East Sussex County Council (23 005 404)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 08 May 2024

The Ombudsman's final decision:

Summary: Mrs M complains her daughter, G, has not received suitable education since she became unable to attend school in Year 7. There is much to commend in the Council’s response to G’s absence from school. The Council played an active role in coordinating efforts to try to secure G’s reintegration to school, and later in arrangements for G’s education out of school. The Council has kept G’s case under regular review, and overseen increases in provision as her ability to participate has increased. However, there was a delay holding a multi-professionals meeting to decide the next steps when attempts to secure G’s return to school proved unsuccessful. We have made recommendations.

The complaint

  1. Mrs M complains about her daughter G’s education. Mrs M complains G has not received suitable education since she became unable to attend school in Year 7.

Back to top

The Ombudsman’s role and powers

  1. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We consider whether there was fault in the way the Council made its decisions. If there was no fault in how the Council made its decisions, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with the Council’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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

Back to top

How I considered this complaint

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

Back to top

What I found

  1. Mrs M’s daughter G is a pupil at a mainstream secondary school. G has autism.
  2. G began to struggle at school in the autumn term of 2022 (Year 7). The school asked the Council for support on 25 November 2022. G did not return to school in January 2023 after the Christmas holiday.

Education for children who do not attend school

  1. Parents, schools and councils all have responsibilities to ensure children receive a suitable education.
  2. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
  3. The Education Act 1996 says every council shall “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))
  4. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs she may have. (Education Act 1996, section 19(6))
  5. 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)
  6. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
  7. The guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
  8. 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 a good education, published in July 2022)
  9. In our guidance, we stressed the need for councils to:
    • 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.

What happened

  1. My investigation starts when the school asked the Council for help on 25 November 2022. This is when the Council was first made aware of problems.
  2. The school completed a referral for the Council’s Inclusion and Special Educational Needs service ‘front door’. The school said G had recently been diagnosed with autism, she was finding it increasingly difficult to come to school and had developed extreme anxiety at being away from her mother. At the time of the referral, G’s attendance was reported to be good (more than 97%).
  3. Mrs M says G had struggled to attend school for some time before this despite her efforts and the efforts of the school. I cannot investigate the school. I can only consider the Council’s actions.
  4. The Council’s Communication, Learning and Autism Support Service (CLASS) became involved and provided advice to G’s school. The Service recommended a ‘small steps’ approach to G’s reintegration to school.
  5. G did not return to school in January 2023 after the school holidays. Mrs M asked the Council to arrange alternative tuition on 30 January 2023.
  6. The records show the Council considered Mrs M’s request but decided not to arrange alternative tuition. The Council decided the support from the Communication, Learning and Autism Support Service should continue to see if G could return to school.
  7. Two weeks later, Mrs M again asked the Council to arrange alternative tuition. G had not returned to school and Mrs M was concerned G’s needs were not being met by the school.
  8. The Council decided to refer G’s case to a multi-professional meeting to establish what support she needed to engage in education and reintegrate to school.
  9. The multi-professional meeting took place six weeks later, on 30 March 2023. G had not attended school for 12 weeks.
  10. G had been ‘signed off’ school by her GP, although there was no further information from the GP about G’s health needs or treatment. I understand CAMHS declined a referral because G's anxiety was considered a result of her unmet needs, not her mental health.
  11. The Council recommended G’s school purchase an “e-learning seat” to enable G to continue her education without the need to attend school. However, there were no vacancies in the e-learning service at the time, and in any event, the school said it did not have sufficient funding.
  12. The school offered “blended learning” instead. This is a technology used during the pandemic to broadcast lessons to pupils isolating at home. When the Council asked why the school had not tried “blended learning” sooner, the school’s representative said the school had reservations about the suitability of “blended learning”, in particular the lack of feedback from the teacher, G’s inability to see the whiteboard, and the possibility that lessons would deviate from the pre-planned presentations used.
  13. The meeting agreed the school would try “blended learning” and review progress at a follow-up meeting on 9 May 2023.
  14. The 9 May 2023 review meeting noted significant progress in the ‘small steps’ approach addressing G’s anxiety about going to school and proposed timetabled attendance as a next step. The meeting proposed adding science and English lessons to the “blended learning” offered.
  15. At the following review meeting on 6 June 2023, Mrs M again asked the Council to arrange tuition. She said G was unable to learn independently and required her support during online lessons. She was concerned G was falling behind.
  16. The meeting noted that G’s anxiety had increased, this risked undermining the progress she had made, and the school was unable to offer any more support. The Council agreed to provide a learning mentor to support G during online lessons. The Council had also begun an Education, Health and Care (EHC) needs assessment to determine the support she needed.
  17. The Council issued a final EHC Plan on 22 September 2023. The Plan says G will attend a mainstream school with additional support. At the time of my enquiries, the Council said it was consulting schools, including Mrs M’s preferred independent special schools, and would issue an amended final Plan once consultations are complete.
  18. I cannot consider G’s education beyond 22 September 2023 since Mrs M had a right of appeal to the SEND Tribunal to challenge the provision on offer.

Consideration

  1. There is much to commend in the Council’s response to G’s absence from school. The Council played an active role in coordinating efforts to try to secure G’s reintegration to school, and later in arrangements for G’s education out of school. The Council has kept G’s case under regular review, and has overseen increases in provision as her ability to participate increased.
  2. Mrs M complains about the suitability of the blended learning provided by the school and the amount of alternative provision G has received.
  3. Blended learning was agreed at the multi-professionals meeting on 30 March 2023 and provided by the school. The Council says it was satisfied the school was taking appropriate action to ensure G received a suitable education, and that “blended learning” was an appropriate way to build G’s engagement with learning. As a result, the Council says it did not need to make alternative arrangements for G’s education.
  4. Blended learning appears to have had some success, although it relied on Mrs M to support G during the online lessons.
  5. When the June 2023 multi-professionals meeting noted that G’s anxiety was increasing, and the school was unable to offer any more support, the Council agreed to provide a learning mentor. This was the point at which the Council began to make alternative arrangements for G’s education.
  6. Mrs M complains G has not received enough education during the time she has been out of school. She is concerned G has fallen behind and this will make it harder for her to reintegrate. She believes the Council should have provided more tuition.
  7. There are no grounds for me to question the of provision offered. The Council has followed a clear process to regularly review and oversee increases in provision in response to G’s progress. When the provision arranged by the school no longer met G’s needs, the Council arranged alternative provision in the form of support from the learning mentor. There is no fault in the process. The Ombudsman cannot question decisions made without fault.
  8. However, I find there was a delay holding the multi-professionals meeting to decide the next steps when attempts to secure G’s return to school in January 2023 proved unsuccessful. G had not attended school for 12 weeks before the meeting. It was six weeks from Mrs M’s February 2023 request for support before the meeting took place. With input from the Council, G began to make progress. It is likely this would have happened sooner if the meeting had taken place earlier. For this reason, we say the delay caused injustice.

Back to top

Agreed action

  1. 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 Mrs M and G, we may recommend the Council makes a symbolic payment.
  2. I recommended the Council:
    • apologises to Mrs M and G for delay holding the multi-professionals meeting once G stopped attending school in January 2023; and
    • offers a symbolic payment of £1,000 to acknowledge the impact of the delay on Mrs M and G, and the support Mrs M provided during online lessons until the Council agreed to provide a learning mentor.
  3. I recommended the Council makes the apology and payment within six weeks of my final decision. The Council should send evidence it has completed the agreed actions.
  4. The Council accepted my recommendations.

Back to top

Final decision

  1. I have completed my investigation as the Council accepte my recommendations.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings