Summary: Mr X complained the Council failed to provide his son, F, with alternative provision or any education between February 2020 and July 2021. The Council failed to provide alternative provision for F between September and December 2020. The Council agreed to pay Mr X a total of £1650 to acknowledge F’s lost educational opportunity and for the upset and uncertainty caused to him.

The complaint

1. Mr X complained the Council failed to provide his son, F, with education or alternative provision between February 2020 and July 2021 when he was out of school for health reasons.
2. Mr X says F has lost out on educational and social development during this period which has caused him and the wider family distress and uncertainty.

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What I have investigated

3. I have investigated the period September to December 2020 and June to July 2021. I have not investigated the other periods and I explain why at the end of this statement.

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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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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)
9. 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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How I considered this complaint

10. I spoke with Mr X about his complaint and considered information he provided.
11. I considered the Council’s response to my enquiry letter.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Alternative provision law and guidance

13. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
14. The Ombudsman has published a focus report titled ‘Out of school, out of mind’. The report focuses on the responsibilities of councils to provide education when, for one reason or another, a child is not fully attending school. It says in situations where parents or carers keep their child out of school, for example because they believe it cannot provide effective education for the child, then a council has a duty to provide alternative education if it cannot reintegrate the child or decides not to pursue legal action for non-attendance.

The Coronavirus Act 2020

15. When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers. Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements. 

Education, Health and Care Plan (EHC) Plan

16. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.

The SEND Tribunal

17. Certain decisions related to special educational needs (SEN) have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
18. Some of the decisions which are appealable and usually out of our jurisdiction include:
• A council’s refusal to carry out an EHC assessment or refusal to reassess.
• A council’s refusal to issue an EHC Plan.
• About the provision specified in section F of the EHC Plan.
19. Where a parent has appealed to the SEND Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period, if these matters are being appealed.
20. If the tribunal makes a direction or order, councils have to take action within a specific timeframe as specified in ‘The Special Educational Needs and Disability (SEND) Regulations 2014.
21. Where the tribunal requires a council to amend the SEN provision specified in the EHC Plan the council is required to finalise the amended EHC Plan within five weeks of the order.

What happened

22. Mr X has a son, F, who at the start of 2020 was in year 6 in a mainstream primary school (school A). F has a diagnosis of autism and has significant social and emotional needs, however at the time he did not have an EHC Plan.
23. In February 2020 F stopped attending school A. Mr X said this was because of his anxiety and because the school was not meeting his needs. In March 2020 school’s shut because of the COVID-19 national lockdown. F remained at home for the remainder of the school year. Mr X said F was able to access some home education support as other pupils received during this period.
24. In August 2020 Mr X asked the Council to assess F for an EHC Plan which the Council agreed to do.
25. Following the COVID-19 lockdown between March and July 2020 schools reopened in September 2020. However, F remained at home and received no education between September and December 2020. There is no evidence the Council communicated with Mr X about reintegrating F back into education and no evidence it put in place any alternative provision. There is also no evidence the Council considered referring F’s case to the attendance officer for formal action against non-attendance.
26. The Council issued F’s draft EHC Plan in November 2020 and then his final EHC Plan at the end of December 2020. The Council named school A in F’s final plan. Mr X applied to the Council for funding to home school F as he was unhappy the Council named school A in the plan. The Council wrote to Mr X and refused to fund F’s home schooling as it was satisfied school A could meet F’s needs and deliver the provision outlined in F’s EHC Plan. Mr X remained unhappy that the Council had named school A in F’s final plan.
27. F remained at home from January 2021 onwards. Records show a meeting took place in February 2021 between the Council, school A and Mr X. The Council said it consulted with an external tuition company on behalf of school A. The Council remained of the view that school A could meet F’s needs, by either F attending school A or engaging with a home tutor.
28. In March 2020 Mr X submitted an appeal to the SEND tribunal against the naming of school A in F’s EHC Plan and around some of the provision set out in section F. Mr X wanted F to attend a specialist school setting, school B.
29. Mr X formally complained to the Council in April 2021 about F’s EHC Plan and his lack of education. The Council acknowledged Mr X had appealed to the SEND tribunal against the naming of school A. It confirmed school A was commissioning home tuition for F in order to deliver the provision outlined in F’s EHC Plan and was currently working to identify a suitable tutor.
30. Email records show Mr X chased the Council for an update throughout May 2021. At the start of June 2021, the tutor company told Mr X it had a tutor in place to start immediately. Mr X raised concerns with the Council about whether the tutor was suitable to meet F’s needs and said F would need some time to get used to the idea of a tutor. Two weeks later Mr X told the Council he had spoken with F’s doctor and decided it was too late in the school year. Mr X said the tutor company was reluctant to explain what qualifications the tutor had.
31. Towards the end of June the Council conceded to Mr X’s tribunal appeal. The SEND tribunal issued a consent order which showed the agreement was made between the Council and Mr X around the provision set out in section F. The order also said the Council and Mr X had agreed that school B would be named in the plan. The Council issued F’s revised final EHC Plan in July 2021 and F started at school B in September 2021.
32. The Council issued Mr X with a final response to his complaint. It said it could not comment on F’s lack of education prior to December 2020 as expectations varied due to national guidance around COVID-19. Regarding F’s tuition, the Council said its view was that school A could meet F’s needs and the provision set out in his EHC Plan but accepted this did not happen due to the breakdown in relationship. So, it said it did not oppose school A putting tuition in place. The Council said it sent out consultations for tuition however it was for school A and the provider to put the service in place if it felt it necessary.
33. Mr X remained unhappy and complained to us.

My findings

34. Case law has established that what is ‘suitable’ education is for the Council to decide. The primary question around whether a council is under a duty to provide alternative education where the reason for the child’s absence is ‘other’ is whether the current arrangements make it reasonably possible for the child to attend. Where a school does not make appropriate arrangements for a child who is missing education through illness or 'otherwise', the Council must intervene and make such arrangements itself.
35. Between September and December 2020, the Council carried out an EHC assessment and issued F’s EHC Plan. The Council was aware that F had not attended school A since February 2020 and that he was not receiving any education. There is no evidence the Council took any steps to follow up on F’s absence or try and reintegrate F into school A from September 2020 onwards. Neither did it consider or put in place alternative provision for him. There is also no evidence the Council considered referring the matter for formal action for non-attendance. The Council failed to intervene and make appropriate arrangements for F’s education between September and December 2020 and also failed to take timely action to address F’s non-attendance. This was fault and meant F missed out on educational opportunity during this period. It also caused Mr X distress and uncertainty.
36. The Council issued F’s final EHC Plan in December 2020 which meant Mr X had a right of appeal to the SEND tribunal, which he used in March 2021. The Council complied with the tribunal consent order and issued F’s amended final EHC Plan in July 2021 towards the end of the academic year. Part of Mr X’s complaint is about the Council’s failure to put in place tuition for F between February and July 2021. However, the matter was with the tribunal for nearly all of this period and as explained in paragraph 19, I cannot investigate the Council’s actions during this period. By the time the Council issued F’s amended plan it was also very near the end of the academic year. Records also show Mr X declined tuition at the start of June. In the circumstances, given Mr X declined tuition at the start of June I cannot say the Council is at fault for failing to make provision for F for the short time in July after it issued the amended plan.

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Agreed action

37. Within one month of the final decision the Council agreed to:
• Pay Mr X £1500 to recognise the loss of education for F between September and December 2020. Mr X should use the payment for F’s educational benefit.
• Apologise to Mr X and pay him £150 to acknowledge the upset and uncertainty caused by the Council’s failure to put in place alternative provision for F between September and December 2020.
38. Within two months of the final decision the Council agreed to review how it manages children who are out of education for reasons other than exclusion or illness. The review should include a reminder to staff that where the Council cannot reintegrate a child back into school or decides not to take legal action for non-attendance then it has a duty to provide alternative provision.

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Final decision

39. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Parts of the complaint that I did not investigate

40. I have not investigated the period March to July 2020. This is because all schools and colleges were closed because of COVID-19 except for key worker and certain other groups of children. F did not have an EHC Plan during this period, but he remained on roll at school A and had the same access to remote learning as other children. Further investigation into this period would unlikely find the Council at fault due to the unprecedented nature of the pandemic.
41. I have also not investigated F’s lack of education in line with his EHC Plan for the period January to June 2021. This is because Mr X had appealed both the named placement and the provision in F’s EHC Plan to the SEND tribunal and the case remained with the tribunal during this period. I therefore did not have jurisdiction to investigate this period.

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Investigator's decision on behalf of the Ombudsman