Summary: Mrs X complains about the appropriateness of out of school education provided when she removed her child from a school. There was fault by the Council because it did not properly consider its approach to the withdrawal of Mrs X’s son from school. The Council agreed a financial remedy for Mrs X and her son to address the injustice they suffered.

The complaint

1. Mrs X complains:
• About the suitability of a special education needs (SEN) placement for her child. This relates to the Council’s decision to fund the unit at the school, the competence of staff and a decision to admit more children to the school than the unit could reasonably handle;
• About the way in which SEN provision was reviewed at the school, and concerns about the amount of education provided;
• About issues surrounding staff conduct at the school culminating in safeguarding investigations involving the police and the Council;
• About the appropriateness of out of school education provided when she removed her child from the school.
2. Mrs X withdrew her son from the school because she was dissatisfied with the school’s SEN provision and the Council’s handling of her concerns. Mrs X’s concerns include:
• The Council did not put the ASD provision in a suitable school;
• Transport for her son was not arranged until three months after he started at the school in December 2016;
• The Council failed to visit or monitor ASD provision at the school;
• Parents phoned and emailed the Council with concerns about the provision as early as 2017 but did not receive any response;
• The Council built the provision for 8 children but insisted on adding more children;
• The Council placed children in the unit whose primary needs were social, emotional and mental health rather than ASD;
• The Council failed to ensure the school reviewed part-time timetables and increased children’s hours;
• The Council failed to check whether staff at the school were appropriately trained and had autism experience;
• The Council failed to safeguard children in the unit;
• The Council failed to coordinate with the school on EHCP;
• The Council lost her son’s EHCP review when it was sent to it;
• The Council failed to provide the specialist support and overall provision set out in her son’s EHCP.
• The Council failed to provide her son with alternative education within 6 days of his withdrawal from the unit.
• Her son was assaulted by a teaching assistant;
• The way her son’s assault was handled by the Local Authority’s Designated Officer (LADO);
• The Council refused to talk to parents about the failures their children had witnessed and endured at a restorative meeting;
• The Council would not allow them to record the meeting and refused to take minutes.
3. Mrs X says the Council’s failings caused her family immense stress as well as led to a loss of earnings.

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What I have investigated

4. I have investigated point 4 of the complaints set out above. My reasons for not investigating the other parts of the complaint are set out in the final section of this statement.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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)
9. 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

10. I examined the complaint and made enquiries of the Council. I considered the information provided by Mrs X as well as the Council. I sent a draft decision statement to Mrs X and the Council and considered the comments of both parties on it.
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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What I found

Legal Framework and guidance

Withdrawing a child from school

12. Elective home education is different from education provided by a local authority otherwise than at a school, for example tuition for children who are too ill to attend school.
13. The local council should enquire into the parent’s plans for home education to ensure the child is receiving a suitable education. If after making informal enquiries, it appears the child is not receiving suitable education at home then the council must serve notice on the parents requiring them to give information about the child’s education. If the council is not satisfied the education is suitable and it believes the child should attend school, then it should serve a school attendance order on the parents. If the child is not sent to school then the council should decide whether to prosecute the parents or seek an Education Supervision Order.
14. We cannot consider a school’s decision on whether to authorise absence as this is ruled out by Schedule 5 of the Local Government Act 1974.

Alternative provision guidance

15. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
16. Ensuring a good education for children who cannot attend school because of health needs states that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.

Background

17. Mrs X’s son has an education, health and care plan (EHCP). He attended an autistic spectrum disorder (ASD) unit at an academy school from December 2016 until Mrs X withdrew him from the school in November 2018.
18. Mrs X says she had to plead with the Council to obtain tuition for her son when he was at home. She says the Council eventually organised tuition to start in March 2019.
19. The Council says Mrs X’s son remained on the school roll until March 2019. He was marked as absent from school from the end of November 2018 until March 2019. The absences were recorded by the school as authorised absences.
20. The Council stresses the school’s headteacher contacted it for advice about the non-attendance of Mrs X’s son in January 2019. The Council says it advised the headteacher a review of Mrs X’s son’s EHCP would take place and a change of school could be considered as part of the review. It advised the headteacher the absence should be recorded as unauthorised. However, the headteacher chose to continue to authorise the absence.
21. At the review, Mrs X expressed a preference for a new school. But the school only admits children from Year 3 and Mrs X’s son was in Year 2. So he had to wait until September 2019 for admittance.
22. In March 2019, the school informed the Council Mrs X had chosen to home educate her son. The Council contacted Mrs X at the time. The Council then agreed to provide Mrs X’s son with home tuition for three sessions a week. Mrs X says the Council agreed to provide 6 hours of tuition but this was reduced to three hours a week. The alternative provision continued until Mrs X’s son started at a new school in September 2019.

Finding

The appropriateness of out of school education provided when she removed her child from the school

23. When the school’s headteacher sought advice from the Council in January on what to do about Mrs X’s son’s absence, the Council advised the headteacher to record the absence as unauthorised. Having done that, it then failed to follow up on the matter. It should have determined whether Mrs X’s son was medically fit to receive full time education in a school setting. This is a duty under section 19 of the Education Act 1996. There was inaction by the Council between January and March 2019.
24. From March until July 2019, I note the Council arranged home tuition for Mrs X’s son. Mrs X says the number of hours of home tuition were reduced from six to three. The Council provided a report from the tuition company on Mrs X’s son’s progress in the months of March and April 2019. This shows the number of hours were 18 in March and 10 in April.
25. Government guidance says pupils receiving education otherwise than at school are entitled to access the full curriculum. A reduced curriculum may be appropriate depending on the pupil’s assessed needs and ability. And where a pupil has an EHCP, the pupil is entitled to the full provision set out in the plan.
26. The Council should have assessed Mrs X’s son’s needs when the alternative provision was arranged so it could be certain of his needs and the required number of hours necessary to ensure the tuition would meet his needs. I have not seen any evidence the Council conducted such an assessment. This was fault.
27. And the injustice? I find the Council’s failings had a detrimental impact on the education of Mrs X’s son and led to a loss of education provision.
28. I recommend a payment of £600 to Mrs X’s son to be put towards educational activities for him. I also recommend a payment of £750 to Mrs X to reflect the distress she suffered for the period between January and July 2019.
29. I note Mrs X’s statement that she was faced with a loss of earnings during this period as she had to look after her son at home. However, there are myriad factors that play into a person’s ability to work and so I cannot directly attribute Mrs X’s loss of earnings to fault by the Council.

Final decision

30. There was fault by the Council which caused Mrs X and her son an injustice. The Council agreed a financial remedy for the injustice.

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Parts of the complaint that I did not investigate

31. I did not investigate the other parts of Mrs X’s complaint because these matters are caught by the time restriction on the Ombudsman’s power to investigate complaints. A complaint must be made to the Ombudsman within 12 months of a complainant’s awareness of the matters complained about. Mrs X complained to the Ombudsman in 2019. However, the events she complained about first occurred before 2016 and then over the course of 2017 and 2018.
32. The Ombudsman does have discretion to accept a complaint out of time. In this case I do not consider it reasonable to investigate these matters out of time because Mrs X could have appealed against the naming of the school in her child’s EHCP if the school was unsuitable. Similarly, complaints about a shortfall in hours when her son started school and the issues around the EHCP reviews could have been raised within the necessary time.
33. Complaints about the conduct of the school’s staff cannot be considered by the Ombudsman. While the Ombudsman could conceivably look at the adequacy of the Council’s safeguarding investigation, I do not find such a limited investigation would achieve anything of value. The correct recourse for Mrs X was to follow the school’s complaints process and, then that of the Department for Education if she remained dissatisfied.

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Investigator's decision on behalf of the Ombudsman