Summary: The Council failed to provide Mrs B’s son with suitable education when he was unable to attend school. It also failed to make proper and timely efforts to identify a school which could meet his needs. We have recommended that the Council apologises and makes payments for the loss of education, distress and avoidable time and trouble. We have also recommended service improvements.

The complaint

1. Mrs B complains that the Council failed to ensure that her son, K, received suitable education between September 2019 and February 2022. Mrs B says that as a result of this, K’s education and welfare has suffered, and the family has suffered distress and financial loss.

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What I have and have not investigated

2. I have investigated Mrs B’s complaint that the Council failed to arrange suitable education for K between March 2021 and August 2021. I have not investigated Mrs B’s complaints about the education provided before March 2021 because the complaint was made to us late, and I do not consider there are good reasons for us to exercise discretion to investigate it now.
3. Case law has confirmed that the Ombudsman cannot investigate a decision which has been appealed to a tribunal, or the consequences of that decision. Mrs B appealed the Council’s decision to not name a school in K’s Education, Health and Care (EHC) plan. I am therefore unable to consider any claimed injustice arising from that decision, which includes K remaining out of education until February 2022 and Mrs B incurring legal fees.
4. For the same reason, I have not considered the advocacy fees Mrs B incurred appealing to the tribunal, or the cost for a private educational psychology assessment to be carried out to support the appeal. These costs were incurred as a consequence of the Council’s decisions regarding K’s EHC plan, which Mrs B has appealed to a tribunal. We are therefore unable to consider them.

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The Ombudsman’s role and powers

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. 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)
7. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. We have no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
11. 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)
12. 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

13. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered the documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant law and government guidance

Education provision

14. 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))
15. 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))
16. 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)
17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
18. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Education, Health and Care plans

19. 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. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
20. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan.

Overview

21. K is sixteen years old and has been diagnosed with ASD, ADHD and severe anxiety. K stopped attending school in March 2021 due to his anxiety.
22. K’s school asked the Council to carry out an EHC assessment of K’s special educational needs. The Council agreed to carry out an assessment and a final EHC plan was issued in August 2021. It did not name a specific educational setting.
23. The Council consulted various schools between September and November 2021. In December 2021, a school offered K a place and he started attending on 22 February 2022.
24. Other than a small amount of work which was sent home by K’s school and some private tuition which Mrs B paid for, K did not receive any education between March 2021 and February 2022.

Analysis

Provision of education

25. Councils must make arrangements for the provision of suitable full-time education and parents must ensure their child is able to receive suitable full-time education, by regular attendance at school or otherwise.
26. If a child cannot attend school because of a health problem, after 15 days the council must intervene and provide suitable education. When a child refuses to attend school, the council should consider whether he or she is medically fit to attend school. Even where there is no medical evidence to show that the child is not fit to attend school, councils still need to provide alternative education to children whose absences from school are for other authorised reasons.
27. Work set by a school to be done at home is not the same as teaching and does not count towards the Council’s duty to provide a suitable full-time education.
28. The evidence shows that in March 2021, the school told the Council that K was unable to attend school due to his severe anxiety and that the Council had a duty to provide K with alternative education. A referral was also made to the Hospital and Home Teaching (HHT) service.
29. In the Council’s response to Mrs B’s complaint about its failure to provide K with alternative education, it said that K did not meet the service criteria for HHT because K did not have a medical diagnosis for his non-attendance, and HHT do not support children who are off school due to mental health issues. The Council said that the school had not formally flagged K as a ‘child missing from education’ and if it had followed the correct processes, K may have been offered alternative education by its school attendance panel.
30. Regardless as to whether the school correctly followed the Council’s procedures, the Council was aware that K was not attending school due to his anxiety and so it should have considered whether K was medically fit to attend school and if his absence from school was authorised. It did not do so; this was fault.
31. The Council was aware that K had been struggling to attend school since September 2019 and that he had been receiving support from Child and Adolescent Mental Health Services (CAMHS). The school’s request for alternative education shows that his absence from school was authorised. I therefore consider the Council had a duty to provide K with alternative education. It did not do so; this was fault.
32. I consider the Council’s failings resulted in K missing out on suitable education between 29 March 2021 (15 days after he stopped attending school) and 11 August 2021 (the date his appeal right arose). K remained out of education until 22 February 2022 but I am unable to consider the period after 11 August 2021 for the reasons explained in paragraphs three and ten.

Consultation with schools

33. K’s EHC plan was finalised on 11 August 2021. It did not name a school. The Council asked Mrs B which schools she would like it to consult, starting with schools within its borough.
34. Mrs B told the Council that there were no schools within its borough which would be able to meet K’s special educational needs. She said consulting these schools before consulting her preferred school, which was not within the Council’s borough, would reduce K’s chances of getting a place. The Council explained that the panel would not consider an out of borough school without first receiving replies from schools within the borough.
35. The Council then agreed with Mrs B to consult two specific schools within its borough first. It consulted one of those schools but it was unable to offer K a place. Five weeks later, the Council consulted the other school, as well as the school which K had been attending until March 2021. Ten days later, it consulted another four schools, three of which were out of borough. All of the schools were either full or unable to meet K’s needs.
36. Mrs B then instructed a law firm who wrote to the Council in accordance with the pre-action protocol for judicial review. It said the Council’s failure to provide suitable alternative education and its ongoing failure to arrange all of the special education provision contained within K’s EHC plan was unlawful, and it would issue judicial review proceedings if this was not remedied.
37. Mrs B was invited to mediation with the Council. After the Council provided information to Mrs B about her preferred school, she decided it would not be suitable for K. The Council agreed to consult another school which was also not within its borough. The Council consulted the school, and on 1 December it confirmed that it would be offering K a place.
38. Mrs B says that the Council wasted time consulting schools within the borough when it was clear that none of them could meet K’s special educational needs. I do not consider it was fault to consult these schools, but the Council should have consulted more widely sooner, and before the final EHC plan was issued. If there had been no fault by the Council here, and it had made proper and timely efforts to identify a school which could meet K’s needs, K is likely to have been offered a place sooner.

Complaints

39. Mrs B complained to the Council in May and June 2021 about its failure to provide K with any alternative education. The Council did not accept that it had a duty to provide K with alternative education and it did not tell Mrs B how she could escalate her complaint if she remained dissatisfied. This was fault and caused Mrs B avoidable time and trouble and delayed Mrs B complaining to the Ombudsman.

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Agreed action

40. The Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to K and his family for the failings identified in this case.
• Make a payment of £2100 for the education K missed between 29 March 2021 and 11 August 2021 and the impact of this on his welfare. The money should be spent on something which will benefit K’s education.
• Make a payment of £1500 for the distress the family has suffered and the avoidable time and trouble Mrs B has been put to pursuing this matter.
41. The Council has agreed to take the following actions within eight weeks of my final decision:
• Provide training to staff involved in this complaint and any responsible for school attendance, to ensure they are aware of this decision and the Council’s duties under s19 of the Education Act.
• Review its service to ensure it is able to provide alternative education for any children of compulsory school age who are unable to attend school.
• Review its procedures to ensure it consults schools in a timely manner.
• Remind all staff responsible for responding to complaints that they should tell complainants how to escalate their complaint if they remain dissatisfied.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman