The Ombudsman's final decision:
Summary: The Council wrongly delayed arranging alternative education provision when the complainant’s son could not continue to attend his previous school. The complainant arranged private tuition and this cost was an injustice to her. The Council will remedy the complaint by providing an apology and financial payment, and by reviewing the advice and support it provides to families in similar situations.
- The complainant, whom I shall refer to as Mrs D, complains on her own behalf and that of her son, whom I shall refer to as E, that:
- The Council failed to provide a suitable full-time education for E
- The Council failed to ensure E received the provision in his Education, Health and Care Plan (EHCP) including speech therapy and social skills group work
- The Council failed to name schools simply on the basis they were full
- Home tutors provided to work with E by the Council were unsuitable
- The Council named a school in an amended final EHCP where E had previously been bullied
- The Council withdrew a personal education budget leaving E without education again in September 2017.
What I have investigated
- I have investigated the complaint for the period from December 2016 until July 2017 only. I cannot investigate events after July 2017 for the reasons set out below.
The Ombudsman’s role and powers
- 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)
- The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- Where there is a right of appeal to SEND about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision.
- Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- If we are satisfied with a 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)
How I considered this complaint
- I have considered information provided by Mrs D and the Council including:
- E’s EHCPs
- Correspondence between Mrs D and the Council
- Correspondence of the Council and Mrs D with a school
- Consultations with various schools
- Complaint documents
- Council policies
- Statutory guidance:
- Children missing education (September 2016)
- Education for children with health needs who cannot attend school (January 2013)
- Alternative Provision (2013)
Relevant law and statutory guidance
- A child with special educational needs may have an EHCP. The EHCP sets out the child’s needs and what arrangements should be made to meet them. The Ombudsman cannot change an EHCP; only SEND can do that.
- The Council is responsible for making sure that all the arrangements specified in the EHCP are put in place. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in an EHCP has not been provided or where there have been delays in the process.
- Section 19 of the Education Act 1996 (as amended) says councils are responsible for the provision of suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
- Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, Councils should ensure children are placed as quickly as possible.
- Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
- provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more
- address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors
- arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
What I found
- E has autism spectrum condition and associated behavioural difficulties. E has high intellectual ability.
- The Council issued an EHCP for E on 20 April 2015 setting out the special educational provision he required. In September 2015, E started to attend a primary special school (School A). In March 2016, the Council held an early review to discuss a change of placement at Mrs D’s request. Mrs D wanted E to move to an independent mainstream school (School B) as she felt he wasn’t sufficiently academically challenged at his current school. The Council agreed on the basis Mrs D pay the independent school fees and it paid for the 1:1 support.
- In August 2016 Mrs D referred E to the speech therapy service. The speech and language therapist (SLT) made some recommendations to be carried out by education staff under SLT advice (indirect therapy).
- In December 2016, there was a behaviour incident at school. An email from Mrs D to the Headteacher on 3 December indicated E was reluctant to return to school after the incident. Mrs D had seen E’s paediatrician that day who had agreed to assess E for autism in January. Mrs D said she felt medication changes may have been partly responsible for what had happened and that further changes to E’s medication and strategies for autism should help with his behaviour. Mrs D said she would keep E at home until his medication was changed but hoped to work with school to support E’s continued placement there. The Head responded on 4 December agreeing to absence on medical grounds.
- On 12 December Mrs D requested an emergency review of E’s EHCP.
- On 13 December School B sent Mrs D a proposed behaviour contract for E, asked for assurances about his new medication, and asked Mrs D to confirm she wanted E to return to School B.
- A note on the Council’s file on 10 January indicated Mrs D’s advocate had been in touch and told the Council that E had been absent from school since early December and that Mrs D had been requesting an emergency annual review since 12 December.
- Mrs D must also have complained to School B about delay as it responded on 11 January that it had been waiting to hear from her in response to the Headteacher’s letter of 13 December before arranging the review meeting. The meeting was then arranged for 24 January. School B said this timescale was due to advice from the Council to allow time for professionals to complete reports.
- The Headteacher emailed Mrs D on 12 January saying he understood she was unhappy with the speed at which the school had acted in calling a review meeting for E. The Head said he had made clear to Mrs D she first had to respond to his letter of 13 December, until then E remained absent on medical grounds. The Head said Mrs D had informed the school on Monday (9 January) she had decided E should not return to the school.
- On 13 January the Council made enquiries of School B about E’s absence. School B said it had not permanently excluded E but Mrs D had now withdrawn him. School B had already sent the Council notice that it had removed E from the roll from 9 January.
- Emails suggest the Council was unhappy with the way School B had dealt with the situation and suspected School B had been minded to permanently exclude E, but not followed correct procedures. The Council advised School B it could not permanently exclude a child who was no longer on roll and suspected some ‘back tracking’ by the school once it had received advice on what it should have done. On questioning by the Council, the Head said while he had concerns about whether School B was the right provision for E, they were willing to work with E.
- The Council recorded E as a child missing from education as an interim measure. The Council decided it did not need to offer alternative provision to E as there had been no exclusion. The Council told me it was satisfied E was not attending school because Mrs D would not send him, but that E had a suitable school place to attend.
- On 16 January the Council noted Mrs D had arranged some private tuition but was not voluntarily home educating and wanted the Council to arrange alternative provision.
- On 18/19 January Council officers confirmed to Mrs D that as School B had not permanently excluded E, he was still able to attend, and the Council would not make alternative provision under s.19 Education Act. The Council told Mrs D that E should continue to attend School B until the review meeting (on 24 January). The Council said if at the review meeting it was decided E should not attend School B (in either the long or short term), then the Council would then put home tuition in place.
- An officer told Mrs D by email on 19 January that ‘whilst agreement to make provision in the interim (before the review) has not been given, hopefully, if all goes as we hope at the review I can contact the tuition service we use and put in place support very shortly afterwards’.
- Mrs D responded that E could not attend School B as he had been removed from the roll. Mrs D also said she could not sign the behaviour contract for School B because E’s behaviour was too unpredictable.
- The Council told me the school and Mrs D clearly wanted reassurances from each other but as it was an independent school the Council was not party to their communications. The Council said Mrs D had chosen to pay for a private school placement and it had no control over a parent removing a child from an independent school or a school removing a child from the roll.
- In response to my draft decision the Council told me that it did expect the School to say it could not meet needs at the review meeting but it could not pre-empt the outcome as either Mrs D or the school may have changed their views.
- The review meeting was held on 24 January. The Council told me it was only at this point the Council became aware E was off roll and did not have a school place available. It was agreed School B could not meet E’s needs and he should not return. The Council then agreed to provide 15 hours 1 to 1 academic tuition at E’s home. This started on 7 February 2017. The Council told me it considers 15 hours of one to one tuition to be equivalent to full-time group based education. The Council funds tuition at £100 per day for 3 hours.
- The Council also agreed to update E’s EHCP.
- Mrs D requested a place for E at School C which had a resource base. The Council consulted this school (in another council area) but on 8 March the other council declined to offer a place as E did not yet at that stage have a primary diagnosis of communication and interaction needs and so did not meet the criteria for entry.
- Mrs D then provided details of E’s recent autism diagnosis. The other council indicated the Council could resubmit the application but it was unlikely to be successful as the base was full. The Council noted E could reapply in April in case a place became available.
- Mrs D then asked the Council to consult School D, again in the other council area. The other council responded a risk assessment showed there was no physical space for more children to attend the base at School D and it was also a requirement E attend mainstream lessons for 30% of the time, which he was not ready for.
- On 12 April 2017, the Council agreed to consult resource base places within its own area. The Council consulted School E.
- The Council issued an amended draft EHCP in April 2017.
- In May 2017 NHS occupational therapy discharged E having given advice on a sensory diet for him to follow.
- In May 2017 the Council met Mrs D and discussed E returning to School A and said it would consult School A.
- On 8 June 2017 Mrs D raised concerns about the home tutor and requested a personal budget to employ her own tutor. Mrs D declined another tutor from the same agency. Mrs D’s letter referred to problems with lateness by a previous tutor from that agency. The Council agreed to a personal budget on 19 June.
- The Council sought an explanation from the tutor who provided a different version of events than the concerns Mrs D had raised.
- In June 2017 Mrs D asked the Council to consult School F, which it agreed to do.
- Emails show the Council had also considered School G but it could not meet E’s needs.
- By late June the Council was intending to name School A on the amended EHCP from 1 September 2017. Mrs D indicated she would not send E to School A and wanted tuition to continue until an appropriate school was found. Mrs D visited School H (a residential school) and asked the Council to consult School H which occasionally took children in year 6.
- On 30 June the Council refused to extend funding for home tuition past July 2017. It had a place for E at School A from September which it deemed the most appropriate placement. It informed Mrs D of this on 4 July.
- On 5 July the Council consulted School H but noted even if a placement was offered it may not be funded on costs grounds.
- On 6 July the Council received an updated educational psychology report and updated the EHCP.
- Mrs D asked the Council to finalise the EHCP so she could appeal against the placement at School A.
- Mrs D asked the Council for its reasoning for School A as she said E had been bullied there. Mrs D wanted the personal budget to continue so E could have home tuition in September (pending the appeal).
- The Council finalised the EHCP at Mrs D’s request on 12 July 2017. A copy was sent to Mrs D on 26 July.
- On 18 July Mrs D told the Council that E wanted to try a school with a resource base and asked to re-consult previous schools that had been full.
- On 19 July Mrs D spoke to the Council and said:
- E wanted to attend School H even though this would have to be on a residential basis
- E was adamant he would not go to a mainstream school with resource base
- She did not intend to change her mind again
- She would appeal the place at School A.
Analysis and conclusions
Failure to provide alternative education
- There is no evidence to show the Council was aware that E was out of school until on or around 10 January 2017. While Mrs D requested an emergency annual review in December, this request was made to School B. I have seen no evidence the Council was aware at that time E had stopped attending school. Any delay by the school is outside the remit of the Ombudsman to consider.
- On or around 10 January the Council clearly had knowledge E was not attending the independent school. In line with statutory guidance, and its own protocol for children missing education, it made enquiries. It established that E had not been permanently excluded, although it suspected that School B may have excluded E had Mrs D not, by then, withdrawn him. The Council had completed its enquiries of the school and Mrs D by on or around 13 January and decided not to put in place tuition at that time.
- Section 19 of the Education Act 1996 says councils are responsible for the provision of suitable education for children of compulsory school age who ‘by reason of illness, exclusion or otherwise’ cannot attend school.
- Councils must provide alternative provision six days after a permanent exclusion. As E was not permanently excluded this did not apply.
- The Council had to consider if E was absent on health grounds. It must have been satisfied that this was not the case as it advised Mrs D that E should return to school pending the review meeting on 24 January.
- The Council then had to consider if there were ‘other’ reasons why E could not attend. It found no reasons and told Mrs D on 19 January it would not provide interim tuition under s.19 pending the review meeting because E had a place at School B available to him and it was Mrs D’s choice not to send E to school.
- The Council’s findings were inaccurate, E did not have a place at School B as he was no longer on roll. The Council knew this because it had a copy of the notice from School B removing E and because an officer had given School B advice it could not exclude a pupil who was not on roll.
- Mrs D would have had to reapply to School B, which may have required her to sign the behaviour contract she disagreed with, and to agree to pay the private school fees (usually a term’s notice is required). There is no evidence the Council explored whether there was a genuine prospect of E being able to return to School B that week. What evidence is available suggests Officers expected the outcome of the review meeting to be that School B would be found unsuitable, even for the short term, and that tuition would then be authorised. This is indeed what happened.
- While the Council may not have been in breach of any law by delaying arranging alternative provision from 13 to 24 January, I consider it did not act in the spirit of statutory guidance. The Council should have taken into account that E had been out of school since 3 December, even if the Council had not previously been aware of this. The priority should have been to avoid delay, act in E’s best interests and to minimise disruption to his education.
- I find there was a delay in organising alternative home tuition between 13 and 24 January. This would have caused a loss of education to E but instead Mrs D arranged private tuition. The injustice was therefore a financial loss to Mrs D rather than lost education to E.
Was tuition ‘suitable’ education?
- I find no fault with the amount of tuition. Fifteen hours per week one to one tuition can reasonably be considered equivalent to full-time class based education. There was a short delay between 24 January until 7 February in the tuition being arranged, but I have seen no evidence this was due to any delay or fault by the Council.
- While Mrs D raised concerns about some of the home tutors there is not enough evidence to prove the education provided by tutors on behalf of the Council was unsuitable. The factual accounts of the tutor and Mrs D differ. I find the Council acted quickly to agree a personal budget which was an appropriate response to the concerns Mrs D raised.
- Mrs D says the alternative provision arranged by the Council did not include the special educational provision (therapies) set out in E’s EHCP.
- I am not persuaded by the Council’s argument that as the therapists attended Schools A and B this allows it to say it discharged this part of E’s EHCP for the period February to July 2017. E was not on roll at either school and this therapy was not available to him. The Council accepted a duty to educate E under s.19 and this required it to provide suitable full-time education. ‘Suitable’ includes consideration of any special educational needs a child may have, including how provision in an EHCP can be provided to a child receiving home tuition (as far as that is feasible). In some cases this may require councils to arrange for therapies to take place at home.
- In E’s case his EHCP did not include any direct therapy, but for advice to be provided by therapists to education staff who would then incorporate this advice into E’s daily education and day. The Council could have considered with the tutor service how E’s special educational needs could best be met at home and whether SLT input or advice would have been helpful to the tutors. The tutor documents however show E’s English lessons did incorporate communication (speaking and listening) targets. The advice about a sensory diet was provided to school and home and this therapy could have been done at home without further advice or input.
- It was inevitable that some aspects of E’s education, including SLT targets concerning his interaction with others, would have been difficult to implement at home without a group of peers. E will however have received a more individualised curriculum than he would in a classroom. I do not have enough evidence to show that E significantly lost out on education between February and July 2017 when he had 1:1 tutoring.
- Mrs D wanted the home tuition arrangements to remain in place after September 2017. This suggests Mrs D was reasonably content with the tuition.
- It would have been good practice for the Council to consider how E’s social and leisure needs would be met during an extended period of education out of school and whether Mrs D had additional needs as a carer. It could have proactively referred her to social care. This might have led to Mrs D being signposted to local activities and to an earlier social care and carer’s assessment.
- Mrs D did refer herself to social care, but the assessment was not completed during the period covered by this investigation. I also note Mrs D did not raise complaints about any delay by social care in the complaint she put to the Council. Children services complaints have a statutory complaint procedure and Mrs D would need to use this process if she wishes to complain about lack of support by social care. The Ombudsman cannot consider complaint issues where the Council has not first had the opportunity to try and resolve them.
Failure to find school place
- Mrs D complains the Council was not able to find E a suitable school between January 2017 and July 2017. While no school place was found I am not persuaded this was due to fault by the Council. It was consulting schools in its own and other council areas. The Council did not just accept statements that schools were ‘full’, the consultation responses show that the schools gave reasons why E’s attendance would not be compatible with the education of other children. The Council could perhaps have considered consulting and naming School A earlier in the process, but I am satisfied it was working with Mrs D to try and find a school she was happy with, as she was reluctant for E to go back to School A.
- Mrs D told me that having E at home has caused her an injustice through being unable to work. I find Mrs D did not raise this with the Council at the time and so it did not have an opportunity to consider alternative options. If Mrs D had indicated she needed to work and home tuition was not suitable then the Council could have looked at alternatives like a pupil referral unit or School A at an earlier stage. The evidence shows Mrs D wanted E to continue to receive home tuition beyond September 2017 and potentially up until September 2018. While I do not underestimate the inconvenience and impact on Mrs D of having E at home full-time, this is an inevitable consequence of her preference for home tuition over alternative education options.
- Within four weeks of my final decision the Council will pay Mrs D £500 for the home tuition she had to arrange (when the Council delayed putting this in place between 13 and 24 January 2017) and provide a written apology.
- In future cases where a child with an EHCP is receiving education out of school for an extended period:
- The Council should expressly consider the extent to which special educational provision in Part F, including therapies, can be delivered at home and make suitable arrangements to do so where this is feasible. This could be via tutors, NHS or independent therapists. The Council should record its decision and reasons in the child’s notes.
- The Council should advise families of their right to assessment by social care where the leisure and social needs of the young person may be adversely affected or the child’s presence at home will create additional care needs for the parents and signpost families to the local offer.
- I have completed my investigation and find there was fault by the Council in not making alternative education available to E when he stopped attending school. I am satisfied the recommendations set out above are a suitable remedy for the injustice caused. The complaint is upheld.
Parts of the complaint that I did not investigate
- I have not investigated the period from July 2017 onwards or the naming of School A. Mrs D has exercised an alternative remedy to SEND via an appeal against the content and placement in the amended final EHCP issued on 26 July 2017. While Mrs D considers the Council named a school in the final EHCP which was unsuitable, the suitability of School A (and the consequence of any loss of education) is ‘intrinsically linked’ to the matters appealed (R (on the application of ER) v the Commissioner for Local Administration). The Courts have confirmed the Ombudsman has no jurisdiction in this scenario.
- I have not investigated the withdrawal of the personal budget in July 2017 this is intrinsically linked to the Council’s decision to name School A in the final EHCP and is part of her appeal. As such it is outside the remit of the Ombudsman.
- I have not investigated the actions of School B as schools are not within the jurisdiction of the Ombudsman.
- I have not investigated any delay by the Council’s social care department in completing an assessment as this did not form part of Mrs D’s original complaint to the Ombudsman and I am not satisfied Children’s services have had an opportunity to comment on it.
Investigator's decision on behalf of the Ombudsman