Summary: Mrs X complained about how the Council has managed her son, B’s, education and special educational needs since September 2021. We find the Council was at fault. This caused significant distress to Mrs X and B. The Council has appropriately remedied the injustice to Mrs X. To address the injustice to B, the Council has agreed to pay Mrs X an additional £3,069.24. The Council has also agreed to issue guidance to relevant staff.

The complaint

1. The complainant, Mrs X, complains about how the Council has managed her son’s education and special educational needs (SEN) provision since September 2021. She said whilst a placement has now been sourced for September 2023, her son is still out of education and said the Council has failed to provide suitable alternative provision.
2. Mrs X said because of this, her son has been out of education since September 2021, and said this has caused her and her son significant distress.

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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. 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)
8. 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.
9. 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)

Back to top

How I considered this complaint

10. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

Back to top

What I found

Law and Guidance

12. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
13. If a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:

• It would be unsuitable for the age, ability, aptitude or SEN of the child
• The attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.

14. The nursery, school or college and, where relevant, the other local authority, should respond within 15 calendar days. Where a nursery, school of college identified is named on an EHC plan they must admit the child or young person
15. 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. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

16. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
17. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
18. Councils are responsible for arranging suitable full-time education for permanently excluded pupils, and for other pupils who-because of illness or other reasons- would not receive suitable education without such provision. This applies to all children of compulsory school age resident in the Council’s area, whether or not they are on the roll of a school, and whatever type of school they attend.
19. 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. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.

Absences from school

20. A school may authorise a pupil’s absence if, for example, the child is too ill to attend, the school has given advance permission for the absence, or the child is being educated off-site. Schools must regularly inform the council of any pupils who are regularly absent from school, have irregular attendance, or have missed ten school days or more without the school’s permission.
21. When a child refuses to attend school, or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.
22. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
23. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:

• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Choose (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.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

24. Councils have a duty to identify children not receiving an education. If the Council has a reason to suspect a child is not receiving education, it can serve a notice on the parents requiring them to satisfy it in that regard. In order to satisfy itself, an education welfare officer (EWO) will investigate.

The Council’s SENDIAS service

25. The special educational needs and disability information, advice and support service or SENDIAS, provides free, confidential, impartial information, advice and support on all matters relating to special educational needs and disability for children and young people aged 0 to 25 and their parents/carers. The service is not part of the Council’s integrated SEND service.

What did happen?

26. This section sets out the key events in this case and is not intended to be a detailed chronology.
27. Mrs X’s son, B, has an EHC plan which was finalised in February 2021. In September 2021, Mrs X contacted the Council about 10 separate incidents that had occurred at B’s school, school A. She said B was either hurt or made to feel uncomfortable and said she had removed him from the school.
28. The Council told Mrs X it was meeting with school A. But it said if the placement was irreparable, the Council could seek an alternative placement and Mrs X named her preferred placements.
29. Mrs X continued to ask the Council for updates in October 2021 and the Council said it had consulted with school B. But it said it had not received a response.
30. Mrs X contacted the Council in the following month. She said B missed being in school. But said school A could not meet his needs. She asked whether school B was available.
31. In November 2021, Mrs X told the Council she had contacted a specialist to help her with the legal side of things as she said her questions were not being answered. But she said she could not afford this. She continued to ask the Council for updates in November 2021 and she asked the Council to hold an emergency review.
32. The Council consulted with three schools in November 2021. One response was noted which said it could not meet B’s needs.
33. In December 2021, the Council said it was still of the view that B should be attending school A as it was named on his EHC plan. It said school B did not have capacity. The Council also said it would ensure the EHC plan was reissued to open up Mrs X’s formal right to appeal the type of placement, if Mrs X wished to.
34. Mrs X told the Council in January 2022 that school B and her advocate had been trying to contact it.
35. School A contacted Mrs X the following month. It offered B use of its hydrotherapy pool, to consider weekly teams calls to continue curriculum and offered outreach where it said the school could work with B at home to continue his education. But Mrs X said it was clear that B was too scared to return to the school.
36. Mrs X asked the Council what the next steps would be in finding B a new placement. The Council said it would be good to do the emergency review first so it could consult placements with an up to date EHC plan. But it said it could consult with schools now if Mrs X wanted it to.
37. The review was held in March 2022. It noted that B had not attended school since September 2021. It also noted what had been offered by school A but said Mrs X said this was not suitable. It was agreed B’s EHC plan would be amended, and the draft plan was issued in the same month.
38. The Council consulted with two schools on 7 April 2022. One of which was Mrs X’s preferred choice, school B. It re-consulted with school B on 27 April 2022 after Mrs X asked for an update.
39. In May 2022, the Council told Mrs X that school B would be named in the EHC plan for B to start after half term. It said transition sessions would be held in June and July. The EHC plan was finalised on 9 June 2022.
40. In the same month, Mrs X visited school B and said it was not the right setting for B. She said the school also agreed. She asked the Council if it could arrange a tutor for B. The Council said it would look into this. It advised Mrs X she had the right to appeal the named placement and said it would still continue to work with her by finding a placement.
41. Mrs X complained to the Council and the Council responded at stage one of its complaints process. It upheld Mrs X’s complaint and said:
• A school placement had now been sourced.
• It acknowledged that communication in this case had fell below the standards expected and apologised.
42. Mrs X told the Council she would look for a private educational psychologist (EP) to assess B after the Council had said due to demand, its EP’s were only carrying out statutory assessments.
43. The Council continued to consult with schools in June and July 2022.
44. In July 2022, Mrs X’s advocate asked the Council what provision it would put in place for B whilst he was still not in education. The Council arranged some tuition which was put in place from September 2022 whilst the Council continued to consult with schools.
45. Mrs X was unhappy with the Council’s response and requested it be escalated. She said her son had been left without an education and said:
• B was receiving 8 hours tuition at home
• B required the contents of his EHC plan to be delivered and said she could no longer facilitate the home tutoring.
• She attached her invoice for the EP report and attached the invoices for the independent advocate she used.
46. In January 2023, school C confirmed a place for B to start in September 2023. Mrs X asked if the Council could arrange a placement in the meantime at school D so B could spend some time with other children. The Council contacted this school in the same month. But it said it did not have the staff to support B.
47. The Council responded to Mrs X’s complaint at stage two of its complaints process in February 2023:
• It agreed to reimburse the money Mrs X spent on the EP report.
• It acknowledged and apologised for the delays, lack of provision since September 2021 and the impact this had on B and the family.
• Offered a time and trouble payment of £500.
• In recognition of the lack of provision since September 2021 it offered a payment of £4,430.76
• It did not agree to reimburse Mrs X the money she spent on the advocate as it said this was her choice. It said there was free support available.

Analysis

48. We would not usually investigate events that occurred more than 12 months before a person complains to us unless we decide there are good reasons. I have exercised discretion to investigate from September 2021. This is because there was significant ongoing injustice to B caused by loss of education provision. We would also not usually investigate complaints when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. In this case I think it would have been unreasonable to have expected Mrs X to appeal. This is because the Council was taking steps to resolve the disagreement by consulting with schools.
49. Mrs X made the Council aware in September 2021 that she had removed B from school A due to several incidents that had occurred. The Council advised Mrs X to work through the issues with the school so B could return. It told us the school had offered reintegration meetings. It is acceptable for councils to see whether, in the first instance, the school can re-integrate a non-attending child. However, the statutory guidance makes clear that reintegration plans should be used when the child’s re-attendance is ‘anticipated’. It is clear from the records that B’s non-attendance was long-term and not increasing. Whilst the Council did consult with some schools in this time, it failed to consider any alternative provision for B.
50. The Council told us it considered school A to be suitable and said it considered this to be an attendance issue. But if the Council considered this to be an attendance issue, it was for the Council to contact the EWO to require attendance. However, in the Council’s stage two response, it has provided a financial remedy for the lack of provision since September 2021, therefore accepting the education for B at the time was not accessible.
51. After the plan was finalised in June 2022 and Mrs X said her and school B agreed it was not suitable, the Council agreed to look for other placements. Mrs X asked the Council to arrange a tutor and one was agreed to start in September 2022. When Mrs X escalated her complaint, she said B was receiving 8 hours of tuition at home and said he required the contents of his EHC plan to be delivered. The Council said it considered this tuition to be suitable as it said due diligence checks were carried out by its commissioning team and said the visual impairment teachers liaised further to give advice on the type of tuition needed and specific support required for B’s needs. But the guidance does state that children with health needs should have provision which is equivalent to the education they would receive in school. Whilst I understand face to face provision could be fewer as the provision is more concentrated, the Council has not provided us with any evidence of how it satisfied itself that 8 hours of tuition was sufficient. This is fault.
52. Mrs X told us the Council had refused to reimburse her for the money she spent on an independent advocate as it said there was free support available. I asked the Council why it did not respond to Mrs X’s email in November 2021 where she advised she would be contacting an independent specialist. The Council said it had a phone call with Mrs X and it discussed SENDIAS. There are also links on the Council’s emails signposting people to local offers and free support, as well as this information being available on its website. Therefore, I cannot find fault with the Council for refusing to reimburse this cost.
53. The Councils response times and communication fell below our expected standards of service. The Council has acknowledged this and provided a remedy of £500 for time and trouble. I consider this to be sufficient in remedying the injustice caused to Mrs X.
54. In acknowledgement of missed education, we recommend a payment per school term. The Council has acknowledged and remedied the lack of provision for B since September 2021 and provided a payment of £4,430.76. I consider an appropriate figure in this case to be £1500 per term between September 2021 and March 2023 when Mrs X complained to us. In determining this, I have taken into account that up until September 2022 B received no education. I have also take into account that in September 2021 to June 2022 B required 14 direct hours of SALT across the year and six additional hours. After June 2022, B required 16 hours of SALT per year.

Back to top

Agreed action

55. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• Apologise to Mrs X for the faults identified in this statement.
• Pay Mrs X an additional payment of £3,069.24 for the educational benefit of B, to recognise the impact of its failings on B’s education.
56. Within two months, issue written reminders to relevant staff to ensure they are aware of:
• The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• The statutory guidance for Councils ‘ensuring a good education for children who cannot attend school because of health needs’ which 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.
57. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

58. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman