Summary: Mrs C complained that the Council failed to provide suitable education for her son after he stopped attending school which Mrs C felt could not meet his needs. Whilst the Ombudsman is unable to investigate the whole period covered due to jurisdictional issues, the Council was at fault for not properly assessing the suitability of the education it provided. The Council has agreed to apologise and make a payment to remedy the injustice this caused.

The complaint

1. The complaint, whom I shall refer to as Mrs C, complains that the Council failed to provide suitable alternative education provision for her son for a period of 6 months, after he stopped attending school in February 2019. I shall refer to Mrs C’s son as ‘D’. Mrs C also says the Council failed to offer her or her family any support during this period and delayed responding to her complaints about these matters. Mrs C say this has resulted in a significant loss of income for her and caused both her and her family distress.

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What I have investigated

2. I have investigated the Council’s actions from February 2019, when D stopped attending school, until 20 March when Mrs C appealed to the SEND tribunal.
3. I have also investigated the Council’s actions from 9 May, when Mrs C’s appeal to SEND was successful, to 15 August, when Mrs C submitted a further appeal to SEND.
4. I have also investigated how the Council dealt with Mrs C’s complaints about the matter.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) , 26A(1), and 34(3), as amended)
6. 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)
7. There are some limits on the Ombudsman’s jurisdiction. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. If the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
8. If someone has lodged an appeal to a tribunal the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
10. 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)
11. 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

12. As part of the investigation, I have considered the complaint and information received from Mrs C and information provided by the Council. I also communicated with Mrs C about her complaint.
13. I have reviewed and considered relevant legislation and statutory guidance.
14. I have also considered the Ombudsman’s focus report ‘Out of school…out of mind? How councils can do more to give children out of school a good education', published September 2011.
15. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Alternative education provision

16. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
17. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
18. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
20. The Council provides alternative education provision through a service called Access to Education (A2E).
21. We issued a focus report in September 2011, amended in January 2016, “Out of sight… out of mind”. This gives guidance for 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. It reminded councils they must step in when absence is for ‘illness, exclusion or otherwise’ and this therefore includes any kind of reason for absence, providing it is reasonable.
22. The report identified recommendations for councils to:
• consider the individual circumstances for each case and be aware that they may need to act whatever the reason for absence (except minor issues schools deal with on a day-to-day basis) even when a child is on a school roll.
• consult all the professionals involved in a child’s education and welfare, taking account of all the evidence in coming to decisions.
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education.
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so.

Fair Access Protocol

23. Every council must have a Fair Access Protocol (FAP), agreed with most schools in its area to ensure that, outside of the normal admissions round, unplaced children are offered a place at a suitable school as quickly as possible.
24. The operation of FAPs is outside the co-ordination arrangements and is triggered when a parent of an eligible child has not secured a place under in-year admission procedures.
25. The Council’s FAP explains that when a referral is received from a school, the child should be referred to A2E. An assessment should then be carried out, and tutoring arranged.

Education Health and Care Plans

26. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. A parent, education provider or the young person (when aged over 16) can ask for an EHC needs assessment. Following that request, the Council has six weeks to decide if an assessment is necessary and tell the parents.
27. If the Council agrees to complete an EHC assessment and decides to issue an EHC Plan, it must complete that process within 20 weeks of the initial request. The council does not have to provide exactly what the parents ask for in the EHC plan, but it should be able to explain why the EHC plan meets the needs of the child.
28. The Ombudsman cannot investigate complaints about the Council’s decision whether to conduct an assessment, or about the content of the EHC plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).
29. As of March 2018, SEND have also been able to deal with appeals about social care and health provision.

Background

30. Mrs C’s son, whom I shall refer to as D, has cerebral palsy. In December 2018, the family moved to the Surrey area and D started attending a mainstream primary school during Year 3. I shall refer to this school as ‘School A’. At the time D did not have an Education Health and Care (EHC) Plan.

What happened

31. On 7 February 2019, Mrs C contacted the Council and said that D was on respite from school due to a change in his behaviour.
32. The Council contacted School A which said that D was still on the school roll, but Mrs C had recently been in contact to say that D would not be attending due to tiredness.
33. Mrs C requested D be transferred to a special school, which I shall refer to as School B.
34. The Council contacted School B and 2 other mainstream schools in the area, including the school Mrs C identified as her first choice before moving to the area, which I shall refer to as School C.
35. The Council told Mrs C that D could not attend School B as it was a special school, and D did not have an EHC Plan. Mrs C requested that the Council carry out an EHC assessment for D.
36. Mrs C subsequently requested the Council pursue a place for D at School C. The Council contacted School C, who raised concerns that it could meet D’s needs. School C later told the Council it was not able to facilitate D’s education.
37. The Council contacted Mrs C and informed her that it had made the decision not to assess D for an EHC Plan. Mrs C appealed this decision on 20 March.
38. On 26 March, School A made the decision to remove D from its roll. It contacted the Council to inform it of this on 29 March.
39. The Council contacted Mrs C to inform her that it would be implementing its FAP, and that D would be referred to A2E. It said that A2E would consider D’s circumstances and he most appropriate method of education for him.
40. A2E carried out a visit to Mrs C’s home and made the decision to provide D with a virtual learning platform. D’s first lesson started on 8 May.
41. On 9 May Mrs C’s appeal to SEND was successful. Therefore, the Council were instructed to start an EHC Assessment for D. A final EHC Plan was issued on 8 August. Mrs C appealed the contents of the plan to SEND on 15 August.
42. On 5 November, D started school at the special school, School B.

Analysis

Delay in arranging provision

43. Mrs C complains that the Council took too long to arrange alternative educational provision when D first stopped attending school in February 2019.
44. Whilst D did stop attending school in February 2019, it was not until March 2019, after Mrs C had appealed to SEND, that the school removed him from its roll and a FAP referral was made. I have not seen any evidence to suggest that the Council should have made its referral to A2E before 20 March, when Mrs C appealed to SEND. For the reasons detailed at the end of this decision statement, I am unable to investigate how it dealt with this matter after that date.

Suitability of provision

45. Mrs C also complains about the suitability of the alternative provision provided.
46. A2E provided alternative provision between 8 May 2019 to 4 November 2019. However, because of the law and caselaw referred to in paragraphs 6 and 7 above the Ombudsman cannot recommend any remedy for lack of suitable education during which Mrs C had used her appeal rights. This is because the lack of education is ‘inextricably linked’ to the appeal for their preferred school placement.
47. However, I can look at the period between 9 May 2019 and 5 August 2019, because this is outside of the appeal period.
48. When arranging alternative provision, A2E attended Mrs C’s home. It provided D with a virtual learning platform and subsequently provided face to face teaching and group sessions.
49. However, the Council has told the Ombudsman that no formal assessment of D’s needs was ever carried out. Having considered this point I am not satisfied that the Council has demonstrated that D’s circumstances were properly assessed when the decision was made as to what education he would receive. This is fault.
50. The Council has explained that, whilst its FAP does state that A2E carry out an assessment before tuition starts, the formal assessment is carried out by an Educational Psychologist. The Council did accept that the use of the word “assessment” in its FAP is open to interpretation.
51. The lack of a proper assessment of D’s educational needs, has caused uncertainty over the suitability of D’s education provision for a period of 9 weeks.
52. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss.
53. In this case I consider that the payment should be made at the lower end of the scale. This is because, while it has not demonstrated that the provision was sufficient, the Council did put in place some education provision throughout the period mentioned.

Complaints

54. Mrs C contacted the Council in August to complaint about their handling of D’s education provision. She contacted the Council again in September after receiving no response.
55. The Council suggested to Mrs C that her complaint be put on hold so she could concentrate on her appeal to SEND. Mrs C originally agreed to this but contacted the Council again at the end of September and asked it to proceed with her complaint.
56. The Council provided a provisional response at the end of November and a final response in February.
57. The Council accepted that there had been delays in responding to her complaints and offered Mrs C a payment of £200, to remedy the time and trouble she had been to.
58. Having considered the payment offered to Mrs C, I consider that this was an appropriate remedy and is in line with our guidance on remedies. I therefore do not propose making any further recommendation in relation to this element of Mrs C’s complaint.

Agreed action

59. To remedy the injustice identified above the Council has agreed that, within one month of my final decision, it will apologise to Mrs C for the fault identified above and offer to make a payment of £500 which should be used for the benefit of D’s education.
60. Additionally, the Council has also agreed that, within three months of the date of my final decision, it will review its FAP with particular reference to specifying the role of A2E in the assessment of children upon referral to their service.

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Final decision

61. I have concluded my investigation on the basis that there is evidence of fault causing an injustice.

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Parts of the complaint that I did not investigate

62. Where the period out of education coincides with an appeal against the decision not to carry out an EHC assessment, or against the content of an EHC Plan, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction.
63. Any actions of the Council associated with the appeal are outside the Ombudsman’s jurisdiction for the same reason, and I cannot investigate them.
64. The restrictions imposed by the legislation and case law described above apply even though the Tribunal has no power to provide remedy for the lost education.
65. For this reason, I cannot investigate Mrs C’s complaint about the educational provision for her son between 20 March 2019 and 9 May 2019, when Mrs C appealed the Council’s decision not to assess D for an EHC Plan.
66. Furthermore, for the same reason, I cannot investigate Mrs C’s complaint about the lack of educational provision for her son after 8 August, when a final ECH Plan was issued, and Mrs C’s appeal rights again arose.
67. Finally, I cannot investigate Mrs C’s complaint about the lack of support from Children’s Services, in the form of respite care. This is because the lack of any social care provision could also have been appealed to SEND.

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Investigator's decision on behalf of the Ombudsman