Summary: There was delay by the Council in putting in place alternative education when a child was unable to attend school due to ill-health or ‘otherwise’. The Council has agreed to apologise, make a financial payment and make service improvements.

The complaint

1. Ms X complains the Council failed to provide suitable alternative education when her daughter, who has an Education, Health and Care (EHC) Plan, was unable to attend school. Ms X complains tutors commissioned to work with her daughter were not suitably trained, had not carried out a risk assessment and the Council would not commission her preferred tutor agency.

Back to top

What I have investigated

2. I have investigated the period from when Ms X’s daughter stopped attending school in October 2018 until February 2020 when the Council issued a final EHC plan which Ms X appealed to Tribunal. I cannot investigate the period after February 2020 because the Ombudsman cannot investigate when an alternative remedy (such as an appeal) has been used. I explain this further below.

Back to top

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. 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)

Back to top

How I considered this complaint

11. I have considered information provided by the Council and Ms X including:
• Complaint documents
• EHC plan documents
• Tribunal documents
• Council’s policy on personal budgets
• Council’s policy on children who cannot attend school due to health needs.
12. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014
• Statutory Guidance: Ensuring a good education for children who cannot attend school because of health needs; Alternative Education.
13. 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.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Chronology

15. Ms X’s daughter has special educational needs (SEN). She was attending a mainstream primary school until October 2018 when she stopped due to mental health difficulties. The Children and Adolescent Mental Health Service (CAMHS) were involved.
16. In November 2018 the school put forward a plan to reintegrate Ms X’s daughter back into school.
17. A meeting to review the EHC plan was held. Ms X wanted her daughter to move to a specialist school as she felt the current school could not meet her daughter’s needs and was contributing to her mental health and anxiety issues. The school and the Council’s specialist teacher considered the current school remained suitable.
18. In December 2018 Ms X asked CAMHS if Y should get home tuition as her daughter was very reluctant to return to her current school. CAMHS agreed that a return to the previous school was unlikely due to the length of time out of school and because Ms X’s daughter was so opposed to it. Oppositional and rigid behaviour were recognised as being part of Ms X’s daughter’s disability and SEN.
19. An emergency team around the child meeting was originally arranged for January 2019 but was delayed until 4 February so CAMHS could attend. On 6 February CAMHS provided advice that Ms X’s daughter should be signed off school temporarily. The Council agreed following this meeting it would amend the EHC plan and look for a new placement on CAMHS’s recommendation. It also agreed to provide interim tuition while a placement was found.
20. The Council issued a draft amended EHC plan in late March and a final plan in May 2019. As the Council had not identified a suitable school place the final Plan named a type of school (specialist). Ms X had a right of appeal if she disagreed with the Plan but did not use her appeal right at that time.
21. Ms X raised concerns about the tutors (I will refer this to Tutor Agency A). The Council agreed to commission a different agency (Tutor Agency B)
22. On 17 June Tutor Agency B started to work with Ms X’s daughter two hours per day. It was initially Ms X’s suggestion this take place at the library. In September 2019 Tutor Agency B suggested increasing the tuition to fulltime. Ms X declined as she felt this was too big an increase for her daughter to cope with.
23. In November 2019 Ms X raised concerns about Tutor Agency B’s ability to meet Y’s SEN, about safeguarding if her daughter was to spend all day in the library (as she was at risk of absconding) and that she was having to support her daughter to get her to engage with the tutor. Ms X identified another agency (Tutor Agency C) which had, in her view, more specialist expertise and asked the Council to commission Agency C instead.
24. The Council arranged a meeting in December 2019 at which it agreed to consider using Agency C as this was Ms X’s preference, but in the meantime, it said would continue to commission Agency B, which it was satisfied remained appropriate.
25. This meeting appears to have also been the annual review meeting as in January 2020 the Council issued a decision letter that it would not amend the EHC plan following the annual review. This decision had a right of appeal.
26. Ms X complained about the tuition and the Council responded in January 2020. It said Agency B had offered a new tutor and a new location at a youth centre. It said it only used Agency C for post-16 pupils and it was not able to commission Agency C, but if this was Ms X’s choice it was willing to consider a personal budget so she could commission them. It provided Ms X with information about how to apply for an education personal budget.
27. Ms X said her understanding was she could not have a personal budget where the Council was already commissioning provision. As it was paying Agency B Ms X saw no point applying for funding for Agency C.
28. It is apparent from the documents the Council has provided to me that Agency C required its tutors to become an employee of the Council if they were commissioned. The Council says this was not possible, so the only option was for Ms X to commission Agency C by way of a personal budget. The Council says Agency A and B are on its approved provider list for this age group and Agency C is not. Agency C charges more than twice the hourly rate of Agency B.
29. In February 2020 Ms X employed solicitors to issue an appeal to the SEND Tribunal. The Solicitors also sent the Council a ‘letter before action’ complaining the tuition arrangements were not suitable and not fulfilling the Council’s duties to provide special educational provision in the EHC plan.
30. Ms X’s grounds of appeal submitted to the SEND Tribunal stated Ms X believed her daughter was now well enough to return to school if a specialist placement was provided. This means it was the suitability of the school which was preventing a return to school, not ill-health.
31. Throughout 2019/20 the Council was consulting many schools to try and find a place. Ms X then said she would visit potential schools after COVID-19 restrictions (imposed in March 2020) were lifted.
32. As a result of Ms X’s appeal an amended final EHC plan was issued in March 2021 naming an independent special school. Y started there but by June 2021 the placement had broken down and tuition resumed.

Relevant law

33. Parents are responsible for ensuring a child of compulsory school age either attends school regularly or receives suitable home education.
34. Section 19 of the Education Act 1996 (as amended) says councils are responsible for the provision of suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
35. 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.
36. 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.
37. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
38. 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.
39. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place (s,42 Children and Families Act 2014). We can look at complaints where support set out in the EHC plan has not been provided unless the complainant has used an alternative remedy (Local Government Act 1974, section 26(6). Where someone has used an appeal right the Ombudsman is barred from considering the same matter, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
40. Where there is a right of appeal to the SEND Tribunal about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision.

Council’s policy on health needs

41. The Council’s policy on children with health needs says it can arrange up to 25 hours per week tuition.
42. The policy says children will be identified as requiring intervention from the Alternative Provision Team (or SEN team if they have EHC plan) if there is supporting evidence from a specialist medical consultant. Where this is not available the policy says ‘judgment will be needed about what support to provide based on available evidence. This would normally involve some form of medical evidence and consultation with parents’.

Analysis

Period 1: October 2018 to February 2019

43. Ms X’s daughter stopped attending school in October 2018 due to anxiety. Ms X says this arose from the school not meeting her daughter’s needs. The Ombudsman cannot investigate the actions of the school, only the Council.
44. Initially there were efforts to re-integrate Ms X’s daughter back into school and a plan was suggested to support this in November 2018. The Council also correctly called an emergency review. The Council’s decision was that the school could meet need and Ms X’s daughter did not need to change placement. While there was evidence for and against a specialist placement put forward at the review, it was a professional judgment for the Council how much weight to give evidence. The Ombudsman can only look at whether the council followed the correct process, which it has by holding a review and considering evidence. The Ombudsman has no jurisdiction to question the decision the Council reached that the current school remained suitable.
45. By December 2018, CAMHS agreed the nature of Ms X’s daughter’s SEN meant it was unlikely she would agree to return to her current school. The evidence from CAMHS fell short of stating that Ms X’s daughter could not attend school and should be signed off as medically unfit to attend.
46. While there was a delay between Ms X’s daughter stopping school and starting tuition, this appears to have been due to uncertainty whether Ms X’s daughter was medically unfit to attend or whether she could be persuaded to return.
47. There is no legal deadline when a council must make alternative provision when absence is due to illness, but this should be considered as soon as it is clear the child will be away for 15 days or more. It was reasonable for the Council to first try and reintegrate Ms X’s daughter back into her current school and to seek medical advice about whether her absence should be authorised on medical grounds.
48. A further meeting was proposed for early January to explore this. This was unfortunately delayed by a month so CAMHS could attend. The Council should have considered putting tuition in place as an interim measure while it sought clarification from CAMHS when the meeting was delayed. Failure to do so was fault. The guidance is clear that alternative provision should not be delayed. The Council’s policy states a judgment should be made on the evidence available while further evidence is sought. The Council has a duty to provide education when a child would not otherwise receive any. Where there is uncertainty about a child’s condition and absence, we would expect councils to put the interests of the child first while it seeks further evidence.
49. The Council did not take any action to enforce school attendance between November 2018 and February 2019.
50. In February 2019 the Council had medical evidence supporting absence and then put tuition in place.

Period 2: March to November 2019

51. The Council issued a final EHC plan naming a type of school. Ms X had a right of appeal against this decision, but I am satisfied it was reasonable for her not to use it as the Council had agreed it would look for a new placement. Ms X would not have anticipated it would take so long to find a school or that, due to COVID-19, she would be unable to visit schools for several months.
52. Ms X has raised concerns about the tutors commissioned by the Council. The Council agreed to change the first provider.
53. While tuition was only for two hours per day, the guidance does state that one-to-one tuition is more intensive than group provision and a lower number of contact hours may be acceptable. It also says part-time is acceptable where that is the interests of the child’s health. I also note Ms X was against the hours being increased when this was offered.
54. The evidence from CAMHS is not specific about how much education Ms X’s daughter could manage or how long she needed to be off school. While the education was not fulltime there is not enough evidence for me to say two hours was not appropriate given Ms X’s daughter’s anxiety around education and Ms X’s views her daughter could not cope with fulltime education.

Period 3: November 2019 to February 2020

55. Ms X raised concerns about the second provider. I am satisfied the Council considered Ms X’s concerns and these were explored at a review meeting in December 2019. The Council confirmed in the complaint response Agency B had completed a risk assessment for using the library as a base, but acknowledged this had not been shared with Ms X.
56. Use of the library was originally Ms X’s suggestion but in response to concerns raised about safety and risk of absconding, Agency B offered alternative venues.
57. The Council decided it was satisfied Agency B could meet needs and should continue to be commissioned. This was a professional judgment for the Council to make and as I have found no fault in the way the Council made this decision, the Ombudsman has no jurisdiction to question the merits of this decision (Local Government Act 1974, section 34(3), as amended).
58. The Council offered Ms X the option of a personal budget, but Ms X did not apply at that time. This may have been due to a misunderstanding on her part that funds will be switched from one provider to another when a personal budget is approved. The Council has since clarified this when, following the breakdown of the next placement, Ms X asked again to use Agency C.
59. While Ms X believes Agency C has more expertise than Agency B, it is too speculative to say that her daughter would have been more successful in her learning with Agency C than Agency B. I note that an independent specialist placement agreed via Tribunal appeal has also broken down which highlights the level of difficulty Ms X’s daughter experiences accessing learning.

Period 4: After February 2020

60. The Council decided to issue a final EHC plan naming a type of school, not a specific school. This is a decision permitted by the legislation. This decision had a right of appeal which Ms X used.
61. Ms X’s view at the time of her appeal was that her daughter was fit to return to a school. The continued absence from school was therefore not due to illness, but to the Council’s decision not to name a specific school. The Ombudsman is therefore barred from considering this period. The decision which Ms X appealed (not naming a specific school) and the consequence (loss of education) are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014).

Summary of fault and injustice

62. I have identified delay in putting tuition in place in early 2019.
63. Ms X’s daughter lost out on education, this is likely to have been at the same level she was later able to manage of two hours per day.

Back to top

Agreed action

Within 4 weeks of my final decision:

64. The Council will pay Ms X’s daughter £300 for the delay in starting tuition. The sum reflects the provision she was able to manage was likely to have been less than fulltime. The money should be paid into a savings account in the child’s name but over which parents have control.
65. The Council will apologise to Ms X for the fault I have identified.

Within 8 weeks of my final decision:

66. The Council will review its processes when a child is unable to attend school to ensure:
• medical evidence is sufficiently clear about the amount of education a child can manage considering their health condition
• where medical consultant evidence is not yet available it follows its own policy to use its judgment whether to provide education on the evidence available.

Back to top

Final decision

67. I have completed my investigation. There was a delay in putting in place alternative education when a child was unable to attend school due to ill-health or ‘otherwise’. The agreed actions set out above are a satisfactory remedy for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman