Summary: There was fault by the Council in failing to provide alternative education when it became aware a pupil was receiving less than full-time education. This resulted in loss of education for six months and placed additional stress on the family. Recommendations for an apology, a financial payment and service improvements are made.

The complaint

1. Mrs X complains the Council has failed to provide her son’s special educational provision since September 2017, when he started secondary school. Mrs X says her son has attended a series of placements since 2017 and had several periods when he has not received full-time education. This has had an adverse impact on her son’s progress and social and emotional health as well as an adverse impact on Mrs X’s ability to work.

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What I have investigated

2. I have investigated the period from September 2018 until September 2019. I have not investigated the period before this because Mrs X and the Council reached an agreed settlement of the complaint in September 2018 and it is too late to reopen that part of the complaint. I have not investigated matters which could, or have been, appealed to a tribunal or which relate to actions by a school.

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The Ombudsman’s role and powers

3. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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)

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How I considered this complaint

8. I have considered information provided by Mrs X and the Council including the case file and complaint documents.
9. I have also spoken to Mrs X by telephone.
10. I have considered:
• The Education Act 1996
• The Children and Families Act 2014
• Statutory Guidance on special educational need (SEN), school attendance and alternative provision
• The Ombudsman’s Focus Report ‘Out of school…out of mind? How Councils can do more to give children out of school a good education’.
• The Ombudsman’s Guidance on Remedies
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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 found

Chronology up to September 2018 – the first complaint

13. Mrs X’s son has SEN and the Council has maintained an Education Health and Care (EHC) Plan for him since 2017, before he transferred to secondary school.
14. In September 2017, Mrs X’s son started at a mainstream secondary school. The placement broke down quickly with fixed term exclusions issued due to behaviour difficulties arising from his SEN.
15. An urgent review meeting was held in October 2017 and it was agreed an alternative education package would be provided until a more appropriate school placement could be found. There was delay in finding a suitable school and the alternative placement also broke down.
16. In May 2018 an amended final EHC plan was issued stating Mrs X’s son would remain at a specialist unit attached to his current high school but transition into a local authority special school with the intention of attending the special school full-time. Transition visits started in the Summer term.
17. Mrs X had a right of appeal to the SEND tribunal about the contents of the final Plan but did not appeal at that time.
18. Mrs X complained to the Council about loss of education in 2017/18 when the placements had broken down (‘the first complaint’).
19. In September 2018, the Council’s complaint response acknowledged Mrs X’s son had not been provided with suitable full-time education between September 2017 and March 2018. By March 2018 Mrs X’s son was being provided with two days outdoors education alongside transition into a special school. The Council apologised to Mrs X and offered a financial payment of £2000 to acknowledge the impact of lost education on Mrs X and her son including Mrs X’s expenses.
20. Mrs X accepted the payment at that time and the Council understood the complaint to have been resolved. The Council signposted Mrs X to the Ombudsman but Mrs X did not pursue the complaint further at that time.

Chronology from September 2018 onwards – the second complaint

21. From September 2018 Mrs X’s son received three days education at the special school and two days a week outdoor education. This was stated to be working well until January 2019 when a change in circumstances meant Mrs X’s son became reluctant to attend both placements.
22. A review meeting was held in February 2019. It was agreed that the special school would set up a link with a mainstream school so Mrs X’s son could access GCSE subjects and a more able peer group.
23. From this point Mrs X’s son attended his special school placement three days but the two-day off-site provision stopped.
24. On 15 February 2019 Mrs X asked the Council for funding for the two days she was being expected to educate her son at home. An officer advised Mrs X that the special school should be sending work home for her to complete with her son for the other two days and contacted the school giving the same advice.
25. In April 2019 the Council issued an amended final EHC plan but this did not name the mainstream link school only the special school. Mrs X appealed the contents of the final EHC plan to SEND.
26. In early May Mrs X complained to the Council about delay. The Council emailed the school chasing progress in setting up the mainstream link and advising the school it was responsible for commissioning alternative provision as it was receiving funding for five days (but Mrs X’s son was only attending three days).The school then arranged transition visits to the link mainstream secondary school from 8 June 2019.
27. On 1 July 2019 Mrs X complained to the Council (‘the second complaint’). By this date she had registered her appeal with SEND about the EHC plan. Mrs X’s complaint:
• sought to reopen issues about lack of education or a suitable setting from 2017 addressed in the first complaint;
• complained the EHC plan did not accurately identify her son’s needs or the right provision to meet those needs, or the right placement;
• complained about delays by the Council, for example, a delay in the Council implementing recommendations in a professional report obtained in October 2018;
• complained about the number of placements her son had attended in quick succession;
• complained about poor academic progress and an adverse impact on her son’s wellbeing;
• complained about the use of restraint at a placement in 2017;
• complained about delay between February 2019 when the link school had been discussed and her son starting to visit the link school in June 2019.
28. Mrs X asked the Council to respond to four bullet points:
• A request for counselling from a psychologist due to the impact on her son’s mental health of repeated failed placements;
• A request for an educational psychology report to advise on the appropriate setting;
• A request for continuation of a support worker from her son’s special school to support the next stage of his education and provide consistency;
• A request for ‘financial compensation’ due to the impact on Mrs X’s work and the distress caused by inadequate education over several years. Mrs X wanted to revisit the £2000 award made in September 2018 on the basis the same set of circumstances (Mrs X having to home educate her son) had been repeated.
29. The Council responded to Mrs X’s complaint in September 2019. The Council declined to reopen the first complaint resolved in September 2018. The Council said that five days provision was available to Mrs X’s son at his special school throughout the period complained of, but he would not attend full-time. The Council said it considered the special school had taken a flexible approach and provided work for her son to do at home on days he would not attend school. The Council did not uphold the complaint.

Relevant law and guidance

30. Section 19 of the Education Act 1996 says Councils must make arrangements for the provision of suitable full-time education at school or otherwise than at school for pupils 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. ‘Suitable’ means efficient education suitable to the pupil’s age, ability and aptitude and to any special educational needs he may have.
31. Section 42 of the Children and Families Act 2014 says Councils must secure special educational provision specified in an EHC plan for a child or young person.
32. Statutory guidance School Attendance says the Government expects schools to provide access to full-time education. It says part-time timetables are not as a rule allowed and should only be used in exceptional circumstances for a temporary period. They should not be used as a long-term solution and any agreement to place a pupil on a part-time timetable should have a set time limit when the pupil either returns to full-time school or alternative provision is provided. Statutory guidance Alternative Provision says School Governors are responsible for arranging alternative provision where there is a fixed term exclusion and Councils are responsible for pupils who have been permanently excluded or are otherwise unable to attend full-time. Schools can direct pupils off-site to help behaviour. The guidance says that full-time education can be made up of two or more part-time settings but all pupils must receive full-time education whether at one setting or more. The Commissioner of Alternative Provision should put in place a personalised plan and set out the nature of intervention, the timescale, review the provision and plan for reintegration into full-time school.
33. Parents are responsible for ensuring their children attend school regularly. Councils and schools can use various legal powers if a child is missing school without good reason.

Analysis

Fault

34. I have not investigated the period before September 2018 because Mrs X agreed a resolution to her first complaint. The Council correctly signposted Mrs X to the Ombudsman if she remained dissatisfied. Mrs X did not indicate any disagreement with the outcome of her complaint and accepted the financial payment. We would have expected Mrs X to have expressed dissatisfaction with the complaint outcome at the time. As a comparison, we allow a period of one month for a complainant to request a review of our own decisions. Mrs X sought to reopen the complaint in July 2019 nine months after a resolution had been agreed. This is too long and unfair to the Council who could reasonably have assumed the matter closed.
35. Mrs X’s son received full-time education across two placements from September 2018. Mrs X’s son became reluctant to attend either placement. Mrs X’s says this was because the placement was always unsuitable as her son did not have a suitable peer group. He was too able for local special schools, but his special educational needs could not be met in mainstream school. Part of Mrs X’s complaint is about the availability of suitable placements and the succession of placements her son has experienced.
36. The Ombudsman cannot advise as to the suitability of a placement, only SEND can determine this. Mrs X had a right of appeal to SEND when the EHC plan was amended to name the special school in May 2018. We would have expected her to use her appeal right if she disagreed with the placement.
37. A review was held to discuss Mrs X’s son reluctance to attend on 1 February 2019 when it was agreed to set up a link with a mainstream school. The holding of a review was good practice when a change of circumstances affected school attendance and the pupil has an EHC plan. Mrs X told me that the problems with attendance started in Autumn 2018, but the evidence shows the Council continued to fund full-time alternative provision until January. I am satisfied that by January there was evidence that efforts to get Mrs X’s son to engage with the five day package were not working.
38. A decision was made to end the two day off-site alternative education. This had the effect of placing Mrs X’s son on a three-day part-time timetable. The Council should have ensured alternative provision was in place for the two days Mrs X’s son was out of school and that he had a personalised plan to make his education up to full-time. There should have been a time limit set for his return to full-time education with regular reviews. This did not happen and was fault. Given that the setting up of a link with a mainstream school would not be in place immediately, and Mrs X’s son had previously required long transitions into new placements, it was reasonable to assume Mrs X’s son would build up to five days on-site provision over a period of months.
39. In its complaint response the Council said that it was Mrs X’s son who refused to attend school and five-day provision was always available to him. The Council however took no action to enforce attendance and was fully aware that Mrs X’s son had never attended his special school for five days, having received off-site learning from September 2018 until January 2019 two days per week. The Council also did not advise Mrs X to return her son to school when she requested financial support with home learning, nor did it advise the school to take any enforcement action. The correspondence with the school shows the Council condoned the part-time timetable put in place in February. Further, in May the Council told the school it was responsible for alternative provision, it would not have given this advice if its view was that Mrs X’s son should have been attending his current school full-time. I am satisfied the Council was fully aware that there was no realistic prospect of Mrs X’s son attending his special school full-time between February and July 2019 given that he had never attended more than three days and this was not the agreement at the February review.
40. The Council was wrong to advise Mrs X and the school in mid-February 2019 that it was for Mrs X to educate her son on the two days per week he was out of school. There was no obligation on her to do so. This was fault.
41. The Council is also wrong to say that as it had given the special school funding for five-day provision it had no duty to ensure Mrs X’s son received suitable full-time education during this period. Councils do have a duty under s.19 Education Act to intervene if they are aware a child might not receive suitable education without their intervention. Councils may ask schools to commission alternative provision but this does not absolve the Council of its own duty under s.19 if a school fails to do so. Funding arrangements are not a reason to delay providing a pupil with suitable full-time education and the Council should have sought to resolve any funding issues about commissioning provision separately. Alternatively, if the Council believed Mrs X’s son should have been attending his special school full-time it should have used its enforcement powers.
42. The Council also had a legal obligation to ensure the special educational provision in Mrs X’s son’s EHC plan was provided during this period. It should have considered whether the specific interventions in his Plan could be delivered within the three days he attended school or if provision needed to be delivered within the home.
43. The Council did chase the school about setting up the mainstream link but only after Mrs X complained about delay in May. The Council should have been reviewing the situation regularly as part of an action plan. It should not have been necessary for Mrs X to have to contact the Council to chase the school.
44. In April 2019 the Council issued an amended final EHC plan that did not name the link mainstream school. Mrs X appealed the contents of the Plan and the placement named. Mrs X raised concerns in her complaint in July 2019 that the Plan was not based on an accurate understanding of her son and that additional reports and provision was required.
45. I acknowledge that the Council only replied to one Mrs X’s four bullet points in her July 2019 complaint (about financial compensation) and did not address her other concerns. Mrs X has indicated to me she is still awaiting an investigation of the outstanding points by the Council. However, I am not persuaded that these are matters which I can include in my investigation. While Mrs X had concerns about whether there was adequate professional advice to inform the EHC plan and to identify a suitable placement and she considered additional provision in the form of psychological and other support was required, these were all matters which either could, or were, included in Mrs X’s appeal to SEND. An amended final EHC plan was issued in April 2020 following that appeal.
46. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal about the same matter, or about matters which are intrinsically linked to the appeal. This is the situation even if the tribunal or court has not provided a complete remedy for all the injustice claimed. The Courts have said that in setting out the Ombudsman’s jurisdiction, Parliament did not contemplate that a complainant who had used a right of appeal should ‘enjoy an alternative, let alone an additional right’ to complain to the Ombudsman. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
47. The Ombudsman cannot investigate the use of restraint at an educational placement in 2017 as we have no jurisdiction over schools.

Injustice

48. I find fault by the Council resulted in Mrs X’s son losing out on two days education per week education from 1 February 2019 until the end of that school year. As I understand it Mrs X’s son started attended two settings regularly from September 2019 following a series of visits in the Summer.
49. I also find that fault by the Council put Mrs X to additional time and trouble bringing a second complaint about loss of education as well as the time she had to spend home educating her son when provision such as home tutors should have been commissioned.
50. There is not enough evidence to show that Mrs X would have been able to work on the two days her son received alternative provision. This may have taken place at home and may have been for fewer hours per day as one to one tuition is generally accepted to be equal to a higher number of hours of group learning. I also note that Mrs X’s son has only ever attended the link mainstream school for two half days per week. I cannot therefore say that ‘but for’ the Council’s fault Mrs X would have been able to work full-time from February 2019.

Agreed action

51. Within one month of my final decision the Council will:
• Apologise to Mrs X and her son for failing to ensure full-time education was provided between February and July 2019.
• Pay Mrs X’s son £1200 (£200 per month for six months, taking into account school holidays) to acknowledge the impact of lost education.
• Pay Mrs X £300 to acknowledge her time and trouble supporting her son at home and in bringing a further complaint.
52. Within three months of my final decision the Council will review whether it has adequate systems and training in place around the use of part-time timetables and the commissioning of alternative provision. The Council should ensure compliance with government guidance and that all pupils receiving less than full-time education have personalised plans in place which the Council keeps under regular review. The Council should remind officers that while it may have delegated funding for commissioning alternative provision to schools, it cannot delegate its legal duty under s.19, and must intervene where schools have not taken appropriate action.

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Final decision

53. I have completed my investigation. There was fault by the Council in failing to intervene under s.19 Education Act and provide alternative provision when it became aware a pupil was receiving less than full-time education. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman