Summary: Mrs A complains the Council failed to provide her son with education for more than three months when she withdrew him from his previous school. There was fault by the Council because it did not properly consider its approach to the withdrawal of Mrs A’s son from school. The Council agreed a financial remedy for Mrs A and her son.

The complaint

1. Mrs A complains:
• About the suitability of a special education needs (SEN) placement for her son. 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 a loss of education for her son for a three and a half month period when she removed him from the school.
2. Mrs A 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 following:
• The Council failed to put the autism unit in a suitable school.
• The Council failed to monitor autism provision at the school.
• Parents emailed the Council with concerns about the unit as early as 2017 and got no response.
• The Council overfilled the unit even though it was built for 8 children.
• The Council placed children in the unit whose primary needs were social, emotional and mental health.
• The Council failed to monitor provision at the unit or check whether appropriately skilled an experienced staff had been employed to manage and work in it.
• The Council failed to ensure safeguarding procedures were in place.
• The Council failed to ensure the school reviewed part time timetables and increased children’s hours appropriately.
• The Council failed to prompt the school to review Education, Health and Care Plans (EHCP).
• The Council lost her son’s review when it was finally sent to it.
• The Council failed to provide the specialist support and overall provision that was set out in her son’s EHCP.
• The Council failed to hold anyone to account or apologise for its failures.
• The Council did not provide her son with alternative education during a three and a half month period when he was at home.
3. Mrs A says the Council’s failures caused immense stress and loss of earnings for her family.

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What I have investigated

4. I have investigated the complaint that the Council did not provide Mrs A’s son with alternative education during a period when he was at home. 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 A and the Council. I sent a draft decision statement to Mrs A 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 A’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 her son did not receive any education during the period when he was at home between November 2018 and March 2019.
19. The Council says Mrs A’s son was marked as having authorised absences from school between November 2018 up until 1 March 2019 with a three week period in January 2019 when he was removed from the school roll and then placed back on it. Mrs A sent emails to the Head of SEND in November 2018 saying she would hold her son back from school until there was a meeting with the school and the Council. She then emailed the Head of SEND as well as the Director of Children’s Services in December 2018 to confirm she was withdrawing him from school permanently.
20. The headteacher of the school sought advice from the Council in January 2019 about the attendance of Mrs A’s son. The Council advised the headteacher the absence should be recorded as unauthorised so the school could then consider the option of asking the Council to take legal action under section 444 of the Education Act 1996. The headteacher continued to record the absence as authorised.
21. The Council says despite her son remaining on the school roll and his absences being authorised by the school, its SEND team agreed to provide him with home tuition until a new school was found for him.
22. The Council reviewed Mrs A’s son’s EHCP in February 2019. It agreed to find a new school place for him. He started at the new school in March 2019.

Finding

23. It is clear the Council was aware of Mrs A’s son’s absence from school by January 2019 when the headteacher sought advice on his attendance, if not earlier in December 2018 when she emailed senior officers. Having informed the headteacher the absence should be recorded as unauthorised the Council did not follow up on the matter. It should have determined whether Mrs A’s son was medically fit to receive full time education in a school setting. This was its duty under section 19 of the Education Act 1996.
24. The Council reviewed Mrs A’s son’s EHCP in February 2019 and thereafter sought a new school place for him. This was achieved in March 2019. But I find there was inaction by the Council between November 2018 and February 2019.
25. The inaction contributed to a loss of education for Mrs A’s son during this period.
26. I recommend a payment of £600 to Mrs A’s son to reflect the loss of education during the period. This sum should be put towards educational activities for her son. I also recommend a payment of £375 to Mrs A to reflect the distress she suffered for the period between January and March 2019.
27. I note Mrs A’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 A’s loss of earnings to fault by the Council.

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Final decision

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

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Parts of the complaint that I did not investigate

29. I did not investigate the other parts of Mrs A’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 A 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.
30. 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 A 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.
31. 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 A 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