Summary: There was fault by the Council in failing to provide suitable fulltime education when a child was unable to attend school due to medical needs. This caused the child to miss out on education and caused the parent carer unnecessary inconvenience and distress. The Council will apologise and make a payment of £3900 to acknowledge the injustice caused.

The complaint

1. Ms X complains on behalf of her son, whom I shall refer to as Y, that:
• The Council failed to follow professional advice when it issued an Education, Health and Care (EHC) Plan in August 2022.
• The Council failed to provide suitable alternative education when Y was unable to attend school due to medical needs from January 2022.
2. Ms X says because of the fault she incurred costs arranging private tuition and support for Y’s mental health. Ms X says her employment was affected as she had to reduce her hours of work and change role to be at home with Y. Ms X also says Y missed out on sitting entrance exams to potential schools as he fell behind in his work.

Back to top

What I have and have not investigated

3. I have investigated the above complaint issues except where Ms X has used a right of appeal to a Tribunal about the same matter. This is explained further below.

Back to top

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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
• We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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.
7. 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)

Back to top

How I considered this complaint

8. I have considered information provided by Ms X and the Council including the complaint correspondence, Ms X’s grounds of appeal and documents relating to the Education, Health and Care (EHC) plan process.
9. I have considered relevant law and statutory guidance including:
• The Education Act 1996
• Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs
• The Children and Families Act 2014 and associated SEND Regulations and Code of Practice.
10. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report ‘Out of school…out of sight’ (2022).
11. 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.

12. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

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 the tribunal can do this.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
15. Councils must 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 arrangements. The provision generally should be full-time unless this is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. ‘Suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

18. Statutory guidance says councils should provide s.19 education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with medical professionals to ensure minimal delay in arranging appropriate provision.
19. The Courts have found that it is a judgement for the council whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of sight? published in 2022)

Key events

21. In 2020 Y was on the waiting list for assessment by Child and Adolescent Mental Health Services (CAMHS) and for an autism assessment.
22. In November 2021 Y was put on a part-time timetable (mornings only) by his mainstream primary school.
23. In January 2022 CAMHS advised at a meeting attended by the Council’s social worker that Y should not attend school due to mental health concerns. Ms X says the school sent home worksheets but no online or face to face tuition was offered.
24. Ms X is a single working parent. In January 2022 Ms X says she had to cut her hours at work due to Y being unable to attend school and change to a role she could do remotely from home. Ms X says Y did not engage with the work school sent home.
25. Ms X applied for an EHC needs assessment to see whether Y required an EHC plan. The Council agreed to assess.
26. Ms X says at a meeting with school, CAMHS and the social worker in February the social worker advised the school to apply to the Council for alternative education to be provided.
27. At the end of March Ms X started to pay privately for Provider A to support Y’s mental health and learning.
28. The alternative education provider team contacted Ms X in March. Ms X says this team advised her the Council should fund Provider A. Ms X says the Council refused saying it could not do this until Y had an EHC plan.
29. In late March the Council offered two hours per week teaching assistant (TA) support.
30. Ms X says a few months later she started paying privately for a tutor one hour per week as she was concerned Y was falling behind. Shortly after this the Council increased the TA time to 3 hours per week and then later added one hour tutor time.
31. Emails between the Council, alternative provider and Ms X indicate the Council’s panel decided Y should have access to a mainstream provision for the remainder of primary, however it was accepted by the Council that in line with CAMHS advice Y was unfit to return to school at that time (June 2022). The Council’s alternative education team told the SEN team It was going to offer Y a teacher despite our policy, it is highly unlikely based on medical reports that Y will be able to go back to his school this term. Therefore, we do need to think about 25 hours educational provision from September.
32. The Council issued a draft EHC plan that proposed Y remain on roll at his current school with support to transition back into school but indicated he was likely to require specialist provision at secondary age.
33. A meeting was held with tutors, the school and CAMHS in July to discuss recommendations for education. Education otherwise than at school (EOTAS) was suggested. Ms X responded to the draft plan requesting EOTAS on an ongoing basis.
34. The Council issued the final EHC plan naming the current school in Summer 2022. It did not specify EOTAS or interim provision, or details of how Y would reintegrate into the named school.
35. Ms X appealed the final EHC plan to the SEND Tribunal. The appeal is pending. Ms X has appealed the placement named in Section I (Y’s current school) and is requesting the Tribunal specify EOTAS in Section F as the provision until the end of the 2022/2023 school year.
36. Ms X made a complaint about:
• the Council’s failure to provide s.19 education from January 2022 and,
• the Council’s failure to follow professional advice that Y should receive EOTAS until he transferred to secondary school in September 2023 and instead proposed to return him to his mainstream primary school for the remainder of this school year.
37. The Council refused to consider the complaint. It said Ms X should use the appeal route to challenge the final EHC plan because the complaint process cannot dictate or influence the content of an EHCP. The Council went on to say Where the parent or young person has appealed to the Tribunal the Council has no discretion to investigate from the date the SEN appeal arises until the appeal is completed.
38. Despite the contents of the final EHC plan, the Council did offer ten hours of tuition from September 2022, although Ms X says this was not in place in September. In the Council’s complaint response, it also said speech and occupational therapy was in place, but Ms X says the therapy could only be accessed if Y returned to school. Ms X has had no contact from the occupational therapist although she is doing exercises with Y herself.
39. At a further panel in Autumn 2022 the Council agreed to pay for Provider A and refund Ms X for past expenses relating to this.
40. Documents show Y received the following weekly provision via the Council:
• Late March 2022 – 2 hours
• Early June 2022 – 3 hours
• Late June 2022 – 4 hours
• September 2022 – 7.5 hours
• October 2022 – 14 hours.
41. Ms X says she additionally funded:
• Provider A, which the Council agreed to refund.
• Private tuition (Provider B).
• Gym membership from Autumn 2022, as no physical education was included in the Council’s offer.

Analysis

Jurisdiction

42. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal about the same matter, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
43. Section 26(6) Local Government Act is intended to ensure people do not ask the Ombudsman to intervene where they have already had recourse to an alternative remedy. Where a complainant has exercised their right of appeal in any court of law the Ombudsman has no jurisdiction. 
44. Ms X appealed the final EHC plan issued in late July 2022 to the SEND Tribunal. Ms X’s appeal grounds include a challenge to the Council naming Y’s mainstream school in the EHC plan rather than EOTAS; concerns whether Y can reintegrate into mainstream school due to medical needs; and concerns whether the Council has considered professional advice about school placement. I have therefore not investigated loss of education from the date of the issue of the final EHC plan which gave Ms X a right of appeal (end of July 2022), when the Council chose to name the current school as Y’s placement for the current school year instead of EOTAS. The complaint matters appear to be the same as those raised in the appeal. (Local Government Act 1974, section 26(6)(a))
45. The Ombudsman can sometimes investigate where a matter can be separated from the appeal and where the injustice is not related to the matter being appealed. An example is where there is agreement the child is medically unfit to attend any school and the need for alternative provision would arise regardless of the type of school named in the EHC plan. In this case the fitness of Y to attend school after July 2022 is a matter which appears to be in dispute in the current appeal, and therefore outside the Ombudsman’s jurisdiction.

Complaint response

46. The Council told Ms X in response to her complaint ‘the Council has no discretion to investigate from the date the SEN appeal arises until the appeal is completed’. I am not aware of any legal bar to the Council investigating complaints, although a council may choose not to investigate matters subject to appeal. The caselaw referred to in this decision applies to the Ombudsman’s jurisdiction, not that of councils. Councils could still be subject to other legal mechanisms, such as judicial review, for failing to meet statutory duties and should be willing to consider all complaints on a case-by-case basis. I find the Council’s advice to Ms X about a legal bar preventing consideration of her complaint to be incorrect.

Failure to provide s.19 education prior to final EHC plan

47. Y stopped attending school fulltime in November 2021 and stopped attending completely on medical advice in January 2022. The Council was aware of this via its social worker who attended a meeting at the time.
48. Evidence from school shows Y was offered remote teaching (joining lessons online from home) and learning (a package of learning sent home weekly) but was unable to manage this. The school says advice from CAMHS was not to push Y as this could be detrimental to his mental health and learning.
49. The Council should have put in place s.19 education as soon as it was aware Y had missed fifteen days of education and the school was not making suitable arrangements itself. It is unclear at what date this would have been the case, but it was clear the social worker knew Y was out of school on medical grounds in January. The Council should then have provided s.19 education without delay.
50. The Council delayed putting provision in place until the end of March and then provided only three to five hours tuition for the rest of the school year. This is fault. The presumption should have been that Y receive an education equivalent to a fulltime education in school unless there was medical evidence this was not in his best interests. While there was advice from CAMHS about not pushing Y, there is no clear evidence about the number of hours of education he could manage. Y was able to manage additional hours paid for by Ms X which suggests that he could have managed more hours of education than the Council offered between February and July 2022.

Injustice

51. I have not investigated loss of education or special educational provision and therapies after the date the final EHC plan was issued for the reasons given above.
52. I find Y did miss out on education between February 2022, when suitable s.19 education should have been in place until July 2022. While fewer education hours can be provided when provision is made on a one-to-one basis, the number of hours of tuition per week was too low and there was no medical evidence support that this was necessary on medical grounds.
53. I find that due to Y’s medical needs, and that provision was required to be made one-to-one, Ms X’s work would have been affected in any event by Y being at home. However, if more tuition hours had been provided then Ms X would have been able to do more of her own work during this time which would have eased the pressure on her as a parent carer.

Back to top

Agreed action

Within four weeks of my final decision:

54. The Council will apologise to Ms X and Y for the fault identified in this investigation.
55. The Council will pay Y £2900 for the lack of education provided over a six-month period. The Council may deduct from this figure any monies already refunded to Ms X for private provision for the period up to July 2022.
56. The Council will pay Ms X £1000 for the inconvenience, distress, time and trouble caused to her as a result of the fault including the impact on her employment.

Within two months of my final decision:

57. The Council will provide updated guidance to complaint officers clarifying the legal position around complaints and appeals, in particular that caselaw affecting the Ombudsman’s jurisdiction does not bar from councils from considering complaints itself or prevent a complainant pursuing other legal remedies such as judicial review.

58. The Council will provide us with evidence it has complied with the above action.
59. I have not made recommendations for service improvements to the Council’s alternative education provision as we have made similar findings against the Council in other cases in the recent past covering the same period as Ms X’s complaint. The Council agreed to retrain staff and ensure decisions about the amount of s.19 education were properly recorded and supported by medical evidence. These changes should prevent a recurrence of the same fault in future cases.

Back to top

Final decision

60. I have completed my investigation. There was fault by the Council in failing to provide suitable fulltime education when a child was unable to attend school. This caused the child to miss out on education and caused the parent carer unnecessary inconvenience and distress. The agreed actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman