Summary: The complainant, supported by her advocate, complained that the Council failed to provide alternative education to her daughter when she was unable to attend her primary school because of her medical needs. We do not find fault. But the Council has agreed to consider a fresh complaint about the alleged delay in completing the daughter’s Education, Health and Care Plan. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council did not:
1. provide an efficient education to her daughter, Child B, between January 2020 to February 2021;
2. that home tuition was not provided;
3. that the stage one complaint response was inaccurate and misleading; and
4. that no officer telephoned her during the week of early January 2021 as promised in the stage one response.
2. Mrs X says that she has been caused avoidable distress and Child B has missed out on appropriate education.

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What I have investigated

3. I have investigated the above matters.
4. Matters, which I have not investigated, are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. The Council has investigated the complaint under its corporate complaint process. The Council did not uphold the complaints except for complaint (4), for which it apologised.
8. Mrs X is dissatisfied with the Council’s findings and considers that the Council had a duty to provide alternative education when Child B was not attending school.
9. I am satisfied that the Council’s complaint investigation is thorough. The Ombudsman will not normally reinvestigate a complaint if satisfied that the Council’s investigation has considered the relevant information and the conclusions flow from the facts of the case.
10. I have spoken to Mrs X’s advocate on the telephone. I issued a draft decision statement to the Council to the complainant’s advocate and I have taken into account any further comments before reaching a final decision.

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What I found

Legal and administrative arrangement

Special educational needs

11. A child with special educational needs may have an Education, Health and Care Plan (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. Section F sets out the specified special educational provision required.

Children out of school because of medical needs

12. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
13. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education.

Case law regarding section 19 alternative educational provision

14. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

15. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.

Details of the complaint

16. Child B attended her local primary school, School C. In 2019, Child B was diagnosed with complex needs, which included visual and communication difficulties, problems with attention and dyslexia. School C devised an individual education plan (IEP).
17. Mrs X made a request for a statutory assessment of Child B’s possible special educational needs. She has not complained about the delay in completing Child B’s EHC Plan as part of this complaint.
18. Because of an incident at School C in December 2019, Child B did not return to School C in January 2020. But did so in February 2020.
19. On 23 March 2020, schools were closed and Child B, like other pupils, was at home receiving online education.
20. In September 2020, when schools reopened, School C arranged for Child B’s return and suggested a parttime timetable to help her reintegrate. School C also sent work home which I understand Child B completed. The Council says that it is recorded by School C that Mrs X was satisfied with this.
21. School C and the Council’s special educational needs department asked for the medical information, which Mrs X had obtained, to support the view that Child B was medically unfit to attend school. However, it is recorded that Mrs X was unwilling to provide this.
22. The Council did have a report from an Educational Psychologist (as part of the assessment of Child B’s possible special educational needs) of 27 November 2020, which confirmed that Child B had complex needs. But the Educational Psychologist did not conclude that Child B could not attend School C with support and there was evidence that she was responding well to the work provided by School C.
23. Mrs X explored the possibility of Child B transferring to another primary school and the Council helped in this process.
24. Mrs X made a complaint. At the Council’s stage one response, it said that an officer would contact her about her request for home tuition in early January 2021, but no officer did.
25. In February 2021, the Council agreed to a placement at Mrs X’s preferred school and issued a final EHC Plan naming this school.
26. Child B now attends this school and is doing well.
27. In May 2021, an independent investigating officer completed his stage two report. The report provided a detailed chronology. The investigating officer concluded the complaints should not be upheld except for complaint (4)- that an officer did not contact Mrs X about the provision of home tuition in January 2021. However, the investigating officer did not find evidence that Mrs X had requested this before then.

Findings

Complaints (a) and (b): that the Council failed to provide an efficient education and did not provide home tuition

28. Child B remained on the school roll at School C between January 2020 to February 2021. The key issue is whether the Council’s s19 duty (provision of alternative education) was triggered when Child B stopped attending, primarily from September 2020 to February 2021.
29. Based on the Council’s investigation, it seems that School C tried to encourage Child B back to school and sent work home when she did not attend. In addition, Mrs X did not provide the medical evidence that Child B was medically unfit to attend school.
30. I recognise that Child B was not receiving an education at school between late 2020/early 2021. In early 2021, schools were however closed because of Covid-19.
31. Taking all the facts into account, it seems to me that there was an available school place for Child B, which was reasonable for her to attend. Mrs X was also unwilling to provide the medical information which supported her view that Child B was medically unfit to attend School C.
32. On this basis, my view is that the Council’s duty to provide alternative education was not triggered.
33. It also seems that Mrs X did not ask for home tuition until January 2021.

Complaint (c): that the stage one complaint response was misleading

34. It seems that Mrs X disagreed with the findings. Mrs X had the opportunity to escalate her complaint to stage two. The stage two report was detailed, and the investigating officer interviewed key personnel.
35. The investigating officer did not uphold this complaint because he considered the facts were accurate as reported in the stage one. But he considered there could have been more explanation in the Educational Psychologist’s report about Child B’s difficulties.
36. At stage three, the Council agreed to raise this with its Quality Assurance Team.
37. I am satisfied that the Council has properly considered this aspect of the complaint. My view is that there is insufficient evidence of fault. In addition, the stage two report made up for any omissions in the stage one response.

Complaint (d): that the Council did not telephone Mrs X during the first week of January 2021

38. The Council upheld this complaint and has apologised for its error. My view is that this is sufficient remedy.

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Final decision

39. My view is that there is no fault on the majority of complaints submitted to the Ombudsman. Accordingly, I will close the complaint.

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Parts of the complaint that I did not investigate

40. I have not investigated the actions of School C because we do not have the jurisdiction to look at internal school matters.
41. Mrs X has not complained about the Council’s delay in completing Child B’s EHC Plan. And the Council’s complaint investigation did not include this. I have therefore not looked at the EHC Plan process and whether there has been avoidable delay which has in turn delayed Child B’s placement at a different school, named in her EHC Plan.
42. We give councils the opportunity to consider complaints first. I understand that Mrs X is interested in making a complaint about the Council’s delay in completing Child B’s EHC Plan. As we cannot investigate this complaint, because it is premature, this is now a matter for the Council.
43. The Council has agreed to consider this as long as Mrs X’s advocate submits a formal written complaint promptly.

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Investigator's decision on behalf of the Ombudsman