The Ombudsman's final decision:
Summary: Mrs Y complained the Council failed to provide her son with suitable education. The Ombudsman has found fault by the Council, causing injustice. The Council has agreed to remedy this by apologising, making payments to acknowledge the impact of the loss of education and time and trouble caused to Mrs Y, and a service improvement.
- The complainant, who I am calling Mrs Y, complained about the way the Council dealt with her son, who I am calling Z’s, educational provision. She says the Council failed to:
- provide Z with suitable education from March 2019 to July 2020.
- check whether Z was medically unfit to attend school or receive education.
- consider advice from medical and mental health professionals about Z’s need for an appropriate school placement.
- find an appropriate new school placement for Z as an alternative to his mainstream school which could no longer meet his needs.
- implement changes to Z’s Education, Health and Care Plan as ordered by the Tribunal.
- Mrs Y says the Council’s failures caused Z to miss out on suitable education.
What I have investigated
- I have investigated Mrs Y’s complaint about the Council’s actions from September 2019. The reasons for not investigating the earlier part of the complaint are set out at the end of this decision.
The Ombudsman’s role and powers
- 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)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, sections 26(6)(a) as amended)
- 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)
- 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.
How I considered this complaint
- We spoke to Mrs Y and made enquiries of the Council. I read the information Mrs Y and the Council provided about the complaint.
- I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
What I found
What should have happened
Education, Health and Care Plan
- A child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This sets out the child’s needs and arrangements for meeting them.
- Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
- The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
- If a child of compulsory school age (CSA) cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide suitable full time education either at school or elsewhere, such as home. This is known as alternative provision. (Education Act 1996, section 19 as amended)
- Statutory guidance sets out what local authorities should consider when arranging alternative provision. (Alternative Provision Statutory guidance for local authorities January 2013 and Ensuring a good education for children who cannot attend school because of health needs statutory guidance for local authorities January 2013 ( amended May 2013)) including the following:
- Full time provision is not defined in law but pupils in alternative provision should receive the same amount of education as they would in a maintained school.
- Local authorities must have regard to good alternative provision which appropriately meets the needs of pupils using it and enables them to achieve a good educational attainment on a par with their mainstream peers.
- A pupil in alternative provision should have the same opportunities as their peer group including a broad and balanced curriculum. And as far as possible they should receive the same range and quality of education they would have experienced at their home school.
- To help minimise disruption to a pupil’s education, part time or temporary intervention should complement and keep up with the pupil’s current curriculum timetable and qualification route.
- “Hard and Fast” rules are inappropriate and may limit the offer of education to pupils with a given condition and prevent their access to the right level of educational support they are well enough to receive.
- The use of electronic media, such as learning platforms can provide access to a broader curriculum, but should generally be used to complement face to face education rather than sole provision. Although in some cases the pupil’s health may make it advisable to use only virtual education for a time.
- Local authorities should not have processes or policies in place which prevent a pupil from getting the right type of provision and a good education. They should not withhold or reduce provision or the type of provision for a child because of how much it will cost.
- The Council’s policy on Alternative Provision does not appear to be available. Its website page for information about support available for children and young people who cannot attend mainstream school says: education other than at school has changed its name to the Alternative Tuition Service (ATS) and is currently being updated.
- I have set out a summary of the key events below. It is not meant to show everything that happened.
- Z has special educational needs. He has a diagnosis of Autistic Spectrum Disorder (ASD), severe anxiety and other conditions. He has an EHC Plan and attended the mainstream secondary school named in his plan.
School year 2018/2019
- Mrs Y appealed to SEND about the provision in Z’s October 2018 plan.
- Z stopped attending school in March 2019. The tribunal process was still ongoing during this period. In June 2019 Z’s GP wrote to his school. She enclosed a clinical psychologist’s assessment explaining why he was unable to attend school on many occasions. The GP said it was obvious mainstream school was the wrong school for Z and he should be more appropriately placed. Z’s difficulties were chronic and would not be easily solved.
- Mrs Y had looked at a special school placement for Z. But he could not travel long distances and as there were no suitable special school placements available locally, the mainstream school remained Z’s named school.
- The tribunal issued its decision in August 2019. It ordered changes to Z’s plan including additional provision of Speech and Language, and Occupational, Therapy support through the school. The tribunal said, as there were now gaps in Z’s learning, he should have a programme of catch up work, be re-integrated back into school and provided with a suitable package of education in the meantime.
September to December 2019
- Z was referred to the Council’s ATS in September. The Council had discussions with Mrs Y about ATS provision for Z while work was being carried out to help him towards a gradual reintegration back into school.
- Z’s school year peers were starting their GCSE curricula. Z had chosen history, geography and IT as well as triple science, maths and English. Mrs Y told the Council Z would not be able to engage 1:1 with a tutor for the time being. She asked the Council to provide Z with online learning for all his GCSE subjects.
- ATS said:
- It worked with children who needed a period of intervention to reintegrate into an educational setting. It was a service not a provision. Its focus was not to replace school but to support reintegration back into school.
- It did not generally recommend online only packages especially at GCSE level, but there were times this was appropriate in the short term.
- As a reintegration service it could offer Z English and maths GCSE learning online. It could not offer online learning for his other subjects because of the considerable time and expertise required to input the curricula.
- Mrs Y was unhappy about this. She told the Council, Z needed suitable full time education for all his GCSE subjects, and the Council was failing in its duty to provide him with this.
- The Council had a meeting with Mrs Y in October. It offered Z five hours a week of 1:1 tuition, an online learning package (for maths and English only), and work from school. Z had just started a weekly small group teaching session. Mrs Y confirmed they would consider introducing 1:1 tuition if these sessions went well. But in the meantime, she wanted the Council to provide Z with 25 hours a week of online learning for all his GCSE subjects.
- The Council declined Mrs Y’s request. It said a full time offer of learning was available for Z when he was able to return to school. Until then it was appropriate to offer him a blended education package of some online learning, work sent home from school and up to five hours a week from a 1:1 tutor. When Mrs Y felt Z was ready for a 1:1 tutor, it would ask ATS to arrange this.
January to July 2020
- In January Mrs Y told the Council how Z’s online learning in maths and English was going, and he would like similar online learning for his other GCSE subjects. Z could not yet cope with 1:1 tuition but was doing well in his weekly small group session. Mrs Y asked about the introduction of a tutor and whether it would be possible to teach Z in a situation where he was not the only student.
- Mrs Y also told the Council a new specialist unit was opening locally which she felt might be suitable for Z. In February the Council arranged Z’s referral for a placement at the new unit.
- ATS arranged to introduce a tutor for Z, but a number of sessions were cancelled. Mrs Y told ATS there had only been one introductory session with a tutor in the almost two months since they asked for this.
- On 28 February Mrs Y complained to the Council about a lack of education provided for Z. She said:
- Z had received no education since April 2019.
- He had not been able to access the offer of tutors in October 2019 because of his condition.
- ATS had provided him with a limited package of online learning for English and maths only. He had not been provided with online learning for his other GCSE subjects
- They had asked for the introduction of a tutor for Z in January, as they felt he was now ready for this, but there had been no progress with their request.
- In May, Z was offered a place for September 2020 at the new local specialist unit.
- Mrs Y brought her complaint to us in July. The Council then issued its stage one response and apologised for the delay in doing so. Mrs Y was not satisfied with the Council’s reply. In its final complaint response in September 2020 the Council said:
- Z’s GP had confirmed he was unable to attend school.
- It accepted there were spells when Z was unable to access available resources and some tuition was missed due to staff illness. The level of provision was inconsistent as some weeks were missed.
- While it accepted provision was intermittent, Z’s school was working hard to provide him with access to the education he could manage, in the context of statutory guidance ensuring a good education for children who cannot attend school because of health needs.
- It offered £400 to use for learning opportunities for Z.
Analysis – was there fault by the Council causing injustice?
Alternative provision for Z from September 2019 to July 2020
- My understanding is the Council accepted Z was unable to attend school because of his health conditions and it had a statutory duty to provide him with a suitable full time education outside of school. The Council made arrangements for alternative provision for Z from September 2019.
- But, I do not consider the Council had proper regard to the statutory guidance about good alternative provision for Z.
- It knew Z (together with his peer group at school) was starting his GCSE curricula. It had been provided with information about his health conditions and why he could not engage with 1:1 tuition. But Z was able to engage with online learning. Mrs Y asked the Council a number of times to provide him with a full package of online learning, for all his GCSE subjects.
- The Council has not provided evidence showing it considered how it could provide Z with a broad and balanced curriculum allowing him to study all his GCSE subjects (not just maths and English), as his peer group at school were able to do, in a way he could access, which for the time being was through online learning.
- There is no evidence the Council considered other providers offering online learning for a range of GCSE subjects. Its failure to do so is fault. There are many such organisations, and, in my view, it is more likely than not, had the Council considered this properly, it would have been able to provide Z with online learning for all his GCSE subjects.
- I note the Council told Mrs Y, Z had an offer of full time learning available to him when he was able to return to school. It also said in its complaint response, Z’s school was working hard to provide him with access to the education he could manage. But I would remind the Council, where a child of CSA is unable to attend school because of illness, it is the local authority’s statutory duty, and not the school’s, to provide them with suitable full time education otherwise than at school.
- I do not consider the alternative provision the Council offered - limited online learning in maths and English, and five hours a week of 1:1 tuition, which Z could not access initially, and was not effectively provided when he could - to be close to a suitable full time education comparable to the hours and range of education his peers received at school.
- My view is the Council failed to make appropriate alternative provision for Z from September 2019 to July 2020 and this was fault.
- These faults caused Z and Mrs Y injustice. Z suffered a loss of educational provision and Mrs Y had to spend time and trouble pursuing this with the Council.
- Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
- Alternative provision was not put in place for Z until early October 2019. As Z received no education for the first five weeks of term, I consider the payment for this period should be at the higher end of the scale. And payment for the period from October 2019 to July 2020 should be at the lower end of the scale because some provision was in place during this time.
Other complaint issues
- The Council accepted Z was unable to attend school from September 2019 and arranged alternative provision for him from this date.
- My understanding is there was no suitable specialist school placement available in the local area as an alternative to Z’s mainstream school, until the new unit opened in September 2020.
- My understanding is the changes to Z’s EHC Plan ordered by the Tribunal could not be implemented until he returned to school, which did not happen until he started his new placement in September 2020.
- I have not found fault by the Council in the way it dealt with these issues.
- Mrs Y complained in February 2020. By the time the Council replied in July 2020, and only after she had brought her complaint to us, the school year was nearly over, and her concerns still not answered.
- I consider this was an unreasonable delay and fault by the Council which caused Mrs Y injustice by having to wait so long for the Council’s response.
- To remedy the injustice caused by the above faults, the Council should, within four weeks from the date of our final decision:
- Apologise to Mrs Y and Z for its failures in providing Z with a suitable full time education from September 2019 to July 2020.
- Pay Mrs Y £600 a month for the period from 2 September 2019 to 4 October 2019 when no provision was in place and £300 for each month of inadequate provision for Z from October 2019 to July 2020 (the school year is 39 weeks excluding school holidays), making a total of £3,035, to be used for the benefit of Z’s education.
- Pay Mrs Y £300 to reflect her time and trouble in trying to get the Council to fulfil its statutory responsibilities, and the upset caused by its delay in responding to her complaint. This figure is a symbolic amount based on the Ombudsman’s published guidance.
- And within three months of the date of our final decision:
- Review its procedures for the provision of GCSE learning to pupils unable to attend school or engage with tutors.
- Provide us with evidence it has done this.
- I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.
Parts of the complaint that I did not investigate
- I have not investigated the complaint about the Council’s failure to provide a suitable education in the period from March 2019 to August 2019. This is because I consider the reason Z could not attend school during this period was linked to the ongoing appeal to SEND about the extent of the special educational provision in his EHC Plan and so this part of the complaint is not in our jurisdiction.
Investigator's decision on behalf of the Ombudsman