Summary: Mr X complained the Council failed to ensure his daughter, F, received a suitable education to meet her special educational needs between September 2019 and July 2020 when she was unable to attend school. The Council was at fault. It failed to provide alternative provision during this period and failed to provide the educational provision for F in line with her Education, Health and Care Plan between January and July 2020. The Council agreed to pay Mr X a total of £3225 to remedy F’s loss of education. It also agreed to reimburse Mr X fees he paid for private tuition for F during this period.

The complaint

1. Mr X complained the Council failed to ensure his daughter, F, received a suitable education between September 2019 and July 2020 when she was unable to attend school.
2. Mr X further complained the Council failed to ensure F received provision in line with her Education, Health and Care (EHC) Plan between December 2019 and July 2020.
3. Mr X says the Council’s faults meant F received no education or support for her social development during the 2019/20 academic year.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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”.
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)
10. 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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How I considered this complaint

11. I spoke to Mr X about his complaint and considered the information he provided.
12. I considered the Council’s response to my enquiry letter.
13. I have considered relevant law and statutory guidance, including:
• The Education Act 1996
• Children, Schools and Families Act 2010
• The Coronavirus Act 2000
• Alternative Provision Statutory guidance.
14. Mr X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Alternative provision law and guidance

15. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
17. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health.
18. Statutory guidance, “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.
19. The Ombudsman has published a focus report titled ‘Out of school, out of mind’. The report focuses on the responsibilities of councils to provide education when, for one reason or another, a child is not fully attending school. It says in situations where parents or carers keep their child out of school, for example because they believe it cannot provide effective education for the child, then a council has a duty to provide alternative education if it cannot reintegrate the child or decides not to pursue legal action for non-attendance.

Relevant case law

20. The Courts have established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. The duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question. The question of what is ‘suitable education’ is for the council.” (R (R) v Kent County Council [2007] EWHC 2135 (Admin)).

Education, Health and Care (EHC) Plan

21. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
22. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
23. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

The Coronavirus Act 2020

24. In May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
25. The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHC Plan was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.

What happened

26. Mr X has a daughter, F, who has several disabilities and learning difficulties. She has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and Autism. F attended a mainstream primary school (the school) and was assessed for an EHC Plan in April 2019. She attended the school up until July 2019, which was the end of year 5. Mr X said F stopped attending the school at this point due to a breakdown in relationships.
27. Mr X said F the breakdown was due to the school failing to provide appropriate support for F’s special educational needs (SEN) over many years. Mr X had previously taken a case to the SEND tribunal, who found the school had committed disability discrimination against F.
28. The school told the Council at the start of September 2019 that Mr X had informed it that F would not return for year 6. The school said F remained on roll at the school although it understood F’s mother was home schooling her. The school wrote to Mr X in early October 2019 to explain that the Council’s attendance officer may contact him to investigate F’s absence from school. It told Mr X it was happy for F to attend the school until alternative arrangements were found. Mr X however wanted certain assurances that the school had made changes around how it supported children with SEN before he would allow F to return.
29. Records show that Mr X wrote to the Council’s attendance officer in early October 2019 and explained why F was not attending the school. Mr X said he was keen for F to receive education provision at home.
30. During October 2019 records show the Council contacted the school about naming it as F’s placement on the draft EHC Plan. The school told the Council it was surprised and had concerns. It said it did not have a member of staff to provide the 20 hours of support outlined in F’s draft EHC Plan. It also said its relationship with Mr X and F’s mother was untenable. The school asked the Council to take all that into consideration, however it conceded it could not refuse to be named.
31. Records show Mr X chased the attendance officer during October about alternative home provision for F. Internal emails show a senior officer asked the attendance officer not to respond to Mr X.
32. In early November 2019 Mr X wrote an email which copied in the SEND officer, the attendance officer and the school. He said he had received no response about alternative provision for F and had no further communication from the school. Mr X asked if the school had implemented any changes following the tribunal’s findings of disability discrimination against F. A senior officer asked the attendance officer to contact Mr X and try and mediate between him and the school. The attendance officer wrote to Mr X and said they were still waiting for a response from the school in relation to a home tutor for F. The attendance officer suggested a meeting between the Council, the school and Mr X to try and find a way forward.
33. Records show the attendance officer raised concerns with a SEND officer and a senior manager. The attendance officer’s view was that the school wanted F off its roll and was refusing to support F’s needs. It said the school was refusing to mediate with Mr X and was unwilling to find any alternative provision. The attendance officer said they were concerned F was not receiving education and the school did not see it had a duty of care towards F.
34. At the end if November, Mr X met with the attendance officer, SEND officer and the school’s headteacher. The minutes of the meeting show the Council agreed the school could formalise home learning for F with Council funding. The Council said if it named the school on F’s EHC Plan then a home tutor could support her in the interim. The Council agreed 20 hours per week was reasonable. The minutes show the Council agreed for the school to advertise to recruit a home tutor. It also agreed to research alternative provision for F in the local area. The Council suggested it complete these actions by January 2020.
35. Records show the school started advertising for a tutor shortly after the meeting. In December the attendance officer updated Mr X and said they were hopeful a tutor would be in place soon. They agreed 20 hours was suitable in line with F’s EHC Plan.
36. The Council issued F’s final EHC Plan in December 2019 and named the school as F’s educational placement. It also named another school, school B, as F’s educational placement from September 2020 when she would transition to secondary school. F’s EHC Plan outlined the provision to meet her SEN. It said F would have adult support to help her access the curriculum and support her social, emotional, mental health and physical needs. F was also entitled to three physiotherapy sessions per year. It said F would have an enhanced transition to secondary school (school B). The Plan said F needed one to one support for 20 hours per week to meet her SEN.
37. The attendance officer updated Mr X in January 2020. They said the school was looking to hold interviews for a home tutor soon.
38. At the start of February the school told the Council it had offered the role to a tutor. However, the tutor turned the position down because they did not feel they could meet F’s needs unless F was in a school setting. The school told the Council it was in F’s best interests to return to school.
39. In mid-February 2020 Mr X asked the Council to provide F with a home learning package. The Council told Mr X it would expect the school to fund any home learning package using F’s SEN funds. Mr X chased the matter a few days later. He told them about a home learning package he was paying privately for which F was using whilst out of school. Mr X provided the Council with costings for this package and asked for a personal budget to fund the home learning.
40. In March 2020 the Council told Mr X that its Complex Case Panel did not agree for a personal budget. It said the Council was funding the school as part of F’s EHC Plan therefore it was up to the school to release funds to pay for home learning. The Council said the school was still looking for a tutor. The Council said it had asked the school to consult some other alternative provision placements for F. Mr X continued to pay privately for the home learning package for F.
41. Records show that during March the school raised further concerns with the Council about F still being out of education. The school questioned the Council about whether it was acting lawfully. The Council suggested the school called other schools around what alternative provision was available.
42. In April 2020 the Council contacted the school for an update about what provision it was putting in place for F. The school responded shortly after stating it was still trying to source a tutor for F but was so far unsuccessful.
43. In May 2020 Mr X formally asked the Council for an early annual review of F’s EHC Plan. He said F was still without education and F had not received her enhanced transition to school B in line with her EHC Plan. The Council responded and did not agree to his request. The Council said it did not consider F’s needs or circumstances had changed. It said therefore it would carry out the annual review in October after F’s transition to secondary school. The Council acknowledged F had been out of school and Mr X’s ongoing concerns about the school. However, it said the school was willing to transition F back into school and had made efforts to employ a tutor for her. It said F’s enhanced transition to school B would be different due to the ongoing COVID-19 pandemic.
44. Mr X submitted a formal complaint to the Council. He complained the Council had failed to provide F with any education during the 2019/2020 academic year. Mr X also complained the Council had failed to provide F with any provision as outlined in her EHC Plan since December 2019.
45. The Council sent Mr X its final complaint response in August 2020. It said it was unable to comment on the provision F received prior to her EHC Plan. It said from December 2019 onwards it had offered support to the school and provided it with funding. The Council said it maintained that F’s needs could be met by the school which was named in the EHC Plan. The Council said no children with EHC Plans received full provision from March 2020 onwards due to the COVID-19 pandemic. It said all children with EHC Plans were entitled to attend school during the lockdown period or participate in the home learning programme organised by the school. It said all children in year 6 went back to the school on 1 June 2020 which included F.
46. Mr X remained unhappy and complained to us.
47. Since complaining to us Mr X said the Council has re-written F’s EHC Plan and agreed to offset her by a school year which means she will transition to secondary school in September 2021. Mr X said the revised plan includes a teaching assistant who will sit next to her in every lesson for one-to-one support. F however now receives home education and will continue to receive this until September 2021.

The Council’s response to my enquiry letter

48. The Council said it maintained that the school could have met F’s needs however Mr X refused to send her. It said Mr X did not accept the offer of re-integration to school and did not wish to electively home educate her. It said F was not signed off as medically un-fit. The Council said the school made considerable efforts to employ a tutor however due to unforeseen circumstances and COVID-19 it could not progress this. The Council said throughout that period of searching for a tutor it maintained the school could meet F’s needs.
49. The Council said it did not use its powers to take action against Mr X for F’s non-attendance because he may have had a legal defence.

My findings

October-December 2019

50. Case law has established that what is ‘suitable’ education is for the Council to decide. The primary question around whether a council is under a duty to provide alternative education where the reason for the child’s absence is ‘other’ is whether the current arrangements make it reasonably possible for the child to attend. Where a school does not make appropriate arrangements for a child who is missing education through illness or 'otherwise', the Council must intervene and make such arrangements itself.
51. The Council became aware in October that F was out of school and agreed to arrange a home tutor for F. Following this the school raised concerns about the Council naming it in F’s EHC Plan. It also expressed concern about whether it could meet the 20 hours provision outlined in her plan due to staffing issues. The attendance officer then voiced their own concerns about the school, and whether it was willing to meet F’s needs or whether it wanted F off its roll. There is no evidence the Council further investigated these concerns to satisfy itself about the school’s suitability for F. Therefore, this leads to doubt around whether the school was in fact suitable for F and whether it was reasonably possible for her to attend.
52. The Council agreed at the meeting in November that the school could advertise for a home tutor. The attendance officer reassured Mr X in December that they were hopeful to have a tutor in place soon.
53. F remained out of school for the rest of the term. Despite chasing the matter on several occasions, there is no evidence the Council provided an adequate response or any advice or guidance to help the school employ a tutor. Instead, it let the matter drift and F remained out of education without anything in place for the rest of the term. The Council failed to intervene and make appropriate arrangements for F’s education and also failed to take timely action to address F’s non-attendance. This was fault.

December 2019-March 2020

54. Councils have a legal duty to ensure the SEN provision in section F of an EHC Plan is delivered from the date it issues the final plan. This duty is non-delegable.
55. The Council issued F’s EHC Plan in December 2019 and named the school on the basis that the school would provide home tuition in the interim. Although Mr X agreed to this there is no evidence showing how the Council satisfied itself that this arrangement would provide the provision outlined in section F. The school made efforts to recruit a tutor, however it failed to do so.
56. Records showed the school told the Council in February 2020 that it would welcome F back. Despite this, the Council continued asking the school to recruit a home tutor also asked it to source and investigate other alternative provision. There is no evidence of an appropriate reintegration plan. The Council’s decision to delegate the delivery of F’s EHC Plan to the school whilst F remained at home was fault and its failure to intervene when the school failed to recruit a tutor was also fault. It meant F remained at home without education or the provision in line with her EHC Plan until the start of the COVID-19 lockdown.

March-July 2020

57. The country entered a national lockdown in March 2020 due to COVID-19. Between March and July, the Council was obliged to use ‘reasonable endeavours’ to provide her with provision outlined in section F. The Council has not demonstrated or provided evidence of the ‘reasonable endeavours’ it took during this period secure F with the provision outlined in her EHC Plan. Instead, F remained at home without a suitable full-time education. The Council continued to ask the school to recruit a home tutor, despite it having failed to do so since December 2019.
58. Had the Council intervened at an earlier stage rather than leaving it to the school to try and arrange the home tuition, it is likely F would have had some educational provision in place during the lockdown period. Therefore, the Council was at fault for failing to provide F with provision in line with her EHC Plan during this period.

Injustice

59. It was Mr X’s choice to remove F from the school however the Council accepted this decision by agreeing for the school to recruit a home tutor and by failing to take action against Mr X for F’s non-attendance. The Council then failed to intervene when the school consistently failed to both recruit a tutor or put any other education in place for F.
60. F missed out on appropriate full-time education between October 2019 and July 2020. Although she received some provision funded privately by Mr X, she missed out on the SEN provision she was entitled to in line with her EHC Plan between January and July 2020. However, as it was Mr X’s wish for F to receive home tuition, it is unlikely in these circumstances she would have received all of the provision in her plan. F has lost out on opportunities to develop emotionally and socially. F is already disadvantaged because of her learning difficulties and has now been further disadvantaged because of the Council’s faults.
61. Had it not been for the Council’s faults, F could have received alternative provision and some of the provision in line with their EHC Plan. That could have reduced the overall impact of the pandemic on F’s educational opportunity and left them in a stronger position than they are now.
62. The matter has also caused Mr X and the wider family frustration, upset, time and trouble and avoidable financial loss. The records show Mr X chased the Council on several occasions after it agreed the school could advertise for a home tutor for F. The Council failed to provide any education in the interim and I have seen no evidence showing the school sent any appropriate provision home for F. This meant Mr X funded some private tuition for F. Had the Council intervened at an earlier stage to get the tuition in place, this expenditure was avoidable.
63. The recommendations I have made to remedy the injustice caused by the faults are in line with our guidance on remedies. In determining an appropriate level, I have considered factors such as:
• F’s SEN
• Any educational provision made during the period
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education.
• Whether F would have been able to receive all the provision in her EHC Plan but for the Council’s faults.
• The impact of the COVID-19 lockdown.

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Agreed action

64. Within one month of the final decision the Council agreed to:
• pay Mr X a total of £2100 to recognise the loss of education and failure to deliver the provision outlined in F’s EHC Plan between October 2019 and March 2020. Mr X should use the payment for F’s educational benefit.
• Pay Mr X a total of £1125 to recognise the loss of education and failure to deliver the provision outlined in F’s EHC Plan between March and July 2020. Mr X should use the payment for F’s educational benefit.
• Upon production of relevant invoices or receipts reimburse Mr X a total of £1140 paid for private tuition for F between October 2019 and July 2020.
• Pay Mr X £200 to recognise the upset, frustration, uncertainty and time and trouble caused by the Council’s handling of F’s education between October 2019 and July 2020.
65. Within two months of the final decision the Council agreed to review its procedures on how it manages children who are out of education for reasons other than exclusion or illness. The review should include a reminder to staff that where the Council cannot reintegrate a child back into school or decides not to take legal action for non-attendance then it has a duty to provide alternative provision.

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Final decision

66. I completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the faults found.

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Investigator's decision on behalf of the Ombudsman