Summary: Miss X complained the Council failed to provide her son, C, with suitable alternative education when he was unable to attend school. Miss X said this caused him to miss out on his education and has caused distress, frustration, and financial difficulties for the family. We find the Council was at fault for failing to provide suitable alternative provision. This caused C to miss out on his education and caused Miss X distress and frustration. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to provide her son, C, with suitable alternative provision when he was unable to attend school between October 2021 and September 2022.
2. Miss X said this has caused C to miss out on a substantial amount of education and has caused distress, frustration, and financial issues.

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What I have and have not investigated

3. Miss X had the right of appeal to the SEND tribunal on 29 May 2022 when the Council issued her with C’s final EHC Plan. Miss X has since appealed to the tribunal. I have no jurisdiction to investigate Miss X’s complaint from the point she could have reasonably appealed, as some of the complaint relates to the placement and contents of C’s EHC Plan.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
7. 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

8. I have spoken to and considered the documents Miss X supplied in support of her complaint. I have made enquiries of the Council and have considered all the information it has provided. Miss X and the Council have commented on my draft decision, and I have considered their comments before making this final decision.

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What I found

Legislation and Guidance

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. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, Section 3A and 3AA)
11. 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.

What Happened

12. This chronology includes key events in this case and does not cover everything that happened.
13. Miss X contacted the Council in early October 2021. She explained her son, C, was struggling with severe anxiety that prevented him from attending school regularly. Miss X asked the Council for help and support.
14. The Council suggested its Early Help intervention and assigned a family worker to support C and Miss X. Along with Miss X, the Council commissioned various reports and assessments for C.
15. The family support worker attended Miss X’s home throughout November and December 2021. A visit was organised to attend school with C and observe him in the classroom.
16. The family support worker also held a meeting with Miss X and the headteacher of C’s school to discuss strategies to offer additional support for C to help improve his attendance.
17. Between October and December 2021, the Council said:

• It had agreed to fund additional support for C so he could access limited alternative provision for two hours a week.
• C could attend school on a reduced timetable with 1:1 support for four afternoons a week for one hour a day.
• Miss X’s family support worker asked the school to send some work home for C.

18. Miss X’s family support worker also spoke with the Council’s inclusion team. It discussed strategies to help encourage C back into school.
19. However, the Council’s notes in December 2021 show C’s school was unable to accommodate some suggestions due to staffing issues and said it would discuss C’s reduced timetable and access to alternative education in January 2022.
20. A meeting took place between the school and Miss X in mid-January 2022. The aim of this was to discuss and provide support for C to help him return to school. Miss X noted that C had attended three sessions of his limited alternative provision and that this was going well. However, she also said C’s anxiety levels had not changed and it was noted C had not attended school on his reduced timetable following the Christmas break.
21. Miss X asked the Council to consider assessing C for an EHC Plan in February 2022.
22. A further meeting took place between Miss X, the Council and other professionals in February 2022. Miss X commented she had been disappointed with the lack of support from C’s school and said C did not have access to suitable alternative education. She said C was with her all of the time.
23. The Council agreed to assess C for an EHC Plan in March 2022.
24. The Council issued Miss X with a final EHC Plan for C on 29 May 2022. The EHC Plan noted C had been unable to attend school since Autumn 2021 due to severe anxiety.
25. Miss X complained to the Council in July 2022. She said:

• C had not been provided with adequate alternative education since October 2021.
• The Council had been unsupportive and had failed to meet C’s special educational needs.
• The Council had dismissed her requests for C to access alternative therapeutic educational provision.
• The Council’s failure had caused significant emotional distress for both C and herself and had impacted on the family financially.

26. The Council responded to Miss X in early August 2022. It said:

• It had offered to support C, with some alternative provision and the use of an AV robot so C could access classroom-based learning remotely.
• It had now issued Miss X with C’s final EHC Plan.
• C’s needs and education was now being managed by the Council’s SEND team.
• It had held discussions to start alternative provision and a suitable provider had now been found.
• It was willing to start alternative provision with C during the summer holidays in 2022 and asked Miss X if she was agreeable to this.
• It was aware Miss X had appealed to the SEND tribunal.

27. Miss X remained dissatisfied and asked the Council to reconsider her complaint and raised some further questions.
28. The Council reconsidered her complaint and replied a few weeks later. It said:

• It was sorry Miss X felt she had not had a quick response about the alternative provision the Council had offered.
• It was sorry Miss X felt she was unable to make an informed decision about the use of the AV robot to help C access education remotely.
• C was now being supported with his transition to a new school.

29. Miss X complained to the Ombudsman in September 2022.

Analysis

30. The Council’s notes show Miss X told the Council of her concerns about C’s anxiety with attending school in October 2021. Between October and December 2021, the Council’s notes also show it allocated Miss X with a family support worker, reduced C’s timetable, put in place 1:1 support, discussed strategies to help support C to attend school, and put some alternative provision in place.
31. However, following the Christmas break, the Council’s notes show C struggled to attend school. It is also clear the measures put in place had not been wholly effective. The Council accepted that C could not attend school due to severe anxiety and had a duty to provide him with suitable alternative education from this point. It did not do this, and this was fault. I would also have expected the Council to have assessed or considered how many hours of provision C could cope with to ensure it provided sufficient alternative education. I have seen no evidence it carried out any assessments or considered this. This was also fault and caused C to lose the opportunity to access suitable alternative education provision from January 2022. This also caused Miss X distress and frustration. I have made recommendations to remedy the injustice caused to Miss X and C.
32. I have made recommendations for the injustice caused. However, I can only recommend a remedy for the period from January to May 2022 when Miss X’s right of appeal arose. Miss X’s complaint is too closely linked with the right of appeal so I cannot recommend a remedy after this point.

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Agreed action

33. By 29 June 2023 the Council will:

• Apologise to Miss X for the distress caused.
• Pay Miss X £1700 for the benefit of C’s education (this has been worked out at £400 a month from January 2022 until May 2022 taking into account school holidays).
• Pay Miss X £300 for the distress and frustration caused.

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

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Final decision

35. I have completed my investigation by finding the Council was at fault for failing to provide suitable alternative education for C. This caused C to miss out on his entitled education provision and caused Miss X distress and frustration. The Council has agreed to my recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman