The Ombudsman's final decision:
Summary: The Council was at fault because it did not make arrangements for a child who could not attend school to receive alternative educational provision. But it has recognised this fault and we have now agreed a suitable remedy.
- I will refer to the complainant as Mrs K.
- Mrs K complains the Council did not provide adequate support with respect to her daughter, B, who has special educational needs and an education, health and care (EHC) plan. In particular, she says the Council did not make adequate arrangements for alternative provision for B during a period where she was not attending school. Although the Council has upheld Mrs K’s complaint, she complains it has not offered a remedy for the injustice she and B have suffered, due to the fact they are no longer resident in the Council’s area.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with an organisation’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)
How I considered this complaint
- I reviewed Mrs K’s correspondence with the Council, a chronology produced by the Council, and B’s current EHC plan.
- I also shared a draft copy of this decision with each party for their comments.
What I found
- B has a number of physical and developmental conditions, which means she struggles in a normal educational environment. She has had an EHC plan for several years, setting out the support she needs to help her with this.
- The following is a summary of the key points related to this complaint. It is not intended to provide a detailed account of everything which happened.
- In 2018 B was allocated a placement in a specialist unit at a school. Mrs K says this placement began to breakdown in April 2019.
- In May, the school arranged a part-time timetable for B to attend, but B did not fully engage with this. In June, the school began sending work home for her instead. In September, there was a meeting between the school and Mrs K, at which it was agreed they would try to get B to engage with a part-time timetable again.
- In October and November, the Council says the school offered to arrange 1:1 tutoring sessions for B, first at school (although Mrs K disputes this) and then at a local library. B again felt unable to engage with either of these proposals.
- Between February and April 2020, the Council reviewed B’s EHC plan and issued a revised version. Between May and June, the Council consulted with a special school, chosen by Mrs K, as a possible new placement for B. However, this school responded that it could not meet her needs.
- In September, the Council named another special school as a placement for B. She began attending there part-time, but in October, Mrs K moved with B to a different local authority area.
- In August 2021 Mrs K submitted a complaint to the Council. She set out the history of the education and support B had received since living in the area, and said the Council had failed to arrange alternative provision for B once her school placement had broken down in April 2019.
- The Council responded in September. It noted Mrs K had made a previous complaint on the same subject in February 2020, in response to which the Council had accepted that B had been out of school for “an unacceptably long period of time”. The Council said that, following this, B’s EHC plan had been amended and a new placement found for her.
- After a further complaint from Mrs K in October, the Council provided a stage 2 response in January 2022.
- The Council reiterated its acceptance that B had spent too long out of school. It said it had not provided “sufficient oversight” of B’s original school in maintaining provision for her. It agreed it could have communicated better with Mrs K and the school, and done more to ensure her needs were being met while she was not attending school.
- The Council noted it had discussed with Mrs K what it could do to make amends for B’s missed education, but said that, as she was no longer resident in the area, and as B was now attending a new school, it had “difficulty agreeing … an appropriate course of action”.
- Mrs K then referred her complaint to the Ombudsman.
Children out of school because of medical needs
- 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”.
- 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 and make every effort to minimise the disruption to a child’s education.
- 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.
- 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.
- 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.
- In its response to Mrs K’s complaints, the Council accepted it could have done more to ensure B received alternative provision during her period out of school. It has criticised itself for poor communication and a failure to provide adequate oversight of the original school, after B’s placement began to break down.
- The Council considered that, because B had moved away from its area and started at a new school, it could no longer provide any remedy for the injustice this fault caused. However, the Ombudsman considers a financial remedy can be appropriate under such circumstances, to allow missed education to be made up to some extent, for example by the purchase of private tuition. I wrote to the Council to discuss this.
- The Council noted the various arrangements which B’s school had made to provide her with education, including the part-time timetable and 1:1 tutoring sessions. It said:
“The Council accepts that [B] was not in receipt of education in the usual way, but maintains that the necessary reasonable adjustments were put in place, and that the long term place was to fully re-engage [B] so that she would be attending school on a full time basis. During this time, the Council continued to explore alternative options, and once a place was made available at an alternative school, this place was immediately awarded to [B]. The Council … asserts that education was available, and suggestions of how to re-engage [B] into school were agreed to by all parties and all necessary funding to support [B] was also made available.”
- The Council’s duty under s19 is clear – it must make arrangements to provide the equivalent of full-time education for any child who is unable to attend school, once they have been absent for 15 days.
- So, for a child in B’s position, the Council essentially has two options – to treat their absence as truancy, and use its enforcement powers; or to accept they cannot attend school, and make alternative arrangements. There is no suggestion any party considered B’s absence to be truancy, which meant the Council’s duty to make alternative arrangements for her was engaged.
- I acknowledge the Council’s comments about the various efforts which were made to re-engage B, but this was not an equivalent to the Council meeting its s19 duty. As soon as it became clear the school’s efforts were not working, the Council should have taken the lead.
- The Council was therefore at fault in this respect. However, I acknowledge the Council has also recognised it should have taken a greater role in this. And, in response to my suggestion it consider the Ombudsman’s Guidance on Remedies, it has offered to make a payment of £1800 to Mrs K, to reflect B’s loss of education, and a further £300 for her time and trouble pursuing the complaint.
- It is speculative to say what would have happened, had the Council not been at fault here. While it had a duty to arrange alternative provision for B, it appears possible she would have declined to engage with this as well. This does not mitigate the Council’s failure to properly meet its duty, and I am satisfied the uncertainty this creates represents an injustice here, but I consider it a relevant consideration with respect to remedy.
- Taking these matters together, therefore, I am satisfied the Council’s offer is appropriate. While I find fault by the Council, which caused injustice, I make no further recommendation to what the Council has already offered.
- Within one month of the date of my final decision, the Council has agreed to offer to pay Mrs K:
- £1800 to reflect B’s loss of education during her absence from school; and
- £300 to reflect the time and trouble Mrs K went to pursuing her complaint.
- I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman