The Ombudsman's final decision:
Summary: Mrs X complained that the Council failed to recognise it had a duty to provide alternative education for her son when he was out of school for health reasons and failed to ensure he received the support set out in his Education Health and Care Plan. The Council was at fault in failing to recognise its duties, failing to have proper policies and procedures in place, and failing to provide education. The Council has offered a suitable remedy including an apology, a payment for lost education and a review of policies and procedures.
- Mrs X complained that the Council:
- failed to recognise it had a duty to provide alternative education for her son when his school said it could no longer meet his needs and he was out of school for health reasons; and
- failed to ensure he received the support set out in his Education Health and Care Plan while he was out of school.
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)
- 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)
- 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. Once the person has appealed we cannot investigate the matter under appeal. (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’))
How I considered this complaint
- I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, policy and guidance on councils’ duties towards children out of school and those with special educational needs. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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.
What I found
Education for children out of school
- Local authorities have a duty to 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 provision. (Education Act 1996, section 19)
- Statutory guidance ‘Alternative Provision’ and ‘Ensuring a good education for children who cannot attend school because of health needs’ advise local authorities on how to carry out this duty. The guidance says:
- The duty means that “where a child cannot attend school because of health problems and would not otherwise receive a suitable full-time education, the local authority is responsible for arranging provision and must have regard to this guidance”.
- It applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend.
- The provision should generally be full time unless it is not in the child’s best interests.
- The law does not specify when alternative provision should begin for pupils with additional health needs. But councils should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
- Councils should have a written, publicly accessible policy statement on their arrangements to comply with their legal duty towards children with additional health needs.
Education Health and Care Plans
- A child with special educational needs may have an Education, Health and Care (EHC) Plan, following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section I names the school placement. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- Local authorities have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)
- Mr and Mrs X have a son, Y, who was attending a mainstream primary school, School 1. Y has special educational needs and suffers from high levels of anxiety. School 1 was providing extra support for him and he was waiting for an autism assessment by the Child and Adolescent Mental Health Service (CAMHS).
- In late November 2018, after some incidents at the School and Y then refusing to attend, Mrs X, the School and CAMHS discussed the way forward. They agreed that Mrs X would try to bring Y to school for one hour a day. The attempt failed on the first day due to Y’s anxiety and self-harming behaviour. Mrs X provided the School with a letter from Y’s GP dated 5 December 2018 signing Y off sick with anxiety for four weeks.
- Over the next couple of weeks Mrs X and the School tried unsuccessfully to get Y to return to school. The School told Mrs X it could not think of any further support it could provide other than what it was already offering.
- Towards the end of December CAMHS made a diagnosis of Autism Spectrum Disorder. Mrs X says CAMHS advised that Y needed a specialist placement. School 1 offered to send work home for Y but Mrs X declined as she did not think it was appropriate as he was so distressed by the School.
- In December 2018 School 1 and Mrs X asked the Council for an EHC needs assessment. In the School’s request it explained that Y had become so distressed and anxious about coming to and being at school that he could no longer attend. It said when his parents tried to bring him in it resulted in him self-harming. The Council agreed to the request and started an assessment.
- In early January 2019 Mrs X provided the School with another sick note from the GP signing Y off for a further six weeks with anxiety, possibly related to autism. The School contacted the Council’s Education Welfare Service (EWS), referring to previous discussions. The EWS confirmed that if the School had evidence the child was not well enough to attend school, and the School considered the reasons were genuine, it should mark the absence as ‘I’. This is the code for an authorised absence through illness.
- Mrs X provided further notes from the GP at the beginning of March and again at the beginning of May signing Y off each time as unable to attend school for eight weeks because of anxiety caused by his autism. School 1 continued to record Y’s absence as authorised because of illness until the end of the summer term.
- In May 2019 the Council completed Y’s EHC assessment and on 30 May it issued the final EHC Plan. The Plan did not name a school placement. In section I it named the placement as “Mainstream/Special/Non-maintained School/Academy”. The Plan included the following provision:
- a gradual re-introduction to an appropriate education setting, with attendance building up slowly with support to reduce anxiety;
- teaching strategies to help with social anxiety and communication skills, with support from trusted adults;
- a structured exercise programme for 20-60 minutes per day as advised by a physiotherapist.
- Y now had an EHC Plan and was waiting for a school placement from the SEN department more suited to his needs;
- Mrs X had queried whether she needed to continue to obtain medical notes given the case was now with the SEN department;
- “Given the length of time we’ve had medical notes for, and knowing how [Y] is in school when he’s here, the Head and I are satisfied that he is still too unwell to attend school and so will continue to mark his absence as I”.
- In response to the offer of tuition in August 2019, Mrs X asked why the Council had only now offered a tutor when Y had been out of school since November 2018. In response the Council said throughout the time Y had been out of school he had still been on roll at School 1. It said School 1 was responsible for providing for his education. It added that at no point had the Council agreed he needed ‘Education Otherwise than at School’ (EOTAS), as none of the professional advice obtained through the EHC needs assessment had said he could not attend a school setting.
- Mrs X replied on 10 October 2019 disputing the Council’s interpretation of its duties. She referred to the Council’s duty under section 19 of the Education Act 1996 to provide alternative education when a child was out of school through illness. She asked for a copy of the Council’s policy on alternative education. She also said the Council had failed to name a school or a type of school in section I of Y’s EHC Plan.
- In further correspondence between the Council and Mrs X, each side maintained its original position. Mrs X referred the Council to the statutory guidance referred to in paragraph 10 above.
Council’s response to the Ombudsman
- After some initial resistance to responding to our enquiries, for which it has apologised, the Council responded as follows
- It said it was not clear Y was out of school for health reasons when the GP first signed him off at the end of November 2018. It said Mrs X was choosing not to send him to school, wrongly relying on a GP’s certificate, despite a programme of attendance agreed by CAMHS and the School which she rejected.
- It said once the absence started, the Council should have taken action to enforce school attendance ‘in line with the scheme put forward by the School and CAMHS’.
- It accepted that when it became clear Y’s absence was going to continue for more than 15 days the Council should have provided alternative education for him.
- It accepted that the Council had not recognised its legal responsibilities towards Y to provide alternative education for him, and that it lacks a policy statement on this issue.
- Regarding support under Y’s EHC Plan, it said this could not be delivered while he was out of school. It said it provided short-term transitional support, starting with the individual tuition offered in September 2019.
- Send a personal apology to Mrs X for its failure to ensure educational provision for her son and its misleading correspondence
- Pay her £3,900 to recognise the loss of education for Y. This covers half the period of Y’s absence up to the end of May 2019 when the final EHC Plan was issued (three months) + the whole period from 1 June 2019 until it made the tuition available in mid-September (three and a half months). It said in the interests of goodwill it was ignoring the school summer holidays and offering the highest monthly rate for the payment under the Ombudsman’s remedies guidelines, £600 per month.
- Pay Mrs X £500 to recognise the failure to follow proper procedures and her time and trouble in pursuing her complaint.
Analysis – was there fault causing injustice?
Complaint a) – failure to provide alternative education while out of school
- I welcome the Council’s recognition that it failed to take proper account of its duties under section 19 of the 1996 Education Act in this case. However the evidence I have seen does not, in my view, support its stance that it should remedy the resulting loss of education for only three months of Y’s absence from school. The Council’s duty to provide alternative education applies if the child is out of school for medical reasons and would not receive suitable education without such provision. The provision should be made once it is clear the absence is likely to last more than 15 days.
- The Council disputes that Y was absent for medical reasons for all of the period he was out of school. It says Mrs X refused to comply with an attendance programme agreed with CAMHS and School 1, and instead chose not to send her son to school. Mrs X has provided evidence that there was no such programme. Rather events were as described in paras 14-17 above. She and School 1, supported by CAMHS, agreed Y would try to attend for one hour a day, but the plan broke down almost immediately.
- There is also evidence, provided by the Council itself, that the EWS was aware from early January 2019 that Y’s absence from school was supported by medical evidence and that School 1 accepted he was too unwell to attend. The Council repeatedly endorsed the use of the authorised absence code ‘I’ for sickness absence. Also the School’s request for an EHC assessment confirmed Y’s mental health difficulties as the reason why he could not to attend. I can see no reason not to treat Y as out of school for health reasons.
- From the end of November 2018 when Y first went off sick until the end of term in December, there was an attempt to return Y to school, and the School offered to send work home. But my view is that the section 19 duty applied from early January 2019 when the Council was aware Y was on authorised sickness absence and he was likely to be out of school for more than 15 days, as there were no other arrangements being made for his education. I therefore do not see the justification for offering a remedy for loss of education for only half the period up to when the Council issued the final EHC Plan.
- The Council appears to have divided up the period before and after the final EHC Plan on the basis that it offered tuition in September 2019 through the SEN department as a way of reintegrating Y into school as set out in the EHC Plan. But the Council had a duty to provide alternative education before the Plan was issued, for the reasons already set out.
- The Council has offered to remedy the loss of education up to 16 September 2019 when it originally offered the tuition, rather than up to 23 October when the tuition actually started. This is because it considers the delay in starting the tuition was the result of Mrs X placing demands and restrictions on the provision offered. Mrs X’s view is that the Council failed to take proper account of her son’s safety and transport difficulties and that until the Council offered home tuition, the provision was not suitable. She also says the Council delayed in responding to the queries and concerns she raised.
- I do not propose to investigate this issue further so as to make findings on who was responsible for the delay between September and October 2019 in putting the tuition in place. I do not consider it necessary to do so in order to recommend a remedy. It would take some time to arrange tuition whenever it was offered. But if the Council had offered it in January 2019 once it knew Y was on sickness absence likely to last more than 15 days, I consider it more likely than not that any difficulties with the arrangements would have been resolved then. Taking the total period without education from early January to 23 October 2019, allowing one month to resolve the issues and put the tuition in place, and excluding the school holidays, this amounts to around seven months without any education when the Council should have been providing it. I recommend a remedy for this below.
Complaint b) – failure to put in place special needs support in the EHC Plan
- The Council has a duty to ensure the support set out in an EHC Plan is arranged. It says in this case it was not possible to arrange the provision because it was dependent on Y being in school, and that it is very rare for health provision such as the physiotherapy sessions in Y’s EHC Plan to take place in the home. I have not seen any evidence that the Council took any steps to try to secure the physiotherapy. It made the offer of tuition in September 2019, almost four months after the final EHC Plan was issued. The Plan did not name a school or a type of school and the Council did not consult a school until 8 August 2019. If Y had been able to start at a new school sooner it is likely the support set out in the EHC Plan would have been in place sooner.
- However I do not propose to investigate these issues further. This is because first, the question of the placement named in an EHC Plan is a matter that is open to appeal. Mrs X used her right of appeal on this issue and so the Ombudsman cannot investigate the matter.
- Also, the question of whether there was unreasonable delay by the Council in identifying and arranging a new school placement was not part of Mrs X’s original complaint. But in any event any period when the EHC Plan provision was not in place overlaps with the period when Y was receiving no education at all. By setting the rate at the top end of the Ombudsman’s scale, the remedy the Council has offered for lack of education provision and the remedy I recommend below, already take account of the additional impact on Y of his special educational needs. So I could not achieve any more for Mrs X by further investigation into the reasons for the time it took to identify a new school placement.
- In my view the Council’s offer of an apology and £500 time and trouble payment to Mrs X is appropriate. But I did not consider the rest of the payment offered, although substantial, was sufficient to recognise the full extent of Y’s loss of education.
- The Council has agreed that within one month of the final decision on the complaint it will take the following action.
- Write to Mrs X directly with an apology for the faults found.
- Pay her £500 to recognise the distress, anxiety and inconvenience of coping with a child out of school and her time and trouble in pursuing her complaint.
- Pay her £4,200 to recognise seven months of lost education and special educational needs support at £600 per month. The Ombudsman usually recommends a payment of between £200 and £600 a month, taking account of factors such as the child’s special educational needs, the amount of education received during the period and the stage in the child’s school career. I have set the rate at the upper end of the scale to reflect the fact that Y received no education at all and that he has special educational needs.
- I have found fault in the way the Council dealt with education provision for Y while he was unable to attend school for medical reasons. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman