Summary: The complainant alleged that the Council had failed to provide suitable education when her two children were out of school for medical reasons. We find fault in the Council’s actions, causing a loss of education and avoidable, prolonged distress to the complainant and her family. The Council has agreed the recommended remedy for the injustice caused, and therefore we are closing the complaints.

The complaint

1. The complainant, who I refer to as Mrs X, complained about the lack of appropriate education for her two children, Y and Z, who were out of school. Although the background for Y and Z is different, I am dealing with both children in the same decision statement because the issues are broadly the same.
2. Mrs X complained that Y was left without any educational provision from March 2020 to January 2022, meaning he missed twenty-three months of education. Mrs X says that the Council failed to inform her of Y’s right to alternative education under section 19 (s19) of The Education Act 1996. Mrs X says that the Council was aware of Y missing education from 2018 and failed to address this until Education Otherwise Than At School (EOTAS) was provided in January 2022. Therefore, Mrs X says that Council has failed in its duty of care to provide Y with a fulltime alternative education suitable to his needs and abilities.
3. In respect of Z, Mrs X complains that Z was also out of school from March 2020 until January 2022 when EOTAS was provided. Mrs X says that the Council failed to provide alternative education even though it was aware that Z was out of school. However, Z responded better to the Council’s interventions.
4. Mrs X says that, over many years, this has deeply impacted on family life and Mrs X has had to give up working to be home to care for and support her children, deal with all the paperwork, school and Council meetings. Mrs X says that her husband is now having to work seven days a week to try to compensate for her loss of earnings. Mrs X says that it is extremely distressing to see her children struggle with no support.

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What I have and have not investigated

5. In respect of Y, (our ref: 22 009 488), and Z (our reference 22 009 493), I am looking at events since April 2020 to January 2022 when EOTAS started.
6. I have decided not to look at events as far back as 2018 because Mrs X did not complain to us within twelve months of when she first realised something had gone wrong. I have also decided not to look at events after January 2022 because that is when EOTAS started for both children. I have advised Mrs X that, if unhappy with the current EOTAS provision, she needs to make a fresh complaint to the Council, and she has now done so. If Mrs X remains dissatisfied with the Council’s complaint response, she can refer the complaint to the Ombudsman.

The Council’s investigation of Mrs X’s complaints

7. The Council has considered Mrs X’s complaints about the lack of alternative provision when Y and Z were out of school. The Council told the complainant that the provision of alternative education under s19 is a publicly available document and is easily accessible. Therefore, it did not uphold the complaint that it failed to tell Mrs X about s19. It partially upheld the complaint that Y did not receive alternative education between the end of June 2021 to January 2022 and offered a symbolic payment of £1,905.00, which it said was in line with our guidance on remedies.
8. In respect of Z, the Council decided that she had missed out on a fulltime provision between end of April to October 2020, and between end of June 2021 to January 2022. The Council offered £1,657.00 for missed education for these periods, again in line with our guidance.
9. Mrs X considered these amounts were insufficient, that they do not cover the full period of missed education and she did not accept the Council’s explanation for not telling her about s19.

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The Ombudsman’s role and powers

10. 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)
11. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
12. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
13. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
14. If we are satisfied with a council’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)
15. 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 the final decision with Ofsted.

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How I considered this complaint

16. I have spoken to Mrs X on the telephone. I made enquiries of the Council and considered its response. I issued two draft decision statements. Both the Council and Mrs X provided further comments. I have taken into account all their comments before reaching my final decision.

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What I found

Legal and administrative arrangements

17. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
18. 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 EHC plan is set out in sections. Section F sets out the special educational needs provision and Section I names the suitable placement.
19. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.

Annual reviews

21. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
22. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
23. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”.
24. The Code (9.186) says that there may be occasions when a reassessment becomes necessary, particularly when the child or young person’s needs have changed. The Code says (9.187) that councils must agree a reassessment if the parent, or the school or the local clinical commissioning group (CCG-now called Integrated Care Board) request this unless there was a reassessment six months ago.
25. The council can also refuse a reassessment if it considers it is unnecessary. Councils must tell parents/carers its decision within fifteen days of the request. Councils must tell parents/carers of the right of appeal to the SEND Tribunal.
26. If the decision is to reassess, councils must issue a final amended EHC Plan within fourteen weeks of that decision. Professionals should provide their advice within six weeks of the request.

Children out of school because of medical needs

27. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
28. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
29. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
30. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
31. In July 2022, the Ombudsman issued a Focus Report: Out of school, out of mind?

The Council’s policy on the provision of alternative education

32. The Council has provided a copy of its power point slides/policy on its s19 approach which it has used since October 2022 to train staff. There is now a named officer who deals with pupils out of school for medical reasons.
33. The slides/policy sets out the legal requirements on the Council to provide alternative education where pupils cannot attend school. It also identifies that schools must inform the Council of absences at day eight. The policy sets out a graduated response to be delivered by the school with a graduated response and set timescales for meetings.
34. The policy, however, appears to put the responsibility on the school to devise a support plan to improve attendance and does not detail the Council’s responsibility to ensure school attendance, and to provide alternative education when a child is absent from school.
35. The Council has a s19 Panel which makes decisions about alternative education provision, which should be funded by the Council.
36. The Council has its own policy on making symbolic payments where the Council considers it has been at fault and a pupil has missed education.
37. Councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.

The Community and Hospital Education Service (CHES) alternative education provision

38. CHES is commissioned by the Council to provide education for pupils unable to attend school due to medical reasons. The Council says that pupils only with a diagnosed psychiatric disorder are eligible. CHES can provide tutors to teach pupils in their home.

The Covid-19 period

39. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”. The relevant legislation to this complaint:
• on 18 March the Department for Education announced that from 23 March 2020 all schools were to remain closed until further notice, except for children of key workers and vulnerable children, as part of the country's ongoing response to coronavirus. Vulnerable children included those with EHC plans; and
• on 30 April the Secretary of State for Education published a notice to modify the duty relating to EHC plans during the coronavirus outbreak, so that local authorities could discharge this by using their 'reasonable endeavours'. The notice applied from 1 May 2020 to 31 May 2020 which was extended to 30 June 2020 and then extended again to 31 July 2020. So, councils should have considered what EHC plan provision they could make during the reasonable endeavours period and provided parents with a copy of their decision on this.

The Human Rights Act

40. The Human Rights Act 1998 sets out the fundamental rights and freedoms to which everyone in the UK is entitled, including education.
41. The Act requires all councils - and other bodies carrying out public functions - to respect and protect individuals’ rights.
42. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Child Y

43. Mrs X says that Y started to struggle to cope with school when at primary school. In September 2018, Y started at the secondary school, School A. Mrs X says that School A suggested a referral to CHES, but this did not happen. The Council completed an assessment of Y’s special educational needs and issued a final EHC Plan in August 2019, naming School A. It was noted in the EHC Plan that Y was a persistent school refuser, he had been diagnosed with autism, had limited social interaction skills and suffered from severe social anxiety preventing attendance.
44. The provision identified in Y’s EHC Plan, as being required, was based on Y being at school with a consistent circle of trusted adults, multi-sensory approach to learning and a cognitive behaviour approach. School A held a meeting in mid‑October 2019 and early January 2020. The Council says that it was agreed that Y would have a reduced timetable of 20 hours per week. Mrs X says that School A advised her to keep Y at home both in November 2018 and again in September 2020 because it was struggling to contain him. Mrs X says that the Council was aware Y was out of school. If not, it should have been.
45. Between the end of March and July 2020, there was the Covid-19 lockdown. Mrs X says that no provision was made for Y during this period, although Mrs X says that the Council kept in touch with her. Mrs X arranged for Y to attend an alternative centre (centre C), after lockdown. Centre C had funding for pupils with EHC Plans. But Y attended once in September 2020. The funding for the placement was withdrawn in October 2020.
46. At a review in October 2020, it was noted that School A said it could not meet Y’s needs. It is recorded that Y was not attending and had not done so for the past sixteen months. Mrs X says that the Council still continued to consider School A was appropriate. It was, however, agreed that Y would be referred to an alternative education provider, Agency B. But Mrs X says that this provision did not start until February 2021.
47. Mrs X says that Y attended Agency B for five weeks only, for two hours per week. The placement broke down in March 2021. The Council says it issued a final amended EHC Plan on 29 March, naming School A, based on the information obtained at the October 2020 review. I have seen a copy of this final amended EHC Plan. It is signed by an officer and refers at the beginning of the document to ‘Y’s Plan’ and that it was amended as a result of the October 2020 review. Mrs X says that she never received a final amended EHC Plan in late March 2021, and she was unaware that the Council should issue an amended EHC Plan after the October 2020 review. So, she did not chase it up.
48. The Council considers Mrs X could have appealed to the SEND Tribunal if not happy with the named placement of March 2021. Therefore, there was an alternative dispute avenue which Mrs X failed to use.
49. Since March 2021, Mrs X says that Y remained out of school and without alternative provision until January 2022 when EOTAS started. There was a review in August 2021 when it was agreed that EOTAS was appropriate. Mrs X says that she had been asking for EOTAS since October 2020.
50. The Council also took no action to enforce Y’s attendance at School A. The Council says that it prefers to work in partnership with parents, and that enforcement action would have been inappropriate given the extent of Y’s difficulties.
51. The Council says that there has been no involvement from the Child and Adolescent Mental Health Services (CAMHS) until recently. The Council did not seek a reassessment of Y involving both health and social care, although it accepts that this could have been an option.
52. Mrs X says that she was unaware of the Council’s duty to provide alternative education under s19. She continues to consider it was for the Council to inform her of this.
53. Mrs X says that the Council delayed amending Y’s EHC Plan after the review of August 2021, setting out the EOTAS provision. Y’s final amended EHC Plan naming EOTAS was issued in January 2022.

Child Z

54. Child Z started at School A in September 2019. In October 2020, the Council issued a final EHC Plan. Z has a diagnosis of autistic spectrum condition (ASC) and broadly has severe difficulties in communication and processing information, sensory difficulties, being unable to cope with noise, light and has tactile difficulties. She suffers from school and social anxiety and needs a lot of encouragement and support in all daily tasks. Z struggled at school (School A) despite its efforts to respond to her difficulties. Mrs X arranged for Z to attend the same alternative centre after lockdown as Y (centre C). But this broke down very quickly and funding was withdrawn in October 2020.
55. Z’s October 2020 EHC Plan named School A as the appropriate placement. However, at a review in June 2021, it was noted that Z had not attended School A for the past seventeen months and had not coped there since the beginning of year 7 (the start of secondary school). School A referred Z to the alternative providers, Agency B. School A supported Mrs X’s request for EOTAS.
56. The Council says that Z attended Agency B from September 2020. Mrs X, however, says that this did not start until the end of February 2021, and the hours were limited to two hours per week, building up to six hours per week in May 2021. Mrs X says that Z could have managed more and does so under the EOTAS package. There is no evidence, which I have seen, as to how the Council determined the hours of education Z should receive.
57. At a review in June 2021, it was noted that the placement was not meeting Z’s needs and the EHC Plan required amending.

Findings

Complaint that the Council failed to tell Mrs X about the duty to provide alternative education under s19

58. The Council has not upheld this complaint because it considers Mrs X should have been aware of this provision, given that guidance about this is widely available and accessible. I assume the Council is referring to the fact that parents/carers could look at the government website to find details.
59. My view is that this complaint should be upheld. The Council should have had information on its special educational needs’ website (available to parents/carers) about the s19 duty and officers should tell parents of this duty. In addition, where children are not attending school, officers should be considering whether its s19 duty is triggered.
60. I cannot see that this happened in respect of Y and Z. Had Mrs X been told of this duty directly by Council officers or been able to find out from the Council’s website, I have no doubt she would have been pressing the Council to provide alternative education for both Y and Z from April 2020.
61. Therefore, I find fault with the Council’s approach, causing an injustice.

Complaint-missed education for Y and Z

62. In respect of Y, I am satisfied that the Council issued a final amended EHC Plan in March 2021 which it appears Mrs X did not receive. It is likely Mrs X would have appealed if she had, given her growing concern about the lack of suitable education for Y. I cannot say why Mrs X did not receive this final amended EHC Plan. And, I accept the Council’s view that there was a missed opportunity for Mrs X to use an alternative dispute resolution through the SEND Tribunal. But, given the Council agreed EOTAS in June 2021, it is likely Mrs X would have withdrawn any such an appeal. Therefore, I do not consider this missed opportunity has a material effect on my consideration of this complaint.
63. The Council has accepted that it should have arranged s19 alternative education for Y between June 2021 to January 2022. And for Z between April to October 2020 and between June 2021 to January 2022. The Council has offered a symbolic payment for their missed education based on its own internal guidance which, in turn, is based on our guidance. The Council’s approach, however, is more detailed, setting out graduated payments depending on the severity on the pupil of the loss of education. It is reasonable for the Council to have its own guidance, and this may prevent complaints coming to us. But, for the purposes of our investigations, we adhere to our guidance to ensure consistency in approach.
64. My view is that Y missed out on fulltime, suitable education since April 2020 to January 2022. Working on the basis of approximately nine school months per year, this equates to seven school months of missed education in 2020, and nine school months in 2021. So, a total of sixteen school months.
65. In respect of Z, she missed out on suitable, fulltime education since April 2020 to when she started at Agency B at the end of February 2021 (nine school months). Z then missed out on a full-time education when there, starting with only two hours per week building up to six hours. Mrs X says that Z could have managed more education, but this was not offered. In addition, it was decided at the review of June 2021 that the placement was not meeting Z’s needs. So, in total, Z has missed out on sixteen school months of suitable education.
66. My view is that the Council has been at fault in not considering properly its s19 duty to provide alternative education for both Y and Z, knowing that both were out of school from April 2020 and were not receiving the provision set out in their EHC Plans. It too readily passed responsibility to School A without any proper oversight.
67. The Council has also provided no evidence showing how it satisfied itself any action taken by School A was suitable and sufficient. My view is that this too is fault. Any hours of teaching provided by school can count towards the full-time duty, but councils remain responsible for any shortfall. The guidance applies to all children of compulsory school age, whether or not they are on roll of a school.
68. It is acceptable for councils to see whether, in the first instance, the school can reintegrate 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 Y and Z’s attendance was not increasing and they were unlikely to be able to return to School A. Despite this, the Council delayed in considering alternative provision.
69. In addition, my view is that the Council has delayed in arranging EOTAS which I understand Mrs X had asked for since October 2020.

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Agreed actions

70. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

71. The Council has raised a general concern about symbolic payments made for lost education to a child and it wants to ensure that such monies are used by parents for the educational benefit of the child. That is a legitimate aim. But we do not normally become involved in the way monies are spent, and we work on the basis that parents will want to do the best for their child. It is also the case that ‘education’ for children with severe difficulties, like Y and Z, might involve a variety of activities to help their social isolation and poor communication skills that, on the face of it, would not be appropriate for other children, who are able to cope with mainstream schooling and tuition. So, parents with special needs children, like Mrs X, need flexibility in how best to make up for previous lost education for their children.
72. Mrs X also manages a personal budget for both Y and Z’s EOTAS, so has experience of managing such payments without issue. She plans to place the symbolic payments in the children’s bank accounts over which she has authority. She also has authority over her children’s benefits.
73. The Council has agreed, within one month of the final statement, to:
1. apologise to Mrs X for the faults identified in Y’s case and make a symbolic payment of £300 per month of lost education during the Covid-19 period (three school months-£900.00) and a payment of £600 per school month for the period of September 2020 to January 2022 (thirteen months-£7,800), minus £800 to reflect that the Council offered, albeit unsuccessfully, provision at centre C and at Agency B. I calculate that this amounts in total to £7,900. If the Council has already paid some monies to Mrs X, this should be deducted from the recommended total. Mrs X should use this money for the educational benefit of Y in a way she considers appropriate;
2. in respect of Z, the Council will apologise to Mrs X for the faults identified and make a symbolic payment of £900 for the three month Covid-19 period, £3,600 for the period of September 2020 to end of February 2021 (six school months at £600 per month) and £500 per month for the seven school months of February 2021 to January 2022 ((£3,500), minus £500 for the five weeks of offered provision at centre C. I have not recommended the highest amount for the period of February 2021 to January 2022 because Z received some limited education from Agency B during this period. I calculate this symbolic payment amounts to £7,500, minus any monies paid to her by the Council. Mrs X should use this payment for the educational benefit of Z in a way she considers appropriate;
3. to make a symbolic payment of £2,000 to Mrs X for the prolonged avoidable distress and uncertainty that the outcome might have been better had the Council accepted its s19 duty sooner, for failing to explain this duty to Mrs X, for failing to explain how it determined the amount of hours Z could receive when at Agency B, and for the delay in arranging the EOTAS; and
4. to send the final statement to the Director of Education and Children’s Services.
74. In respect of service improvements, the Ombudsman’s Focus Report of July 2022 states:

“The key learning point we want to highlight is that the local council has the duty to arrange alternative provision, not the school a child attends. Councils need some way to identify when their duty has arisen, and some will have arrangements with schools to carry out assessment or arrange alternative provision. However, responsibility remains with the council, and we will hold councils to account if things go wrong”.

75. The Focus Report makes recommendations for good practice, as follows:
• 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.
76. The Council is aware of this Focus Report from a previous complaint. The Ombudsman also issued a public report in January 2021 where we raised a concern about the Council’s s19 approach. So, within three months, the Council has agreed that it:

• amends its policy on children unable to attend school so that it is made clear the Council is responsible for ensuring or overseeing assessments as to why a child is out of school, and is also responsible for overseeing or arranging alternative provision if the child remains unable to attend the allocated school;
• if the Council considers the named school is suitable, and it is considered that parents/carers are preventing attendance, the policy will set out what officers should do in those circumstances in respect of ensuring attendance;
• if the named school is not considered suitable and it is unreasonable to expect the child to attend, the policy will make it clear that the Council is responsible for finding an alternative suitable school, and for providing alternative education. The Council should also bear in mind that a reassessment of the child might also be required;
• while it is appropriate to have a graduated response, the Council’s policy will have a clearer timescale for deciding whether and when its s19 duty is triggered. This is to prevent drift and the child remaining out of education for prolonged periods;
• the policy will make it clear that the provision of alternative education should be fulltime unless the child’s medical needs means that this is not in their best interest. The alternative education will also cover key subjects, in accordance with the child’s age and aptitude, to prevent the child becoming behind academically.

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

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Final decision

78. I have found fault causing an injustice. The Council has agreed the findings and recommended remedies and therefore I am closing the complaints.

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Investigator's decision on behalf of the Ombudsman