Summary: Ms B complained the Council failed to secure education and education, health and care provision for her daughter, D, from February 2022. Ms B said this led to D missing education and education, health, and care provision, and becoming isolated from her peers. The Council was at fault for delays securing D suitable education and education, health, and care provision. The Council will make a financial payment to remedy the injustice caused by its fault.

The complaint

1. Ms B complained the Council failed to secure education and education, health and care provision for her daughter, D, from February 2022. Ms B said this led to D missing education and education, health, and care provision, and becoming isolated from her peers.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Ms B and the Council had the opportunity to comment on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

7. 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.” (Education Act 1996, section 19(1)) “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. 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))
8. In 2022 the Ombudsman updated and reissued its focus report ‘Out of school, out of sight?” The key learning point highlighted in this report was the council has the duty to arrange alternative education, not the school a child attends.
9. A child with special educational needs 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.
10. The council has a duty to secure the special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
11. Section 7 of the Education Act 1996 creates a duty for parents to ensure their children receive an education at school or otherwise. A failure to meet this duty on the parent’s part is an offence. Sections 436 to 447 of the Act cover councils’ duties and powers:
• Section 436A of the Act requires councils to identify children in their area not receiving an education.
• Section 437 allows councils to serve a notice on parents in their area requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (SAO) where parents fail to satisfy them.
• Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
• Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.

Council Complaint Procedure

12. The Council has a two-stage complaint procedure:
• Stage one: It will try to send a full response within 10 days of receipt of the complaint. If it cannot, it will tell the complainant and give an estimate for when it will respond.
• Stage two: The Council will respond to the complaint within 15 days of receiving the request to consider the complaint at stage two.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. D has special educational needs and was diagnosed with autism in December 2021. In the school year 2021/22 she was in year 9 and attended School 1. School 1 is a mainstream high school.
15. In January 2022, C’s attendance at School 1 started to decline. Ms B told School 1 D was finding some lessons uncomfortable and was refusing to go to school. In February 2022, D stopped attending.
16. Between February and May 2022, School 1 offered Ms B and D support to help D to return to the school. This included:
• Early help - Early Help is support given to a family when a problem first emerges to improve outcomes for children.
• Support to develop a home routine.
• Bespoke timetable and strategies to support her in school.
• Assessment by an educational psychologist. The psychologist recommended focusing on building D’s engagement with school and developing a gradual transition.
• Referral to the Council’s targeted education support service (TESS). TESS employs specialist, qualified and experienced teachers and educational practitioners who work with schools to support children and young people when learning progress, social, emotional or mental health are causing concern.
• Referral to the child and adolescence mental health services (CAMHS).
• Attendance at an alternative provider.
17. Ms B accepted support from early help and referrals to TESS, CAMHS and an educational psychologist. Ms B told School 1 D did not want to attend the alternative provider.
18. School 1 contacted the Council for support around D’s non-attendance in May 2022. The Council decided it would not be appropriate to pursue enforcement action against Ms B because there were complex issues that created barriers to D’s engagement with school. It gave School 1 suggestions about further support it could offer D. It said she could access support from the school nurse and CAMHS, and the school could make a referral to a children’s centre if Ms B needed support. With Ms B’s consent, School 1 referred D to a children’s centre. The children’s centre spoke to Ms B, and she declined support.
19. The Council issued a final EHC plan for D in June 2022. This was D’s first EHC plan. The plan named School 1 as D’s education setting. It included provision to support D to transition back to School 1 and to help her at school when she returned.
20. School 1 held an early help review meeting. The Council’s SEND EHC plan co-ordinator attended. Attendees discussed how to support D to transition back to School 1 now an EHC plan was in place. They agree the transition needed to be gradual so D could build trust with her teaching assistant. Ms B gave School 1 consent to refer D to its counsellor.
21. D attended School 1 twice in one week in June 2022. D then stopped attending. Ms B told School 1 she was going to ask the Council to find alternative provision for D and to hold an emergency EHC review.
22. School 1 held an early help review in July 2022. Ms B said she wanted D to attend a different education setting. The Council’s SEND EHC plan co-ordinator said tutoring was not an option. Attendees agreed D could try using an online learning tool and for her to try to transition back to School 1 in the new academic year.
23. In September 2022, Ms B told School 1 D would not return until it created a transition plan, and the plan was being followed.
24. School 1 held a meeting with Ms B and the Special Educational Needs and Disabilities Information Advice and Support Service (SENDIAS). Attendees agreed D would attend School 1 on a reduced timetable, and this would be reviewed in two weeks.
25. D attended School 1 once in September 2022. She looked around the learning support area with a learning support assistance and ate lunch in the canteen with her friends. The following day, Ms B emailed School 1. She said D was anxious and had been crying all night. She said she was going to remove D from the school roll. She said School 1 had not met D’s needs and as a result, she had been denied education for six months.
26. In November 2022, School 1 told Ms B it would visit D at home every week to drop off and collect schoolwork. Ms B replied and told School 1 it could not meet D’s needs.
27. School 1 held a reintegration meeting in December 2022. The Council and Ms B attended. Ms B said D wanted to stay at School 1. School 1 said in addition to work it provided D to do at home, it would appoint a tutor to work with D on English and Maths from January 2023. It said the goal would be for D to be accessing some lessons in school by Easter. Attendees developed a reintegration plan and identified strategies to support D.
28. In January 2023, D started to attend individual tutoring, and School 1 visited her weekly to drop off and collect schoolwork. At the end of January 2023, D started to attend appointments at School 1 rather than at home.
29. School 1 held an EHC review for D in February 2023. Ms B said tutoring was going well and D was receiving work from School 1 to do at home. Attendees agreed D would continue with a phased return to School 1 before Easter.

Complaint

30. In September 2022, Ms B complained D had not been in education since February 2022 and her EHC plan was not being followed. She said there was no transition plan for D to return to School 1. Ms B complained the Council refused to pay for home tutoring and School 1 would not pay for online learning.
31. The Council responded to Ms B at stage one of its complaints procedure. The Council advised it named School 1 in D’s EHC plan and she was still on-roll there. It summarised the support it had offered D including:
• Home tuition
• Access to virtual online learning
• Place on a music project
• Place at other mainstream education providers
32. It said Ms B and D had declined these offers. It said it understood D had since agreed to try online learning. The Council decided it and School 1 had tried to be as creative and flexible as possible to offer alternative options to support C’s reintegration to school and learning.
33. In October 2022, Ms B asked the Council to consider her complaint at stage two. Ms B added to her complaint the online learning provider had not contacted her to arrange for D to start. She said this was because School 1 would not pay for the provision and raised concerns about how the school was spending the funding for D.
34. The Council responded at stage two in November 2022. The Council said D wanted to return to School 1 and it made reasonable adjustments to support her, including access to a reduced timetable, adaptations to the curriculum and GCSE subjects, and a phased return. It said other options, including home tutoring and online learning, were offered but Ms B declined these or considered them unsuitable. The Council said it understood online learning was going to start at the end of October, but this was delayed because School 1 had safeguarding concerns. School 1 was concerned D was not willing to have the camera on during online learning and therefore she would not be regularly seen by professionals. The Council said instead of online learning, School 1 wanted to visit D weekly to provide her with schoolwork with the aim of her transitioning back to school. The Council asked Ms B to contact the SEND team so it could arrange an early EHC plan review. It also encouraged her to engage with Early Help or Family Centres.

Analysis

35. School 1 told the Council D had stopped attending at the end of May 2022. The Council and School 1 worked with Ms B and D to create a plan for D to transition back to school. This was included in D’s EHC plan. Unfortunately, at the end of June 2022, it was clear this plan was not working, and D continued to refuse to attend School 1.
36. Once it was clear the transition plan was not working, the Council should have arranged for the provision of suitable education and EHC provision. The Council should have secured alternative provision from the start of the new academic year, September 2022. The Council did not do this. As a result, D was without suitable education and EHC provision between September and December 2022, a period of 13 school weeks. This was fault by the Council and meant D missed out on 13 weeks of education and EHC provision during a significant period in her education.
37. In response to my draft decision the Council said it was Ms B’s duty to secure education provision for D and in declining the offers of provision it made, she did not discharge her duty. If the Council decided Ms B was not fulfilling her duty, it should have considered taking enforcement action. As the Council did not, it was responsible for securing education provision for D.
38. The Council’s complaint response was delayed at stage one and two of the complaint process. At stage one the Council took over three weeks to respond and at stage two it took over seven weeks. These delays caused Ms B frustration.
39. In response to my draft decision, the Council accepted my recommendations. However, it remains of the view it made a reasonable offer of alternative education and therefore, considers it discharged its duty in relation to Section 19 Education Act 1996.

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Agreed action

40. Within one month of the final decision, the Council will:
• Pay Ms B £500 a month for the education and education, health and care provision D missed between September 2022 and December 2022; in total this amounts to £1,625. This is to be used for D’s benefit.
• Pay Ms B £150 for the frustration caused by the Council’s delays responding to her complaints.
41. Within two months of the final decision, the Council will:
• Review its procedure for providing alternative education for children who are not in school by reason of illness, exclusion from school or otherwise.
• Provide training to relevant staff about the Council’s duty to make arrangements for the provision of suitable education 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.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation and uphold Ms B’s complaint. D was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman