Summary: Miss B complained that the Council failed to provide alternative education to her child, C when they were unable to attend school for medical reasons and delayed in considering her complaint. We found the Council did not provide alternative education for C for approximately eight months. We recognise the complications caused by the COVID-19 pandemic but still consider this fault caused Miss B and C significant injustice. The Council has agreed to pay Miss B and C a total of £2000. It has already taken action to improve its procedures.

The complaint

1. Miss B complained that the London Borough of Hounslow (the Council) in respect of her child, C:
• failed to provide alternative education for them from February 2020 when they was unable to attend school for medical reasons;
• failed to provide sufficient support in school from September 2019;
• failed to start an assessment of their special educational needs at an earlier point; and
• delayed in considering in Miss B’s complaint.
2. Miss B says this has caused significant upset and distress to C and to the family as a whole and that family members have had to take unpaid leave to try to educate the child themselves.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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

6. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

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What I found

Special educational needs (SEN)

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and the arrangements which 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.
9. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Alternative education

10. The Education Act 1996 (Section 19) 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.
11. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
12. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
13. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states “LA’s should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
14. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including they:
• consider the individual circumstances of each case and be aware that 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.
15. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

16. Miss B’s, child C, has longstanding and complex needs including autism, demand avoidance, anxiety and depression. Miss B had been in contact with the mental health service (CAMHS) and C was on the waiting list for treatment. In September 2019 C started secondary school (School Z) and struggled to settle into the new environment. They became increasingly anxious and upset in school and reluctant to attend.
17. In November 2019 the school tried educating C on their own out of the main classroom setting. Miss B said this approach was working. But when the school tried reintroducing them to the main classroom they struggled again. CAMHS advised that C should be educated out of class and suggested School Z was not the right provision.
18. C’s problems increased and they struggled to attend School Z after Christmas 2019. In January 2020 CAMHS wanted to arrange a meeting at the school and advised the school to stop the reintegration work for now.
19. The Council says the meeting was held on 28 January 2020 and reintegration was going well. Miss B has provided email evidence that reintegration was not going well and although C was attending school, they had not attended any lessons in the classroom. By mid-February they were not attending at all.
20. In February 2020 Miss B requested the Council carry out an EHC assessment and CAMHS advised that C should not attend School Z due to health conditions.
21. At the end of February CAMHS met with School Z and agreed that C would not attend. School Z agreed to send work home while CAMHS made a referral to an out-of-school provision, and they would also contact the Education Welfare Officer at the Council to ensure the Council understood the reasons for C’s absence.
22. In March 2020 as part of the assessment process the Council received a report from an educational psychologist who said that mainstream schooling was not appropriate for C and recommended a EHC plan. The Council agreed to this on 19 March 2020.
23. In April 2020 C was placed on the Council’s Dynamic Support Register which meant she was brought to the attention of a range of professionals to ensure she received the right support and treatment.
24. On 2 June 2020 the Council issued a draft EHC plan. Miss B requested a school specialising in children with autism. Due to COVID-19 and the school’s own protocols, the school was unable to do an assessment until the autumn term had started.
25. On 3 July 2020 the Council issued a final EHC plan naming School Z. Miss B says this was only so C could access the out-of-school provision (they needed to remain on the school roll). CAMHS repeated that C could not return to School Z.
26. In September 2020 Miss B asked for help from social services and from charities. She was desperate to get C back into education. CAMHS made a referral to the out-of-school provision. The Council says the referral was delayed due to the COVID-19 pandemic.
27. In October 2020 C started attending the alternative out-of-school provision. Around this time C moved in with a relative due to a breakdown in the relationship between them and Miss B. Miss B says this was due to the enormous stresses arising from C being out of school and at home with Miss B for such a long period.
28. In November 2020 the specialist school began an assessment. On 11 December 2020 it confirmed it could not meet C’s needs and could not offer a place. The alternative placement ended.
29. In January 2021 School Z put forward several options for C. It said:
• C could attend on site. Miss B said this was inappropriate as the school could not meet their needs and this had been confirmed by CAMHS more than a year ago.
• The school could set work on google classrooms. Miss B said this was unsuitable as C had not been in education consistently since year 6. They were so far behind that simply trying to tackle work alone online would be overwhelming.
• It could offer alternative work with C’s needs in mind. Miss B said she was not aware of what this offer involved. The Council said C’s relative declined it.
30. CAMHS produced a report on 22 January 2021 confirming that C could not attend School Z and had been medically signed off since February 2020. At a multi-agency meeting at the end of January 2021 CAMHS advocated for a specialist placement. The Council started to consult with alternative schools.
31. Miss B also engaged an advocate to help her. The advocate requested an interim review as C’s placement had ended and said the Council was in breach of the law by not providing education for C.
32. On 3 February 2021 the Council made a referral to a tuition service for C. The advocate chased the Council regarding consultation with schools, a date for the annual review of C’s EHC plan, contacting CAMHS for input into the Annual Review and stressed C was out of school, not receiving education and was not able to take part in online learning.
33. Miss B also complained to us for the first time. We sent the complaint back to the Council and asked it to respond to her. The Council responded on 22 February 2021. It said the Council only became aware of C’s SEN needs on 16 February 2020. It completed the assessment and issued a final EHC plan on 3 July 2020, within the 20-week statutory timeframe. It consulted with Miss B’s preferred school and had to wait some months to get an assessment which did not result in a place. It said C was not without education because they were on the school roll at School Z and had attended the alternative provision. It said School Z had offered a number of options which Miss B had declined, and the Council was now providing home tuition. It did not uphold the complaint.
34. One other specialist school declined to offer C a place.
35. Between March and July 2021 C had a home tutor for three hours a day, three days a week. The intention was to increase this, but C struggled to manage the sessions and often became distressed. The tutor said limited educational progress was made and it would have been better in a neutral distraction-free space.
36. At the beginning of March 2021 Miss B escalated her complaint to stage two of the complaints procedure but the Council did not receive the request. C’s Annual Review took place and the Council then consulted with four more schools. CAMHS recommended a therapeutic placement which could address C’s mental health needs as well as their autism. CAMHS also asked for School Z to be removed from the EHC plan.
37. Miss B’s preferred school offered a visit which had to be postponed due to a COVID-19 outbreak. Miss B chased up her complaint and the Council asked her to resend the email. It registered the stage two complaint on 13 April 2021.
38. In May 2021 Miss B’s preferred school offered a place for September 2021.
39. The Council responded to the complaint. It accepted the Council’s communication with Miss B had been poor. It said the special educational needs team was not aware of C’s problems until February 2020. C was provided with on-line education while they were not in school and more recently tuition had been provided. Miss B complained again to us.
40. In July 2021 the Council issued a final EHC plan naming the specialist school for September 2021.

Analysis

Alternative education

41. C was unable to attend school due to medical reasons from February 2020. CAMHS provided medical evidence to support this. The Council had a statutory duty to provide education for C once it was aware they were unable to attend school for more than 15 days. It did not provide any alternative education until October 2020. C attended a placement for two months from October to December 2020 and was then out of education again until the home tuition started at the end of February 2021. So, C was without education for approximately eight months (excluding the holiday periods). This was fault.
42. The fact C was on School Z’s roll does not mean they were provided with an education. They were unable to attend school for medical reasons and the Council should have taken proactive steps to provide alternative education. It was aware C was out of school but took no action to establish what C needed and left it to School Z to resolve. School Z could only offer work online or work sent home. We do not consider this is education and was not appropriate for C.
43. The Council says it understood (from the meeting on 28 February 2020) that CAMHS was making a referral to the out-of-school provision, but the referral was delayed until 6 July 2020, due to the pandemic. I understand this was a mitigating factor, but there is no evidence that the Council checked with CAMHS whether the referral had been made and it was still the Council’s responsibility to ensure C was provided with full-time education.
44. The Council has also argued in mitigation that there were very few options available for C, particularly during the lockdown restrictions because home tuition was not possible and even once restrictions lifted, it was not appropriate for C given their specific needs. Again, I do understand the difficulties during this period, but I have not seen evidence that the Council explored any other options.
45. The Council said once the placement ended in December 2020, the School Z offered options which Miss B refused. However, one option was not possible as it required C to attend on site which they were medically prevented from doing, the second option simply involved work being set online which was not appropriate and the third option was undefined and unevidenced, so it is impossible to evaluate.
46. The Council has argued strongly that there were no options available for C and it did all that it could. I can see that C had very complex needs and there were few viable options available. However, there is no evidence that the Council discussed, agreed or communicated this to Miss B.
47. I was also concerned that after the final EHC plan was issued in July 2020, the Council waited for the assessment from Miss B preferred school and did not seek any alternatives. The school did not give its decision until December 2020, five months later. I initially felt that if the Council had looked for alternative schools at that point, C may have been back in education sooner than September 2021. The Council has argued that due to the pandemic restrictions, no schools were offering assessments or taking new pupils. Again, I accept this was a mitigating factor, but C was still out of education with no alternative provision for a significant period of time.

Injustice

48. The fault caused C injustice. They are a vulnerable child at a key point in their education and to miss eight months of education is likely to have had a significant impact on them. It also caused Miss B significant stress coping with a distressed child at home for such a long period of time with no alternatives offered. I have taken into account that C was not living with Miss B from October 2020 until February 2021 which reduced the impact for the period from December 2020 to February 2021. However, there is evidence that Miss B was still involved in trying to secure education for C during this latter period.
49. The Council has argued I cannot make a causal link between the lack of provision on the Council’s part and the impact on C’s education or Miss B’s health. It is my role to consider on the balance of probabilities whether fault by the Council has caused injustice to C and Miss B. I maintain that being out of education altogether for eight months is likely to have had a significant impact on C and caused Miss B significant stress.

Support in school from September 2019

50. It is evident that the SEN team was not aware of C until it received the request for an assessment in February 2020. Following receipt of further information from the Council I have concluded that the education welfare service had no open case on C and had no contact with the school prior to February 2020. We cannot consider the actions of the school so I cannot comment further on the period from September 2019 to February 2020.

Failed to start an assessment of their special educational needs at an earlier point

51. The Council was not aware of C’s special educational needs until February 2020, and it started an assessment as soon as it was asked to do so. I have not found fault with its actions here.

Delayed in considering in her complaint.

52. The Council delayed for a month in considering the stage two complaint because it said it did not receive the Miss B’s first email. I have not concluded the delay was due to fault as there no evidence that the Council did receive the email. In any event the delay was relatively short, and Miss B received a second response within a further month.

Action already taken

53. The Council has explained that it has changed its procedures in two areas:
• Families are advised not to wait for individual school assessments and to parallel plan, considering if other schools are able to offer assessments more quickly.
• It has changed the admission process for the out-of-school provision to ensure the Council is involved at the start and end of the placement.
54. I welcome these changes.

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Agreed action

55. In recognition of the injustice caused to C and Miss B, I recommended that the Council (within one month of my final decision):
• pays Miss B £2000 (£1600 for C and £400 for Miss B).
56. I have taken into account the mitigating factors of the COVID-19 pandemic in reaching this figure.
57. The Council has agreed to my recommendations.

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Final decision

58. I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman