Summary: Mrs X complained on behalf of Y about the Council’s handling of Y’s education, health and care plan and alternative provision when she could not attend school. She says Y missed provision she was entitled to. The Council was at fault for using a flawed medical provision policy and for not assessing how many hours of tuition Y could access. This caused uncertainty about the tuition the Council would have offered Y if it was not for its faults. The Council has agreed to make a payment to remedy the injustice caused to Y and carry out service improvements.

The complaint

1. Mrs X complained on behalf of Y about the Council’s handling of Y’s education, health and care (EHC) plan and alternative provision when she could not attend school. Mrs X was also unhappy about comments a Council officer made about her.
2. She said Y missed provision she was entitled to. Mrs X would like the Council to improve its services to families.
3. This investigation considered the Council’s actions from February 2020 to July 2021.

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What I investigated

4. I have investigated the Council’s handling of Y’s education, health and care plan and alternative provision when she could not attend school.
5. I have not investigated Mrs X’s complaint about defamation of character. This is a legal matter and for the courts to consider.

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The Ombudsman’s role and powers

6. 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)
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
8. 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)
9. 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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How I considered this complaint

10. I considered:
• Mrs X’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
11. Mrs X and the Council were provided with a draft decision and invited to comment. All comments were considered before issuing this final decision.

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What I found

Law and guidance

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)) ‘Otherwise’ is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
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)) The education provided by the council must be full-time unless the council decides 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) Full-time education ranges from 21 hours each week at Key Stage 1 to 25 hours a week at Key Stage 4. If councils provide one-to-one tuition, the hours of face-to-face provision could be less as the provision is more concentrated
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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’. Compulsory school age is from five to 16. (Education Act 1996, section 8)
15. The guidance says alternative provision should address a pupil’s individual needs, including social and emotional needs, ensuring that pupils feel fully part of their school community, can stay in contact with classmates and have access to the opportunities enjoyed by their peers, including a broad and balanced curriculum.
16. In 2022 we issued a new report, ‘Out of school, out of sight’. This report made recommendations for councils, including:
• Consider the individual circumstances of each case and be aware 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils need to retain oversight and control to ensure its duties are properly fulfilled.

Achieving for Children

17. The Council has outsourced its children’s services to Achieving for Children (AfC) an independent provider.
18. AfC’s 2020 medical provision policy states medical provision will be available to students of compulsory school age who cannot attend school because of medical needs or injury. It says evidence must clearly state the student is too unwell to attend school.
19. The policy says managers will discuss with the medical professionals, parents, carers and the child (where appropriate):
• the number of hours of provision the child can reasonably manage;
• whether provision can take place in a group or individual provision is required in the home; and
• the needs of the individual child.
20. The policy states if the child is receiving individual or small group provision, the hours are likely to be fewer as the provision is more concentrated.
21. Tuition is delivered during term time, and sessions run from Monday to Friday. Students are allocated between three and five sessions each week lasting up to 2.5 hours (depending on student’s medical needs). These run in the morning and afternoon and start and finish times are flexible.

Complaint

22. Mrs X complained to AfC in April 2021 about the following:
• An officer made malicious and unfounded comments about her and this was deformation of character.
• AfC did not secure the speech and language therapy in Y’s plan, and it did not make reasonable endeavours to secure this provision during COVID-19 lockdowns.
• Other provision in Y’s plan was not delivered as it should have been.
• Y’s 2021 annual review was late.
• AfC delayed putting alternative provision in place for Y when she stopped attending school.
• AfC removed one-to-one support in unstructured times from Y’s plan.
• AfC only provided seven hours a week tuition for Y and this was too little for Y’s academic ability.
• AfC did not provide tuition in two of Y’s GCSE subjects, French and Religion.
• AfC did not ensure Y was keeping social contact with their peers and school staff.
23. The Council accepted between February 2020 and July 2021:
• It had not secured the SALT provision in Y’s EHC plan.
• It had not secured the psychoeducational provision in Y’s EHC plan.
• Y’s latest annual review was late.
• There was a delay securing alternative provision when Y stopped attending school.
24. It explained 32.5 hours of 1:2:1 support would equate to full-time funding for the school to put this provision in place. It said it did not consider its approach to medical tuition was unlawful and stated that seven hours tuition was suitable for Y.
25. To remedy its faults, it offered Mrs X a financial payment.
26. AfC also identified areas of learning from the complaint. It said AfC and the NHS would continue to try to ensure a sufficiency of therapists in the area. It said it had recently reminded providers of their responsibilities for arranging and holding annual reviews on time and had reminded staff in the SEND service about the timely management of annual reviews. A newly appointed manager would be closely monitoring compliance by schools and the SEND service with annual review timelines.

Investigation

27. AfC upheld several of Mrs X’s complaints and put remedies in place. In my view, the financial remedies AfC offered Mrs X remedied the injustice to Y of their lost provision and delays in securing alternative provision and holding an annual review. Therefore, I have focused my investigation on the areas where Mrs X remained dissatisfied with AfC’s response.

What happened

28. Y has diagnoses of attention deficit hyperactivity disorder (ADHD), autistic spectrum condition, anxiety disorder, and dyslexia. Y has an EHC plan.
29. Y stopped attending school in September 2020. In November 2020, AfC took Y’s case to a referral panel for medical tuition. The panel decided to provide Y with four tuition sessions a week.

Analysis

30. Outlined below are my findings:

AfC’s approach to estimating top-up funding

31. AfC used the term ‘hours’ in its financial calculations to work out how much top-up funding it needed to pay the school to provide a learning support assistant. The use of the term ‘hours’ in this context was used to estimate the cost of the provision, it was not directly linked to the number of hours of support the learning support assistant would provide Y. The Council was not at fault for using this method to estimate the top-up funding it needed to pay the school.

AfC’s medical provision policy

32. The Education Act 1996 says councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. AfC’s 2020 medical provision policy did not extend to students who were out of school for ‘other reasons’, this was fault. The Education Act 1996 says education provided by the council must be full-time unless the council decides that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. AfC’s 2020 medical provision policy states students are allocated between three and five sessions each week lasting up to 2.5 hours. Full-time provision for a child over 11 years is 25 hours a week, AfC offer a maximum of 12.5 hours a week, this was fault.
33. AfC updated its ‘medical provision policy’ in March 2022. It extended the provision to students out of school for ‘other reasons’ and removed the maximum number of hours tuition. However, the policy and the related documents still suggest alternative provision is only for students who are ill. For example:
• The Council did not change the name of the policy. Calling it a ‘medical provision policy’ suggests the policy is only for children out of education because of illness, and not for those out of education for other reasons.
• The policy still states its objective is to provide, ‘a suitable and flexible education including a broad and balanced curriculum, similar to that received at school for children who cannot attend school because of health needs.’ There is no reference in the objectives to those out of school for ‘other reasons’.
• The policy refers to alternative provision as medical provision throughout, again suggesting it is only for students out of school because of illness.
• The referral form states referrers must provide details of the student’s medical condition and diagnosis, there is no reference to students out of school for ‘other reasons’.
• The education inclusion support service information form refers to students who are too unwell to attend school. There is no reference to students out of school for ‘other reasons’.
34. AfC is at fault for having a policy that does not adhere to legislation and statutory guidance. This fault creates uncertainty about the provision the Council would have offered Y if the 2020 policy had been consistent with The Education Act. The injustice to Y is uncertainty about whether she would have been offered more tuition if the policy had adhered to legislation and statutory guidance.

Hours alternative provision

35. AfC provided Y with seven hours of tuition a week. This was not equivalent of full-time education. AfC has not provided evidence of how it assessed this was the number of hours tuition suitable for Y. Nor has it provided minutes of a planning meeting which is where its policy says the number of hours is decided. Failing to assess the number of hours suitable for Y was fault. This fault caused uncertainty about the number of hours tuition the Council would have offered Y if AfC had completed an assessment.
36. Statutory guidance states councils must provide a broad and balanced curriculum. Mrs X asked the Council to provide tuition to Y in all her GCSE subjects. AfC did not provide Y with tuition in French or Religion, two of her GCSE subjects. There is uncertainty about whether Y would have received tuition in these subjects if AfC assessed the number of hours of tuition Y could access and decided to increase her hours of tuition.
37. The Council has agreed to make a financial payment to remedy the uncertainty caused by its failure to assess the hours of tuition Y could access and for using a flawed policy to underpin its decision.

Learning from complaint investigations

38. We previously investigated a complaint from Mrs X about provision for Y when she could not attend school in late 2019. In that case, we found fault with the Council for failing to respond to requests from Mrs X for alternative provision for Y and with the annual review process. The Council agreed to review its processes to ensure annual reviews were undertaken within the statutory timescales and to consider whether its procedures were robust enough to enable it to take prompt action to secure alternative provision when necessary.
39. Following that investigation, in August 2021 the Council provided us with an update on its progress with the agreed actions. It said:
• it delivered training to staff in its SEND service about the statutory requirements of annual reviews.
• it had a new management post with responsibility for ensuring compliance with the statutory aspects of annual reviews.
• it had delivered training to more than 100 SENCos about annual reviews since November 2020.
• it had developed new IT tools to track annual reviews and monitor whether it is complying with statutory timescales.
• it set up a team to deal with the backlog of annual reviews.
• it was satisfied its procedures for alternative provision were robust.
• it delivered training to staff in its SEND service, instructing them to consider other information which may indicate a child’s potential absence from education due to medical needs and not rely only on evidence from medical professionals.
40. In response to our enquiries on this complaint, the Council provided an update and evidence of further actions it had taken. This included:
• delivering staff training covering school absence, medical needs.
• securing extra annual investment in speech and language and occupational therapy and physiotherapy.
• publishing a SEND futures plan.
41. It is positive that the Council has made these service improvements. However, these are undermined by its failure to amend its ‘medical provision policy’ and related documents so they reflect government legislation and guidance.

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Agreed action

42. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of Achieving for Children, I have made recommendations to the Council which it has agreed.
43. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the faults found in this investigation.
• Pay Mrs X £600 for the benefit of Y’s education for the uncertainty caused by the Council’s failure to assess the amount of tuition she could access and for using a flawed policy to underpin its decision.
44. Within two months of the final decision the Council will:
• Review its ‘medical provision policy’ and associated documents and ensure they are consistent with The Education Act 1996 and statutory guidance
• Review its procedures for providing GCSE learning for children unable to attend school.
• Review its policies and procedures to make sure it keeps sufficient oversight and control of the arrangements with AfC.
45. Within three months of the final decision the Council will:
• Provide AfC staff with training on the Council’s revised ‘medical provision policy’ and procedures for providing GCSE learning for children unable to attend school.
46. In making these recommendations, I considered the Ombudsman’s guidance on remedies.

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Final decision

47. The Council has agreed to my recommendations to remedy the injustice caused to Mrs X and Y by the faults detailed in this decision. I have therefore ended my investigation.

Parts of the complaint that I did not investigate

48. I have not investigated Mrs X’s complaint about defamation of character. This is a legal matter and for the courts to consider.

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Investigator's decision on behalf of the Ombudsman