Summary: Mrs X complained that the Council failed to provide alternative education when her son, Y was unable to attend school due to anxiety. The Council accepted it was at fault and offered Mrs X £1000 to support educational opportunities for Y. It has also improved its procedures for the future. We consider this is a reasonable and proportionate way of resolving the complaint.

The complaint

1. Mrs X complains that the Council in respect of her son, Y, delayed in providing alternative education when Y was unable to attend school. She says this affected his educational progress and his mental health and caused Mrs X time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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 the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
7. 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

Provision of alternative education

8. 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)
9. 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”.
10. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says in considering alternative education local authorities should not:
• have processes or policies in place which prevent a child from getting the right type of provision and a good education; or
• have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
11. It also says that, 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. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned.

What happened

12. Mrs X’s son Y has autism with demand avoidance, anxiety and ADHD. He was in a mainstream school until December 2018 until the placement broke down. He moved to a specialist provision (School B) in September 2019. He managed to attend but only part-time until the lockdown in March 2020.
13. Mrs X was concerned with the lack of planning for Y to return to school full-time in the autumn and raised her concerns with the Council in August 2020. On 2 September 2020 he attended for 20 minutes and then was too anxious to attend at all.
14. Mrs B requested an urgent annual review of Y’s EHCP and a meeting was arranged for 17 September 2020. The Council attended. At this point School B was still saying it could meet Y’s needs. Mrs X suggested a different school may be better for Y and the Council agreed to consult with it about a place for Y. The consultation was unsuccessful as the school said it could not meet Y’s needs and there were no places available. The Council discussed with Mrs X the possibility of consulting with other settings but Mrs X said she was not aware of any other suitable options.
15. School B arrange an outreach worker to begin work with Y at home to support a gradual transition back to school until a suitable placement could be found. This failed after two visits in October 2020.
16. Following a referral, CAMHS declined to offer treatment as it considered the source of Y’s anxiety was primarily the educational provision. It would reconsider the position once an alternative placement was found.
17. The Council issued a final amended EHCP on 26 November 2020 naming School B. Mrs X appealed to SEND against the provision for Y’s special educational needs (section F) and the placement (section I).
18. In December 2020 the Council made a referral to the Education other than at School Service (EOTAS). It also met with School B during February and March 2021 in respect of education for Y. It decided it could not meet Y’s needs as their service aimed for reintegration to a setting.
19. In January 2021 Mrs X complained on two occasions to the Council about the lack of educational provision for Y. She wanted the Council to:
• Rectify the lack of education situation immediately.
• Apologise to Y and his family for its failings.
• Investigate the failings and inform Mrs X what will change in future, so other children are not affected the same way.
• Compensate Y for the loss of education affecting future prospects and for the distress caused to him and his family.
20. In March 2021 School B said it could no longer meet Y’s needs as he required specialist support and a therapeutic environment. The Council made a request for tutoring and tutoring sessions began on 12 April 2021.
21. The Council responded to the complaint in April 2021. It accepted that the Council could have checked at an earlier point whether School B was able to provide suitable education for Y and agreed to improve its systems. It accepted the lack of education during this period had impacted adversely on Y and Mrs X and it apologised for this and acknowledged it could have done more to ensure appropriate provision was in place. It also apologised for the delay in responding to the complaint and agreed to carry out four service improvements within six weeks. It also offered to discuss with Mrs X appropriate redress for her and Y.
22. Mrs X met with the Council in May 2021. The appeal was resolved on 2 June 2021 with School C named as Y’s provision from September 2021.
23. In September 2021 the Council wrote to Mrs X saying that it had addressed her first three desired outcomes. It apologised for the delay in addressing the fourth one and offered £1000 to support educational opportunities for Y.
24. Mrs X complained to us. She raised some further outcomes which she said the Council had not addressed during the complaints process. The Council in its reply to my enquiries has provided responses to these additional issues.

Analysis

Jurisdiction

25. I am unable to investigate the period when Mrs X was appealing to SEND, because the provision of alternative education was directly linked to the school placement which formed part of the appeal. This means I am unable to investigate events from 26 November 2020 (when the right of appeal arose) until 2 June 2021 (when the appeal was the appeal was resolved).

Fault and injustice

26. The Council should have provided education for Y from around the second week of September 2020. As I can only investigate the period up to 25 November 2020, Y missed out on education for approximately 11 weeks. By the time the appeal was resolved Y had a tutor in place until he started at School C in September 2021.
27. The Council’s offer of £1000 is an appropriate and proportionate way of addressing the injustice caused to Y and Mrs X. Our Guidance on Remedies suggests £200 to £600 per month for being without education and so the Council’s offer is within this range.
28. The Council has also taken steps to improve its procedures for the future (as explained in paragraph 21) and answered Mrs X’s additional points (see paragraph 24).

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Final decision

29. I have completed my investigation as I consider the Council’s offer of £1000 and the action taken in respect of service improvements are a reasonable and proportionate way of resolving the complaint.

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Investigator's decision on behalf of the Ombudsman