Summary: Ms X complained the Council failed to ensure her son received suitable education after he stopped attending school, resulting in loss of education, costs to the family, distress, time and trouble. We have found the Council at fault. We recommended it apologise to Ms X, make payments for time and trouble (£300), distress (£500), missed education (£2000), costs incurred (£7498), take action to ensure Y receives education and provide training to staff to prevent recurrence.

The complaint

1. Ms X complains the Council has failed to ensure her son, Y, received full time education and suitable special educational needs (“SEN”) provision since 29 March 2021. She says the family has suffered distress and she has been put to time and trouble seeking the Council meets its duties. She has also incurred costs in arranging provision herself.

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What I have investigated

2. I have investigated the complaint about loss of education from 29 March 2021 to date. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
9. 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)
10. 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

11. I spoke to Ms X and I reviewed documents provided by Ms X and the Council.
12. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Right to education

13. 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.
14. 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.
15. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
16. 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.

Council’s ability to secure school attendance

17. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
18. Sections 436 to 447 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must identify children not receiving an education.
19. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
20. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.

Jurisdiction

21. Certain SEN decisions have a right of appeal to the Special Educational Needs and Disability Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
22. Where the parent or young person has appealed to the Tribunal we have no discretion to investigate from the date the SEN appeal right arises until the appeal is completed.
23. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 (‘the Hillingdon judgment’). The Hillingdon judgment reconfirmed that we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal, it also said we cannot consider the consequences of that decision.
24. In the Hillingdon case, the child had an SEN statement (now called an EHCP) naming a school with a place available. The parent disagreed with the school named, did not send their child to the school and appealed. The parent won and wanted a financial remedy for not having their preferred school named earlier and the missed education during the appeal. The Court of Appeal said the Ombudsman could not look at that period of time. The failure to provide an education (the s19 duty) did not amount to a service failure separable from the maladministration (not naming a suitable school) which we could not investigate because of s26(6).

What happened

25. Y attended a mainstream primary school. In January 2021 he was diagnosed with autism spectrum disorder. Y was in Year 1 at this stage though he was not attending school regularly.
26. Ms X asked the Council to assess Y for an EHCP. The Council refused and Ms X appealed this decision in March 2021. Prior to the Tribunal hearing the Council agreed to assess Y.
27. From 8 March Y attended school on a part time timetable as part of a transition back to school. However, Y stopped attending school altogether from 29 March 2021. Ms X says this was due to anxiety due to unmet SEN.
28. An internal Council email dated 19 March shows it planned to gather information on whether Y had a medical reason not to attend school. It also began the EHCP assessment process.
29. The Council has provided a GP letter dated 19 April 2021 which refers to Y experiencing difficulties going back to school and being unwilling to attend at present.
30. On 19 April the school referred Y’s non-attendance to the Council’s inclusion team. Its referral explained Y had not been attending school and Ms X believed this was due to high anxiety. Emails show the Council’s inclusion team planned to arrange a home visit meeting.
31. In June Ms X gave the school and Council a further letter from Y’s GP which said he was medically unfit to attend mainstream schools which would not meet his complex SEN.
32. In June 2021 the Council completed its assessment and found Y did not need an EHCP. Ms X appealed this decision.
33. In July the Council invited Ms X to an attendance meeting to take place on 14 July. This was to identify any support Y may need to achieve regular school attendance.
34. On 13 July Y’s parents told the Council they would not return Y to a school that they considered could not meet his needs and he was still without any alternative provision. They provided a gap analysis setting out the gaps in school provision.
35. On 19 July the Council explained to Y’s school that his parents would agree for him to return to school if it provided the support they outlined. It asked the school to confirm it had provided all the support recommended by the Council and to say whether it could offer any of the additional support sought by Y’s parents.
36. On 18 August 2021 Ms X complained to the Council that Y had been unable to attend school since 29 March 2021 for health reasons yet the Council had not met its statutory duty to provide education since. (She also raised concerns about the Council contacting her son’s GP without her consent. However, I will not comment on this further as I am not investigating this matter).
37. The Council addressed the data protection concern and said another department would respond to the complaint about lack of education.
38. Ms X chased the Council for a response to her complaint and on 6 September asked to go to stage 2 as the Council had still not responded.
39. On 6 September the Council acknowledged the request for a stage 2 review and noted the stage 1 response was overdue. It had now tasked someone to investigate the complaint. But as this would not have an immediate impact on education provision for Y it had also tasked another person to take some practical action.
40. On 7 October the Council told Ms X it was at an impasse as despite its efforts the school had not said what it would do to support Y’s education. The Council said it had chased the school’s response to the gap analysis on 21 July. On 7 September it spoke to the school which confirmed it had offered support in line with the Council’s recommendations. It had again on 7 October chased the school for a response to the gap analysis. And it continued to engage the school in respect of their ongoing responsibility to provide education.
41. The Council responded to Ms X’s complaint on 21 October. In summary it said:
• The GP letter did not provide evidence of a medical need and only gave a view that Y could not attend a mainstream school.
• Ordinarily, if the Council did not accept the content of GP letters, they would liaise with the GP and if necessary, request other medical assessments be carried out. This was not possible in this case as consent had not been given.
• The purpose of Section 19 of the Education was to ensure all children received a suitable full time education. The school marked Y’s absence as unauthorised and it considered the medical evidence was not acceptable. On that basis it should have progressed through the legal route of non-attendance.
• As a statutory assessment of Y’s needs was underway, it decided the Inclusion Service would work with the family and school to support reintegration.
• At the point when negotiations with the school and Y’s parents was not successful, it could have considered issuing proceedings for non-attendance. But it did not consider this to be a suitable course of action at the time as it wanted to work with Ms X to seek a resolution.
• Within one month it would decide whether to pursue non-attendance or provide alternative provision.
• Ms X could contact the Ombudsman.
42. On 22 November the Council chased internally for an update on action taken since its complaint response. It found no action had been taken.
43. On 25 November the Tribunal ordered that Y did need an EHCP.
44. The Council has provided emails evidencing it continued to chase the school for updates on what provision it would offer to Y. Ms X also continued to chase the Council seeking that it provide education to Y. The Council maintained it had no duty to provide alternative provision until it received suitable medical evidence that Y could not attend school for health reasons. It told Ms X it did not take enforcement action on attendance because the EHCP appeal was successful.
45. When I spoke to Ms X in February 2022 she explained she incurred costs providing education to Y at home. She said he could not cope with much at first but as time went on he was able to do more. This included swimming that he would have got through school had he attended. This was more expensive as he needed a 1:1 teacher. She also paid for SEN gymnastics, forest school, play therapy and 3 to 4 hours per week Maths and English tuition. She was at home and unable to work due to caring and educating Y. She stopped working between January and March 2021. Y remained at home currently with no alternative provision in place and the Council had not yet issued a final EHCP.
46. I asked Ms X to provide a breakdown of costs incurred on Y’s education and some evidence in support of each item, such as a receipt, invoice or bank statement. I did not ask for evidence of every transaction over the past year because this would be disproportionate given I only need enough evidence to reach findings on a balance of probabilities.
47. Ms X provided a detailed breakdown of items purchased for Y’s education and documentary evidence in support of each item.
48. In response to enquiries the Council said:
49. It does not provide alternative education for children who are unauthorised absent as they have an allocated school place and should be receiving education at school. The Council worked closely with the school. When this failed and bearing in mind there were other legal proceedings ongoing, it continued to try and find a way forward and wished to work to seek a resolution with the family.
50. In comments on a draft decision the Council said:
• The lack of parental engagement was a significant challenge;
• Y’s parents did not consent to it seeking medical advice as required;
• It considered Y should be in school however it did not pursue non-attendance based on legal advice;
• It acknowledges the duty to provide education if a child misses school for any reason. However, in this case the parent suggested it was for health reasons; the GP letter was insufficient and so Y was marked and unauthorised absent;
• It should not have to reimburse costs for additional educational provision which would not have been provided had Y been in school;
• There is a risk in reimbursing education provision to families where there is no evidence to suggest the child should not be attending school;
• In hindsight, the Council fully accepts it could have made more definitive decisions in respect of issuing proceedings or providing alternative education. The Council was treading a fine line between maintaining the relationship with the family, which in turn could have helped to re-engage Y back into school, versus issuing proceedings for non-attendance whilst an appeal was ongoing.

Findings

51. I am satisfied the Council knew Y was out of school from 29 March and that earlier efforts to reintegrate Y into school had not worked. The Council should have enforced attendance if it believed Y could attend school or provided suitable alternative provision if not. However, the Council did neither. This is fault.
52. The Council says there was a lack of evidence Y could not attend school on health grounds. However, it remains that Y was not attending school and the Council had a duty to ensure he received education. The Council did not require evidence of a medical reason as the Act imposes a duty if a child is missing school for any reason.
53. The Council also says it tried to work with the parents to support school attendance. However, there is a lack of evidence the Council made robust and timely efforts to get Y back into school. To be clear it is the Council’s duty, not the school’s duty, to ensure Y is in education.
54. There is also no evidence the Council considered enforcing attendance until it referred to this in its October complaint response. It then acknowledged it could or should have taken action earlier. And the Council said it would either enforce attendance or arrange provision. Yet again the Council did neither. That there were ongoing legal proceedings did not negate the Council’s duty to ensure Y received education.
55. The Council did not respond to Ms X’s complaint in a timely manner. This is also fault.
56. Because of the Council’s fault Y has been out of full time education for a whole school year and still has no alternative provision in place. Given his age, autism diagnosis, and noting that his parents were able to offer some education, I consider a payment of £200 per month that Y was out of school is appropriate. I acknowledge Y and his family will have suffered distress over this period and that Ms X has been put to considerable time and trouble in seeking to resolve this with the Council over the past year. I will recommend a remedy for this injustice too.
57. Ms X has evidenced she incurred costs meeting Y’s educational needs while he was out of school and not receiving any alternative provision. This included tuition but also drama, music, climbing, swimming and educational resources. I acknowledge Y may not have accessed all this provision had he attended school or received alternative provision. However, I am also satisfied Ms X would not have incurred these additional costs on Y, but for the Council’s fault. This is because I consider Ms X would have felt the need to account for the activities, exercise and social interactions that Y would have got through a school education. I am therefore satisfied Ms X incurred these costs as a direct result of the Council’s fault and therefore the Council should reimburse these costs.
58. I also acknowledge Ms X gave up work. However, as this happened before Y stopped attending school altogether and as there may be other factors involved in this decision, I cannot say Ms X lost earnings as a direct result of the Council’s fault.

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Agreed action

59. To remedy the injustice set out above I recommend the Council carry out the following actions:
60. Within one month:
• Provide Ms X with a written apology for the identified fault;
• Pay Ms X £300 for time and trouble;
• Pay Ms X £500 for distress suffered by her and the family;
• Pay Ms X £2000 in recognition of Y’s loss of education;
• Pay Ms X £7498 to reimburse costs incurred on meeting Y’s educational needs;
• Take action to either enforce attendance or arrange alternative provision for Y.
61. Within three months:
• Provide training to staff involved in this complaint and any responsible for school attendance, to ensure they are aware of this decision and the Council’s duties under s19 of the Education Act; to provide education to children who would not otherwise receive it.
62. The Council has accepted my recommendations.

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Final decision

63. I find the Council at fault as it did not ensure Y received suitable full time education. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

64. I cannot investigate Ms X’s complaint that the Council failed to provide SEN provision to Y from 29 March 2021, as Ms X had a right to appeal the Council’s refusal to assess and then its decision not to issue an EHCP and she did appeal. In November 2021 the Tribunal ordered that Y did need an EHCP. I cannot investigate the consequences of that decision i.e. any lack of SEN provision before or during the appeals process. And any further complaint Ms X has following the Tribunal’s order is likely premature; that is she will need to raise it with the Council first before contacting the Ombudsman.
65. I will not investigate any alleged breaches of data protection legislation as the Information Commissioner’s Office is the appropriate body to consider such complaints.

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Investigator's decision on behalf of the Ombudsman