Summary: We have upheld part of Ms X’s complaint. There was fault in the failure to consider statutory guidance between March and June 2021 which caused a loss of suitable education for Mr Y. The Council will apologise and make a payment to Mr Y to reflect missed education. There was no delay in issuing Mr Y’s final Education Health and Care plan following the Tribunal. The Council’s offer of alternative provision from April 2022 until the final amended plan was issued was in line with statutory guidance.

The complaint

1. Ms X complained Achieving for Children (AFC), which acts for the Council:
1. Refused to carry out an Education Health and Care (EHC) needs assessment or issue an EHC plan for her son Mr Y
2. Failed to provide suitable education for Mr Y from March 2021 to the end of May 2022.
2. Ms X said this caused her avoidable distress, time and trouble and a financial loss because she paid for virtual education for Mr Y.

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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established if someone has appealed to a Special Educational Needs and Disability Tribunal (SEND Tribunal), the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. Achieving for Children (AFC) provides statutory services for children and young people in the Council’s area, including EHC needs assessments and SEN provision. AFC’s services fall within our remit and we can investigate complaints about it.
8. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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.

Back to top

What I have and have not investigated

10. I have not investigated complaint (a) because Ms X appealed both decisions to the SEND Tribunal and the law says we cannot investigate complaints about decisions where there has been an appeal.
11. I have investigated some, but not all of complaint (b). I have not investigated the following periods because they are closely connected (‘inextricably linked’) to the matters Ms X was appealing to the tribunal:
• 21 June 2021 to 27 October 2021. This is the period of appeal against the Council’s decision not to carry out an EHC needs assessment
• 24 November 2021 to 13 April 2022. This is the period of appeal against the decision not to issue an EHC plan.
12. Ms X complained to us in August 2022 so matters from August 2021 until August 2022 are not late. I have investigated between March 2021 and 20 June 2021 although this period is late. The earlier date is when Mr Y stopped having medical tuition. I consider there are good reasons for Ms X not complaining to us within 12 months: she was under stress coping with Mr Y’s illness and education.

Back to top

How I considered this complaint

13. I considered Ms X’s complaint to us and to AFC, its complaint responses and documents set out in this statement. I discussed the complaint with Ms X.
14. Ms X, Achieving for Children 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

Relevant law and guidance

15. Education authorities must make suitable educational provision for children of school age who are absent from school because of illness, exclusion or otherwise (Section 19 Education Act 1996)

16. Where a child’s health is such that full time education is not in their interests, education can be part time. (Section 3AA Education Act 1996)

17. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ states the law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. Councils should also:
• Review the provision offered regularly to ensure that it continues to be appropriate for the child and that it is providing suitable education.
• Ensure provision addresses individual needs including social and emotional needs
• Work productively with parents to ensure the best outcomes.
• Ensure children unable to attend school because of health needs receive the same range and quality of education as at school
• Use virtual learning to complement face-to-face education.
18. Statutory guidance for councils Alternative Provision (January 2013) describes good alternative provision as appropriately meeting the needs of pupils who require it, with the following common elements:

• Good academic attainment on a par with mainstream schools
• The specific personal social and academic needs of pupils are properly identified to help them overcome barriers to attainment.

19. The Council’s Risk of Missing Education (‘ROME’) panel takes referrals from three groups including those were there are concerns and provision is at risk of breaking down. A panel of professionals including staff from AFC attend meetings to discuss cases. The meeting is chaired by a director. Actions are agreed and followed up to be discussed at future meetings.

20. 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. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

21. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
22. Where the SEND Tribunal orders a council to issue an EHC plan, it must issue a draft EHC plan within five weeks. The council must then give the parents 15 days to comment on the draft plan before issuing a final plan as soon as practicable.

What happened

23. This section is a summary of key events and covers the period that I have investigated:
• 1 March to 20 June 2021
• 28 October to 23 November 2021
• 13 April to 17 August 2022

I refer to matters outside the above periods as background.

24. Mr Y, currently in Year 10, has long-term health conditions causing serious fatigue. He was on the roll of a mainstream secondary school (School A), but he had been too unwell to attend school since 2017. He received home tuition from AFC’s medical tuition service. Ms X was happy with this until March 2021.
25. Ms X told me medical tuition stopped in March because Mr Y was not well enough for the sessions, he found them ‘too intense’ and the tutor could not keep re-arranging them to suit his health needs. AFC told me medical tuition continued to be an available option for Mr Y throughout the period I have investigated. AFC’s records indicate Ms X medical tuition was available and offered for Mr Y at review meetings and in correspondence, despite Ms X’s view to the contrary.
26. In May 2021, Ms X asked the Council for an EHC needs assessment.
27. AFC’s internal ROME case notes between March and June indicate:
• In March, the medical tuition service and Ms X agreed a reduction in tuition sessions each week from three sessions to one
• In April and May, officers from AFC tried to organise a date to review Mr Y’s medical tuition. Internal emails indicate officers were aware he was not accessing medical tuition at all because of fatigue and that he had not attended School A since well before lockdown.
• In May, there was a meeting between one of AFC’s directors and a senior member of staff from the medical tuition service.
• In June, there was a review meeting to discuss Mr Y’s medical tuition which Ms X and professionals attended. Ms X said the timing of the medical tuition was inflexible and so was unsuitable because it could not be rescheduled if Mr Y was too fatigued to take part. School A said it had not seen him for a long time. Ms X said she wanted an inclusive education for Mr Y with live lessons and she wanted professionals to stop talking about reintegration into school, as this went against medical advice.
28. Ms X told me she started funding Mr Y’s on-line tuition from a national organisation providing virtual home-schooling in June 2021.
29. The Council decided not to carry out an EHC needs assessment on 21 June. Ms X had a right of appeal against the Council’s decision from this date, which she used.
30. In a meeting between AFC, School A and Ms X in September, School A offered Mr Y a laptop and on-line streaming of lessons and some interaction with classmates using the laptop during tutor sessions. The records indicate Ms X did not take up this offer because she was concerned about changing Mr Y’s education programme when he was doing well with the virtual schooling she was paying for. Ms X asked why School A had not offered streaming sooner and one of AFC’s directors said they did not realise it was an option. The records indicate streaming was available in March 2021 as School A had introduced it as part of COVID-19 measures.
31. On 27 October, the Council conceded Ms X’s appeal against its decision not to carry out an EHC needs assessment.
32. One of AFC’s educational psychologist’s (EP) prepared a report about Mr Y in October. The EP recommended the following provision:
• Access to a mainstream GCSE curriculum flexible and tailored to his needs in relation to fatigue, stamina and physical symptoms.
• Face-to-face and virtual learning adapted to his needs at the time, so he can lie back and listen when he is fatigued and become more active when able. Advice from health professionals about the mix of face-to-face and virtual sessions is needed.
• Teachers experienced in supporting pupils with similar medical conditions.
• Medical advice on a plan for how long at home education will need to continue for. A gradual approach to increasing face-to-face learning.
33. On 24 November, the Council decided not to issue an EHC plan for Mr Y. Ms X appealed to the SEND Tribunal.
34. On 13 April 2022, the SEND Tribunal ordered the Council to issue an EHC plan for Mr Y.
35. The Council issued a draft EHC plan on 9 May and a final plan on 26 May. The final plan was amended in August to include a personal budget for Mr Y. Mr Y’s placement is Education Otherwise than at School (EOTAS) and he has a personal budget from the date of the un-amended plan (26 May) which is used to pay for the virtual provision Ms X had arranged and funded. The Council backdated funding to May 2022. Ms X told us she was happy with the plan and did not want to appeal it.
36. Ms X used AFC’s complaints procedure. Its responses to the complaint said:
• It continued to offer medical tuition and gradual reintegration into school, which was not accepted. School A’s headteacher misunderstood the position when she said medical tuition was not available. It was an open offer, but Mr Y had not used it for some time because of Ms X’s view that it was not suitable.
• There was no duty to provide special educational provision through an EHC plan until the tribunal concluded.
• Where pupils would not receive a suitable education in a mainstream school because of health needs, the Council has a duty to make other arrangements. AFC felt the provision on offer was suitable and it was available.
• School A offered live virtual lessons at a meeting in September which Ms X did not take up. It also arranged an assessment by an Educational Psychologist.
• AFC did not keep requesting further medical evidence. The request was for medical professionals’ input and advice on the best programme of education support that considered Mr Y’s medical needs. It was reasonable for AFC to request up-to-date information and to provide a clinical view on how best to support access to education.
37. Ms X was unhappy and complained to us in the middle of August 2022.

Was there fault and if so, did this cause injustice?

38. My investigation and findings cover complaint (b) for the following periods:
• 1 March to 20 June 2021
• 28 October to 23 November 2021
• 13 April to 17 August 2022.

1 March to 20 June 2021

39. AFC was aware Mr Y had stopped receiving medical tuition in March 2021 because its staff had been delivering this. There was a dispute between AFC and Ms X about whether or not the medical tuition service continued to be suitable for Mr Y. Ms X said one-to-one tuition in-person was not working because it was too intense causing Mr Y fatigue and the timings were not flexible as they could not be rescheduled to a different day if he was too fatigued. There is no evidence AFC considered Ms X’s concerns about whether the medical tuition Mr Y had been receiving to date could be adjusted to better suit his energy levels (for example by offering him shorter sessions over different days or offering breaks within a session etc). Instead, AFC repeated its offer of the same provision. This was a failure to work productively with Ms X and Mr Y to explore the possibility of a mutually acceptable solution which is recommended in statutory guidance as I have set out in paragraph 17.
40. Statutory guidance requires councils to review the provision offered regularly. There is evidence in AFC’s ROME case notes that it reviewed Mr Y’s provision regularly and in March agreed a reduction in sessions from three to one based on Mr Y’s high exhaustion levels. However, there is no evidence which demonstrates those reviews took account of the requirement in statutory guidance (Alternative provision and Ensuring a good education for children who cannot attend school because of health needs) to ensure provision addressed Mr Y’s social and emotional needs (see paragraphs 17 and 18). Given the offer was individual home tuition for one hour a week, it is unclear how this programme would have met Mr Y’s needs for social interaction with peers given AFC accepted he was too unwell to attend school to have social contact with his friends. It is also unclear why AFC could not have checked with School A about the existence of on-line arrangements for virtual schooling which had been made during lockdown. The records show the arrangement that was later offered in a meeting September (see paragraph 30) would have been available between March and June 2021.

28 October to 23 November 2021

41. The Council acted in line with statutory guidance by offering a mix of medical tuition (face-to-face) and on-line lessons by School A. I am satisfied this was in line with the recommendation to use virtual learning to complement in-person education and considered Mr Y’s social and emotional needs and so was in line with statutory guidance (see paragraph 17.) There is therefore no fault.

14 April 2022 to 26 May 2022

42. The Council is legally responsible for making sure arrangements specified in an EHC plan are put in place. We can look at complaints about this, such as delay in issuing a plan following a Tribunal’s order.
43. The Council should have issued a draft plan within five weeks of the order of 13 April, so by 18 May. The Council issued a draft plan on 9 May which was within five weeks, so it was not at fault. And the Council issued a final plan on 26 May which was within the required timescale as I have set out in paragraph 22. Although the final plan of 26 May did not have a placement specified, there was a right of appeal against it which we would expect Ms X to have used had the Council not decided about Mr Y’s personal budget for EOTAS in August. The Council backdated the personal budget to 26 May. There was therefore no fault or injustice requiring a remedy. This is because there was no legal requirement for the Council to fund special educational provision for Mr Y before it issued his EHC plan. The duty in Section 42 of the Children and Families Act only begins from the date of a final plan. The Council backdated funding for the on-line provision Ms X had been paying for privately to the date it issued the final plan.
44. During this period, AFC’s offer of medical tuition and on-line lessons by School A was still available for Mr Y. As I have described in paragraph 41, this was in line with statutory guidance so there is no fault, provisionally and so no grounds for me to recommend a refund of the cost of the programme Ms X paid for privately.

Back to top

Agreed action

45. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with AFC, I have made recommendations to the Council.
46. There was fault and injustice for the reasons given in paragraphs 39 to 40. AFC’s failings meant Mr Y was not offered suitable education in line with statutory guidance from March to June 2021. He was however, offered some provision but it was not tailored to his needs (fatigue levels etc) and did not consider his emotional and social needs.
47. The Council will, within one month, apologise to Mr X and Ms Y and make Mr Y a payment of £500 to reflect the loss of education provision. This payment is based on the lower end of the bracket in our Guidance on Remedies and reflects the consensus that Mr Y was not well enough to have coped with full time provision.

Back to top

Final decision

48. I find:
• There was fault in the failure to consider statutory guidance for the period March to June 2021 which caused a loss of suitable education for Mr Y.
• There was no delay in issuing Mr Y’s final EHC plan following the SEND Tribunal, so there was no fault
• The Council’s offer of alternative provision from April 2022 until the final amended EHC plan was issued was in line with statutory guidance, so there was no fault.
49. The Council will apologise and make Mr Y a payment to reflect missed education.
50. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman