Summary: Mrs X complained the Council failed to provide suitable alternative education for her daughter when she was unable to attend school. The Council only provided a limited amount of tutoring for part of the period Mrs X’s daughter was not attending school. This is fault and a suitable remedy is agreed.

The complaint

1. Mrs X complains the Council failed to provide a suitable education for her daughter, B, when she was unable to attend school.
2. Mrs X says that as a result, B has missed out on education as well as B and the family and B have suffered distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and considered the comments made in response.

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What I found

7. An EHC plan issued in July 2020 named a mainstream school for Mrs X’s daughter, B, and she was on-roll at this school from September 2020. Mrs X says B attended the school but her attendance was shaky until the placement broke down in April 2021. It should be noted that B was not required to attend school from 4 January to 5 March 2021 due to the COVID-19 pandemic.
8. On 19 May, the Council noted a deterioration in B’s attendance and the school advised B was currently absent. The Council also noted a pattern of Wednesday absences and advised the school to investigate further. The school subsequently reported that B was experiencing anxiety and so the Council advised that urgent intervention was required.
9. An emergency review of B’s EHC plan was completed in July 2021. All agreed that the placement at mainstream school had not worked and so agreed to request a specialist placement. The school also made a referral to the Council for A2E, the Council’s alternative provision and support service.
10. The Council contacted Mrs X on 28 July and agreed to take the case to panel in August. However, this did not happen and the Council has not provided any explanation for this. The case went to panel on 6 October. Mrs X says that she next heard from the Council on 4 November when it advised the specialist placement for B had been agreed.
11. B started to receive 90 minutes per week of tutoring on 25 November. On 26 May 2022 the Council issued the final amended EHC plan which named the current school and then a specialist placement from September 2022. B began attending the specialist school in September 2022. Mrs X says that B’s attendance started to decline within two days and that by 5 October, B had missed 15 days of school.
12. Mrs X made a formal complaint about the lack of education in February 2023 and requested interim provision. Within a week an emergency review took place. It was stated the placement had permanently broken down in December 2022 and that EOTAS (Education other than at school) was appropriate.
13. On 8 March, the panel deferred Mrs X’s request for a personal budget as it wanted further information. Mrs X submitted further personal budget requests in March and April, both of which the panel rejected.
14. In July, Mrs X submitted her fourth personal budget request. She says that B had developed a keen interest in horses and stable management. Mrs X had identified a provider of accredited qualifications equivalent to GCSE’s. The panel rejected this request but Mrs X began to fund it herself.
15. The panel again considered the case on 13 September 2023. It determined that alternative provision was required immediately with retrospective recompense for provision paid for by Mrs X while B was not in school. It said that EOTAS would be named as a placement type and providers would be sourced and named by the family funded by a personal budget.

Analysis

16. Mrs X complains about the failure to provide B suitable education. I am pleased to note that from September 2023 the Council has agreed to provide a personal budget and the information provided indicates this will be for the full year. However, Mrs X tells me that to date no payment has been received and she is only able to pay for a small amount of education for B from her own limited income.
17. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must intervene and make such arrangements itself. The duty arises after a child has missed 15 days of education either consecutively or accumulatively. It applies to all children of compulsory school age, whether or not they are on roll of a school. 
18. The Council relies on schools to provide it with details of attendance. Half termly register checks are conducted for pupils who are persistently or severely absent. B’s attendance for the Autumn term 2020 was 87% and the Council provided advice to the school about improving this. At the beginning of 2021, B did not attend school due to a COVID-19 lockdown. Mrs X says the placement broke down in April 2021 and the evidence provided supports this as B’s attendance was discussed in May 2021, followed by urgent intervention in June 2021 and then the emergency review of the EHC plan.
19. While the Council arranged an emergency review of B’s EHC plan, there is no evidence to show the Council took any action to provide an appropriate and accessible education for B in May 2021. This is fault. It was not until November 2021 when a limited amount of tutoring was agreed. The Council says this began in January 2022. The tutoring was for 90 minutes a week but the Council’s duty is to provide full time alternative education. While the Council says it considered this amounted to a suitable full time education, I have not seen any evidence to show how it reached this view or that B could not manage more than 90 minutes of education per week. This is fault.
20. B began attending a specialist school in September 2022. Her attendance was limited and she stopped attending at the beginning of December. There was a plan to build up the amount of time B attended until she could manage full time but this did not work. An emergency review of the EHC plan took place in February 2023. The review concluded that the specialist school placement was not appropriate and that alternative provision was needed immediately,funded by a personal budget.
21. Following the review, the Council did not take any action to provide alternative education. Mrs X made repeated applications for a personal budget but each application was rejected by the panel until it was finally agreed in September 2023. As noted above, the agreed payments have not been actioned and B is still without suitable full time education. The failure to provide alternative education following the emergency review in February 2023 is fault.
22. The Ombudsman’s Guidance on Remedies document states that where fault results in a loss of education provision we will recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In reaching the figure payable I have taken into account that B has an EHC plan and that a limited amount of tutoring was provided.

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Agreed action

23. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X and B;
• Make a payment of £3,600 for the benefit of B as a result of the lost education provision from May 2021 to January 2022;
• Make a payment of £4,000 for the benefit of B for the lost education provision from January 2022 to September 2022;
• Make a payment of £4,800 for the benefit of B for the lost education provision from January 2023 to October 2023;
• Make a payment of £500 for each month starting from November 2023 until the agreed personal budget is paid to Mrs X; and
• Make Mrs X a symbolic payment of £500 to recognise her distress and time and trouble in pursuing this matter.
24. I have decided not to recommend any service improvements in respect of this complaint. This is because the Ombudsman has upheld numerous complaints covering similar issues this year and made service improvement recommendations in February, March and August which should ensure similar problems are not repeated.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I will now complete my investigation as a suitable remedy for the injustice suffered is agreed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman