Summary: Miss X complained the Council has failed to provide alternative provision for her son, Y, who has been unable to attend school for medical reasons since May 2021. Miss X has had to pay for a private tutor but is unable to continue to fund this. We have discontinued our investigation on the basis the issues complained of are inextricably linked to the matters considered by the Special Educational Needs and Disability Tribunal, and are therefore outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Miss X complains the Council has failed to provide alternative provision for her son, Y, who has been unable to attend school for medical reasons since May 2021. Miss X has had to pay for a private tutor but is unable to continue to fund this.
2. Miss X also complains the Council has refused to respond to her complaint because she has appealed to the SEND tribunal in relation to the content of her son’s EHC Plan.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’.
4. 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)
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. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X; and
• 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

Educational provision

8. The Council has a duty to “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1))
9. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
10. 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. (Education Act 1996, section 3A and 3AA).

Special Educational Needs

11. 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. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Key facts

12. Miss X states her son, Y has been unable to attend school since March 2021 when the national lockdown ended. Miss X states she suggested Y needed help transitioning back to mainstream classes. Y has an EHC plan and during the lockdown he had attended online lessons in school with a small number of other children who either had additional needs or were the children of key workers. At the end of the lockdown the school suggested a phased return which involved Y attending school to undertake his on line learning and gradually being reintegrated into lessons.
13. The Council states Miss X disagreed and asserted Y was unable to return to school. Given Miss X’s concerns the school initially agreed to provide online lessons at home with Y’s key workers supporting him remotely. This was a combination of work set by Y’s teachers and then an online learning package through Company Z. Miss X was concerned about the quality of this provision and the non-implementation of Y’s EHC plan.
14. In April 2021 Miss X appealed to the SEND tribunal against the contents of Y’s EHC Plan. She was unhappy the Council had not reassessed Y before reviewing his plan and did not consider a mainstream school was meeting Y’s needs. Miss X felt Y needed a specialist school.
15. In May 2021 the school informed Miss X that for the following three weeks Y’s online learning with Company Z and his key worker support would be delivered in person in school. There would also be a programme of individual interventions to support Y’s emotional needs and his integration back into mainstream class. Following the half term holiday Y’s provision would then be in mainstream classes, supported by his key workers. The school invited Miss X to a meeting to discuss Y’s reintegration plan. Miss X disputes there was a reintegration plan. She states she told the school she could not attempt to get Y back into school without support or scaffolding but did not receive a response.
16. The Council also encouraged Miss X to support Y’s attendance at school. It noted the school was not required to provide education for Y to access at home and that it was not sustainable in the long term.
17. The Council states Miss X was unwilling to discuss a reintegration plan and maintained Y was unable to return to school. She advised the Council that Y had only been able to attend the school during lockdown as the students who had bullied him were not in school. As the school reopened to all students, Y was unable to attend, and his mental health had declined. She offered to provide medical evidence of Y’s current mental health. The following week Miss X provided a letter from a private GP.
18. Miss X then made a formal complaint about Y’s education. Miss X asserted it was clear Y could not return to school due to his mental health needs and he required education to be arranged for him at home. She complained the Council had failed to provide adequate tuition while Y was not in school and had failed to secure the special educational provision specified in his EHC plan.
19. The Council’s response advised that as Miss X was raising concerns which were subject to legal action in the form of a disability discrimination action against the school and an appeal to the SEND tribunal it was unable to progress her complaint.
20. In a further email the Council told Miss X it had no professional evidence that Y should not attend school or that he was medically unfit to attend school. In the absence of such evidence his non-attendance would be marked as unauthorised. It encouraged Miss X to work with the school to encourage Y’s reintegration.
21. The Council’s legal representative also wrote to Miss X’s advocate noting that there was no evidence to suggest Y was suffering from a level of distress/ anxiety that would prohibit his school attendance. They stated the Council had asked for evidence that Y was unfit to attend school, but none had been forthcoming. The legal representative asserted the Council had discharged its duty to provide education for Y and did not propose to arrange any alternative provision. Y had access to full time education at the school and to the support specified in his EHC plan.
22. Miss X disputed the Council’s position and reiterated that Y was suffering from mental health difficulties due to his experiences at school and that she had provided evidence of this to the school. Miss X provided a copy of the latest Educational Psychologist’s (EP) report she had commissioned and a further copy of the private GPs letter. She asked the Council to provide alternative education provision. To ensure there was some consistency for Y, Miss X had commissioned Company Z to continue providing online lessons, which she also asked the Council to fund.
23. In July 2021 the Council offered Y a place at a specialist school for children with social, emotional and mental health difficulties. Miss X declined the offer as she did not consider it suitable for Y’s needs. Miss X had commissioned an assessment from a specialist CAMH service and provided a copy of the report to the Council in August 2021. The report concluded that Y had emotional difficulties and required specialist treatment which would assist in a gradual re-engagement with school.
24. The Council remains of the view that full time education has been available for Y, initially at a mainstream school and then from September 2021 at a specialist school. It also maintains that Miss X has not provided medical evidence that Y could not attend education.
25. The SEND tribunal hearing was initially listed for September 2021 but was adjourned to November 2021. This hearing has since been rescheduled for March 2022.
26. Miss X states the latest adjournment was necessary as the Council has now conceded the specialist school it had identified could not meet Y’s needs. She maintains the Council has not offered Y a suitable education since May 2021. Miss X has incurred almost £10,000 in fees for online lessons with Company Z and almost £3,000 in fees for medical reports and assessments. She would like the Council to reimburse these costs.

Analysis

27. As Miss X has exercised her right of appeal to SEND we have limited jurisdiction to investigate this matter. The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal from the date the appeal right arises until the appeal is completed. We can look at the period before the amended EHC plan is issued, and after the appeal decision. But any loss of education or fault during the period from the date the appeal right arises until the appeal is completed, which is a consequence of the decision being appealed, is outside the Ombudsman’s jurisdiction. This is the case even though the Tribunal has no power to provide a remedy for the lost education
28. I recognise that Miss X considers the disability discrimination claim against the school and her appeal to the SEND tribunal are separate to the matters she has asked the Ombudsman to investigate. Miss X asserts the Council should have provided alternative education under s19 of the Education Act as Y was too unwell to attend school. The Council disputes this and does not consider the medical evidence provided indicated Y was medically unfit to attend school.
29. It notes that the private GP suggested a thought-out reintegration plan, and the CAMHS report proposes a gradual re-engagement with school, but neither say that Y is medically unfit to attend school. The Council also notes the EP suggests home tuition as the best option until a suitable placement can be found to meet Y’s sensory needs. As Y had not been assessed to have any sensory dysfunction and Miss X had never complained Y’s sensory needs were not being met, the Council questions how the EP was able to raise this as an issue.
30. I consider the issues of Y’s ability to attend school and the suitability of both the mainstream and specialist school and their ability to meet Y’s needs are inextricably linked. I am therefore unable to consider Miss X’s complaint about Y’s missed education since May 2021 or the costs she has incurred.

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Investigator's decision on behalf of the Ombudsman