
32. The Council said it discussed added support with School Q and agreed to arrange home tuition for D for English and Mathematics. The Council also recognised the delay in progressing the complaint and offered Mrs X £150 for time and trouble. It also offered Mrs X £150 for the distress caused to D.
33. Mrs X remained dissatisfied so contacted the Ombudsman.
34. In response to my enquiries the Council reconsidered the remedy it offered to Mrs X. The Council said after considering the Ombudsman’s guidance on remedies, it would pay £300 for time and trouble in pursing the complaint and £300 for the distress caused to D.

Analysis

35. Councils are responsible for providing education to children who cannot attend school. 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.
36. In November 2017 after the annual review the Council accepted School Y could not meet D’s needs and agreed to start to look for a suitable placement for D. Shortly after this in February 2018 D stopped attending School Y.
37. The records show the Council contacted several schools in January and February 2018. However, these schools could not offer D a place. From the evidence provided I cannot see what further action the Council took prior to identifying School Z in July 2018.
38. I appreciate there were complexities in identifying a suitable school placement for D. I acknowledge the Council arranged online tutoring for D however, this was not full time nor was it a school place. In addition, D was unable to engage with the online classes and there is no record of any further provision being offered to support D in line with her EHCP.
39. In my view there was fault by the Council as it was responsible for a lack of educational provision from February 2018 to July 2018, which is five months.
40. Where we find fault by a council, we must consider the injustice caused to the complainant and whether a remedy is warranted for the injustice. Here, the Council’s failure to provide adequate educational provision led to a loss of educational provision for D for a five month period.
41. I acknowledge the Council has agreed to pay £300 for the distress caused to D during this period. I consider this to be appropriate and in line with the Ombudsman’s guidelines for distress payments.
42. The Council has also agreed to provide three hours per week of tuition to D for English and Mathematics for six weeks. While I accept the Council is trying to help D to be in the position she would have been should the Council have provided adequate educational provision, I still consider the Council should make a payment to reflect the loss of educational provision.
43. Mrs X also complained the Council delayed in progressing her complaint. The evidence shows the Council did not respond within its timeframes set out in its complaints policy. The delay was significant at stage one.
44. The Council has offered to pay Mrs X £300 for time and trouble in pursuing her complaint. I consider this to be a reasonable remedy for the delay and in line with the Ombudsman’s guidelines for time and trouble payments.

Agreed action

45. The Council has agreed to carry out the following within 4 weeks of my final decision and provide evidence to the Ombudsman it has done so:
• Apologise to Mrs X for the faults identified.
• Pay Mrs X £600 for time and trouble and for the distress caused to D. This is made up of £300 for time and trouble and £300 for the distress to D.
• Make a payment of £450 for each month of provision lost (five months), making a total of £2,250. I have consulted the Ombudsman’s guidance on remedies. I have also taken into account that D was receiving some online tutoring and the Council’s offer to provide six weeks further tuition.
• Arrange for D to receive three hours per week of tuition for English and Mathematics for a six week period.

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Final decision

46. I have completed my investigation and found fault for the lack of educational provision provided to D. I have made recommendations to remedy the injustice caused which the Council has agreed to.

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Parts of the complaint that I did not investigate

47. We are unable to investigate a council’s alleged failure to provide alternative education for a child with special educational needs who is out of school, when the alleged failure is or could be subject to appeal.
48. I have not investigated whether the Council provided adequate educational provision after it issued D’s EHCP in August 2019, naming School Z.
49. This is because the Council offered education at School Z, which was named in the statement. Mrs X had a right of appeal against the decision to name School Z in the statement, which she exercised. It is not for the Ombudsman to determine whether School Z was suitable.
50. I have not investigated Mrs X’s concerns about the Council allowing D to receive education at School Y which she says did not meet her needs in the two years prior to February 2018. This is because a significant amount of time has elapsed since this took place. If Mrs X was unhappy with the standard of education at School Y and the Council’s actions to address this, she could have complained to the Ombudsman at the time. I can see no reasons why Mrs X could not have complained about this at the time.

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Investigator's decision on behalf of the Ombudsman