Summary: Miss Y complained about the Council’s failure to make educational provision for her son, W, once it became aware that he was unable to attend school. She also complained about delays in the Council’s assessment of W’s Special Educational Needs (SEN). We find the Council failed in its statutory duty to make suitable provision available for W. The Council will pay £2,350 to W in recognition of the missed provision, £2,900 to Miss Y for the provision she funded and £500 in recognition of her distress, time and trouble. The Council will also undertake the service improvements we have recommended.

The complaint

1. Miss Y complains the Council failed in its legal duty to provide suitable educational provision for her son, W, once it became aware that he was no longer attending school.
2. Miss Y says W has suffered injustice because he has missed important education which he was entitled to receive.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. During my investigation I discussed the complaint with Miss Y and considered the information she provided. I also made enquiries of the Council and considered its response.
6. I consulted the relevant law and guidance around Special Educational Needs (SEN) and alternative provision, which I have cited where necessary in this statement.
7. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

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What I found

Legal and administrative background

Special Educational Needs

9. Children 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. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent, or a final EHCP has been issued.

Provision of suitable education

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. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says, “Where they have identified that alternative provision is required, LAs should ensure that it is arranged as quickly as possible and that it appropriately meets the needs of the child. In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs 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”
14. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. 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))
15. 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)
16. 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).
17. Within the guidance we made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils 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 can, and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Key background information

18. Miss Y says W’s ability to attend school was significantly impacted from November 2019 when he became ill. During this period Miss Y says W was anxious, tired and overwhelmed and as a result his school attendance declined significantly.
19. Between November 2019 and September 2020 Miss Y estimates that W attended school for no more than 20 days in total. At this point, the Council was not aware of W’s non-attendance. W’s school was located outside of the Council’s area in a neighbouring London borough. Between March and July 2021 Miss Y says W attended three online lessons. Around this time Miss Y also funded some therapy and tuition for W.
20. The Council received a referral from W’s school on 26 March 2021 which said that W had not attended school since 5 November 2020 and was currently able to attend online cello lessons only. The referral said W’s attendance for the academic year was just 12% and that he was receiving privately funded home tuition. The school asked for help from the Council’s ‘Early Help’ team and that “strategies need to be identified to support [W] back into school. I’d be grateful if the Early Help team could look at the CAMHS [Children and Adolescent Mental Health Service] referral and see if they can support [W] being seen. [W] might benefit from a key worker to liaise with him and school”.
21. The Council responded to the school. It said W was not a ‘Child Missing in Education’ (CME) because he remained on the school's roll. The Council said the school should discuss W’s case with its local Education Welfare Service (EWS) and provided guidance about making a referral for a child ‘medically too ill’ to attend school. The Council says the school did not follow up with any such referral.
22. Concerned with the lack of action and support, Miss Y contacted the Council in May to query what was happening with W’s case. The Council directed Miss Y back to the school because it said the school retained responsibility for W’s education whilst he remained on roll there. The Council’s email said:

“[school staff member] was simply advised that [the school] must work together with all relevant services in a joined-up effort to support to assist [W] to re-integrate back into [school].  As [W] is on the roll of [the school] it is their responsibility to work with you, [W] and any support services involved in order to help him back to school…”

23. W received a diagnosis of Autism in July 2021 following a private assessment funded by Miss Y. W’s GP also wrote a letter expressing their view about W’s inability to attend school.
24. Following W’s diagnosis, the Council received a request to assess W for a EHCP on 20 August 2021. The Council passed the request to its panel in September who decided the Council should not assess W. Miss Y received notification of that decision on 21 September 2021 and had the right to appeal to SENDIST.
25. The Council’s social care records from September say that W’s school continued to send work home for him. The school also offered for the family to have a discussion with the school’s counselling service, but Miss Y declined because W was not able to attend the school premises in person.
26. In the meantime, the Council reviewed W’s case but decided not to take any further action unless W’s school submitted a ‘medically too ill’ referral with supporting medical evidence.
27. Miss Y then contacted the Council regarding its decision not to assess W for an EHCP. The case went to mediation and following this the Council decided to assess W on 18 November 2021. It immediately requested advice from relevant professionals and schools as part of the assessment process.
28. Following the advice received, the Council decided it was appropriate to issue a EHCP and it communicated this decision to Miss Y on 25 January 2022.
29. The Council issued a draft EHCP on 17 March 2022 and consulted with the school which W remained on roll at. The school responded on 22 March and Miss Y provided her comments the day after.
30. The Council issued W’s final EHCP in August 2022. This said that W should receive 15 hours of provision per week, at home, to be funded by direct payments. The Council agreed to backdate the payments to June 2022.

Was there fault causing injustice to Miss Y and W?

Alternative provision

31. Miss Y says the Council failed in its duty to provide alternative education to W when it became aware that he was out of school for more than 15 school days. As a result, she says W was not able to access education which he was entitled to receive. In response to our enquiries the Council maintained its view that it acted in line with its statutory duties because the school did not submit any medical evidence in support of its claim that W was too ill to attend school.
32. I find fault with the Council for the following reasons:
• The Council repeatedly directed Miss Y back to the school for assistance and placed unnecessary focus on W being on roll. As W’s home education authority, the Council is the body which holds the legal duty to provide a suitable education for W. This is irrespective of whether W was on roll at a school, either inside or outside of the Council’s area.
• 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 W’s non-attendance was long-term and not increasing despite ongoing efforts made by the school and family. Despite this, the Council continued in its refusal to support Miss Y and W.
• The Council refused to consider the request for alternative provision on the basis the school had not submitted appropriate medical evidence. The statutory guidance makes clear this should not be a barrier to alternative provision and the Council should work collaboratively with parents, schools and medical professionals to obtain the necessary evidence and assess what provision, if any, the child requires.
33. The faults identified caused Miss Y and W significant injustice. The Council received notification on 26 March 2021 that W had not attended school since November 2020. The Council should have taken immediate action to assess W and decide what provision he needed within 15 school days of the notification. The Council did not. Instead, it wrongly placed the onus on W’s school to reintegrate him despite it being evident that his non-attendance was long-term and had little to no prospect of improving.
34. The Council’s failures prevented W from receiving education at a level which was suitable for his needs at the time. The duty to arrange provision for a non-attending child is engaged within 15 school days of notification, therefore I consider the Council was responsible for W’s provision from 30 April 2021.

35. When deciding upon an appropriate financial remedy, I have considered the LGSCO’s ‘Guidance on Remedies’. This says that, for injustice arising from loss of educational provision, the usual remedy is financial and based on £600 to £1,800 per term. The guidance says we should consider whether the child would have been able to cope with full-time education. If the child is only able to manage part-time provision the rate per term should be divided according to what they should have had compared to what they received.

36. The law does not define full-time education, but it is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

37. In W’s case, we now know that he can manage up to 15 hours per week of 1:1 provision, to be provided at home, as per his August 2022 EHCP. Due to the concentrated and focused nature of this tuition, we deem this to be comparable to the full-time classroom equivalent.
38. W received no funded provision from the Council between 30 April 2021 and June 2022. This amounts to 3.5 school terms, or 13 months. Therefore, based on the level of provision we now know that W can cope with, an appropriate remedy would be £5,250 to be used for W’s educational benefit. However, Miss Y has provided evidence to show that W received some privately funded provision for history, sports and counselling between May 2021 and May 2022. We have deducted these costs from the remedy intended for W as he did receive some provision, albeit at Miss Y’s expense. The remedy we recommend for W is £2,350.
39. We have also asked the Council to reimburse the costs which Miss Y incurred as a direct result of the failures. This is because Miss Y would not have needed to arrange and fund private tuition for W if the Council had met its statutory duty to provide a suitable education from 30 April 2022. During the period of fault, Miss Y funded counselling to help W reintegrate back into full-time education. She also paid for private history tuition as this was a subject which W favoured and could manage without distress. In addition, Miss Y also funded some sports lessons. The Council has agreed to pay Miss Y £2,900 for her quantifiable losses. A breakdown of this calculation, plus proof of expenditure, can be shared with the Council if required.

40. In addition, the Council will pay a further £250 for the avoidable time and trouble which Miss Y endured during this period when contacting the Council to try and arrange support and provision for W

EHCP process

41. Miss Y also complains about delays in the EHCP process which meant that W went for longer than necessary without the provision he was entitled to. The timescales for the EHCP assessment are set out in the ‘Special Educational Needs and Disability Regulations’ (2014). Regulation 13 says the Council:

“must send the finalised EHC plan to [the relevant parties] … as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment in accordance with section 36(1) of the Act, or of the local authority becoming responsible for the child in accordance with section 24 of the Act”

42. The Council took longer than the statutory timescales to issue W’s finalised EHCP. Even if we calculate from the start date suggested by the Council (5 November 2020) it took ten months, or approximately 40 weeks, for the Council to issue W’s plan.
43. In such cases the LGSCO would usually consider whether remedy is due for missed provision in the period until the SENDIST appeal right arises. We can also consider the effects of frustrated appeal rights.
44. However, in this case, we have already recommended a financial remedy for the missed provision the 2021/22 academic year. We have not recommended a further payment for delays in the EHCP process as the injustice is the same and is already remedied. With that said, I do consider Miss Y experienced further avoidable time and trouble in pursuing W’s delayed plan and the Council has agreed to make a payment in recognition of this.

Complaint handling

45. When reviewing Miss Y’s complaint, the Council did not provide a response at stage one of the process. Miss Y approached the LGSCO, and we referred the complaint back to the Council. Following our referral, the Council responded to the complaint. However, it did not address the core complaint about W’s missed provision despite Miss Y raising this as one of her four complaints.
46. In response to our enquiries the Council acknowledged the fault and said it was due to “human error”. In my view, the Council’s delay and subsequent failure to provide a full response to Miss Y’s complaint caused her further frustration, time and trouble which the Council will remedy.

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Agreed action

47. Within four weeks of my final decision, the Council has agreed to:
• Apologise and pay £2,350 to Miss Y for W’s educational benefit. This payment is in recognition of the educational provision which W did not receive between 1 May 2021 and 1 June 2022;
• Pay £2,900 to Miss Y for her quantifiable losses from the private tuition which she funded between May 2021 and May 2022; and
• Pay a total £500 to Miss Y in recognition of the avoidable distress, time and trouble she experienced as a direct result of the fault identified in this statement.
48. Within eight weeks of my final decision, the Council will also:
• Remind relevant officers of the Council’s statutory duties under Section 19 of the Education Act 1996, specifically regarding the requirement to assist pupils with long-term non-attendance irrespective of whether they remain on a school roll. This could be in the form of a briefing paper or staff training; and
• Remind relevant officers of the Council’s statutory duties under Regulation 13 of the Special Educational Needs and Disability Regulations 2014. This could be in the form of a briefing paper or staff training.

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Final decision

49. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman