The Ombudsman's final decision
Summary: There was fault as the Council failed to monitor that Miss X’s son had suitable educational provision while he was out of school. A payment of £2250 remedies the loss of provision and time and trouble for Miss X and her son. The Council did tell Miss X of her right of appeal to the SEND tribunal against the school named in the Education, Health and Care plan. So, there is no fault in relation to her complaint that the Council provided false information which meant she did not appeal.
The complaint
The complainant, who I shall call Miss X, complains the council has failed to provide her son with a suitable education. Her son has been out of education since February 2020, without an alternative and without a place at a school which can accommodate his needs.
The Council has provided false information about her son's recent EHC plan being finalized which meant she could not go to tribunal.
The Ombudsman’s role and powers
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) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The SEND tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) Complaints about EHC plans may be within our jurisdiction depending on the complaint. We can investigate a complaint about an EHC plan if: The action relates to an administrative function of the council The action is taken by or on behalf of the council The action is not excluded by the provisions in paragraphs 4 or 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 a copy of the final decision statement of this complaint with Ofsted.
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)
How I considered this complaint
I read the papers put in by Miss X and discussed the complaint with her.
I considered the Council’s comments about the complaint and any supporting documents it provided.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal information and guidelines Councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for 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”. (Education Act 1996, section 19) Statutory guidance ‘Alternative Provision’ says this duty applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says while there is no legal deadline to start provision it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one to one), which is intensive, need not be full-time. It also says provision offered must be similar to what is offered in school.
We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’
. This gives guidance for local authorities on how we expect them 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 good practice. 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 can do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
The Council is responsible for making sure that arrangements specified in the EHC plan are 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.
Key facts Miss X says that she first received letters about her son’s attendance in December 2019. Miss X’s son stopped attending school in February 2020 due to anxiety. COVID-19 meant that all schools moved to online learning on 20 March 2020, apart from children of keyworkers and vulnerable children.
Miss X put in an application for a needs assessment for an EHC plan in April 2020. The Council refused this application. After a further application, the Council agreed to assess Miss X’s son in November 2020.
The Council issued the EHC plan on 22 February 2021. This named her son’s current school and explained she had the right of appeal to the SEND tribunal within two months. The current school had told the Council it could not meet Miss X’s son’s needs on 15 February 2021 and that they felt specialist school was more suitable.
Miss X said she questioned why the Council named her son’s current school on the EHC plan and if she needed to go to tribunal. Miss X says the case worker told her ‘it’s only on there as a legality as the school has to be named and that’s where he currently is enrolled and they were waiting on decisions from another school to see if they could meet her son’s needs’.
The Council said ‘we were in discussion with all involved and actively seeking an alternative placement. We finalised the EHC plan to give Miss X the right to appeal to the SEND Tribunal and to ensure Miss X’s son had the support of the EHC plan until he transitioned to a new setting. The school’s concerns were that as Miss X’s son was not attending, they could not meet his needs rather than being unable to meet his needs if he was attending’.
The Council consulted one specialist school in March 2021 which said that it could not meet Miss X’s son’s needs.
The Council issued an amended EHC plan on 29 June 2021 which named Miss X’s sons current school until July 2021, with a specialist school from September 2021.
In response to my enquiries, the Council says that it recognises that Miss X’s son was out of school from February 2020 until July 2021 when the Council offered an alternative provision. He had a place at specialist school from September 2021 onwards. It has said there was fault and it is willing to apologise and offer a remedy for the missed schooling and Miss X’s time and trouble.
My analysis Education while out of school The Council has accepted that it was at fault. There was no monitoring of the education provided to Miss X’s son while he was out of school. Miss X’s son was out of school with no alternative provision from February 2020 until July 2021.
It is not clear exactly when the Council became aware that Miss X’s son was out of school after February 2020. So, I propose to start the remedy period from March 2020, as provision should start after 15 days out of school. Our guidance suggests a remedy of £200-600 per month to acknowledge the impact of the loss of education.
Miss X’s son was offered home learning from March 2020 until July 2020, along with all children at school due to COVID-19. So, at this point I do consider the remedy should be at the lower end of the scale, due to the exceptional circumstances at the time. I propose a payment of £800 for this period, £200 a month for 5 months, less 4 weeks for school holidays.
From September 2020 until February 2021 when other children were for the most part in school, I consider the remedy should be at a higher level. So, I propose a total of £1200, £300 per month for 5 months less 4 weeks for school holidays.
From March 2021 until July 2021 there was an EHC plan in place. So, at this point the legal situation becomes different. The courts have established that if someone can or has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters which can be appealed. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was or could be submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
So, while I appreciate the named school could not meet Miss X’s son’s needs, as it was in the EHC plan I cannot propose a remedy for loss of provision that should have been provided by the school for this period. I do, however, propose an extra amount of £250 for Miss X’s time and trouble while the EHC plan was amended and her son without education.
EHC plan and right of appeal Miss X says the Council provided false information about her son's EHC plan being finalized which meant she could not go to tribunal.
I have seen the covering letter sent to Miss X with the EHC plan. This clearly told her of her right to appeal to the SEND tribunal. So, she was always aware that she had this option to challenge the school named in the EHC plan.
The Council named a school in the February EHC plan that had said it could not meet her son’s need and he had not been attending for over a year. However, it is clear that while the Council named the school it was consulting with specialist schools for the next academic year. So, on balance, I am not convinced there was fault on this point. The Council told Miss X that her son’s current school was named until it could find another school that would meet his needs. This kept her informed of what was happening but did not prevent her from applying to the SEND tribunal. In any case, the Council named a specialist provision within 4 months, which is much shorter than the time it would have taken to consider at tribunal.
Agreed action
The Council should apologise to Miss X within one month of the date of the decision on this complaint.
The Council should pay £2250 for the time Miss X’s son was without suitable education and for her time and trouble, within one month of the date of the decision on the complaint.
Final decision
I have completed my investigation of this complaint. This complaint is upheld and I consider the remedy identified above is a satisfactory one to the injustice identified.
Investigator's decision on behalf of the Ombudsman