Summary: Mrs X complains about the Council’s failure to provide adequate education to her child, Child Y, since October 2019. The increased remedy the Council has proposed during our investigation does not go far enough to address the injustice caused to Child Y and Mrs X. The Council has agreed to apologise to Mrs X and Child Y, provide an enhanced remedy payment to Mrs X and complete service improvements to appropriately address the faults identified.

The complaint

1. Mrs X complains about the Council’s failure to provide adequate education to her child, Child Y, since she approached it for help in October 2019. She says Child Y has not been receiving appropriate education since 2018. She complains the Council has not continued to provide home tuition promised since it became aware Child Y had stopped attending school. She complains the Council has not done enough to help her identify a suitable education placement to meet Child Y’s needs and they remain out of education. Mrs X says Child Y’s Caseworker has repeatedly failed to response to her requests for help. The Council’s offer of a financial remedy does not help resolve the issues her child has experienced. Mrs X would like the Council to secure education provision that meets Child Y’s needs and enables them to catch up on the learning they have missed.
2. I have exercised discretion to investigate Mrs X’s complaints about the Council’s handling since October 2019 as this is when she first made it aware of Child Y’s absence from school.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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.
5. 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)
6. 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)

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How I considered this complaint

7. I have spoken to Mrs X and considered the information she has provided about her complaints.
8. I have considered the information the Council has provided in response to my enquiries.
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.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Alternative provision

11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Securing provision

13. A child with special educational needs may have an Education Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give councils information about their duties. .
14. The council has a duty to secure the specified special educational provision in an EHCP 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)

What happened

15. Child Y has special educational needs. In October 2018, Child Y was attending a mainstream school and receiving a reduced timetable – one hour of teaching per day.
16. In October 2019, Mrs X contacted the Council as Child Y had stopped attending school altogether. Child Y was in Year 9 at school by this point and had started having severe panic attacks at the thought of going to school. Child Y’s school made failed attempts at phased returns to school for Child Y and Mrs X continued to ask the Council for help.
17. In January 2021, Child Y was diagnosed with Autistic Spectrum Disorder (ASD). The Council agreed to complete an EHC assessment and Child Y received Council-funded home tuition from February to June 2021. The Council issued a final EHCP in July 2021.
18. Mrs X continued to have contact with the Council about Child Y’s lack of education throughout the remainder of 2021 and 2022. The Council completed two annual reviews of Child Y’s EHCP and issued a further EHCP in November 2022.

Mrs X’s complaints

19. On 3 May 2022, Mrs X made a stage one complaint to the Council about her child’s lack of education. She complained the Council had not continued with providing home tuition when Child Y remained absent from school in July 2021 and that she had received incorrect advice about the types of education provision she could ask the Council to consult for an education placement.
20. The Council responded to Mrs X on 24 June 2022. It explained the difference between alternative and specialist provision. The Council also explained that it would not arrange home tuition for Child Y when it had named an education setting in their EHCP. The Council also advised Mrs X that it would not be seeking to identify a small college provider as recommended in Child Y’s EHCP because there was no such provision available in its area.
21. Mrs X escalated her complaint to stage two on 3 July 2022. She remained concerned the Council had not arranged home tuition for Child Y when it knew they had not been attending school or college. Mrs X was unhappy Child Y had lost another year of education because of the Council’s inaction.
22. The Council responded to Mrs X’s stage two complaint on 7 October 2022. It apologised it had not arranged further home tuition for Child Y when it became clear they could not attend the education placement proposed following the 2021 EHCP annual review. The Council said it would reissue Child Y’s EHCP so that Mrs X’s appeal rights to the SEND Tribunal could be reactivated. It said it would consult with other education placements to identify a suitable setting for Child Y. Finally, the Council acknowledged it had not done enough to ensure Child Y received education provision out of school. It offered a remedy payment of £2,000 for the 40 weeks of term time it calculated Child Y had missed out on education and a further £200 to Mrs X for her time and trouble in pursing her complaints.
23. Mrs X brought her complaint to us as she remained dissatisfied with the Council’s response to her concerns.

Council’s response to enquiries

24. The Council told me a recent Ombudsman’s decision on another case had recommended it review its handling of complaints on similar cases since January 2022. The Council had identified Mrs X’s complaint as one of these cases and had completed a review.
25. The Council accepts it did not do enough in Child Y’s case to ensure they received alternative education provision while absent from school. Having considered our Guidance on Remedies, the Council has offered an increased payment of £13,375 for Child Y’s missed education provision. This calculation is for the period December 2019 to February 2023, but excludes school holidays, the first 15 days (or three weeks) for the time allowed to councils to arrange alternative provision and a further 11 weeks from February to June 2021, when Child Y received home tuition.
26. The Council has also said it will ensure home tuition is arranged for Child Y while it completes another annual review of their EHCP.

Analysis

27. I commend the Council’s proactive approach and I am encouraged to see it has acted on the recommendation made in another case of a similar nature so swiftly.
28. However, I do not consider the Council’s proposed remedy is sufficient to fully remedy the injustice caused by the faults identified.
29. The time, trouble and distress Mrs X experienced while Child Y remained out of school was significant and prolonged. I do not consider the proposed payment of £200 the Council has offered Mrs X adequately recognises this. I have therefore suggested an increased payment to Mrs X below.
30. The Council’s stage one complaint response advised Mrs X it could not consult small college placements as there were none in its area. The Council has a duty to identify and explore placements outside its area in such circumstances. Failure to do so was fault.
31. Mrs X’s main concern is that a larger remedy payment for Child Y would not resolve the problem. She understandably remains very concerned about how Child Y is going to catch up given the significant amount of education provision they have missed. She feels the Council has not done enough to help with this and I would agree. While the increased remedy payment goes some way towards remedying the injustice suffered by Child Y, Mrs X she needs support and guidance on how to best use this money to help Child Y catch up.
32. I also find there were failings in the Council’s complaints handling. Firstly, it took longer than its published timescale to respond to her stage one complaint (ten working days). Secondly, the Council’s complaints procedure provides no indication of how long it will take to respond to stage two complaints, which is concerning. I have made a service improvement recommendation below to address this. My recommended payment to Mrs X also takes account of the time she had to wait for the Council’s stage two complaint response – 69 working days, which was excessive.

Agreed action

33. Within one month of my final decision, the Council agrees to:

• make a written apology to Mrs X and Child Y for the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs;
• pay £13,375 to Mrs X for the benefit of Child Y for the education provision they have missed from December 2019 to February 2023. The Council should provide support and guidance to Mrs X on how best to use this payment to assist Child Y if she requests this;
• ensure home tuition appropriate to Child Y’s needs is in place and remains in place until a suitable education placement is identified;
• pay Mrs X £600 in recognition of the distress, time and trouble she has experienced in pursuing her complaints on Child Y’s behalf.

34. Within three months of my final decision, the Council agrees to:

• issue a reminder to relevant staff of the duty to ensure they seek to identify and consult education settings outside the Council’s area where suitable provision is not available locally; and,
• review the Council’s complaint procedure to check if this complies with our Guidance on Good Complaint Handling and Administrative Practice, with particular focus on providing complainants with clear information about response timescales.

35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation and uphold Mrs X’s complaints. The Council’s faults have caused significant injustice to Child Y and Mrs X and it has agreed to take action to remedy that injustice and make wider service improvements.

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Investigator's decision on behalf of the Ombudsman