Summary: There was fault by the Council, as it did not arrange alternative provision when it was clear a child would be absent from school for health reasons. Although the Council offered a remedy for this, it has now increased its offer at the Ombudsman’s recommendation.

The complaint

1. I will refer to the complainant as Mrs R, and to Mrs R’s son as P.
2. Mrs R complains the Council did not arrange alternative provision for P, when he was unable to attend school because of anxiety arising from his special educational needs. Although the Council has now accepted fault for part of the period of P’s absence, and offered a remedy for this, it has not recognised the full period.

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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 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The courts have said that where someone has used their right of appeal, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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.

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How I considered this complaint

7. I reviewed Mrs R’s correspondence with the Council, and P’s EHC plan.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. The following is intended only as a brief summary of the key facts and dates relevant to this complaint.
10. P’s attendance at school became irregular during academic year 2017/18. Although he consistently attended until the end of the calendar year, in January P began to be sporadically absent; and from February, to the of the academic year, he mostly did not attend. His absences were mostly recorded by the school as ‘unauthorised’.
11. In March 2018, Mrs R asked the Council to assess P’s needs and consider creating an Education, Health and Care (EHC) plan for him. She explained at that point P had been absent for approximately four weeks.
12. The Council spent the following months assessing P and preparing his EHC plan. It eventually issued a final EHC plan in October 2018. In December, Mrs R submitted an appeal to the SEND Tribunal because she did not agree with the school the Council had named in the plan for P’s educational placement.
13. In January 2019, the Council implemented some tutoring as limited alternative provision (AP) for P.
14. In May, the Tribunal issued its findings. It decided P should attend the school that Mrs R had said she preferred. The Council then issued a new final EHC plan with an amended placement.
15. In July, Mrs R asked the Council to continue P’s tutoring for another term while he transitioned to school. The Council agreed to maintain the tutoring until October.
16. Prior to this, on 8 June, Mrs R submitted a detailed complaint to the Council. She complained about the Council’s decision which led her to submit an appeal, as well as various aspects of the Council’s conduct during the appeal process. Mrs R asked the Council to offer a financial remedy for P’s loss of education, as well as the distress and inconvenience she and the rest of her family had suffered as a result.
17. On 23 June, the Council replied. It said it could not offer compensation, and that, although the matter could not be “[considered] under Dorset Council’s formal complaints process”, it intended to undertake an investigation. As part of this, the Council asked Mrs R to attend a meeting.
18. On 1 July, Mrs R approached the Ombudsman with her complaint. We explained to her we could not lawfully investigate the matter, because she had made an appeal to the Tribunal. In response, Mrs R asked us instead to investigate the lack of AP for P from January 2018 to January 2019. As we were not satisfied Mrs R had yet made a complaint about this to the Council, we referred her back to it in October.
19. Mrs R says both she and her MP had to chase the Council for a response to her complaint. The Council eventually responded on 15 February 2021.
20. The Council said it had first been made aware of P’s situation on 19 March 2018, when Mrs R had requested it assess his needs. P was still on roll at his school at the time and the school had also not brought him to the Council’s attention.
21. The Council acknowledged that Mrs R had said P had already been absent from school for four weeks, when she made her request, and had now returned to school on a limited timetable. It said the school’s records showed P’s attendance was 49.5% for the 2017/18 year in total, and 0% for the 2018/19 year, where his absence was recorded as being down to illness.
22. The Council therefore concluded P had had part-time provision through the school between January and July 2018; and that P’s needs, identified in his EHC plan, meant he could not engage in a full-time timetable.
23. However, the Council acknowledged very limited provision had been made for him from September 2018 to January 2019. It said P’s difficulty in engaging with education, and the difficulty of finding a suitable placement for him, were contributory factors. It also said it had made “every effort” to arrange AP for when P’s health improved. However, the Council apologised for the lack of AP anyway.
24. The Council’s response went on to discuss Mrs R’s complaints relating to her Tribunal appeal. I will not summarise these points because they do not form part of my investigation.
25. Mrs R replied on 16 February. She said the Council had interpreted P’s attendance figures for 2017/18, as the 49.5% was not spread evenly across the year. She pointed out the Council was aware in March he had already been absent for four weeks, and so it was at this point the Council had a duty to arrange AP.
26. Mrs R also rejected the Council’s claim it had made “every effort” to arrange AP, as it had only provided two hours of tutoring per week, beginning in 2019, which she considered inadequate. She went on to criticise the Council for failing to offer a financial remedy for the lack of AP, in accordance with the Ombudsman’s Guidance on Remedies.
27. After discussing its response to her complaints about the appeal, Mrs R said she considered the Council should offer a remedy of £10,500. This consisted of £6000, for ten months of missed provision at a tariff of £600 per month; and three payments of £1500 each, to reflect Mrs R’s own distress at P being out of education, for the Council’s refusal to name her preferred placement (leading to the appeal), and for its administrative failings during the appeal process.
28. The Council responded later in February. It reiterated its view P had been able to access part-time provision during the 2017/18 academic year, but acknowledged again its fault in not arranging AP during the early part of the following year. The Council offered a remedy of £800 to reflect this.
29. The Council also offered a further remedy of £100 to reflect Mrs R’s distress, time and trouble arising from the appeal process.
30. Mrs R wrote to the Council again on 5 March. She reiterated her view and rejected the Council’s offered remedy. On 10 March, she referred her complaint back to the Ombudsman.

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Legislative background

Children out of school because of medical needs

31. Section 19 of the Education Act 1996 (‘s19’) says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
32. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
33. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
34. The 2013 Guidance says that children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. Where full-time education would not be in the best interests of a particular child because of 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. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.
35. The guidance stresses the need for medical information to inform the decisions about what education a child or young person may be able to manage. It states:

“In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family, and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs 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.”

36. The guidance states councils should ensure alternative education is arranged as quickly as possible and that it appropriately meets the needs of the child. It also stresses the need to include the young person, when age appropriate to do so, in the discussions and decisions reached about his or her educational provision.
37. Councils should therefore:

• 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 and make every effort to minimise the disruption to a child’s education;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors;
• while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school;
• if a child receives one-to-one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated;
• good alternative provision is that which appropriately meets the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology). The alternative provision should also meet specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress;
• evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school;
• the pattern of complex and long-term health illnesses can be unpredictable. Councils should discuss the child’s needs and how these may best be met with the school, relevant clinician and parents, and where appropriate the child.

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Analysis

38. Before considering Mrs R’s complaint, I must first discuss some points about the Ombudsman’s jurisdiction.
39. First, the law says a person should approach the Ombudsman within 12 months of becoming aware of the substantive issue they wish to complain about. This is called the ‘permitted period’.
40. In Mrs R’s case, she complains the Council failed to arrange AP during the period January 2018 – January 2019. The permitted period therefore ended on January 2020, at the latest; and arguably earlier than this, because she was aware of the Council’s failure to arrange AP during 2018. However, she did not approach the Ombudsman originally until July 2020. Mrs R’s complaint is therefore late.
41. However, the law allows the Ombudsman to disapply this limit. To do so, we must be satisfied that (a) there are good reasons for the delay, and (b) it is still possible to undertake a robust investigation, and to meaningfully remedy any injustice we may find.
42. In this case, Mrs R has explained she was already faced with a significant administrative burden, having a child with special educational needs who was not in school, and simultaneously appealing to the Tribunal the Council’s decision on his placement. She says she therefore could not approach the Ombudsman during the permitted period. I consider this provides a good reason for the delay.
43. From the result of my enquiries, I am also satisfied the Council’s records will allow me to make robust and defensible findings, and to recommend a remedy for any injustice I find. Taking these points together, I consider it appropriate to disapply the 12mth time limit here.
44. Second, the law prevents the Ombudsman from investigating any matter which has been put to a tribunal. The law also expects us generally not to investigate a matter, where a person has or had the right to appeal to a tribunal.
45. The law also says we may not investigate any secondary matter which is intrinsically linked to a tribunal appeal. For example, the SEND Tribunal may uphold an appeal about the placement named in a child or young person’s EHC plan, and order the relevant council to issue a new plan naming their preferred establishment. While this may mean the child or young person has experienced a delay in taking up their placement, the Ombudsman cannot investigate or provide a remedy for the delay.
46. Mrs R’s complaint to the Council covers two broad points about the appeal: the fact she was required to appeal about P’s placement at all, given the Tribunal found in her favour; and some alleged administrative failings by the Council during the process, such as not providing a full bundle of evidence. The law prevents me from investigating either point.
47. For the same reason, I am also unable to recommend a remedy for any distress or time and trouble Mrs R may have experienced as a result of the appeal matters.
48. With regard to Mrs R’s complaint about the lack of AP, this matter is not, in itself, outside our jurisdiction. But the restriction I have outlined above still applies, in that I can not consider any matter pertaining to the provision of education to P once her right to appeal to the Tribunal was triggered. This is because it then became intrinsically linked to a matter which was to be put to the Tribunal.
49. The Council’s chronology shows it issued P’s final EHC plan on 18 October 2018, and this triggered the appeal right. Therefore, by law, the only point I can investigate here is the Council’s alleged failure to arrange AP between January and October 2018. I will now consider this point.
50. Mrs R complains the Council should have arranged alternative provision for P as soon as she requested an assessment of him in March 2018. She says the Council already knew at that point P had been out of school for four weeks, which is above the threshold of 15 days to engage its duties under s19. She therefore considers the Council should provide a remedy for ten months P spent without AP, from March 2018 to January 2019.
51. For its part, the Council considers P benefitted from part-time attendance at the school until the end of 2017/18 school year; and so it considers it is only the period from September 2018 to January 2019, when he began to receive tuition, where it bears responsibility for a lack of AP.
52. I do not completely share either view.
53. I agree with Mrs R that the Council’s s19 duty was triggered earlier than September. As she has said, although P’s overall attendance at school for the year was 49.5%, this is only because he attended consistently for the first half of the year. From February onwards, his attendance was sporadic, to the point where I do not think it can meaningfully be said he was going to school.
54. Poor attendance alone does not trigger the s19 duty, as the reasons for the lack of attendance are also important. Where absences are considered to be the result of truancy, for example, councils will generally use their enforcement powers, rather than arranging AP. The s19 duty is rather for situations where a council has accepted the child in question cannot reasonably be expected to attend their named establishment.
55. I do note the vast majority of P’s absences were recorded as ‘unauthorised’. In the strict sense, this could be read to mean he was truanting.
56. But I note there is no suggestion by the Council it considered his absences were unreasonable, or not for genuine health reasons. In fact, the chronology provided by the Council, and its complaint responses, do not indicate the Council gave any consideration at all to whether he could return to school during the latter half of the 2017/18 year. Rather it appears to have simply accepted P’s absence as the fact of the matter, and instead concentrated on compiling his EHC plan.
57. The only finding I can make, therefore, is that the Council should have begun working to arrange AP for P, as soon as Mrs R told it he had been out of school for four weeks. This was in mid-March 2018. That the Council did not is fault.
58. This fault caused an injustice both to P personally, in that he missed a long period of education, and to Mrs R, in the distress she experienced as a result.
59. Mrs R considers the Council should offer a remedy for ten months missed education, from March 2018 to January 2019. As I have said, I must end my consideration in October, but even putting this to one side, I cannot agree with this. This is because the period of March to January includes approximately 12 weeks of school holidays. The true ‘missed’ period is therefore approximately seven months, not ten; and with the limit on my jurisdiction, I must disregard a further two months.
60. Mrs R and the Council also disagree on the appropriate level of remedy for the lack of AP.
61. The Ombudsman’s Guidance on Remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• the child’s SEN [special educational needs];
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period;
• whether additional provision now can remedy some or all of the loss;
• whether the period affected was a significant one in a child’s school career – for example, the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.”

62. In P’s case, it is apparent he has significant SEN. And, during the period March to October 2018, he was entirely without education. P also turned 11 during the 2018/19 school year, meaning part of his loss of education fell during his final year at primary school. These are aggravating factors.
63. However, I must balance this against the fact a significant period of time has passed since these events, and that he is, as I understand, now attending a specialist school. His loss of education is therefore now somewhat historic, and I am not convinced it can be easily remedied by the purchase of additional provision.
64. Taking this together, I consider the Council should offer remedy of £500 per month, for the five months P went without education which fall into my jurisdiction. This is at the higher end of the Ombudsman’s recommended tariff, and makes a total of £2500.
65. As I have said, it is also apparent Mrs R suffered significant stress from P’s absence from school. I note also the undue time and trouble she has been put to in pursuing her complaint, particularly in that she was forced to involve her MP to chase the Council for its response.
66. To remedy this, I consider the Council should offer her a £500, to reflect her distress, and a further £300 for her time and trouble.

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Agreed action

67. Within one month of the date of my final decision, the Council has agreed to offer Mrs R:

• £2500 on P’s behalf, to reflect the impact on him of his loss of education;
• £500 to reflect the distress she suffered from P’s loss of education; and
• £300 to reflect her time and trouble in pursuing her complaint.

68. This gives a total remedy of £3300.

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Final decision

69. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman