Summary: Ms X complained that the Council failed to provide her son, E, with a full-time suitable education and failed to communicate effectively with her. We found some fault. This failure has caused E an injustice as he has missed out on education. We have made recommendations to knowledge that injustice.

The complaint

1. Ms X complained that the Council:
1. Failed to provide E with an education or alternative education from January 2020 to August 2021
2. Failed to communicate with her, and
3. Delayed dealing with her complaint.
2. She says this has caused her and E an injustice because E missed out on an education and she has been unsupported during a difficult period.

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What I have investigated

3. I have investigated the above complaint issues. I have set out parts of Ms X’s complaint that I did not investigate in the final paragraph of this decision.

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The Ombudsman’s role and powers

4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. 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)
8. 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.
9. 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

10. I made enquiries with the Council.
11. I researched the relevant law and guidance.
12. Ms 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

Relevant law

Education, Health and Care Plans (EHCPs)

13. 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. We cannot direct changes to the sections about education or name a different school. Only a tribunal can do this.

Alternative education

14. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
15. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• provide suitable full-time education as soon as it is clear the child will be away from school for 15 days or more;
• 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; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.

16. The guidance says, if a child receives one-to-one provision, the hours of
    face-to-face provision could be fewer than provided in full-time education, as the provision is more concentrated.
17. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
18. In the Focus Report, we made recommendations based on examples of good practice seen. Those particularly relevant to this case are that Councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

19. Local authorities should:

• Ensure that the education the child receives is of good quality, preventing them slipping behind their peers and allowing them to reintegrate back into school as soon as possible.
• When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities. January 2013)

COVID and education

20. The Government passed the Coronavirus Act 2020 which had the effect of amending s.19 of the Education Act 1996 between March 2020 and September 2020 so that Council’s no longer had a statutory duty to provide education for those absent from school but had only to use ‘reasonable endeavours’ to do so.

What happened

21. E is a young person under the age of 16. He has an EHCP.
22. Below is an account of the main events relevant to this complaint. It is not meant to be a comprehensive chronology. I have separated out the different periods of missed education to analyse the Council’s duties in each phase and whether I consider it has been at fault for those individual periods of missed education.

February 2020 to March 2020

23. In February 2020, E was excluded from school (“School P”), for two days.
24. The Council met with Ms X to discuss the situation. E went back to School P for a few days but then did not attend again between 24 February 2020 and 17 March 2020. His absence was recorded as unauthorized.
25. From 18 to 20 March 2020, School P was open but the Council says Ms X chose to keep E at home because she was concerned about the COVID-19 pandemic.
26. On 23 March 2020, schools in England closed to most pupils, apart from children of key workers and those who were vulnerable, as part of the first national lockdown. E’s school was closed until 8 June 2020.
27. A meeting between Ms X and the Council about E’s non-attendance was scheduled for 26 March 2020. However, Ms X cancelled the meeting as she had COVID and had to self-isolate for 14 days in line with the current guidance.
28. The Council says that, on 24 March 2020, School P’s headteacher made a welfare-check on Ms X and E, to see if they needed any support. The Council says the headteacher asked Ms X about home learning and whether she needed any resources. It says Ms X says she was happy with what she had received and was also accessing education from the internet. The Council says the school maintained contact with E throughout the lockdown as part of its COVID support programme.
29. Ms X denies the above. She said when teachers attended to check on E, she was away. She says teachers posted homework for E through her letterbox.

Analysis

30. The Education Act 1996 says that, as soon as it is clear that a child will be away from school for more than 15 days, councils should provide suitable full-time education to that child.
31. E missed two days in mid-February and a period just over 15 days in late February and March 2020. I do not consider the Council was at fault for not taking further action to ensure E was receiving a full-time education at this stage. It held a meeting shortly after the period to discuss what steps to take and this period included a period around the COVID pandemic, when there were understandable concerns about school attendance.

March 2020 to July 2020

32. Between March 2020 and July 2020, the Council was making efforts to arrange an EHCP for E. E did not attend school during this period. The Council was in discussion with Ms X and other schools to see if it was possible for him to attend a different school and for that school to be named on E’s EHCP.
33. On 22 July 2020, E’s EHCP was finalised. School P remained named on his Plan. Ms X was informed of her right to appeal this decision if she chose.

Analysis

34. E did not attend school during this period. However, School P was closed due to the lockdown. Although the school re-opened on 8 June 2020, as E did not have an EHC plan at this point, the Council did not have a duty to encourage E to attend. I do not find the Council at fault for this period.

September 2020 to December 2020

35. E returned to School P in September 2020 and attended until 25 September 2020, bar one absence.
36. However, on 25 September 2020 Ms X wrote to her local councillor about School P. She said she was unhappy with School P and felt that E could potentially be excluded again. A few days later E received a five-day exclusion.
37. On 1 October 2020, E went back to school. Ms X reported that the staff at School P were involved in an incident which caused injury to E.
38. From 5 October to 23 October, E did not attend School P. His absence was recorded as unauthorized.
39. On 7 October 2020, Ms X wrote to the Council’s Local Authority Designated Officer (LADO). - A LADO is the person who should be notified when a parent has alleged that someone who works with children has behaved in a way which has harmed or might harm a child.
40. In her email, Ms X described the incident that she alleged happened at School P and said that, as a result, E had to take time off school. She said School P’s response was to exclude E. She asked for a safeguarding meeting.
41. The Council held an online meeting with Ms X the following day at which she said she would not be sending E back to School P because of the incident.
42. On 11 October 2020, Ms X made a complaint about a special educational needs education officer, who, she said, had minimised her concerns during the online meeting. She said she had been forced to educate her son herself and had had to ‘almost beg’ for schoolwork for him.
43. On 21 October 2020, the Council LADO responded to Ms X’s 7 October letter. She said she had visited the school and viewed CCTV footage of the incident Ms X referred to. She said she had also reviewed staff statements. She said she found no cause for concern. She said that it might be helpful for Ms X to view the footage of the CCTV footage if it was practicable. In an email to the LADO on the same day, Ms X asked to see the CCTV footage. The Council says the LADO spoke with Ms X and advised her to speak with the school about viewing the CCTV. It says Ms X did not contact the LADO about the CCTV again.
44. On 1 November 2020, Ms X said E would now be staying at home because of COVID. She asked for homework packages and said she was willing to consider a reduced timetable for E in the future.
45. On 13 November 2020, the Council wrote to Ms X to inform her that it did not consider this approach to E’s education was appropriate. It pointed out that, as E had an EHCP, he should be receiving education and suggested a reintegration plan. It said E would be allocated a new learning support assistant at School P. It informed Ms X it had set up an online meeting on 23 November 2020.
46. The Council stressed to Ms X that she had parental responsibility and a legal duty to ensure E attended school regularly and said that, if she did not, it might take legal action against her.
47. Ms X responded that she would attend the meeting and that she was pleased that the Council had arranged a new learning support assistant for E. However, she said she was concerned that no one had called her to enquire about her son’s injury and that no one had provided any homework for her son.
48. In a later email, Ms X said she had not withdrawn E from School P formally. She said that she had had no choice but to home educate him. She said she wanted E to be reintegrated quickly because he had missed over a year of schooling.
49. From 1 December to 14 December 2020, E began his transition back to school. He attended in the mornings. The Council says he was provided with home learning packs to complete in the afternoons, as well as reading books.

Analysis

50. E did not go to school from 5 October to 1 December 2020, when he began a re-integration timetable. He was a pupil with an EHC plan and the Council, when it became aware that he was not receiving an education, should have acted to ensure that he did.
51. On 22 October 2020, the LADO completed her investigation of Ms X’s allegations and concluded that they were unfounded. Therefore, on the face of it, there was no reason why E should not have attended School P after that date.
52. On 26 October 2020, when E did not attend at school, the Council should have started to take steps to ensure E had a full-time education. When, on 1 November 2020, Ms X said that E would not be returning to School P, especially in the light of the LADO’s report, this should have increased the urgency of this action.
53. In fact, the Council took almost two weeks to respond to Ms X’s email setting out that she would not be taking E back to School P. It then organised a re-integration timetable but I have not seen evidence that it ensured E was receiving an education from 26 October to 1 December 2020, a period of over a month. I consider that, particularly because E had already missed so much school, the Council should have acted quicker to ensure that E had an alternative education while he was not attending school. It was right to remind Ms X that she had a responsibility to ensure E attended school but, while it sought to work with her to ensure this happened, it should have moved more quickly to educate E. This is fault and I have made a recommendation that acknowledges the injustice caused by missed education for E.

January 2020 to 5 March 2021

54. On 18 January 2021, School P contacted Ms X and E to discuss returning to school. Ms X was concerned that E would have to build a relationship with a new one to one teacher. She was also concerned about travelling to school on the bus. The school agreed to provide them with access to internet learning.
55. On 25 February 2021 the records show a re-integration meeting was held via zoom. I have also seen records showing phased return re-integration timetables provided to Ms X in March 2021.
56. E did not attend at School P during this period.

Analysis

57. Between these dates, because of the COVID pandemic, children were not expected to attend school. However, schools were expected to strongly encourage vulnerable children to attend. If they did not attend, schools and local councils were expected to work together to explore the reason for absence, discussing their concerns using supporting guidance considering the child’s circumstances and their best interests. The focus should be on the child’s wellbeing and their ability to access appropriate education and support while at home.
58. I do not consider the Council took sufficient steps to work with Ms X to return E to school. It appears one meeting was held where Ms X discussed her concerns about E having to build a relationship with a new 1:1. But E had already had significant periods off school. I would have expected to see more involvement. E had access to internet learning but I have seen no evidence that the Council was aware that he actually engaged in this or that it checked he was, so far as was possible, being strongly encouraged to attend school. Parents have a legal duty to make sure their children attend school and when Ms X did not consider it was appropriate for E to attend, this should have been further explored. The Council’s failure to do so is fault.
59. I have taken into account that E could have made use of internet resources in the recommendation I have made to acknowledge the injustice caused by the fault.

March to July 2021

60. On 7 March 2021, the Council issued an amended EHCP. In this, it named School Z, a specialist school, for E to attend. Ms X says this was against her wishes. She did not appeal the decision, but she said this was because the Council engaged with her about the issue.
61. The Council says School Z sent schoolwork home for E and that it said it could provide tuition on a temporary basis until arrangements could be made to better manage E’s issues. It also says that Miss X declined to accept any educational resources from School Z.
62. On 15 March 2021, Ms X informed the Council she wanted a change of school for E. She wanted E to attend another school, School D. The Council said it made enquiries with this school but it was unable to meet E’s needs.
63. On 26 March 2021, the records show the Council had a conversation with Ms X. She said she would not be sending E to School Z. She said this was because:

• School Z said E had to wear uniform
• When E had issues, Ms X was not able to enter the school because of COVID precautions

64. Ms X again said she wanted E to attend School D and she wanted the Council to provide tuition in the meantime.
65. An emergency annual review was held. The Council again named School Z in E’s EHCP. This was not supported by Ms X, who said she would not send E to School Z. She did not appeal the decision.
66. On 22 April 2021, Ms X complained about the service she had received. She said, among other things, that:

• The Council did not respect her wishes,
• E was now enrolled in a school that was not suitable for him, and
• She had had to pay for a tutor because the Council had not ensured that E had an education.

67. The Council did not respond to this complaint. It accepts this was an error and apologised to Ms X in July 2021.
68. On 23 April 2021, Ms X said she had decided to home educate E. The Council said it did not consider this was appropriate.
69. On 10 May 2021, the Council wrote to Ms X and said that E needed to attend school at School Z.
70. The records show that the Council considered taking action against Ms X for E’s lack of attendance at school. However, it did not think it was appropriate at this point. It noted that Ms X had found the whole situation very difficult and stressful and it wanted to be mindful of the significant impact on her mental health.
71. On 19 May 2021, another officer noted that he considered, “…[E’s] continuous non attendance [would] now be a attendance issue.” He noted that Ms X was aware that she could appeal against the placement at School Z.
72. However, upon further consideration, the Council decided that it was still not appropriate to take legal action.
73. In June 2021, Ms X took her complaint to the Ombudsman.
74. In August 2021, the Council met with Ms X to discuss her complaint and find a way forward. It was agreed, among other things, that:

• E could have an Education Otherwise than at school package with a tutor until April 2022.
• E would have new assessments to get the support he needed.

75. Ms X felt that the Council should have apologised to E for the mistakes it had made.

Analysis

76. The Council says that, after E’s exclusion from School Z, every attempt was made by the Council and School Z to get E back into school. However, it says Ms X refused to send E back. It says that E was on roll at School Z and so School Z was responsible for ensuring E received an education. That is not correct. As E had an EHC plan it was the Council’s responsibility to ensure E received the provision set out in his plan.
77. I accept that, initially, the Council took adequate steps to try to ensure E received an education. However, from April 2021, when Ms X said she would home educate E, I consider the Council should have done more. It did not consider it was appropriate for Ms X to home educate E and Ms X said that E was not receiving an education. It did not respond to her complaint. It has apologised for this. However, this failure left Ms X and E without support and E without education for three months.
78. The Council decided it was not appropriate to take legal action to encourage Ms X to send E to school. That was a matter for the Council. It was concerned about Ms X’s mental health. However, having taken that decision, it should still have done more to provide E with an education. He was, it appears, not receiving any education. The Council should have taken steps to ensure that he was receiving suitable education. I consider it was at fault and have made a recommendation to acknowledge the injustice caused.

From September 2021

79. In September 2021 home tuition started. E initially received two hours per day, which increased to four hours per day from January 2022.

Analysis

80. Ms X does not consider E received the package promised in the Council’s August 2021 response. She has not yet raised this issue with the Council so, if she wishes to complain about that, she must make a separate complaint to the Council. We cannot investigate complaints before a council has had an opportunity to address them itself first.

Conclusion and a note on remedy

81. This was a challenging case for the Council to address. Ms X was anxious about sending E to the schools chosen for him. The Council was mindful of her mental health. However, if it chose not to take legal action to persuade Ms X to take E to school, it still had a legal duty to ensure E had a full-time education. It did not do so. This was fault and this fault caused injustice as X did not receive an adequate education. I have recommended a financial remedy in recognition of this injustice.
82. The sum I have recommended takes into account that I have seen records which indicate there was some educational provision available to E. I have not taken into account the package that the Council said it would provide to E in August 2021. Although the Council suggested this would ‘remedy’ the situation that had developed, it would only serve to ensure that E was set up for education from September 2021 onwards and does not remedy the periods of education he missed out on in previous periods.

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Agreed action

83. Within a month of receiving our final decision, the Council should:

• Apologise in writing to E for the fault identified in this decision.
• Pay £1400 to Ms X to be held in a trust account for E when he reaches the age of 18. (This is calculated at £200 per missed month of education.)

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Final decision

84. I have found the Council at fault and have suggested recommendations to remedy the injustice caused. I have now completed my investigation.

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Parts of the complaint that I did not investigate

85. I have not investigated Ms X’s complaint about the Council requiring E to attend at a school she did not approve of. Ms X had a right of appeal against this decision, and it is therefore beyond our jurisdiction.

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Investigator's decision on behalf of the Ombudsman