Summary: There was a failure to provide suitable full-time alternative education between June 2020 when Y was unable to continue to attend her school and May 2021 when she started a new school. This was fault and caused loss of education as well as distress and inconvenience to the family. The Council will apologise, make a financial payment and service improvements.

The complaint

1. Ms X complains on behalf of her daughter, whom I shall refer to as Y that:
• The Council failed to provide suitable fulltime education when Y was unable to continue to attend her school from March 2020 until she started a new school in May 2021.
• The Council provided incorrect information to schools it consulted, for example that Y needed one to one support, which led schools to refuse places. Ms X complains the Council told her Y’s new school initially refused to accept her because she was under mental health services.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. 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

6. I have considered information provided by Ms X and the Council including:
• Complaint documents
• Correspondence between the Council and prospective schools
• Y’s Education, Health and Care (EHC) plan
• Review documents.
7. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Factual background

9. Y did not attend school between February and August 2019. The Council issued an EHC plan for Y in June 2019, naming School A. Y was attending School A when schools closed due to COVID-19 in March 2020.
10. The Council says Y accessed remote learning but in mid-May 2020 Y was offered a place in school, however she did not return and continued remote learning provided by the school. The Council said as Y was not engaging with remote learning as much as previously, an emergency review meeting was held in June. The School and Ms X requested a change of placement for the next school year. The Council’s panel accepted this recommendation in mid-June and started to consult other schools.
11. The Council consulted several schools but did not get a positive response until April 2021, when School B offered Y a place from May 2021.
12. The Council said it asked Ms X about alternative education in June 2020 but did not follow this up until October 2020, due to staff capacity issues due to COVID-19. Ms X said it was she who asked the Council to provide tuition.
13. The Council did not put tuition in place.
14. In February 2021 the Council commissioned an alternative provider but told the Ombudsman that Y did not receive the special educational provision in Section F of her EHC plan at this provider. The Council also commissioned mentor support in April 2021.
15. Ms X told us the alternative provision and mentoring was therapeutic support, not educational. Y did not work on her EHC plan targets or receive any academic education. Ms X said she requested a mentor, so Y had someone to talk to about returning to a school environment after such a long gap.
16. In the complaint response to Ms X the Council said it was School A’s responsibility to provide Y with remote learning as Y remained on the school roll. However, in its response to the Ombudsman the Council acknowledged that it should have provided alternative education once it was agreed Y would not return to School A in June 2020.
17. The Council said COVID-19 affected its service in that:
• Staff were working remotely and school closures and risk assessments created additional work
• Specialist provision including therapies was less available and it was harder to secure tuition or venues for tuition out of school
• School closures, including from January to March 2021, affected visits to new schools and admission processes.
18. The Council told the Ombudsman that to acknowledge the fault in delaying providing Y with alternative education from June 2020 it would:
• Apologise to the family
• Make a financial payment of £750 for Y’s lost provision between September 2020 and February 2021 and an additional £200 distress payment to Ms X for distress caused by the loss of service.

Relevant law and guidance

19. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.
20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. Statutory Guidance Alternative Provision says education provided by the council must be ‘full-time’. While ‘full-time’ is not defined in law, the Guidance says it must be the same amount of education as a pupil would receive in a maintained school.
23. While there is no statutory deadline when education needs to be in place for reasons other than exclusion, the Guidance says there should be minimal delay by councils in putting alternative education in place.

Analysis

Failure to provide education, including provision in an EHC plan

24. The Council agreed a change of placement on 15 June 2020. The Council has acknowledged to the Ombudsman alternative provision should then have been put in place. Failure to do so was fault.
25. I acknowledge the Council may have faced some difficulties in securing alternative education as many providers did not reopen for face-to-face tuition until June 2020, or later, and many closed again between January and March 2021, as a result of COVID-19 ‘lockdowns’.
26. The Ombudsman’s Guidance on Remedies says that where a child misses out on education we would usually recommend a remedy of between £200 to £600 per month (where the top of the band would indicate a situation where a pupil with special educational needs received no education and none of the specialist provision in their EHC plan). Our remedies aim to reflect what is appropriate, fair and proportionate to the individual circumstances which will include factors such as COVID-19 which may have affected the Council’s usual service and any provision that was in place.
27. I do not consider the Council’s proposed remedy to be sufficient as it only covers the period from September, when it was agreed Y would not return to School A in June 2020.
28. Education should have been put in place with minimal delay after mid-June 2020. No education was provided until February 2021. This was fault.
29. From February 2021, some therapeutic support and mentoring was provided to prepare Y to return to education, but this did not include academic tuition or specialist interventions set out in Y’s EHC plan. This was fault.

Information provided during school consultations

30. I have seen no evidence the Council provided inaccurate information. Schools read the consultation documents provided and it appears raised queries or stated they could not meet needs. School B said it could not provide support for some of Y’s needs, but the Council confirmed this would be provided by Children and Mental Health Services (CAMHS) so there was no obligation on the school to provide it. School B then offered Y a place, which was accepted. Another school interpreted the EHC plan as stating that Y required one-to-one support which it could not provide.
31. There is no evidence the Council provided inaccurate information to the schools consulted and when queries were raised it clarified the position for schools.

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Agreed action

Within four weeks of my final decision, the Council will:

32. Apologise to Ms X and Y for the fault identified in this decision statement.
33. Make a payment to Ms X of £200 to acknowledge the impact on her of the fault and her time and trouble bringing the complaint.
34. Make a payment to Y (to paid into an account in Y’s name but managed by parents) of £4500 calculated as follows:
• £600 for the period mid-June to the school summer holidays in July 2020 when no education was provided.
• £2400 for the period September to December 2020 when no education was provided
• £1500 for the period January to May 2021. This reflects that some provision preparing Y to return to school was put in place, but this did not include academic tuition or meet Y’s EHC plan. This sum acknowledges services were affected by COVID-19 during this period and therefore Y may not have been able to receive her usual education in any event.

Service improvements

35. Within three months of my final decision the Council will review its processes to ensure that alternative education is put in place for every pupil who is unable to attend school due to health needs, or otherwise, in accordance with the law and statutory guidance.

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Final decision

36. I have completed my investigation. There was a failure to provide suitable fulltime alternative education between June 2020 and May 2021. This was fault and caused loss of education as well as distress and inconvenience to the family. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman