Summary: the Council accepts it should have done more to secure B’s return to school when he was out of school between January and July 2018. His parents, however, were resolute in their decision he should not return to school. Any fault by the Council has not, therefore, caused an injustice for which the Ombudsman should recommend a remedy. The Ombudsman cannot consider the complaint once B’s parents appealed to the Tribunal.

The complaint

1. Mr F complains about his son, B’s education. Mr F says B’s school placement broke down in November 2017. He complains B did not receive any education from the Council or any of the weekly SALT and OT in his EHC Plan for almost two years.
2. Mr F appealed to the Tribunal against the Council’s proposal B should return to school. He wanted B’s EHC Plan to specify education at home. He complains about his dealings with the Council. In particular, Mr F complains about:
1. the Council’s decision making, which he says was improper and inadequate. He alleges the Council ignored evidence B’s school placement was unsuitable, refused to reassess B, and then changed its mind during his appeal;
2. the conduct of Council officers. He alleges the Council knowingly misled him, caused delays by withholding evidence, and failed to act in B’s best interests;
3. the Council’s response to his complaint. He alleges the Council ignored evidence, failed to fully investigate his concerns and caused unnecessary delay.
3. As a result, Mr F says:
1. B has lost almost two years of education and therapy; and
2. B’s mother has been unable to work as she has been providing B’s education at home.
4. Mr F says B missed 11 sessions of OT between September 2017 and November 2017 when his school placement broke down.

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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 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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)

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How I considered this complaint

9. I have considered:
• information provided by Mr F;
• information provided by the Council;
• Out of school… out of mind? How councils can do more to give children out of school a good education published by the Local Government Ombudsman in 2011;
• Guidance on good practice: remedies published by the Local Government Ombudsman in December 2019.
10. I invited Mr F and the Council to comment on my draft decision.

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What I found

11. Mr F’s son, B, has an Education, Health and Care (EHC) Plan. An EHC Plan describes a child’s special educational needs and the provision required to meet them. A Plan should also name the school, or type of school, the child will attend.
12. The Council was responsible for B’s EHC Plan until September 2019 when the family moved to a different area.
13. B joined a community special school for pupils with moderate learning difficulties and additional complex needs in April 2016. He stopped attending school at the end of 2017 following a period of increasing anxiety. He was then taught at home by his mother.
14. The Council began a review of B’s special educational needs and provision in October 2017. B’s parents wanted a programme of home education, funded by the Council, to be specified in B’s new EHC Plan. The Council did not agree. The Council issued a final EHC Plan in August 2018 which said B should continue to attend the same community special school. B’s parents appealed to the Tribunal. Following hearings in June and July 2019, the Tribunal issued a decision in August 2019. The Tribunal allowed the appeal, but decided B should attend a special primary school when he is able to return to school.

Mr F’s complaint

15. Mr F complained to the Council in June 2018 and to the Ombudsman in July 2018. Much of his complaint concerned B’s EHC Plan and the question of whether B should be educated at home or at school. We noted Mr B had begun an appeal to the Tribunal and advised him to contact us again when the Tribunal had made a decision. Mr F contacted us in August 2019 following the Tribunal’s decision and asked us to look at his complaint again.

What I have considered

16. I have considered Mr F’s complaint about B’s education from the September 2017 until August 2018 when the Council issued B’s EHC Plan and Mr F appealed to the Tribunal. I have not considered Mr F’s complaint about his dealings with the Council during his appeal, or the education B missed once Mr F lodged his appeal in August 2018. The Ombudsman has no power to consider these matters since they form part of, or are inextricably linked to, Mr F’s appeal.

B’s education between the end of 2017 and July 2018

17. The Council says B last attended school on 9 January 2018.
18. Councils have a duty to “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))
19. The Council believed the school could provide suitable education for B, and there was a place available. Nevertheless, B did not attend the school. Mr F believes the school was unsuitable and the Council should have arranged for B’s education at home.
20. In response to Mr F’s complaint, the Council said, “[…] effective collaborative measures should have been taken sooner to support B’s reintegration back into school, whilst ever there was no medical evidence to justify his non-school attendance. This highlights the need for robust protocols to be put in place to promote strong collaborative working in partnership with parents.”
21. This appears to be a concession from the Council that it could have done more. In this case, however, it appears the Council is saying it should have done more to secure B’s return to school rather than provide him with education at home. Following Mr F’s complaint to the Council, an Education Welfare Officer became involved and attempted to make plans to secure B’s return to school.
22. B’s parents, on the other hand, appear to have been resolute in their views that a return to school was not in B’s interests and he should remain at home and receive tuition there.
23. 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.
24. The Ombudsman made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that 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 the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• 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.
25. It does not appear the Council took all these steps in B’s case. This is fault.
26. When the Ombudsman finds fault by a Council, we must consider whether it has caused an injustice to the person complaining. We also take account of the actions of the person complaining.
27. The Council believed B should return to school. B’s parents believed he should remain at home and receive tuition there. The Ombudsman does not decide. The professional opinion available at the time, or as near to the time as is available, appears to support the Council’s views.
28. B was seen by a psychologist in June 2018. The psychologist explained that an important part of the treatment for anxiety is exposure. However, the psychologist noted that B’s parents were not considering a return to school. B was discharged from the service and his parents were invited to make a new referral if they considered a return to school in the future. The Council says B’s parents did not disclose this information until they were ordered to do so by the Tribunal in 2019. B’s parents continued to pursue home education instead.
29. Taking all of this information into account, I do not consider any fault by the Council has caused an injustice for which the Ombudsman should recommend a remedy. The Council believes it should have done more to secure B’s return to school, but his parents were resolute this was not what they wanted. They have taken every action available to them to resist the Council’s plans. They have ultimately been successful, at least in the immediate term, but this does not change my views since I must consider events as they happened and not with the benefit of hindsight.
30. I cannot consider Mr F’s complaint about the education B missed once he lodged his appeal against B’s EHC Plan. Recent case law has established the Ombudsman cannot investigate complaints in these circumstances when there is an inextricable link between the missed education and the disputed EHC Plan. (R(on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407) This applies to Mr F’s complaint since the question of whether B should attend school or receive education at home was central to his appeal.

OT between September and November 2017

31. Mr F says B missed 11 sessions of OT between September 2017 and November 2017 when his school placement broke down.
32. I have not investigated this part of Mr F’s complaint because there is no way I could now provide a meaningful remedy for occupational therapy B missed more than two years ago. The recent tribunal considered B’s needs for Occupational Therapy in the context of his absence from school for almost two years. The Tribunal heard evidence from a specialist children’s occupational therapist. The OT’s recommendations have been incorporated into B’s EHC Plan. This satisfies me B’s need for OT has been addressed.

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Final decision

33. I have ended my investigation. The Council accepts it should have done more to secure B’s return to school when he was out of school between January and July 2018. His parents, however, were resolute in their decision he should not return to school. Any fault by the Council has not, therefore, caused an injustice for which the Ombudsman should recommend a remedy. The Ombudsman cannot consider the complaint once B’s parents appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman