Summary: Ms B complained the Council did not provide her son with alternative provision when he stopped attending school and delayed issuing his education, health and care plan. Ms B says this led to C being without suitable education provision. The Council was at fault delays securing alternative provision, issuing C’s education and health plan, and securing a suitable education placement. These faults caused C significant injustice as he missed over a year of education. The Council will make a financial payment to remedy this injustice and make service improvements.

The complaint

1. Ms B complained the Council did not provide her son with alternative provision when he stopped attending school and delayed issuing his education, health and care plan. Ms B says this led to C being without suitable education provision.
2. This situation is ongoing. I have considered the Council’s actions up to August 2022. If Ms B is unhappy with the Council’s actions from September 2022, she can make a new complaint to the Council.

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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. 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)
5. 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

6. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Ms B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and guidance

8. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months. The legislation states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
9. Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1)) “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
10. In 2022 the Ombudsman updated and reissued its focus report ‘Out of school, out of sight?” The key learning point highlighted in this report was that the council has the duty to arrange alternative education, not the school a child attends.
11. 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. When a parent or carer asks a Council for an EHC assessment, the Council must reply within six weeks. (Special Educational Needs and Disability Regulations 2014) If the Council declines, the parent or carer can appeal the decision to the SEND tribunal. Where the Tribunal orders a council to assess a child for an EHC plan, the Council shall write to the parent or carer within two weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) The Council then has 16 weeks to issue a final EHC plan.
12. The council has a duty to secure the special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. This complaint involves events that occurred during the COVID-19 pandemic. When England entered a national lockdown on 23 March 2020 schools were closed to most children. They remained open only to vulnerable children, and children of specified key workers. Schools reopened to all students in September 2020. Schools closed again between 5 January and 8 March 2021.

What happened

14. This chronology includes key events in this case and does not cover everything that happened.
15. C suffers with anxiety and struggled to return to school after the first COVID-19 lockdown. In September 2020, C was in academic year six.

Autumn term 2020

16. School 1 and the Council held an attendance meeting in November 2020. Ms B attended. School 1 said C had not attended that week and his attendance was 28%. Ms B explained she was finding it difficult to get C to school and to get him to do schoolwork at home. The Council said it would assign a family worker to offer the family support and School 1 said it would consider funding a place for C at a farm school.
17. School 1 and the Council held two attendance meetings in December 2020 with Ms B. At the first meeting it was noted C had visited School 1, but not attended. Attendees discussed the importance of C having established routines and Ms B agreed to attend a parenting course. Minutes of the second meeting recorded C had been unable to visit the School. Ms B said C was sleeping in the day because he was not sleeping at night. School 1 expressed concern that C was not completing any online learning at home. Attendees gave Ms B advice about how to establish a bedtime routine for C to enable him to get up in time to go to school.
18. C’s attendance was 16% at the end of the autumn term.

Spring term 2021

19. In March 2021, School 1 put in place a transition plan for C to reintegrate back into School 1. However, C could not return to the school.
20. In May 2021, School 1 asked, on Ms B’s behalf, for the Council to undertake an EHCP needs assessment for C. The School told the Council C’s attendance in the autumn term was 16% and 0% in the spring term. It said he last visited the School in March 2021 and last accessed online learning in October 2020. The School said it added him to its special educational needs register in September 2020 because of concerns around his mental health. The Council rejected the request because it felt there was a lack of evidence of special educational need.
21. School 1 and the Council held an attendance meeting in May 2021. C had not visited School 1 since March 2021. Ms B said she felt School 1 could not meet C’s needs. Ms B agreed for the Council to undertake an early help child and family assessment. An early help assessment considers which aspects of life a family are coping well with and where they may need additional support.

Summer term 2021

22. School 1 and the Council held an attendance meeting in June 2021. Attendees discussed C accessing counselling, attending alternative provision, and having contact with School 1 every day.
23. School 1’s attendance worker met with Ms B in July 2021. They discussed alternative provision for C and how he could access this given he had not engaged in online learning. The Council recorded that for alternative provision to be agreed, there would need to be more information from his psychologist.
24. In July 2021, Ms B arranged for C to be privately tutored. The tutor delivered 18 sessions between July and November 2021. The Council reimbursed Ms B for these sessions.
25. In August 2021, the inclusion lead discussed the case with C’s psychologist. The inclusion lead said before they could put C forward for alternative provision, Ms B would need to support this. The psychologist questioned the potential effectiveness of alternative provision given Ms B said C could not leave his house.
26. C was privately assessed in August 2021 and received an autism spectrum disorder (ASD) diagnosis.
27. The Council completed an early help child and family assessment. Early help decided to work with C and his family to support them to develop daily routines and structure.
28. Ms B appealed to the SEND tribunal against the Council’s decision not to assess C for an EHC plan. In August 2021, during the tribunal process, the Council conceded and agreed to undertake an EHC assessment.

Autumn term 2021

29. In September 2021, the Council’s medical panel considered the application for C to receive alternative provision. The panel declined the request because it, “felt plan school had in place was strong in trying to engage [C]”.
30. The Council wrote to Ms B and told her it would complete an EHC needs assessment for C.
31. The attendance officer spoke to Ms B in October 2021 about tutoring for C. It was agreed School 1 would fund one tutor session a week. The attendance officer also explored the option of C attending a farm school. Ms B said she did not think C would be able to access this.
32. In November 2021, the Council told Ms B following C’s needs assessment it would issue an EHC plan.

Spring term 2022

33. The Council issued C’s final EHC plan in February 2022. The plan did not name a specific school and instead it named a type of provision, a mainstream school. The plan included school based EHC provision.
34. In March 2022, Ms B asked the Council to consult with a specialist education provider, School 2.
35. The Council took C’s case to its special educational needs panel in March 2022 to ask for funding for alternative provision. In its request, it noted Ms B wanted C to attend a specialist provision. The panel agreed to fund alternative provision.
36. C attended two sessions with an alternative education provider in March 2022.
37. In May 2022, Ms B told the Council she was struggling to get C to attend the alternative provision. She asked the Council to change the provider. The Council said this would not be possible and asked Ms B to encourage C to attend. Ms B said C needed a specialist education setting and asked the Council again to consult School 2.

Summer term 2022

38. C did not attend three alternative provision sessions in June 2022 because he was asleep or in bed.
39. Ms B asked for different alternative provision for C and for an EHC plan review. The Council said it would not change the alternative provider until it saw an improvement in C’s engagement. It said one reason for his non-attendance seemed to be his sleeping pattern and late night gaming. The Council offered the family support from a special educational needs family worker. Ms B declined and said C was only allowed to game for one hour a day.
40. The alternative provider told Ms B and the Council about the adjustments it had made for C and said it had offered to work with Ms B to identify steps she could take to support C’s attendance. The alternative provider suggested it continue to offer C sessions through the summer holidays to provide consistency. Ms B declined.
41. C missed two alternative provision sessions in July 2022. On one occasion he was asleep, on the other he decided not to attend.
42. The alternative provider stopped working with C in August 2022.

Complaint

43. Ms B complained in January 2022 that it had taken the Council too long to finalise C’s EHC plan.
44. The Council responded to Ms B in February 2022. It accepted there was a delay issuing C’s EHC plan and apologised. It said it should have finalised the EHC plan by January 2022, but it was yet to do this. It said it would work closely with Ms B to identify an educational placement for C to prevent further delay.
45. Ms B told the Council she was not happy with its response and asked it to consider her complaint at stage two. She added that C was still not receiving suitable education.
46. Ms B brought her complaint to the Ombudsman in June 2022 because she had not received a stage two complaint response from the Council. When we raised this with the Council, it asked if it could respond at stage two before we considered whether to investigate. We agreed.
47. After we chased the Council to respond, the Council sent Ms B’s stage two response in August 2022. The Council apologised for its delayed response. It summarised the support it offered the family to encourage C to attend education. It said it offered alternative provision in March 2022, but C only attended a few sessions. It confirmed it agreed C needed specialist provision and it would consult special education providers. It said it would hold an urgent annual review in September 2022. It explained it had expanded its team and recruited permanent staff and hoped she would see the effect of this in the new academic year.

Analysis

48. During the period of this complaint, School 1, the Council and other professionals have tried different strategies and offered the family a range of support to encourage C to attend School 1. Despite this, by the end of the autumn term 2020, it was clear this was not working with C’s attendance being 16%. At this point, the Council should have considered taking enforcement action. In response to my enquiries, the Council said it did not consider prosecuting Ms B because medical professionals said C could not attend School 1 because of anxiety.
49. In this case, the Council should have provided C with alternative education when it became clear he could not access education at School 1. C attended School 1 for the last time in November 2020 and a plan for him to transition back to school in March 2021 was unsuccessful. From the end of the autumn term 2020, it was clear C could not access education at School 1. When I asked the Council how it met its duties under section 19(1) of the Education Act, it said throughout the period of this investigation C had a place at School 1 and access to online learning. It said it also provided C with alternative provision from March 2022.
50. The Council’s failed to take account of its legal duties under section 19(1) of the Education Act 1996 to “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” C was on roll at School 1, but from January 2021 it was clear he could not access education at School 1 or engage in online learning. Therefore, from January 2021 the Council had a duty to provide him with suitable education or consider enforcement action if it believed it was reasonably practicable for C to attend School 1. Schools were closed from January to March 2021 due to Covid-19 and during this time, C had access to online learning via School 1. Alternative provision should have started in March 2021. The Council did not arrange alternative provision for C until March 2022, a delay of a year which was fault.
51. The Council agreed to assess C for an EHC plan in September 2021 during the tribunal process. The Council had 16 weeks to issue a final EHC plan. The Council issued the final EHC plan in February 2022, a delay of six weeks. This delay was fault. In its stage one complaint response the Council recognised it had not completed the EHC process in time and upheld this part of Ms B’s complaint. It said it would work closely with Ms B to identify an educational placement for C to prevent further delay. However, as of August 2022, the Council had still not secured an education placement for C or even consulted with potential education providers. The Council’s failure to secure an education placement caused C injustice. Firstly, he did not have access to a suitable education placement and secondly, he missed EHC provision.
52. Schools were closed because of a national lockdown from January to March 2021. C had access to online learning from School 1 during this period. From when schools returned in March 2021, the Council should have provided C with alternative education until a suitable placement was found in line with his February 2022 EHC plan. When the Council put alternative education in place in March 2022, C’s engagement was sporadic. Therefore, I cannot say C missed education from March 2021 to March 2022 because there is uncertainty about whether he would have accessed it had it been offered. Therefore, the injustice to C caused by the Council’s fault is:
• the lost opportunity for C to access education provision from March 2021 to December 2021.
• the lost opportunity for C to access both education and EHC provision from when his final EHC plan should have been issued in January 2022, to March 2022 when alternative provision was put in place.
53. In addition to these faults, the Council’s stage two complaint response was significantly delayed and only issued after Ms B approached the Ombudsman. This fault put Ms B to unnecessary time and trouble.
54. In an investigation of this Council we completed in September 2021, the Council agreed to carry out a review of its SEND service to ensure that such delays did not occur in future. In March 2022, in another investigation of the Council, we found it at fault for delays securing suitable education resulting in it failing to provide another child suitable education for over two years. It is evident from my, and our March 2022, investigation the review the Council committed to undertaking in September 2021 did not address Council delays securing suitable education. Considering this, I have made several service recommendations.

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Agreed action

55. Within one month of the final decision, the Council will:
• apologise to Ms B and C for the faults found in this investigation.
• pay Ms B £200 per month for the lost opportunity for C to access education provision from March 2021 to the first week of term in January 2022, a total of £1600. This money should be used for C’s benefit.
• pay Ms B £300 per month for the lost opportunity for C to access both education and EHC provision from when his final EHC plan should have been issued in January 2022 to March 2022 when alternative provision was put in place, a total of £675. This money should be used for C’s benefit.
• reimbursed Ms B for the 18 private tutor sessions she paid.
• pay Ms B £570 to recognise C did not receive free school meals from March 2021 to March 2022.
• pay Ms B £200 for the time and trouble it took for her to get a complaint response from the Council.
• remind relevant staff when the Council has agreed to assess a child for an EHC plan during a SEND tribunal, it has two weeks from the date of it conceding at tribunal to tell the parents of this and a further 14 weeks to issue the final EHC plan.
• remind relevant staff of the importance of meeting timescales set out in its complaint procedure and updating complainants where there are unavoidable delays.
56. Within two months of the final decision, the Council will:
• review its procedure for providing alternative education for children who are not in school for whatever reason and provide training and appropriate guidance to relevant staff, including panel members.
• review its procedure for consulting education providers to ensure this takes place without delay and provide training and appropriate guidance to staff.
• add a copy of its complaint policy to its ‘Complain to Dorset Council’ webpage.
57. Without delay, secure an educational placement for C at a specialist setting.
58. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

59. I have completed my investigation and uphold Ms B’s complaint. C and Ms B were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman