Summary: Mrs M complained her son, B, was without education between June 2021 and November 2022. The Council recognised it should have arranged alternative tuition sooner. I have recommended a remedy for the injustice caused by the delay. The Council agreed to include information from specialist assessments in B’s Education, Health and Care (EHC) Plan when they are available. This is an appropriate response.

The complaint

1. Mrs M complains the Council did not make suitable arrangements for her son B’s education. B has been unable to attend school since June 2021.
2. Mrs M complains the Council did not obtain advice from a paediatrician and other specialists when undertaking B’s education, health and care (EHC) needs assessment.

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The Ombudsman’s role and powers

3. 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)
4. Once 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)

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How I considered this complaint

5. I have considered information provided by Mrs M and information provided by the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, began to struggle at primary school. His attendance declined as his difficulties increased. He stopped attending school altogether in June 2021.
7. Mrs M asked the Council to undertake an Education, Health and Care (EHC) needs assessment in October 2021. She told the Council B was unable to attend school due to anxiety and his unmet needs. She asked the Council to obtain specialist assessments to inform B’s EHC Plan, including a report from a paediatrician. The Council could not obtain the assessments because B was not known to the services.
8. Mrs M complained to the Council on 9 May 2022.
9. The Council responded at all three stages of its complaints process. The Council initially said it was not responsible for B’s education as there had been a school place available for him and Mrs M had not provided medical evidence he was unfit for school. However, the Council later accepted that it was responsible and undertook to ensure suitable alternative arrangements were in place going forwards. The Council said B’s case was complicated because he was a pupil at a school outside the County and suggested Mrs M discuss the options with B’s school in the first instance. However, the Council said if the school could not arrange a swift resolution, the Council would ‘facilitate’ an alternative education package for him.
10. The Council explained it had issued B’s EHC Plan based on the assessments available and would review the plan if more evidence became available. The Council said it contacted the health service, but as B had not been seen by a paediatrician, no report was available. The Council noted the law and government guidance gave no definitive answer to the question of what should happen when the Council asked for advice from a service that had no previous contact with B. In response to Mrs M’s complaint, the Council agreed to work with Mrs M to obtain further assessments.

Complaint 1: arrangements for B’s education

Education for children unable to attend school: law and guidance

11. Parents have a duty to ensure that their children regularly attend school. (Education Act 1996, Section 7).
12. This is balanced by a duty on Councils to “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.” (Education Act 1996, section 19(1))
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
14. The education provided by the Council must be full-time unless the Council determines 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)
15. The Government has published guidance: Ensuring a good education for children who cannot attend school because of health needs (Department for Education, 2013) and, more broadly, Alternative Provision - statutory guidance for local authorities (Department for Education, 2013).
16. The Local Government Ombudsman has issued guidance to councils on how we expect them 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? Ensuring children out of school get a good education, published in 2022)
17. The Ombudsman made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – 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 in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance 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;
• adopt a strategic and planned approach to reintegrating children 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.
18. We highlighted two important lessons from our casework. First, councils may need to arrange alternative education for children who cannot attend school for any reason, not just those children who are too ill to attend school. And second, while they may be guided by expert opinion from doctors, for example, councils must make a decision about whether alternative education is necessary. They may have to make decisions where there is conflicting evidence or even no evidence at all.
19. Schools also have powers to arrange alternative education for pupils on their roll. The Ombudsman can only investigate the actions of councils. If a council decides it is not necessary for it to arrange alternative education because a school has taken appropriate action, we expect the Council to be able to demonstrate how it satisfied itself suitable arrangements were in place.

Consideration

20. In response to Mrs M’s complaint, the Council recognised it had a duty to make suitable arrangements for B’s education if his school is unable to arrange a swift resolution.
21. However by the time of the Council’s response (October 2022), B had not attended school for some time. The question for the Ombudsman, then, is whether the Council should have acted sooner, and if so, whether we should recommend a remedy.
22. In response to my enquiries, the Council said it received information from B’s doctor in July 2022 that suggested alternative provision would be helpful. The Council offered a payment of £300 per month B was out of school from 25 July, when it received the letter, to 24 November 2022 when it arranged for a tutor to visit B at home. I welcome the Council’s offer.
23. However, I note the doctor’s letter was written in February 2022. Further, Mrs M says she told the Council B was not attending school in October 2021 when she requested an EHC needs assessment.
24. Should the Council have acted even sooner?
25. The Council identified problems with its medical tuition policy in use at the time, such as the requirement for evidence from a consultant, which could explain why it did not receive the doctor’s letter sooner. I understand the Council has revised its policy following Mrs M’s complaint.
26. But the Council was also in the process of assessing B’s EHC needs. Mrs M requested the assessment on 15 October 2021. The Council agreed to assess B’s EHC needs and then to issue an EHC Plan. The Council needed to complete the assessment in order to know how to meet B’s special educational needs when arranging any alternative education he may need.
27. Regulations and guidance say the Council must issue the Plan with in 20 weeks of Mrs M’s request. The Council should have issued B’s Plan by early March 2022. The Council issued B’s Plan at the end of July 2022. This was approximately 20 weeks late.
28. The Plan sets out the special educational provision the Council considers necessary and agreed to make to enable B to attend the school named in the Plan. The Plan says B will continue to attend the same mainstream primary school. However, even with the extra support of his EHC Plan, B did not return to school.
29. We would expect the Council to have considered whether alternative provision was necessary and to have recorded its decision making when B failed to return to school after the Council issued his EHC Plan.
30. If the Council had issued B’s Plan on time, this would have been some time after the beginning of March 2022.
31. On balance, therefore, I think it is likely the Council should have considered making alternative arrangements for B’s education after Easter in 2022. Its failure to do so was fault. This caused B an injustice. While we cannot know what arrangements the Council would have made, or whether they would have been successful, there was a missed opportunity to provide him with suitable, alternative education.
32. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of B, we may recommend the Council makes a symbolic payment to acknowledge the impact of its mistakes.
33. We may also recommend the Council takes action to avoid similar mistakes happening again.
34. I have made recommendations below.

Complaint 2: advice for B’s EHC needs assessment

Education, Health and Care Plans: the law

35. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
36. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
37. Regulations set out the advice councils must obtain when carrying out an EHC needs assessment. This includes advice from:
• the child’s parent;
• the head teacher of the child’s school, or the person responsible for the child’s education;
• a health care professional identified by the responsible commissioning body;
• an educational psychologist;
• social care;
• any other person the council thinks is appropriate;
• any person the child’s parent reasonably requests.

(Special educational needs and disability regulations 2014 (as amended), regulation 6)

38. Unless they are part of a joint authority or joint commissioning arrangements, Councils cannot usually direct the NHS to carry out an assessment or produce a report. The Regulations suggest which health professional provides the advice, but it is ultimately for the Clinical Commissioning Group (CCG) to decide.
39. A parent’s request the Council consult a person not listed in the Regulations is more likely to be “reasonable” if that professional is already involved with the child.

Consideration

40. Mrs M asked the Council to obtain advice from a paediatrician, a clinical psychologist and a behavioural optometrist.
41. The Council sought advice from a community paediatrician, but says at the time B was not under the care of the community paediatrician and so the NHS could not provide advice. Ms M says the Council approached the wrong paediatrician.
42. The Council produced B’s EHC Plan based on the reports available to it from services that knew B at the time.
43. Following her complaint, the Council agreed to work with Mrs M to obtain the reports she requested.
44. I agree with the Council that the law and government guidance give no definitive answer to the question of what should happen when the Council asks for advice from a service that has no previous contact with B.
45. The Ombudsman cannot provide a definitive answer either.
46. The purpose of an EHC needs assessment is to identify a child’s special educational needs and the special educational provision necessary to meet them.
47. It is not a process secure a diagnosis or to identify a child’s needs more generally, although this may, of course, be the outcome.
48. It is, therefore, ultimately for the Council – as the education authority – to decide what advice it needs, and what it will do if that advice is not readily available.
49. The Council has agreed to obtain further advice and review B’s EHC Plan if necessary in light of the advice received. I consider this an appropriate response.

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Agreed action

50. I recommended the Council:
1. apologises to Mrs M for its mistakes and offers a symbolic payment of £1,800 to acknowledge the impact on B and his family of the Council’s failure to consider alternative education from the beginning of the summer term in 2022 until home tuition started on 24 November 2022.
2. reviews its policies and procedures concerning children not attending school to ensure they comply with relevant legislation and government guidance.
51. I recommended the Council makes the apology and the payment within six weeks of my final decision. I recommend the Council reviews its policies and procedures within three months of my final decision. The Council should provide us with evidence it has complied with the above actions.
52. The Council accepted my recommendations.

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Final decision

53. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman