Summary: Mrs D complained the Council failed to provide her daughter with a suitable education when she was not attending school. We find the Council was at fault for failing to deliver a suitable education. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained the Council failed to provide her daughter (E) with a suitable education when she was not attending school.
2. Mrs D says the matter has caused distress and upset. She says E’s self-esteem has dropped, she has become isolated from her peers, and she is suffering from severe mental health issues.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. Mrs D refers to matters from September 2021, but she did not refer her complaint to us until September 2023. My investigation will focus on matters from September 2022 onwards. I am satisfied Mrs D had reasonable opportunity to refer her complaints about events before September 2022 to us sooner and so I have not exercised discretion to investigate them.

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How I considered this complaint

8. I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
9. Mrs D 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

Special educational needs

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative provision

12. 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))
13. 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))
14. 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)
15. Good alternative provision is that which appropriately needs the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers, particularly in English, maths and science (including IT).

What happened

16. This chronology includes an overview of key events in this case and does not detail everything that happened.
17. E has special educational needs and an EHC Plan. E struggled to attend her secondary school (School A) and she stopped attending in October 2021 because of her anxiety and sensory needs.
18. The Council held a review and planning meeting in September 2022 to discuss E’s education. The Council agreed to consult with other schools. It also said E would remain on roll at School A with a bespoke support package. School A said it provided online tuition for E over the summer. It said E was accessing online emotional support through gaming, farm school activities and horse riding. Mrs D said she was funding a tutoring session. She also raised concerns E was not learning national curriculum subjects, and E had not engaged with anything School A had shared on an online learning platform. The Council agreed to check whether its education access team could commission any other tuition companies.
19. The Council consulted with a school (School B). School B offered E a trial placement. It said E would attend two half days per week and it would gradually increase it to five half days per week.
20. E started transitioning to School B in November 2022 on a part-time timetable.
21. Mrs D emailed the Council in January 2023. She said E was only scheduled to attend School B for 10 hours per week and therefore she wanted her to continue with the online gaming sessions. The Council agreed to this.
22. Mrs D emailed the Council at the end of March. She said E was becoming more anxious at School B. She said she was concerned School B was not meeting E’s needs. She said she and School B agreed E should stay at home until the matter was resolved. The Council contacted School B and said it would be happy attend a meeting to discuss the issues further.
23. School B emailed Mrs D in April and suggested a new timetable to help E. Mrs D emailed the Council and said she was concerned School B had reduced E’s timetable further, but she would try and get E to attend.
24. Mrs D emailed the Council a few days later and said E did not attend School B. She said E did not want to attend. She suggested E could attend with her mentor. The Council responded and offered to discuss her suggestion with School B.
25. School B held an annual review of E’s EHC Plan in May. School B said E had not attended since late March. It said it attempted several strategies to get back E into the classroom such as a reduced timetable, flexible start and finish times and tailored lessons but Mrs D and E had not attempted them. School B said it was not the right setting for E and therefore it was ending the placement. Mrs D said she thought Education, Otherwise Than At School (EOTAS) would be a suitable way forward for E.
26. Mrs D emailed the Council in early June about alternative provision for E. She had E had not received any education since School B ended the placement. The Council responded and said it was considering her request for EOTAS. It said it had requested four hours of tuition per week for E in the interim. It also agreed to continue funding one hour per week of online gaming sessions. Mrs D responded and said five hours per week of education was not enough for E. She said E needed 10 to 15 hours of education per week. She said she was paying for a private maths tutor for E.
27. Mrs D complained to the Council the same month. She said it had failed to provide E with any formal secondary education and she was now a child missing in education. She said E only received two to four hours per week of education when she attended School B. She said E’s mental health was suffering.
28. The Council emailed Mrs D in late June and said it had agreed E should receive EOTAS. It agreed E’s provision was not sufficient for her.
29. The Council responded to Mrs D’s complaint in October. It said it was providing E with four hours per week of home tuition. It also said it was funding online gaming sessions. It agreed the provision was not adequate for E and therefore it had asked for an increased educational offer from an approved provider. It said it was working to resolve the situation so E had an adequate educational package.

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Analysis

30. School A provided E with a few hours per week of alternative provision from September 2022 to November 2022. Full time education is generally 22 to 25 hours per week, and so what E received is significantly short of what her peers would have received. The Council has not provided me with any evidence it assessed E to determine how much education she could cope with.
31. Councils must also provide a broad and balanced curriculum, and alternative provision must be of a standard a child would receive in school. E received online emotional support through gaming and farm school activities. It was not access to the national curriculum, which is what her peers would have received. E had struggled to engage with the online learning platform School A used. The Council agreed to see whether its education access team could commission any other tuition companies, but there is no evidence it did so.
32. Councils have a legal duty to make sure a child or young person receives the special educational provision set out in section F of an EHC Plan. The provision E received from September 2022 to November 2022 was not in line with her EHC Plan. I have not seen any evidence the Council turned its mind to how it could deliver this provision in a way E could access.
33. E joined School B on a part-time timetable. This was part of a transition plan as she had been out of a school setting for a long time. Part-time timetables must be in place for the shortest time necessary and not treated as a long-term solution. I have not seen any evidence the Council kept E’s part-time timetable under review and checked with School B to see whether she could have accessed more hours. This is fault.
34. The Council contacted School B when it became aware of the issues with E’s attendance at the end of March 2023. It was reasonable for the Council to allow School B an opportunity to put in place strategies to reintegrate E back into classroom, and therefore I do not criticise it for not taking immediate action. The annual review in May was the right place to review the placement.
35. The Council did however delay providing E with any alternative provision after the annual review in May when School B confirmed it was ending the placement. It did not provide any provision until the end of June, and when it did so it was only five hours per week. When the Council responded to Mrs D’s complaint, it accepted this provision was not adequate. There is also no evidence the Council turned its mind to how it could deliver this provision in line with Section F of E’s EHC Plan.
36. The Council’s faults have caused E an injustice as she has experienced significant disruption to her education, and it has had a detrimental impact on her mental health. Children have an effective right to an education and time they miss is difficult to replace later.
37. The Council’s faults have caused Mrs D upset, frustration, and distress. She has also been left with uncertainty about whether E could have accessed more education when she was at School B. Mrs D has also explained she had to pay for private tutors because of the Council’s failure to provide E with a suitable education and she took responsibility of finding suitable provision. This has placed a significant emotional and financial burden on her.

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Agreed action

38. By 1 May 2024 the Council has agreed to:

• Apologise to Mrs D and E for the injustice caused by faults identified in this statement.
• Pay Mrs D £300 for her upset, distress and frustration.
• Pay Mrs D £150 for the uncertainty caused by the Council’s failure to review E’s part-time timetable when she was attending School B.
• Reimburse Mrs D for the tutors she employed to educate E from September 2022 to November 2022 and late May 2023 to October 2023 (on receipt of satisfactory copy invoices provided by Mrs D).
• Pay Mrs D £600 for the lost education and provision from September to November 2022 and £1300 for late May 2023 to October 2023. We would suggest Mrs D uses this payment for E’s educational benefit.

39. By 31 May 2024 the Council has agreed to issue written reminders to relevant staff to ensure:

• They are aware of their duties to arrange alternative provision for children as quickly as possible and with minimal delay.
• They are aware children who receive alternative provision should have access to a broad and balanced curriculum where appropriate. The provision must also be of a standard a child would receive in school.

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

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Final decision

41. There was fault by the Council, which caused Mrs D and E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman