Summary: There was fault by the Council in failing to secure alternative education when a pupil was unable to attend school due to anxiety. There were also delays in the EHC process and consulting alternative schools. These faults caused unnecessary distress and uncertainty and a loss of education. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains on behalf of her daughter, whom I shall refer to as Y, the Council:
• failed to provide her with full-time education,
• failed to provide provision in an Education, Health and Care (EHC) plan and,
• delayed in identifying a new school placement.

As a result, Mrs X says that Y lost out on education.

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The Ombudsman’s role and powers

2. 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)
3. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
7. 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.
8. Where there is a right of appeal to SEND about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision. This means where a Council issues an EHC Plan and fails to name a specific school, but also fails to meet its duty to provide alternative education for the child, the Ombudsman cannot provide a remedy if the parents have appealed to SEND. The decision (failing to name a school) and the consequence (failing to provide education) are ‘inextricably linked’. The Court has noted that while this may create a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)
9. 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.
10. 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)

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How I considered this complaint

11. I have considered information provided by Ms X and the Council including:
• Y’s EHC plans
• Consultations with various schools
• Complaint documents
• Tribunal documents.
12. I have considered relevant law and guidance including:
• Children and Families Act 2014, Special Educational Needs and Disability (SEND) Regulations and Code of Practice
• Education Act 1996
• Statutory guidance:
1. Children missing education (September 2016)
2. Education for children with health needs who cannot attend school (January 2013)
3. Alternative Provision (2013)
• Information on the Council’s website including its Education Service Core Offer and Local Offer for special educational needs and disabilities (SEND).
13. 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.
14. Ms X 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

Law and guidance

15. 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.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
17. 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.
18. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, Councils should ensure children are placed as quickly as possible. The guidance says the commissioner of alternative provision should prepare a personalised plan for the pupil with clear objectives for improvement and attainment, timeframes and arrangements for assessment and monitoring progress.
19. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says 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
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education
• have a named officer responsible for the education of children with health needs and parents should know who that person is
• have a publicly accessible document on their arrangements to meet the duty to children with additional health needs.
20. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
21. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
22. In the Focus Report, we made recommendations based on examples of good practice seen. We said councils should:
• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of 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;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
23. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person under Section 42 of the Children and Families Act 2014. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What education did Y receive?

24. Y attended a mainstream primary school with an EHC plan. Y was due to move to secondary school in September 2020.
25. Y stopped attending school in 2018 due to anxiety. She was referred to the Council’s communication and autism team (CAT) in August 2018. In October 2018 Y was referred to the Bridging Team for mentoring and support around her ‘school phobia’. The Council provided funding to her school which commissioned alternative education for Y at off-site small group tuition. Y attended 2.5 days per week, receiving tuition in English and Maths only. Y also received therapeutic support.
26. Ms X told me Y only got home tuition after a ‘big fight’ and she wanted the Ombudsman to consider a complaint back to 2018.
27. Y was diagnosed with autism in February 2019.
28. In March 2019 the Council confirmed the school was commissioning the off-site learning using additional funding provided by the Council. The Council noted it had no medical evidence to support school absence but Ms X replied that the clinical psychologist had spoken to someone in 2018 about this.
29. In April 2019 Y’s annual review was held and it was noted Y needed to move to a special school and would continue to receive tuition until a place was identified. Ms X says there was discussion about a new placement being found for September 2019 and about secondary transfer in September 2020.
30. Ms X says a draft plan was sent out in Summer 2019 but no progress about placement was made and the off-site tuition and CAT support stopped so Y started Year 6 with no education in place.
31. The Council says the CAT service stopped in July 2019 and was replaced by the Home Bridging team which provided home tuition until the COVID-19 pandemic brought home visits to a stop. Ms X says the Bridging support was two hours per week, designed to get Y to reintegrate into education, and did not replace the 2.5 days per week tuition Y had been attending. Ms X says Y did not receive any academic education during the school year 2019/20.
32. In September 2019 Y’s school asked the Council for advice as Y remained on roll. The Council said Y must remain on its roll until a new placement was named in Section I of Y’s EHC plan. The Council had recently issued an amended draft EHC plan and said it was in discussion with Ms X about future placement. Meanwhile, Y’s current school would continue to receive funding for her.
33. Following an appeal to the Tribunal in July 2020, tuition was reinstated as Y remained without a school place.
34. The Council says from September 2020 a home tutor visited Y for one hour per day for six weeks, but after six weeks the tutor had failed to engage Y due to Y’s anxiety around new people. From November 2020 the home tutor service provided tutoring online four days per week for 90 minutes a day and this is continuing until a more permanent solution is found.
35. The Council told me Ms X is content with the current arrangement of online tuition and wishes to continue with a mix of face to face and online tuition with a view to Y moving into a school placement in September 2022.
36. Ms X told me Y had struggled with a worker coming into the home and 90 minutes per day online tuition was what Y could manage currently.

Evidence Y was unable to attend school

37. The Council says no evidence was initially provided to support that Y could not attend school due to anxiety. The Council also did not itself seek such evidence.
38. After Y’s annual review in April 2019 a clinical psychologist provided evidence that Y’s anxiety had prevented her attending school since Summer 2018 and said Y continued not to be able to attend a mainstream school. Ms X reported the same professional had spoken to education staff in 2018.
39. Y’s school authorised her absence.
40. At annual review in April 2019 it appears to have been agreed Y could not return to a mainstream school and a special school place would be found.
41. For the school year 2021/22 Y is receiving online tuition, the Council says this is due to Y’s anxiety about new tutors which has been exacerbated as Y has spent much of the COVID-19 pandemic shielding due to medical conditions. Y is accessing 90 minutes per day four days per week. I am unclear whether professional advice has been sought to support this is the maximum amount of education Y can benefit from.

EHC process and consultation with schools

42. Ms X says there was an annual review meeting in April 2019 and the Council was supposed to update the EHC plan and start to look for a suitable special secondary placement for September 2020.
43. In July 2019 the Council told Ms X she still needed to express a preference for a mainstream secondary school.
44. The Council issued an amendment notice with a draft amended EHC plan on 30 August 2019.
45. Ms X says she was told in October 2019 Y had a place at a new school, but then found out Y had been confused with another pupil with the same first name and no place was available. Ms X believes this administrative error may have been why the 2.5 days per week tuition was withdrawn. The Council has not provided an explanation for this either in its complaint response or in its response to me.
46. Appeal documents refer to the Council consulting Ms X’s preferred school in December 2019. This school responded that it could not meet need.
47. The Council issued a final amended EHC plan on 18 February 2020, this named the primary school where Y remained on roll, but had not attended since 2018, as her current placement and a type of school (special) for Y to attend from September 2020. Ms X appealed this final Plan to the SEND Tribunal.
48. Council records show it started to consult other schools in April 2020 and by July 2020, when the appeal was heard it had put forward an alternative school for Section I.
49. The Tribunal found neither Ms X’s preference school nor the Council’s choice could meet Y’s needs. The Tribunal ordered Y receive full-time 1:1 home tuition until a school place could be found.

The Council’s policy

50. The Council’s Core Offer for education and SEND local offer says the Council:
• Tracks, monitors and takes appropriate action for children who are out of school including placing pupils in alternative provision
• Has a Communication and Autism team (CAT) which works with schools and settings
• Provides Pupil and School support specialist teachers that work with schools and settings to help pupils with learning difficulties.
51. I was unable to find a specific policy on the Council’s website for children who are unable to attend school for reasons other than exclusion. This is concerning as the Ombudsman found fault with the Council on this issue in December 2019 and the Council told the Ombudsman it was in the process of drafting ‘a new policy to fulfil its section 19 duty and make provision for those children who for reasons other than illness are unable to attend school’. The Council agreed that its review of s.19 provision would be completed by June 2020.

Analysis

Scope of investigation

52. I cannot investigate the actions of Y’s primary school.
53. I cannot investigate any failure to provide alternative education for Y after 18 February 2020. The Council issued a final EHC plan naming a type of provision. Ms X had an alternative remedy to the SEND Tribunal about this, which she has used. This means the Ombudsman cannot investigate the period from 18 February 2020 until the Tribunal order.
54. I have investigated the period from January 2019 to February 2020 and from July 2020 onwards.
55. I have not investigated events in 2018 including whether there was a delay in tuition being put in place. This is too long ago and did not form part of Ms X’s complaint to the Council in 2020 which related to lack of tuition since September 2019. We cannot investigate matters which the Council has not had an opportunity to comment on.

Fault

56. The Council failed to intervene and provide tuition when Y’s school failed to continue to commission this after July 2019. This is fault. The Council had accepted Y could not return to her mainstream primary school and it had received medical evidence from a clinical psychologist in April 2019 to this effect. The legal duty to provide fulltime suitable education lies with the Council. It can ask schools to arrange provision but if a school fails to do so the Council must intervene.
57. As Y had an EHC plan there was an additional duty to ensure Y received the special educational provision (Section F) set out in the Plan in addition to general education.
58. The Council does not appear to have a policy on its website about the provision of alternative education when a pupil is unwell or otherwise unable to attend school despite previous agreement with the Ombudsman to develop a policy. This is fault. Statutory guidance says information, including details of a named officer responsible for children with medical needs, should be available.
59. In this case medical evidence was provided once it was apparent at annual review none had been obtained, however the advice did not specify how much education Y could manage. The Councils should have sought advice on this point to ensure it was providing the maximum amount of education Y could benefit from. It is also unclear whether it has sought this evidence since Y has not returned to fulltime education since July 2020.
60. The Council took too long to consult alternative schools for Y after this was discussed at the annual review meeting in April 2019. It consulted one school in December 2019, because Ms X requested this, but did not consult any other schools until Spring 2020. This was fault.
61. The SEND code of practice says an EHC plan must be reviewed and amended in sufficient time for phase transfers (for example from primary to secondary education). The review and any amendments must be completed by 15 February in the year of transfer. This means the Council should have started consulting schools in good time to name a school before 15 February 2020. Failure to do so was fault.
62. The Council did send an Amendment Notice with a draft amended plan on 30 August 2019, the SEND Regulations say it should have finalised this plan within eight weeks of the Notice. While a final plan appears to have been drafted in December 2019, this does not appear to have been issued with a letter giving appeal rights until mid-February 2020.
63. Y is not receiving full-time tuition despite the Tribunal ordering this in July 2020. I understand however that Ms X and the Council agree that Y is only able to manage online tuition and only for short periods. In line with statutory guidance, the Council should keep this under review, obtain necessary professional advice and seek to increase the amount of education when possible, taking into account Y’s health needs.

Injustice

64. Y missed out on home tuition between September 2019 and February 2020 (when a right of appeal was given). Y received no education, just mentoring and therapeutic support during this period. There is no evidence to show Y could not access at least the same amount of tuition (2.5 days) as she had previously and potentially she could have managed more.
65. The Ombudsman’s Guidance on Remedies recommends that where fault has resulted in loss of educational provision a remedy of payment of £200 to £600 per month is appropriate taking into account how much education was provided and whether the child had special educational needs.
66. I have not found an injustice in the reduced amount of tuition since July 2020, as this is attributed to Y’s medical needs. I do consider professional evidence needs to be sought and regular reviews held.
67. There was delay in completing amendment of the EHC plan and consulting schools. This caused Ms X and Y a lot of distress and uncertainty and put Ms X to unnecessary time and trouble pursuing a complaint.

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Agreed action

Within four weeks of my final decision:

68. The Council will apologise to Ms X and Y for the faults identified in this investigation and acknowledge that Y lost out on education in the school year 2019/20.
69. If not already in place the Council will:
• Provide Ms X with the details of the named officer responsible for children with health needs
• Provide a personalised plan in accordance with the guidance Alternative provision setting out objectives, clear timescales for review and details of how Y’s progress will be monitored. Ms X and Y’s views should be taken into account in developing the plan and they should be invited to review meetings.
70. The Council will make a financial payment of £500 to Ms X for the distress and uncertainty caused by its fault and to acknowledge her time and trouble bringing the complaint.
71. The Council will make a financial payment to Y of £2500 to acknowledge her loss of education between September 2019 and February 2020. This payment should be made in Y’s name but paid into a savings account over which parents have control. The money should be used for Y’s educational or social benefit.
72. The Council will put the policy it told the Ombudsman it was developing in 2020 about s.19 education on its website together with details of the named officer responsible for pupils with health needs. It should also provide this information to the Ombudsman.
73. I have not made further service improvements as I consider the Ombudsman has already done so in previous cases that covered a similar period. The Council should already have made the necessary improvements to prevent a recurrence of the fault I have identified. I am also mindful the Tribunal has made its own comments on what the Council needs to do next to provide Y with suitable education.

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Final decision

74. I have completed my investigation. There was fault by the Council in failing to secure alternative education when a pupil was unable to attend school due to anxiety which caused a pupil to miss out on education. There were also delays in the EHC process and consulting alternative schools which caused unnecessary distress and uncertainty. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman