Summary: There was fault in the Council failing to provide Miss X’s son suitable alternative education while he was not in school. This has caused Miss X an injustice because she now has the uncertainty of how this has impacted her son’s education. The Council has already apologised for this and has agreed to pay Miss X a financial remedy to recognise her injustice.

The complaint

1. Miss X complains that the Council failed to arrange alternative provision for her son (Y) during his absence in the school year between September 2021 and March 2022.
2. Miss X says this caused her distress because Y already had an education, health and care plan (EHCP) and she now believes the lack of provision has caused Y to fall behind with their education.
3. Miss X said she had to pay for private tuition.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under 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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How I considered this complaint

7. I spoke to Miss X and reviewed the documents provided by both Miss X and the Council.
8. Miss 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

Council’s duty to provide education for children out of school

9. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
10. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability, and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
11. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives 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. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that 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;
• 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 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.

Due diligence

12. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

13. The Council issued a final EHCP for Y in August 2021.
14. Y went to school at the beginning of the academic term in September 2021. Because he had additional vulnerabilities due to complex medical needs, he was removed from school after two weeks because of a rise in COVID-19 cases locally.
15. Miss X updated the Council in early October about the fact Y was no longer in school. The Council told Miss X to contact Y’s school to organise extra schooling.
16. Y returned to school after the October half term but was only in school for a short time before illness prevented him from attending full-time. He then went into hospital in late November.
17. Y had been in school for three weeks before this point.
18. Miss X told the Council in November, during the time her son was in hospital, that he was not attending school. Y did not return to school until the last week in December before the term finished, where they returned on a reduced timetable.
19. Y could not go back to school when the new term started in January.
20. The Council reviewed Y’s EHCP in late January. Miss X told the Council that he had received little education provision since the preceding September.
21. The Council then made a referral to an out of school tuition service, and in mid-February the Council appointed a tutor. Y returned to school on a reduced timetable in early February.
22. In one of its complaint responses, the Council told Miss X that when it was aware Y was not attending school in November, it believed he was too ill to access education. However, it accepted it should have confirmed the school had made a referral to the medical tuition service.
23. The Council said, in January, when it was aware the school had not done this, it then made a referral. The Council apologised to Miss X for not following this up and acting sooner.
24. Miss X complained to us, concerned that Y’s education was significantly disrupted during their GCSE year.

My findings

25. Councils must make education provision for children of compulsory school age who, because of illness, may not receive suitable education.
26. In Miss X’s case, the Council was responsible for ensuring Y’s education provision because Y had an EHCP. It would also have been aware that Y was due to sit their GCSEs that year.
27. Miss X first told the Council Y was out of school in October and not receiving an education. The Council referred Miss X to the school.
28. The Council did not follow up on what provision the school was considering or providing at that point, and that is fault.
29. In November, the Council had another opportunity to consider what provision the school was considering or delivering for Y. It did not follow this up and that too is fault. The Council has apologised for this, which is appropriate.
30. During some of the period, Y would not have been able to receive education due to illness. I also note some provision was being provided remotely.
31. However, because of the Council’s fault in not clarifying this, I cannot accurately assess the total missed provision in the period Miss X has complained about.
32. Because of this, I cannot assess the impact this had on Y’s GCSEs, and I note Miss X provided additional tuition arranged privately.
33. This fault was an injustice to Miss X because it likely caused her distress and uncertainty about the impact on Y. The Council has agreed to provide a financial remedy to Miss X to properly recognise this injustice.
34. Our guidance on remedies allows us to take account of those scenarios relating to significant years and the impact on children who have special education needs.

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Agreed action

35. Within one month, the Council has agreed to pay Miss X £400 for distress and uncertainty.
36. The Council has agreed to provide us with evidence it has complied with the above action.

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Final decision

37. There was fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman