Summary: Miss X complains the Council failed to provide her son, Y with a suitable education from September 2019 until April 2022. We have found fault by the Council but cannot say Y would have received an effective education absent of this fault. We have also found fault with the Council’s handing of Miss X’s request for school transport. The Council has agreed to apologise, make a financial payment and service improvements to remedy the injustice caused.

The complaint

1. Miss X complains the Council failed to provide her son with social care support from January 2021 and a suitable education from September 2019 until April 2022.
2. Miss X says this has caused the family significant distress and has impacted her son’s education and development.

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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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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

9. I considered the information provided by Miss X and discussed the complaint with her. I made enquiries of the Council and considered its comments and the documents it provided.
10. Miss X and the Council had the opportunity to comment on my draft decisions. I considered all comments before reaching a final decision.

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What I found

Relevant law and guidance

Special educational needs

11. High needs funding supports provision for pupils and students with Special Educational Needs and Disability (SEND) who require additional resources to participate in education and learning, from their early years to age 25 in schools and colleges (excluding students aged 19 to 25 who do not have an Education, Health and Care Plan (EHCP) or students who are over the age of 25) and pre-16 pupils in AP who, because of exclusion, illness, or other reasons, cannot receive their education in mainstream schools.
12. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. Section F sets out the special educational provision needed by the child or young person.
13. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
14. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.

EHC assessment

15. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCP’s. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHCP’s “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

Child out of school

16. The Education Act 1996 provides the basis for statutory guidance. Section 7 creates a duty for parents to cause their children to receive education at school or otherwise. This may be by education at home. A failure to meet this duty on the parent’s part is an offence under Section 444. Sections 436 to 447 cover councils’ duties and powers under the Act.

• Section 436 of the Act requires councils to identify children not receiving an education.
• 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.
• 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.
• Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.

17. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
18. In a focus report about education out of school in 2011, the Ombudsman made several recommendations. 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 (except for 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.

19. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

Alternative provision

20. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
21. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
22. The courts have ruled that what is ‘suitable education’ is a matter for the council to decide. Whether an alternative placement is ‘suitable’ is not based on the parent or child’s view but upon objective consideration of whether the education is reasonably possible or reasonably practicable for the child to access.

What happened

23. There has been a great deal of correspondence and discussion between Miss X, the Council and the School about these issues. It is not necessary for me to detail everything that happened here. I have set out the key events.
24. Miss X’s son, Child Y, has been diagnosed with autistic spectrum disorder. He has language and communication and difficulties with social interaction, emotional regulation and behaviour.
25. In September 2019 Child Y was on roll at School A in year 3. Miss X contacted School A and the Council before the start of the new academic year. Miss X asked several questions including transport arrangements for Y to and from school.
26. On 1 April 2020 the Council allocated high level needs funding to School A to support Child Y’s SEN needs.
27. On 25 June 2020 School A sent an email to Miss X with a phased transition timetable to facilitate Child Y’s return to school. Child Y was expected to return on 29 June. It is not clear whether Child Y returned to school.
28. On 4 September Child Y attended School A for the first day of the new term and then reported sick.
29. On 14 September 2020 Miss X contacted School A and requested a meeting to discuss Child Y’s timetable and provision. Miss X said she hoped Child Y could return to school soon.
30. On 8 October 2020 the Children and Young Persons Services (CYPS) held a Child in Need (CIN) review meeting with Miss X and her SEND support worker and School A. The Council told Miss X that Child Y was expected back at school on 12 October. School A confirmed the provision was in place to support his return to school including, access adult support when needed for transitions; sensory breaks in between learning; five minutes of reward time when he has earnt five stars and sensory support room for sensory circuits every morning. It said Child Y had a new speech and language programme to carry out at school. Child Y did not return to school.
31. In November 2020 the Council implemented a CIN plan due to concerns around Child Y’s challenging behaviour and Miss X’s ability to parent him.
32. On 5 November 2020 School A sent Miss X a transition plan for Y to return to school. It said the Council “outlined in our meeting before half term that [Child Y] needs to be back at school now”.
33. On 16 November 2020 Child Y returned to School A for four days attending part-time.
34. On 24 November 2020 Miss X requested an EHCP assessment for Child Y.
35. On 15 December 2020 Miss X sent an email to School A. Miss X said she was finding it difficult to manage Child Y’s needs and get him to school on time. Miss X said she required support with transport to and from school. Miss X explained Child Y was refusing to attend school and acknowledged that his attendance was low. Miss X said the Council and School A had failed to support her and Child Y.
36. School A responded and said it had spoken to the Council about Miss X’s concerns regarding transport. It provided a link to the Council’s website for SEND travel assistance.
37. In January 2021 the Council’s Children and Young People’s services completed a review of the family’s needs. Miss X attended this review.
38. In early January 2021 School A contacted Miss X about onsite learning for Child Y during Covid-19 national lockdown. Miss X refused.
39. 08 January 2021 Miss X spoke to School A about laptop for online learning at home.
40. On 15 January 2021 at a CYPS meeting the Council said Child Y had missed a significant number of school days due to Miss X refusing to send him to school as she disagreed with the provision being provided. It was confirmed that School A had a SEN support plan in place for Child Y which it reported was meeting his needs.
41. Miss X expressed concern about the lack of 1:1 support in place for Child Y. Miss X also said the SEN plan was outdated. School A had explained it was gradually reducing Child Y’s 1:1 support based on him achieving greater independence as identified by an educational psychologist.
42. On 19 January 2021 at a CIN meeting, Miss X said Child Y struggled with his sleep and she needed a support worker to help get him out of bed in the morning and ready for school. Miss X also had a young baby to care for. Miss X also raised concerns about Child Y’s toileting while at school and said School A was not supporting his needs. It was also noted that Miss X had requested home to school transport for Y as he felt anxious when accessing public transport.
43. The minutes of the meeting state School A had previously explained to Miss X that Child Y did not meet the threshold for 1:1 support. School A explained to Miss X that Child Y had not attended school since the first lockdown, and consistent attendance for about six months was required before it could review his support plan. School A said it had spoken to Miss X about bedtime routines and lack of structure at home. The Council told Miss X that Child Y should be supported and encouraged to be independent with his toileting and this was not a good reason for him not to attend school.
44. It was agreed that Child Y would return to school on 25 January 2021.
45. Three days later, the Council emailed Miss X confirming the Council’s views that Child Y should be attending School A. It said Miss X could not manage Child Y’s learning at home and his attendance was at 12%. It said it did not accept Child Y did not want to go to school and there was noting Miss X could do to support his attendance.
46. On 28 January 2021 School A sent Miss X a copy of Child Y’s learning plan. It said it could not review the plan and set new targets until Child Y was consistently attending school. Miss X responded and said she had not received a response to her request for a laptop for online learning.
47. The Council responded to Miss X and said there was no reason to offer a laptop as Miss X had made it clear at the last meeting that she would not pursue online learning with Child Y. The Council told Miss X that If Child Y remained out of school the matter would be escalated. Miss X responded and said she could try online learning but had never tried before.
48. Between 3 February 2021 and 1 March 2021 Child Y attended school for six days.
49. On 11 February 2021 the Council agreed to complete an EHCP assessment and informed Miss X in writing.
50. At a CYPS meeting in March 21021, it was noted that Y had been provided with a taxi card to help transport him to school, especially in the mornings.
51. On 30 April 2021 the Council issued a draft EHCP to Miss X. The Plan named School A.
52. In June 2021 the CYPS completed a review of the family’s needs. Miss X attended this review. On 15 June 2021 at a CYPS assessment review it was noted that Child Y had attended school for six days that year
53. On 29 June 2021 Miss X agreed for Child Y to attend School A tor three days a week.
54. On 13 July 2021 the Counicl issued the final EHCP naming School A.

Analysis

55. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
56. This means that once the Council was alerted to Child Y's absence it needed to consider its legal duties and take action where appropriate.
57. Child Y has clearly struggled at School A and there is no doubt of the significant impact this and Child Y’s behaviour has had on the rest of his family, in particular Miss X.

Attendance September 2019 to July 2021

58. It is not clear when the Council first became aware that Child Y was not attending school as the Council has not provided records from September 2019 to April 2020. I find the Council was aware from June 2020, if not sooner, that Child Y was not attending school.
59. The Council was aware of School A’s attempt to integrate Child Y back into school on a part-time basis in June 2020; October 2020; November 2020; January 2021 and June 2021. During the week commencing 16 November 2020 Child Y attended school part-time for four days. Between 3 February 2021 and 1 March 2021 Child Y attended school for six days during national lockdown. In June 2021 the Council said that Y had attended school for only six days that year.
60. It is clear that Child Y was out of school for a significant amount of time from September 2019 to 31 July 2021. The records show the Council considered School A available and accessible to Child Y. However, I have seen no evidence the Council considered whether alternative provision should be made for Child Y given that his absences were for 15 or more days during this period.
61. It also appears the Council’s focus was on Miss X’s parenting ability and refusal to send Child Y to school. This is not fault, but due to its focus on Miss X I find the Council lost sight of the fact that Child Y was out of school, and this is fault. If the Council believed it was Miss X’s fault that Y did not attend school, it should have taken formal action against Miss X for failure to bring her son to school. The Council confirmed it had not done so.
62. School A consistently confirmed it could still meet Child Y’s SEN needs. The Council has provided no evidence showing how it satisfied itself the part-time provision proposed by School A was suitable and sufficient. This is fault.
63. These faults however did not cause Miss X an injustice because there is not enough evidence to say, on the balance of probabilities, the Council would have found it necessary to intervene to ensure Child Y received alternative provision during this period. Even if the Council had taken the necessary steps to explore the reasons for Child Y’s absence, whether there were medical reasons for non-attendance or ‘other’ reasons as Miss X claimed, I cannot say this would have led to a different outcome. This is because on several occasions School A had attempted to implement phased transition(s) and part-time timetable(s) to support Child Y’s return to school. However, Miss X refused to engage with this. Miss X’s refusal to try the reduced timetable, revised SEN provision and online learning that School A had offered is not the fault of the Council. Therefore, I cannot say with certainty the Council would have succeeded in making alternative provision for Y if it had taken a more proactive stance. It is equally possible the same situation would have arisen again, regardless of what the Council did.

Attendance September 2021 to April 2022

64. The Council issued a final EHCP on 31 July 2021. I cannot consider Child Y’s continued absence from September 2021 to February 2022. This is because Miss X exercised her right of appeal to the Tribunal in September 2021. Where the period of education coincides with an appeal, the period from the date the right of appeal is engaged until the appeal is heard is usually outside the Ombudsman’s jurisdiction and we cannot find fault.
65. Following the Tribunal hearing in February 2022, Child Y remained on roll at School A but did not attend.
66. As explained in paragraph 22, the courts have ruled that it is for the Council to decide what is suitable. Miss X exercised her choice not to send Child Y to School A following the tribunal hearing and therefore I find the Council had discharged its duties. Miss X exercised her right to appeal, which is an alternative remedy via the SEND Tribunal, even though the Tribunal has no power to provide remedy for the lost education.

Transport arrangements

67. Miss X told the Ombudsman the Council had failed to respond to her requests for transport for Y to and from school. Miss X had previously obtained funded transport and at that time had managed to ensure Y’s attendance. I note that Miss X first contacted School A in July 2019 but did not receive a response. This is not the Council’s fault. Miss X sent a copy of the email to the Council in October 2020. The Council did not respond. This is fault. Miss X contacted the School again in December 2020 and was provided with a link to the Council’s website for travel assistance.
68. The Council said it did not receive an application for home to school transport nor requests for transport from Miss X. I am concerned about the Council’s response here. While it may not have received an application from Miss X, it was aware Miss X struggled to get Y to school on time and there were concerns about his safety when travelling to school. These issues were also discussed at CYPS meetings, and it was specifically noted in January 2021 that Miss X had requested home to school transport for Y. The records show that a taxi card was issued to Y in March 2021.
69. The Council was aware that Y was not attending school and it is difficult to discern any sense of urgency in how the Council approached the request for transport. It is not for me to make a judgment on whether a taxi card was a suitable alternative, but I would have expected the Council to have explored this option much sooner. This is fault. I cannot say the delay in arranging suitable transport was the only barrier to Y not attending school as there were other factors involved. But the delay in consideration of the matter caused Miss X and Y an injustice in the form of distress and uncertainty. I consider it appropriate for the Council to offer a financial remedy to reflect their distress and its handling of the matter.

Social care support

70. Miss X requested support for a carer to help get Y up in the morning and for respite provision. Following a single assessment in January 2021 the Council advised Miss X that Child Y did not meet the criteria for social care support. The Council has explained it does not provide carers to help any parent to get their child up in the morning. However, it did offer to refer Miss X to parenting programme(s) that would assist her understanding and response to her children’s needs. Miss X said she had previously attended parenting programmes.
71. The Council has confirmed that Y’s case was open to social care initially under a child in need plan and then moved to child protection in March 2021. The Council said it did not identify a need for social care support for Child Y.
72. It is not my role to determine whether Y was eligible for social care support. The Council has demonstrated how it reached its decision. I find no fault.

Agreed action

73. The Ombudsman’s guidance on remedies recommends a symbolic remedy payment for distress of up to £500. In cases where the distress is severe or prolonged, we may recommend more.
74. Within one month of my final decision the Council should:
1. apologise to Miss X and Y;
2. pay Miss X and Y a total of £300 for failing to consider Miss X’s request for transport between October 2020 and March 2021;
3. remind its SEN and children’s social care team of the importance of keeping robust records.
75. Within two months of my final decision the Council should remind relevant staff of their duties under the Children Act 1996 to provide alternative provision when a child is out of school.
76. The Council should provide the Ombudsman with evidence it has completed the agreed actions.

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Final decision

77. I have completed my investigation finding fault by the Council causing an injustice to Miss X and Y.

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Investigator's decision on behalf of the Ombudsman