Summary: Mrs X complained the Council failed to provide her son (Y) who has special educational needs with education or suitable alternative provision when he was unable to attend school due to ill health. We find the Council at fault as it did not act sooner to arrange alternative provision for Y and review the matter. The Council should apologise to Mrs X and make payments to reflect Y’s missed education and uncertainty and frustration caused. The Council should also make service improvements to prevent recurrence.

The complaint

1. Mrs X complains the Council:
1. Failed to provide her son (Y) education or suitable alternative provision in line with his Education Health and Care plan (EHC plan) between January 2020 and May 2022.
2. Refused her request to include Education Other Than at School (EOTAS) provision and a personal budget in Y’s final EHC plan.
2. Mrs X says the Council’s failures caused Y to miss education and he was unable to complete his GCSEs. She says the situation also caused her and Y distress, uncertainty and she went to time and trouble trying to resolve the complaint.
3. Mrs X wants the Council to apologise and make payments to reflect Y’s missed education and the uncertainty and distress caused. She also wants the Council to improve its processes to prevent recurrence.

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What I have and have not investigated

4. I have investigated the complaints above save that:
• For 1(a) I have not investigated any failure by the Council to ensure education and EHCP provision for Y prior to July 2021. This is because Mrs X said she did not inform the Council Y was out of school until this point. Prior to this Mrs X said she was liaising with Y’s school. We cannot investigate what happens in schools as set out in paragraph 6 (below).
• I have not investigated 1(b) as Mrs X had the right to appeal Y’s final EHC plan but did not. And I consider it reasonable for her to have done so, as explained in paragraph 7 (below).

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. If we are satisfied with an organisation’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)
10. 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

11. I have considered information provided by Mrs X and discussed her complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
12. I considered our ‘Guidance on remedies’ and our July 2022 focus report on children out of school, “Out of school, out of sight”.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Education Health and Care Plans

14. A child with special educational needs (SEN) may have an Education, Health, and Care (EHC plan). This sets out the child’s needs and what arrangements should be made to meet them. This includes details of the child’s school or educational placement.
15. The EHC plan is set out in sections which includes the child or young person’s special educational needs, the special educational provision needed by the child or the young person and the name and/or type of school.
16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 ss1&2 Children and Families Act).

Right to Education and Alternative Provision

17. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
18. Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” The only exception to this is where the physical or mental health of the child is such that full-time education would not be their best interest. (Education Act 1996, section 19(1))
19. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
20. The education provided by the council must be full-time unless the council decides that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
22. Our July 2022 focus report on children out of school, “Out of school, out of sight” highlights the duty of councils to arrange alternative provision when a child of compulsory school age cannot go to a school. In such cases, councils should keep all plans for the young person under review and not allow them to drift. The report made seven recommendations based on examples of good practice seen. It said councils should:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) and even when a child is on a school roll.
• Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
• Keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

23. The Council’s school term dates for the academic year 2021/2022 were:
• Autumn term 1 September until 17 December (16 weeks less 1 week half term between 25 to 29 October).
• Spring term 4 January until 8 April (14 weeks less 1 week half term between 21 to 25 February).
• Summer term 25 April until 21 July. (13 weeks less 1 week half term between 30 May to 3 June).
24. When recommending a remedy, we seek to remedy the injustice caused because of identified fault. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all the specified support – that was made during the period.
• Whether additional provision can now remedy some or all the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.

What happened

25. Mrs X’s son (Y) has special educational needs and an EHC plan. Y attended a school, (School A) which provided Y with a bespoke package of support at the site, to meet his educational needs.
26. The records show Y was diagnosed with mental health issues in early 2021 and then struggled to attend School A. At this time Y was in year 10. School A placed Y on a reduced timetable and provided online learning options to help him reintegrate back into education but this was unsuccessful.
27. Mrs X says she discussed Y’s absence with the school on multiple occasions but only approached the Council about it in July 2021.
28. The Council records do not show any evidence of Mrs X’s July contact. However, in early August, Mrs X requested a full EHC re-assessment for Y. The records indicate the Council would have been aware of Y’s absence issues from this point onwards.
29. The Council issued a Final EHC plan for Y on 14 September 2021.
30. Y’s final EHC plan named School A. It provided for:
• Support in school
• Tri-weekly one-to- one and group skills focused on reading and discussion
• Weekly group social skills
• Daily access to targeted support
• Daily Reflection support
• Guided tri-weekly reading comprehension
31. The final EHC plan also stated Y’s average school attendance was 51% and he only attended twice a week. It noted the impact of Y’s absence on his family who were struggling to cope and worried about his academic progress.
32. Mrs X said Y continued to miss school from the Autum term in September 2021 and almost completely stopped attending by December 2021.
33. The school’s records show Y’s attendance between September and December 2021 (Autumn term) was 51.1 %. The Council has not provided any evidence to show what actions it took to monitor and address Y’s attendance. It also has not evidenced if it took any enforcement action for Y’s absence or provided Y alternative provision in this period.
34. Mrs X said Y also continued to miss school in January 2022 and she therefore requested an early review of Y’s EHC plan on 21 January.
35. In her request Mrs X explained Y had not attended school due to his mental health issues.
36. The records show the school also informed the Council that Y’s attendance had been sporadic. The school confirmed Y had not sat his mock exams, and it did not believe it could support him through the further stages of his education.
37. On 25 February, the Council reviewed Y’s EHC plan. The review noted:
• Y had attended school in September and October 2021 but since the half term there had been a lot of absence.
• Y had not attended school since the start of the Spring term (January 2021).
• The school attendance team had visited Y at home. He had agreed to attend three times a week but was unable to maintain it.
• Y wanted to be home educated to catch up on education he had missed.
• The school had tried adjusting Y’s learning to encourage him to attend but he would not engage. The school felt there was little further they could do to help Y if he did not attend school.

Mrs X’s complaint

38. In April 2022, Mrs X complained to the Council, she said:
• The Council had failed to meet its duties to provide Y with education or alternative provision when he was unable to attend School A due to ill health.
• Y had not attended school for almost two years due to poor mental health.
• Y’s school could no longer not meet his educational needs.

The Council’s responses

39. In its stage 1 response, in May the Council said:
• The school had confirmed it could meet Y’s needs at the February annual review. However, this was subject to Y attending School A.
• School A had liaised with Y’s GP to complete a referral to a well-being hub to help address Y’s school avoidance.
• It did not have any information to confirm Y was absent due to health reasons.
• Mrs X had said Y’s GP would send Y’s health information, but School A had not received anything. If Mrs X had any letters or reports about Y’s health, she should share them with School A and Council.
• School A had reviewed Y’s timetable to give him the opportunity to choose lessons he felt comfortable with and attend part-time with a view to increasing his attendance.
40. Mrs X was not satisfied with the Council’s response and escalated her complaint.
41. In its further response, in June the Council said:
• It now accepted Y was unable to attend school due to his mental health issues.
• Previous attempts to support Y with part-time attendance were unsuccessful.
• It also accepted Y felt he was no longer able to attend school and had struggled with online leaning.
• It had made a referral to an alternative tuition service to provide Y with provision while a long-term plan was confirmed.
42. Unhappy with the Council’s response Mrs X approached the Ombudsman in July.

Was there fault and did it cause injustice?

Mrs X says the Council failed to provide her son (Y) education or suitable alternative provision in line with his EHC plan between January 2020 and May 2022.

43. Mrs X said Y started missing school from January 2020. However, the records indicate the Council was not aware of this until August 2021. Therefore, I have looked at what the Council did from August 2021 until May 2022.
44. The evidence shows the Council was aware Y was missing school because of health-related issues from August 2021. The records confirm Y’s school attendance between September and December 2021 was just under 50%. The evidence also indicates Y stopped attending completely from January 2022 until the end of the Spring term on 8 April. The Council also accepted Y had stopped attending from the start of the Spring term in its final response.
45. The evidence shows Y therefore missed:
• Half of the Council’s Autumn school term as set out in paragraph 23 (above) between 1 September and 17 December 2021. This is approximately seven and a half weeks of weeks of missed education and associated SEN provisions as set out in his EHC plan (see paragraph 30).
• The entire Spring term between 4 January and 8 April 2022 (see paragraph 23). This a further 13 weeks of missed education and associated SEN provisions as set out in his EHC plan (see paragraph 30).
46. The Council explained School A had advised it could meet Y’s needs and it did not have necessary medical evidence to confirm Y’s health situation. But councils must make their own decisions about a child’s need for alternative education, even if there is no evidence or conflicting evidence from other professionals. It is also the Council’s responsibility to decide whether alternative education is necessary, not the school or parents. Councils can ask schools to make referrals or carry out assessments, but the council ultimately remains responsible.
47. The Council has not clearly shown how it addressed Y’s absence and why it did not arrange alternative provision in line with his EHC plan for the periods mentioned at paragraph 45 (above). The Council was under a duty to provide Y alternative provision once he had missed 15 days of education as set out in paragraphs 18 and 19 (above). If it did not think alternative provision was necessary, it should have taken action to enforce Y’s attendance and recorded its rationale. The Council’s failure to do so is fault which caused Y injustice as he missed out on education and SEN provisions as set out his EHC Plan (see paragraph 30) for the period mentioned at paragraph 45 (above). This also caused Mrs X avoidable uncertainty and distress about Y’s situation. This is further injustice.
48. The Council’s approach was also inconsistent with our focus report guidance on good practice as explained at paragraph 22 (above). The evidence indicates the Council allowed Y’s matter to drift without suitable early intervention despite Y’s complex special educational needs. This was also during an important period of Y’s education when he was preparing for his GCSEs. The Council’s failure to monitor and suitably review Y’s case earlier is fault. It caused Y injustice as he was unable to complete his GCSEs in time. This also caused Mrs X further uncertainty and distress about Y’s academic progress and wellbeing. This is further injustice.

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Agreed action

49. Within a month of my final decision, the Council should:
• Write to Mrs X and apologise for its failure to provide her son (Y) with education or suitable alternative provision in line with his EHC plan between 1 September 2021 and 8 April 2022 and uncertainty and distressed caused.
• Make a payment to Mrs X of £500 in recognition of her distress and uncertainty.
• Make a payment to Mrs X of £3000 to reflect the failure to provide Y education or suitable alternative provision in line with his EHC plan between 1 September 2021 and 8 April 2022.
50. Within three months of my final decision, the Council should:
• Provide suitable staff training or reminders to staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school for any reason. The Council should consider sharing a copy of our focus report “Out of school, out of sight?”.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I find the Council failed to provide Mrs X’s son (Y) education or suitable alternative provision in line with his EHC plan, between 1 September 2021 and 8 April 2022. The Council should apologise to Mrs X and make payments to reflect Y’s missed education and uncertainty and frustration caused. The Council should also make service improvements to prevent recurrence.
53. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman