Summary: Mrs X complained that the Council failed to provide her son, E, with an education for over six months. She says this failure continued and he is still not in education. She says this caused both her and E an injustice as E has been out of education for over a year and the ongoing situation has caused them both distress. The Council is at fault and has failed in its statutory duty to provide E with an education. I have made a recommendation to remedy the situation as soon as possible. I have also recommended that the Council make payments to Mrs X and E in line with our guidance on remedies for missed education.

The complaint

1. Mrs X complains that the Council failed to provide her son, E with an education in accordance with its statutory duty for over six months.

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The Ombudsman’s role and powers

2. 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)
3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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.
7. 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.
8. 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

9. I spoke with Mrs X and reviewed the complaint file she provided.
10. I made enquiries with the Council and researched the relevant law and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans (EHCPs)

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan and amend it in accordance where appropriate, to ensure that the young person continues to receive education or training. (s.29, SEN Regulations 2014)
14. If the plan needs to be amended, the local authority should start the process of amendment without delay. (9.177, The Code)

Elective home education

15. Parents have a right to educate their children at home (Section 7, Education Act 1996).
16. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend.
17. Councils do not regulate home education. However, the law requires councils to make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education. (Statutory Guidance ‘Children Missing Education’).
18. Updated guidance issued in April 2019, says that councils should ensure their enquiries are timely and effective. If action is required, “…local authorities must take such action, within the constraints of the law” as may be necessary. (para. 3.5 Elective Home Education, Departmental guidance for local authorities, April 2019)
19. There are no detailed legal requirements, but it is up to each council to decide what is necessary and proportionate to assure itself that every child is receiving a suitable education, or that action is being taken to secure that outcome. (para 5.3 Elective Home Education, Departmental guidance for local authorities, April 2019)
20. Where a parent withdraws a child with an EHC plan from school to home educate them then the Council no longer has an obligation to provide the special educational provision in the EHC plan. This is because the parents are deemed to be making their own suitable alternative arrangements.
21. Councils have a power, but not a duty, to provide support at home. The Code states that councils should fund the special educational needs of home-educated children where it is appropriate to do so (paragraph 10.30).

Alternative Education

22. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
24. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• where full-time education would not be in the best interests of a particular child for reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests, and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.

25. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
26. In the Focus Report, we made recommendations based on examples of good practice seen. We said councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Powers to improve a child’s attendance

27. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
28. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
29. The Education Act 1996 provides the following:

• section 436 of the Act requires councils to identify children not receiving an education.
• Section 437 (1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to demonstrate that the child is not receiving a suitable education.

30. Section 437(3) of the Act relates to whether the authority considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)
31. The Elective Home Education guidance also says that when a when a home-educated child’s EHC plan names a school, some local authorities instruct the school to add the child’s name to its admission register without the parent’s agreement, with the result that the parent is committing an offence if the child does not attend the school. It is not lawful for a school to do this, and local authorities should ensure that both schools and their own staff know that. It is up to the child’s parent whether to arrange for the child to be registered as a pupil at the school, and if the parent does not, the local authority should then consider whether a s.437(1) notice, and in due course a school attendance order, should be issued. ( para 8.10, Elective Home Education, Departmental guidance for local authorities, April 2019)

Safeguarding duty

32. The Elective Home Education guidance also reminds councils of their safeguarding duty to children who are not receiving a suitable full-time education. It says councils should be ready to fully exercise their safeguarding powers and duties to protect a child’s well-being, which includes their suitable education. Underlined in the Guidance it says that “A failure to provide suitable education is capable of satisfying the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm. It says when the use of safeguarding powers is justified, they should be used.
33. While recognising that each case is different, when considering whether an unsuitable education does amount to significant harm, it says a “clear-cut” example of this would be when a child was being provided with no education at all for months. It says that in such cases councils should seek the advice of educational psychologists. (para 7.1 – 7.6, Elective Home Education, Departmental guidance for local authorities, April 2019)

What happened

34. The below account does not refer to everything that happened. I have referred to events central to the core issues of the complaint.
35. E is eleven years old. At the time of the beginning of this chronology he was nine years old. He has an autism spectrum disorder, has additional needs and has an EHC plan, (“the Plan”).
36. In January 2019 he was attending a mainstream school, which I shall refer to as School P. Mrs X did not consider that School P was providing the level of education set out in E’s EHC plan. She raised this and other issues with School P and with the Council. I make no comment on School P’s approach to E’s education or other matters. As set out in my para 5 above, we cannot investigate complaints about what happens in schools.
37. On 16 January 2019 Mrs X said she was deregistering E from School P. She said she would home educate E.
38. On or around the same date further funding was made available to School P to help with the provision required by his EHC plan.
39. School P was and is of the view that it was and is able to provide the provision expected in the Plan.
40. Mrs X withdrew E from School P in January 2019, however the records appear to show that it was agreed to keep E’s place open at School P for a period, in the hope that Mrs X would change her mind.
41. On 12 February 2019 Mrs X wrote to the Council, reminding it of its duty to provide an education for E. She said she did not want to home school E but had been forced into that position.
42. The records show that Council officers did not think it was in E’s best interests to be home-schooled.
43. E’s case went to tribunal in April 2019. The tribunal ordered that he should receive 25 hours per week of 1:1 support. Eight lessons should be with a specialist teacher trained in dyslexia and dyscalculia.
44. The records show E returned to School P and attended some of the time. He began to fail to attend again on 25 February 2019. Then he sporadically attended for a period. In June 2019 his attendance began to be more consistent. His attendance record from September 2019 to 31 August 2020 shows he was present for 51.7 per cent of that academic year.
45. E’s EHCP review showed that he progressed well when at school with extra help. However, Mrs X said that, among other issues, School P started to use E’s personal tutor for other children in the class. She said this caused E anxiety. The relationship between School P and Mrs X broke down. E’s attendance faltered.
46. On 20 January 2020 Mrs X removed E from School P again. She said that because of his anxiety and a lack of trust in School P, he could not attend. She asked that E be removed from the school roll again and said that she would home educate.
47. School P asked the Council if it could accede to Mrs X’s request to take E off the school roll again. The Council responded that legally there was nothing that could be done if Mrs X wanted to home-school E. It said it was hoped that she would change her mind again.
48. Meanwhile the records show that Mrs X had conversations with officers about what to do next. She maintains she was advised to obtain a tutor for E. The Council says there is no record of the Council indicating E should obtain a tutor.
49. An email on 3 February 2020 from Mrs X to a council officer, says:

“I have done as you suggested and have sourced a tutor with the appropriate level of experience and expertise.”

50. I have seen no record of the officer denying this was said or querying that statement.
51. On 20 February 2020 Mrs X emailed the Council. She noted that E had been off school for a month and had no education other than the one hour a week that she had been paying for privately. She asked the Council what its response to the situation was.
52. Mrs X’s request for a home education package was denied by the Council. It was viewed that the provision Mrs X sought was available for E at School P if she chose to accept it.
53. Mrs X responded that she would not take E to School P and that the Council had a duty under section 19 to provide E with a suitable education.
54. The Council responded to Mrs X’s initial complaint by saying, “…the [Council] is not in a position to become involved in any disagreement between parent and school.”
55. Meanwhile, E was still on roll with School P, which wrote to the Council asking, “…for the fourth time…are we able to remove [E] from roll?”
56. It was clear, during this period, that Mrs X was not providing E with an education. She expressed the view that she felt this was the Council’s responsibility.
57. A few days later Mrs X wrote to School P saying she no longer wanted to take E off roll but that he was unable to attend school because of his medial condition. The school asked for medical evidence.
58. Mrs X produced a note from an advanced nurse practitioner, which said that E’s medical conditions "...may contribute to issues with school attendance."
59. The records show that the Council started to consider alternative responses to the situation. It said an emergency review was required. Mrs X chased this up throughout the month and on 30 April a telephone meeting was held, COVID restrictions applying at the time.
60. At the meeting, it was noted that:

• Mrs X said she would like E to attend a special school.
• E was still on roll at School P.
• Mrs X did not want to home-educate E but was paying for a tutor to provide one hour a week in English and Maths.
• The Council said that for a change of placement to go ahead an annual review had to be held.

61. However, it transpired that it was not possible to arrange an annual review because, the Council said, of the social isolation necessary during the lockdown period. An email on file around June 2020 indicates there was an agreement to leave the case until social distancing rules relaxed.
62. It was noted that E was still on roll at School P, which said it could provide remote access to education for E.
63. On 27 July 2020 Mrs X emailed the Council saying that she had still not been given access to remote education at the school. She said E had been out of education for over six months without any support.
64. Since that date, Mrs X says E has continued to be out of education. She says she was unable to afford to maintain the one hour a week for him. The Council says it has tried to set up some virtual sessions but has not heard back from School P if it would like to be supported in this way.
65. The records show School P continued to be concerned that E was on roll at the school but was not attending. It informed the Council of its concerns.
66. Mrs X was clear that she was refusing to home educate but also refusing to bring E to School P. The Council viewed that they were in a position of “stalemate”.
67. In October 2020 an educational psychologist assessed E. It was reported that establishing consistent and full-time attendance must be a priority. E attended school for a few days in October.
68. Mrs X complained again to the Council. In the Council’s final response to her in November 2020, the complaint investigator was critical of the Council’s approach, reiterating that the Council had a responsibility to ensure School P was providing what was expected in E’s EHC plan.
69. A number of recommendations were made. I asked the Council for evidence the recommendations had been complied with. One of the recommendations was for a link professional to be immediately allocated to support Mrs X and to work collaboratively with the Local Authority and the school to resolve concerns around the provision [E] had been receiving.
70. The Council says that a team is around E, including an educational psychologist and a member of the school support team. The Council says E has a linked professional, who informed the Ombudsman that she had been in contact with the relevant parties in May 2021 to try and organise education for E.
71. She said School P had been told not to provide home learning as they did not have medical evidence to say that E could not attend school and considered he was able to attend. She added that the Council said legal action to encourage attendance might not be supported by the Council as E had an autism diagnosis.
72. The family support worker working with E and Mrs X said, in January 2021, that she was “…extremely concerned” that E had no educational provision. She said it would impact on his future education provision as he should currently be preparing to move to secondary school (where he has a place). She said the social isolation he had experienced had already had a negative impact on E’s emotional wellbeing and health.
73. Another recommendation was that a Council senior manager should contact the school to understand why the resources provided for E’s plan were not being used for that purpose.
74. The Council says that it does not have evidence this was done but says the school has continued to work with the Council and family.

Analysis

75. Before this complaint came to the Ombudsman, E had spent time out of education. For the academic year 2019-2020 E was only in education for 51 per cent of the year. From January to March 2020 Mrs X had said she had been forced into home educating E because of a lack of provision by School P. She was wrongly told by the Council that it could not intervene in her disagreement with School P. This is fault. The Council, as it was reminded later in November 2020, has a duty to ensure E has an education in line with his EHC plan. When Mrs X raised concerns about School P’s provision, the Council should have acted immediately to ascertain what the situation was. If it decided that education was being provided in line with E’s EHC plan it could have chosen to take alternative action to address E’s non-attendance. Instead, it did not act and even though officers considered it was not in E’s best interests to be educated at home, it allowed this situation to continue. This is fault and caused E an injustice.
76. Even if officers had been content with Mrs X’s assertion that she was going to home-educate E, it was very clear that at the most, E was only receiving two hours a week. Later, Mrs X was clear that E was not receiving an education at all. The Council has a responsibility to respond appropriately when it is aware a child is not receiving an education, as set out in my paras 15-18 above.
77. I am unclear if E remained on roll during this period. The evidence indicates that he did as School P repeatedly asked the Council for advice around this issue. If he did, this is concerning. The Council may have been hoping that Mrs X would change her mind about home schooling at the time. It had concerns that that would be in E’s best interest. But, to keep E on roll was not the correct approach to take. I am mindful of the fact that the Council was trying to keep options open in E’s best interests. But Mrs X had said that she wanted to take him off roll. She had that right. If the Council considered it was not appropriate it should have taken alternative action.
78. From March 2020, Mrs X said she did not want to home school. From this point on, E remained on roll even though Mrs X was clear she would not be bringing E to School P. It is unclear from the records if E was able to access the online education resource from School P during the COVID lockdown period. It appears that the Council did not make enquiries about this until Mrs X contacted it to say she could not access it. Other records show the school was told it could not provide E with an education at home if he was supposed to attend. This confusion, which again meant E did not receive an education, appears to be a by-product of the Council’s ineffective response to the situation.
79. For the academic year between 2 September 2020 to 28 January 2021, E only attended school and received an education for 8.8 per cent of the time. He has not had any education at all since then.
80. As referenced in our para 26, the Ombudsman recommends that councils take a proactive approach to children being out of education. We recommend councils should act whatever the reason for absence, even when a child is on a school roll. In this case, there is no evidence the Council took effective action. Initially, it took the view that a place was available at School P. Then, when it was unable, because of COVID, to set up an annual review and reconsider E’s placement, it took no action to ensure E received an education.
81. It considered it was in “stalemate” with Mrs X. In doing so, it lost sight of its duty to E to provide a suitable education. If it considered that Mrs X was preventing E from attending School P it could have taken action. It says it did not because E is autistic. This seems to indicate that it considered E was unable to attend for medical reasons. It should therefore have provided E with an alternative suitable education as recommended by the relevant guidance and referenced in my para 30 above. In a situation like this, the Guidance is clear - especially when a child has been out of education for months - that councils should take action to safeguard a child.
82. Each case is different and councils should consult all the professionals involved when taking decisions. In this case, initially, an educational psychologist report was delayed until social restrictions relaxed. I accept this delay was necessary, but while waiting for the assessment, the Council should have ensured that E received some education. I have not seen evidence that it made any efforts to do so.
83. Although the educational psychologist’s report of October 2020 said that establishing consistent and full-time attendance must be a priority for E, this was not effectively followed up. E’s link officer told me she tried to organise some education in May 2021 but this was more than six months after the report. This was unacceptable delay. It is also of concern that the Council has no evidence of the communications and actions it says it has been having with School P since November 2020. The Council’s duty to provide E’s education was highlighted at that point but, it did not do so.
84. E has not been receiving a full or even part time education since at least January 2020. He also missed education in the previous year. He has been out of education for at least 15 months. This is fault and the evidence from E’s family support worker indicates that this has caused E an injustice.
85. There are other factors to consider here. I have considered whether the impact of COVID affected the Council’s actions. It is clear that it had some impact. But E had an EHC plan and would, therefore, have been able to attend school throughout the period, unlike other children during the lockdown period. Therefore, E should have been in attendance. Either the Council considered he should have attended, and it should have therefore taken action to ensure this happened or the Council accepted E could not attend School P and, in those circumstances, it should have provided an alternative education. Either way, the Council is at fault and E has suffered the injustice of not having an education for a significant period of time.

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Agreed action

86. The Council should, as soon as is possible, and certainly within two weeks of our final decision:

• Apologise to Mrs X and E for the fault identified in this decision.
• Take action to ensure E receives an education immediately. If E and Mrs X consider it might be helpful to have sessions over the summer to help with E’s transition to secondary school, make arrangements to organise this as soon as possible. This should involve input from E’s educational psychologist and other relevant professionals to determine what level and intensity of education is appropriate for E. This should be reviewed again three months into E’s placement at secondary school, to ensure that if there is any provision the Council can provide to help E catch up with his peers or help integrate in a school environment again, this will be considered.
• Reimburse Mrs X for any tuition fees she paid to a private tutor, acknowledging that she should not have had to engage a tutor for E when the Council did not consider it was in E’s best interests to be home-educated. Mrs X should provide evidence of the tuition obtained.
• Pay Mrs X, to hold on trust for E, the sum of £10,000. This payment is drawn from our Guidance on remedies and recognises that E, a child with an EHC plan, has had little or no education for at least over 15 months.

87. Within two months of our final decision, the Council should:

• Review how it approaches cases where a child is not attending school but is on roll.
• It should show this decision to council officers dealing with cases of this nature and emphasise the importance of always taking appropriate action without delay when a child is out of education.
• The Council should provide evidence it has completed all of the above to the Ombudsman.

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Final decision

88. I have found the Council at fault and that it has caused an injustice. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman