Summary: Mrs L complained the Council failed to ensure her son, M, received appropriate education from January until November 2019. She felt the Council should have paid her for the education she provided for M over that time. There is evidence of Council fault and the Council has agreed to apologise, make a payment for M’s missed education and to consider whether its procedures are robust enough so it can intervene when it is aware that a child is not receiving sufficient education.

The complaint

1. The complainant, whom I shall call Mrs L, made a number of complaints in relation to the education of her son, M. She said the Council:
1. failed to ensure M received the provision detailed in his Education, Health and Care Plan (EHCP);
2. failed to acknowledge M had not received full-time education since January 2019;
3. failed to make suitable provision for M’s education since January 2019; and,
4. had not refunded Mrs L for having to source and pay for a private tutor for M to support his educational needs.

I became aware, when looking at the documentation, that the 2019 Annual Review of M’s EHCP was late. I have also considered this.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 26(6)(a), as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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 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. The Ombudsman can look at faults in the EHCP assessment process and complaints about whether provision in an EHCP has been put in place. We cannot challenge the contents of an EHCP. Only SEND can do this. We have no jurisdiction to investigate any actions from the date each SEN appeal right arises (when a final EHCP is issued) until that appeal is completed. This applies even where a tribunal is adjourned. All of the period covered by a tribunal, including any adjournments, is outside our jurisdiction. Any loss of education or other fault during this period which is a consequence of the decision being appealed is out of our jurisdiction.
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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.
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)

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How I considered this complaint

11. I considered the information provided by Mrs L with her complaint and spoke to her on the telephone. We made enquiries of the Council and I assessed its response. I have referred to the Education Act 1996 and its associated statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’, 2013. I sent Mrs L and the Council a copy of my draft decision so I could take any comments they made into account before issuing a decision.

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What I found

Background

12. The statutory guidance for Councils, when a child is either out of school or not receiving sufficient education because of their health is ‘Ensuring a good education for children who cannot attend school because of health needs’ (May 2013). This explains that, under Section 19 of the Education Act 1996, Councils “have a duty to arrange suitable full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education”.
13. Councils are expected to “provide (this) education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child”. Importantly, the Council has to do this “whether or not the child is on the roll of a school and whatever the type of school they attend”. Education provided can be part time but “on a basis (the Council) consider(s) to be in the child's best interests”.
14. Councils that do not step in and provide education for children that are not attending the school where they are on roll are expected to take truancy action through the Education Welfare Service.

Mrs L’s complaint

15. M has had an EHCP from 20 March 2018 setting out his special educational needs (SEN) which centre around high-functioning autism causing significant anxiety.
16. He attended a special school (School X) from April 2018 after other schools said they could not meet his needs. At the time of the matters complained of, M was in Year 10 (the first year of GCSE study; with examinations taking place the following year).
17. M found it difficult to engage with School X because of his increasing anxiety, manifesting in challenging behaviour. Mrs L says he was not getting the support he needed as specified in his EHCP. From January 2019, Mrs L paid for a tutor to come and teach him for one to two hours each week at home.
18. Mrs L complained to us the Council had not provided or paid for this.
19. Apart from two weeks in January 2019, M did not access full time education. The school put him on a part-time timetable but admitted that did not address M’s needs either. The school did not permanently exclude M although it said it could not meet his needs. The school put in place an e-learning package for two weeks but M could not access this without help from his tutor. Mrs L says M was without any education from March 2019.

What happened

1. Support in his EHCP
1. There is evidence School X had not put in place the support specified in M’s EHCP. For example, he was meant to have sensory circuits in place every day from April 2018, when he started at the school. In a subsequent letter to Mrs L on 23 May 2019, School X acknowledged staff had not been trained in this until March 2019. The letter also suggested this was not made available to M every day. Further, there is no evidence School X provided “technology software that can support independence in planning, organising and recording ideas e.g. Clicker 7” or held a weekly “emotional literacy group”. The technology software is something that should have been available to M every day he attended and the emotional literacy group should have been set up from April 2018.
2. School X told Mrs L it was “working closely with the Local Authority to identify the additional support M will need going forward” on 26 March 2019. The Council disputes this was the case. The Council received no referral from the school for non-attendance either, which is what would be expected if a child was failing to engage with the education on offer. There is not enough evidence, even on the balance of probabilities, to show that the Council was involved with the school at this point and knew what was happening.
3. As the Council says it did not know about this at the time, and I do not have evidence to contradict it, I cannot hold it responsible for the school’s failure to ensure M was provided with what was in his EHCP. The Council has agreed to consider whether there is action it might take to ensure EHCP provision is periodically checked.
1. Failure to acknowledge lack of full-time education/failure to make provision/failure to refund costs.
4. I have no evidence the Council knew until 1 May 2019 that M had been effectively without full time education from January 2019. On that date, Mrs L had sent and emailed a letter to a senior Council officer explaining that M was not attending School X and that she had engaged a tutor for him. I cannot ask the Council to refund money she spent on providing education while it was unaware that this was necessary.
5. In that letter to the Council, Mrs L also clarified M had been without some of the services that were specified in his EHCP. She felt School X was excluding M illegally for ‘cooling-off days’, rather than giving him formal exclusions. I cannot consider school matters although I have seen a letter from School X on 3 April 2019 acknowledging M had been subject to “unofficial exclusions”.
6. In its response to Mrs L, the Council explained M may have been prevented from accessing some of the provision in his EHCP because he had been placed on a part time timetable to address his anxiety and also because he did not want to benefit from some of it.
7. Although the Council could have looked more deeply at the allegations that M was not receiving sufficient education, or the provision in his EHCP as Mrs L alleged, there is no injustice to Mrs L in this failure. This is because on 16 May 2019 Mrs L contacted the Council to say she wanted M to continue to stay on at School X and that he should ‘not be removed’ from the roll. However, she expected the school to arrange ‘a bespoke package of e-learning at home’. She did not tell the Council that the school needed to make up the missed provision.
8. Mrs L told me the school did arrange a package of e-learning. The Council says it was told on 26 June 2019 by Mrs L that M could not access this without adult support, which the school would not provide. Therefore, from 26 June, I consider the Council became aware M was not receiving sufficient education to meet his needs. It did not take any legal action to ensure M attended School X. If it believed School X was able to meet M’s needs (as it said to me it “expected” it would) then it should have done so.
9. As the Council did not take truancy action, yet it knew M was not receiving education at school, the Council had a duty under Section 19 to provide M with “suitable” education, for the amount of time he could reasonably manage, unless, and until he transitioned to a new provision or the school agreed to have him back on site. As the Council knew in June M could not access the online learning, which was all that was being provided by School X; it also knew M could not receive the amount of education from School X that he was able to benefit from.
10. However, the Council issued a new EHCP for M on 21 August, which was appealable to the tribunal. I cannot consider any injustice from that date until after the appeal, which is beyond the time of the matters complained of.
11. It is fault that there was a period of approximately one month (between the Council being aware of the matter and the school holidays, when education would not be provided) until it provided M with education. The Council should make a payment to remedy M’s loss of education over this time. The Council should also refund Mrs L for the costs for a tutor she provided for that month as this should have formed part of its solution to getting M back into education, as was eventually done in November.
12. Mrs L has been put to time and trouble making complaints as the Council did not acknowledge its responsibility for providing education to M.
13. The Council should consider whether its processes are robust enough so it can either provide education at an early stage once it becomes aware of a Section 19 duty to do so or take timely enforcement action.
1. Late Annual Review
14. The school was late holding the Annual Review of M’s EHCP. This was due no later than a year after the issue of his EHCP on 20 March 2019. It was not held until May 2019. Although schools set up Annual Reviews, it is the Council’s responsibility to ensure they take place at the correct intervals. This failure is fault and it caused Mrs L time and trouble chasing it up. The Council has agreed to consider how to alert schools to the appropriate timing for Annual Reviews.

Agreed action

34. For the Council to make a payment to M of £200 for the education he missed. This acknowledges provision would have been part-time given M had previously been on a part-time timetable while at school because of his anxiety. The Council should make this payment within two months of the date of my decision.
35. For the Council to refund, upon receipt of invoices, Mrs L’s costs for a tutor for M from 26 June 2019 until the school holidays commenced. This payment should be evidenced and then paid within two months of the date of my decision.
36. For the Council to make a payment to Mrs L of £100 for her time and trouble within two months of the date of my decision.
37. For the Council to consider whether its procedures are robust enough to enable it to take prompt action when it has a duty (under Section 19 of the Education Act 1996) or to take legal action within three months of the date of my decision.
38. For the Council to consider whether it needs to remind schools when Annual Reviews are due and whether it could periodically check EHCP provision by schools within three months of the date of my decision.

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Final decision

39. Fault leading to injustice and remedies have been agreed.

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Investigator's decision on behalf of the Ombudsman