Summary: Ms J complains the Council failed to provide education to her son, K, throughout 2019. K was not attending school and the Council decided to prosecute her for his non-attendance. This caused her distress and K missed a service he was entitled to receive. When she made complaints, the Council failed to deal with them in a timely way causing time and trouble. The investigation found evidence of fault in failing to provide K with education from September to December 2019. It also found evidence of fault in the Council’s complaints handling.

The complaint

1. The complainant, whom I shall call Ms J, says the Council failed to provide education to her son, K, throughout 2019. She also complained that the Council had failed to address her complaints appropriately.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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.
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
7. 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

8. I considered the information provided by Ms J with her complaint and spoke to her on the telephone. I made enquiries of the Council and assessed its response. I sent Ms J and the Council a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

What happened

9. I am considering this complaint from January 2019.
10. K transitioned from junior school to School A in September 2017.
11. By September 2018, K was attending School A on a very reduced timetable. He had an individual learning plan developed by the school with input from an educational psychologist. K was working in a small room, mainly on his own. An email from school the following month suggests K was failing to engage with the requirements it put in place; he was not ‘signing in’ to the area in which he was working, he was not doing the work asked of him but he was not asking for help either. The school put him in detention and suggested he would have to do the work at home if he failed to do it in school.
12. Because K was, according to the email, not engaging with the work when he was accommodated in school on his own, School A decided to try to reintegrate him into mainstream classes. This is a school matter and not something I can investigate. K stopped attending School A.
13. In the absence of any medical evidence, to suggest K was unfit to attend, School A decided K was not attending because of truancy. It asked the Council to issue a penalty notice in February 2019. Because Ms J did not pay the penalty notice, this was escalated to the court.
14. Ms J is unhappy the Council issued a penalty notice. She said this also adversely affected K who was extremely anxious that the court was involved. She feels the Council should have offered education to K from January 2019 as he was not attending school.
15. The Council issued an Education, Health and Care Plan (EHCP) for K in June 2019.
16. The Council withdrew the penalty notice on 13 September 2019. School A put in place online tuition in October and face-to-face provision began in January. K now has 1:1 tuition at home, for ten hours each week, although School A is named on his EHCP.
17. When Ms J made complaints about what had happened, the Council failed to address them quickly enough, which put Ms J to time and trouble.

What should have happened

18. K had an individual learning plan that was in place from September 2018, which took advice from appropriate professionals.
19. Miss J says the Council was aware K was on a reduced timetable through an Early Help Action Plan but given the professional input to the plan for K, I am not finding fault with the Council for failing to consider whether it needed to offer additional education to K. There was a place available at the school and K was attending until January 2019. The Council had good reason to think K was being appropriately educated.
20. If children do not attend school, we would find fault if Councils did not either a) pursue a prosecution or b) decide a child could not attend through illness or for another reason and put provision in place. The Council decided it was appropriate for the school to seek to prosecute in the absence of medical evidence to suggest K could not attend. I am not finding it at fault for this. I do not find the Council at fault for failing to intervene before sending out the fixed penalty notice given it would have been led by the school. Ms J’s case would have been heard in court, which would have given her a right of redress.
21. The Council also had good reason to think, from February when it issued the penalty notice, a place remained available at the school for K. Ms J says the Educational Psychologist report issued in February 2019 said ‘K’s ongoing mental health difficulties are creating a barrier to him participating in everyday activities e.g. school’ and ‘if K returns to school after a length of time he will need gradual exposure’. Both quotes suggest he could return to school on a part time timetable perhaps with a phased return.
22. An Education, Health and Care Plan was issued for K in June naming School A. If Ms J wanted a different placement for K, she was able to go to SEND to ask for this until September. I am not considering that time period.
23. The court case was withdrawn by the Council on 13 September 2019 after the school decided it would be inappropriate to proceed. That was a matter for the school.
24. Once the case was withdrawn, the Council had a duty to consider what education K needed under Section 19 of the Education Act 1996. This is because K was clearly not attending School A yet the school and Council had decided this was not because of truancy.
25. The Council told me School A was responsible for putting in place education for K and that it had an agreement with the school to do this. Section 19 is clear that it is the Council’s own duty to make suitable alternative education for children of statutory school age who cannot attend school because of illness, exclusion or any other reason. This is irrespective of whether the child is on roll at a school or not. The Council had this duty from September 2019. Even if it identified school A was providing some education (in this case online education from October 2019), it should have considered whether this was sufficient. I have no evidence that it did so.
26. Therefore, I consider K had insufficient education from September (when the case was withdrawn) until the Council put in place 1:1 tuition for ten hours per week in the middle of January. This is fault. K missed approximately four months of education that he should have had.
27. The Council knew in October that K could not access the online education provided by the school that month. It also had further evidence in October from the Child and Adolescent Mental Health Services (CAMHS) that school was not appropriate for K who “has had difficulties with anxiety and not attended school since January 2019. School has tried a number of different strategies which have all failed. CAMHS state that due to his anxiety difficulties and length of time he has been absent from school he is unlikely to be able to return to a school environment in the short term”. CAMHS said K needed “tuition in the home environment in the first instance with a view to gradual reintegration into a school environment which can meet his needs”.
28. The annual review of K’s EHCP (held in July 2020) agreed that the ten hours of education K was receiving was appropriate. The Council has told me it will continually keep this under review in order that K receives as much education as he can benefit from going forward.
29. The Ombudsman referred Ms J’s complaint to the Council on 21 November 2019. The Council responded on 27 November 2019 that it had not received a complaint from Ms J. Ms J has provided me with a copy of an automatic acknowledgement from the Council in relation to her complaint that she received on 1 September 2019. That the Council did not start to progress her complaint at that point is fault.
30. The Council began its Stage One process on 11 December 2019 (two and a half weeks after the complaint was referred), but a response was only provided on 28 February 2020. Further, the Stage Two, despite being requested in a timely way, was not completed until July and Ms J did not receive it until much later. The delay is fault and it has caused Ms J time and trouble.

Agreed action

31. For the four months of education K missed, the Council should make a payment to him of £800 for educational purposes within three months of the date of my decision. This reflects the fact that provision is still part time. His tutor should be consulted by the Council to decide how this might best be spent.
32. For the significant time and trouble caused to Ms J through the Council’s delays in complaints handling, the Council should make a payment of £400 within three months of the date of my decision.

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Final decision

33. I have found evidence of fault leading to injustice. Actions have been agreed to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman