Summary: Ms F complained her child did not receive a full-time education for two academic years. We partially upheld the complaint, finding the Council did not respond properly when learning of the child’s absences from school in September 2022. As a result there was some loss of education provision and distress caused to Ms F. The Council has accepted this finding and agreed action, set out at the end of this statement, to remedy that injustice and improve its service.

The complaint

1. Ms F complained the Council failed to ensure that her child, G, received a full-time education during the 2021-22 and 2022-23 academic years.
2. Ms F says as a result G has missed education. She also had to leave employment because G was often at home, only attending school part-time.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We cannot investigate most complaints about what happens in schools (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended). This is unless the complaint relates to special educational needs provision when schools act on behalf of the council to secure educational provision set out in Section F of the young person’s Education, Health and Care Plan.
6. 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)
7. Under an information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Ms F’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Ms F and the Council about the matters covered by the complaint, which pre-dated our investigation;
• information provided to me by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council policy referred to in the text below;
• guidance published by the Ombudsman, including our Guidance on Remedies Guidance on remedies - Local Government and Social Care Ombudsman.

9. I gave Ms F and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made before finalising the statement.

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What I found

Key law, guidance and policy considerations

Law and guidance around special educational needs provision

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the arrangements made to meet them.
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process the Council should follow when assessing a child’s education, health and care needs. The guidance flows from the Children and Families Act 2014 and the SEN Regulations 2014. It says: 

• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”;
• if the council issues an EHC Plan, it should usually not take more than 20 weeks to do so from the date it receives a request to assess.

Law and guidance around alternative provision

12. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on a school roll. (Statutory guidance ‘Alternative Provision’ January 2013)
14. Government guidance says all pupils must receive full time provision in total, whether in one setting or more, unless a medical condition makes full time provision inappropriate (Statutory guidance ‘Alternative Provision’ January 2013).
15. Government guidance also suggests that schools should only use part-time timetables in exceptional circumstances.

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What I found

Chronology of key events

16. G is a child with special educational needs. During the 2021/22 and 2022/23 academic years they attended a mainstream secondary school (‘School X’).
17. During the 2021/22 academic year, G’s attendance at school was just over 50%. School X did not alert the Council to this. Nor did Ms F contact the Council about G’s attendance. However, she worked with another education officer over another matter. And Ms F has provided information showing G had their own social worker during that year.
18. At the beginning of the 2022/23 academic year School X asked the Council to assess G's education, health and care needs, to see if they needed an EHC Plan. The Council agreed to assess.
19. Information included with the request showed G was on a part-time timetable of around 16 hours a week. But School X said also that G could not manage this and required a significant number of rest days. The Council says that while it was assessing G’s needs, Ms F did not raise any concerns about their school attendance.
20. The Council should have completed the needs assessment before the end of January 2023 to meet the 20-week target. However, it took nearly another six weeks to complete it, in early March. The Plan named a new education setting for G to attend from September 2023. The plan referred to Ms F supporting G’s education by paying for some private tuition from an online alternative education provider. Later, Ms F would provide invoices showing she began buying in this service from February 2023. Ms F also told me she arranged for some in-person tuition for G.
21. Soon after the Council issued the final EHC Plan, there was a meeting between Ms F and School X, attended also by officers from the Council. This drew up a plan to move G back to a full-time timetable with a series of action points. These included School X enlisting support from an alternative education provider and an outreach service run by a specialist school.
22. G did not return to full time education at School X. Ms F says the school failed to carry out all the actions it had agreed. She has provided an email exchange with the school, which said in May 2023 it would set up a meeting with the Council. While in July Ms F sent a brief email to the Council following a discussion with one of its SEN Officers. This expressed disappointment School X was not doing more to ensure an “extended transition” for G to attend their education setting from September. They enclosed with their email invoices from the online alternative education provider, saying this was a service G engaged with.
23. In response the Council agreed to start paying for the online alternative provision. But only from July 2023.
24. G did not resume full-time education until September 2023 when they started at the new education setting.
25. Ms F went on to complain in September 2023 and in doing so asked the Council to refund her costs for the online alternative education provider. In her complaint she said G had missed much of the last two years of their schooling. They said G had received some support from the alternative education provider mentioned in paragraph 21 and a few hours of tutoring arranged by the school. Ms F explained G’s experience had a negative impact on their mental health. She also explained she had left employment because of G’s limited attendance at school.
26. In its final response to the complaint the Council drew attention to some incidents at the school in April 2023. It questioned if these may have contributed to G’s negative mental health. Ms F has explained to me why she does not consider this was the case. The Council also pointed to a letter it received from a medical practitioner in February 2023 which said the school had tried “all possible interventions” to encourage G’s attendance. Ms F points out this letter explained why the school was not a suitable setting for G.

My findings

The 2021/22 academic year

27. I find no fault in the Council’s actions during the 2021/22 academic year. There is no evidence that School X or Ms F alerted the Council to G’s absences.
28. I accept that some Council officers may have had a general knowledge that G experienced some difficulties with school, including attendance, because of his special educational needs. But I have not seen evidence that they knew the nature and extent of this. Also, Ms F’s evidence suggests G’s struggles with attendance worsened over time. So, even if those officers did know the extent of G’s difficulties this need not have made further intervention necessary. So, I consider there is insufficient evidence for me to find those officers should have alerted colleagues in education services to consider possible intervention. Which means I cannot fault the Council for failing to intervene.
29. I recognise Ms F will still feel more could have been done to support G during this difficult time. But I consider any complaint here concerns more the actions of the school, not the Council. And for reasons explained above (see paragraph 5) I cannot investigate School X.

The 2022/23 academic year

30. The Council learnt of G’s absences when School X contacted it to request an assessment of their education, health and care needs in September 2022. The request showed G did not have access to a full-time curriculum in school. So, I had concerns the Council did not check:

• how long G had been on a part-time timetable;
• if School X had sought any specialist advice to try and encourage greater attendance;
• if School X provided any more support to G through work they could do at home or via any alternative provision.

31. I consider the Council should have made these basic checks. I consider this finding reinforced by the letter the Council later received from a medical professional. They suggested the school had done all it could to support G, so suggesting in turn the Council needed to intervene. I found the Council at fault therefore for not making the checks set out at paragraph 29.
32. The purpose of the checks would be for the Council to find out if it had any scope or duty to support G under Section 19. Or if it could offer any support to the school to help G engage in education. I considered those checks could have resulted therefore in either:

• the Council requiring School X to do more to support G’s education; or
• the Council stepping in with support; or
• some combination of the two.

33. It was an injustice to G that this did not happen and they did not have a full-time education available before March 2023. Because, while the EHC Plan issued in March showed G received some support outside their part-time timetable, it was limited. And some of that support came from the online alternative provision Ms F arranged.
34. A second injustice is the lack of intervention caused Ms F avoidable distress.
35. A further fault lay in the delay in the Council completing the EHC Plan. But I did not consider any separable injustice arose from this.
36. Turning to events after the issue of G’s EHC Plan, I noted in March 2023 the Council attended a meeting at School X. At that point all parties clearly envisaged G resuming a full-time timetable with the school enlisting some outside support. A detailed action plan resulted.
37. I am unclear the extent to which G’s failure to return to full-time education arose from the school not carrying out specific action points. Ms F has provided email exchanges with the school, where she said this. But the school’s replies show a difference of opinion about what it did to help facilitate G’s return.
38. What I focused on was the response of the Council. Because where a child has an EHC Plan, we do not expect it to keep a ‘watching brief’ over the provision a child receives. But at the same time, it is ultimately responsible for making sure the child receives the education set out in Section F of their Plan. So, if the Council receives information that a child is not attending full-time, this must lead it to question if they are receiving their provision. It should therefore at least make enquiries in these circumstances.
39. I do not consider the evidence here shows the Council knew of continuing problems with G’s attendance at School X. I have only seen Ms F’s email from July 2023 and that does not comment on G’s school attendance. It suggested School X could be doing more to prepare G for his transition to their new education setting, but that is a different matter.
40. So, on balance, I did not consider the Council was at fault for not intervening more after March 2023 for the time G remained at School X. Any fault, and the resulting injustice, covered the time period of around six months between September 2022 and early March 2023 only.

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Agreed action

Personal remedy

41. The Council has accepted the findings set out above. It has agreed to remedy the injustice caused to Ms F and G. To do this, it will, within 20 working days of this decision:
1. apologise to Ms F and G, accepting the findings of this investigation and following the approach set out in section 3.2 of our guidance on remedies;
2. make a symbolic payment to Ms F of £1250. Of this, £1000 is to recognise G’s lost provision and £250 for Ms F’s distress.
42. I have recommended the symbolic payment having considered our approach to remedying ‘lost provision’ when a child is out of school. This suggests we would usually start from a figure of around £900 a term. However, I have used my discretion to apply a lower tariff noting:

• G was on a part-time timetable;
• they also received some limited support from School X in addition to this;
• the fault occurred at the same time the Council was assessing G’s education, health and care needs and uncertainty over those would have complicated any intervention to support G.

43. I understand this symbolic payment will cover the outstanding invoices Ms F incurred for arranging online alternative provision for G. This too will have gone some way to make up for some of the provision G lost between September 2022 and March 2023.
44. I could not recommend the Council make a symbolic payment to Ms F for lost income, arising from her leaving her employment. This was because I could not say that G’s non-attendance at school, which required Ms F to stay home, arose because of the Council’s fault.

Service improvements

45. We expect councils will want to learn lessons from complaints. In this case I considered the Council needed to reflect on why it did not find out the facts of G’s absences from School X. Nor what efforts the school made to meet their education needs while they did not have an EHC Plan.
46. The Council has agreed therefore that within three months of this decision it will issue advice to its SEN case workers on what to do if evidence accompanying a request for an education, health and care needs assessment suggests a child is out of school and / or not receiving a full-time education. The Council will consider if there is any support for schools and / or alternative provision it can make pending the outcome of the assessment in line with its Section 19 duties and offer signposting to its officers accordingly.
47. The Council will provide us with evidence to show it has carried out the agreed actions.

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Final decision

48. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Ms F and G. The Council accepted these findings and agreed action to remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman