The Ombudsman's final decision
Summary: The Council failed to make suitable alternative provision for Mrs B’s son, C, when he was unable to attend school because of anxiety. This caused the family significant distress and C missed out on education. The Council has agreed to apologise and make a payment to Mrs B to remedy the injustice caused.
The complaint
Mrs B complains that the Council failed to make suitable alternative provision for her son, C, when he was unable to attend school due to anxiety. This caused the family significant distress and C missed out on education. In addition, Mrs B had to take time off work to care for him.
The Ombudsman’s role and powers
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) 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) 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.
How I considered this complaint
I have considered the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background Education, health and care plans A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s special educational needs (SEN) and the provision required to meet them.
The Council is responsible for making sure that arrangements specified in the EHCP are put in place.
Alternative education Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of “illness, exclusion from school or otherwise” if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19).
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013) 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)) We have issued 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. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016) We made six recommendations. We said councils should: consider the individual circumstances of each case and be aware they 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 reaching decisions; decide, based on all the evidence, whether to require attendance at school 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.
Key facts Mrs B’s son, C, has autism and ADHD. He also suffers from speech and language difficulties and anxiety.
A final EHCP was issued in October 2019. This stated that C would be taught and supported on a full-time basis, including at break and lunch times, by staff trained and experienced in working with pupils with autistic spectrum disorder (ASD) and associated learning difficulties. It also stated he would receive advice and support in school from an occupational therapist (OT) who would provide a programme of activities to be completed by trained staff as necessary and six contacts from the speech and language therapy (SALT) service during the academic year. He would be reviewed by the OT within school and at home.
The EHCP named School X, a state funded specialist school for pupils with complex ASD and/or complex learning needs.
In May 2021 there was an incident at school. Following this C remained at home due to concerns about his safety. An emergency annual review was held because of increasing concern about his anxiety and the impact this was having on his mental health and behaviour in school. Mr and Mrs B were concerned that the school could not meet C’s needs and requested a change of placement.
At the meeting Mr and Mrs B advised that C’s ADHD medication was not correct and they were awaiting a medication review. The school reported that, since September 2020, C had been unable to sit in the classroom environment with other children and sat at a table outside the classroom with the door open so he had his own space but could still hear the lessons. This had been working well but C’s anxieties had increased, and his behaviour had declined significantly since just before the Easter break and he had become a risk to himself and others. It was agreed C would remain at home until his medication had been reviewed and the school would provide work for him to complete. A discussion was held about a flexible timetable to prevent him becoming isolated and becoming too comfortable at home. It was also agreed that a further review would be held in July 2021 to review progress and consider a change of placement.
On 15 June 2021 there was a trial return to school day. The school fed back to the Council that this was unsuccessful, and it had been agreed C would stay at home for the time being.
On 6 July 2021 a further annual review was held. It was noted that, since the incident in May, C had been given medication but was not taking this consistently. The school said C was unable to control his anxiety and became physical frequently. The Council confirmed it was seeking an alternative school placement but, in the meantime, C would remain on the roll at School X and it would send a work pack and online resources for him so he had work to complete at home. The notes stated that an independent tuition agency “may be a possibility as [C] is still unable to attend school due to his unsafe behaviours but does not engage with independent learning”. C’s parents requested he be moved to School Y.
On 22 July the SEN panel considered the request for a placement at School Y. It decided C remained appropriately placed at School X. In reaching this decision, the panel noted C’s medication did not appear to be stable yet and the school had not requested a change of placement. However, it also noted C’s parents were keeping him off school because of concerns about his behaviour. It agreed the Council would consult with School Y and make a final decision on a change of placement when it received the school’s response.
On 27 July the Council’s SEN officer sent the panel’s decision to the school. She said, “the decision notes suggest that the decision to keep [C] off of school is solely a parental decision, which is not accurate and also the request for a change of placement appears to not be supported by [the school] as there is no suggestion of this in the [annual review] documents.” She stated that, despite this, she was aware from discussions with the school that it was unable to manage C whilst he was displaying his current behaviours and, if it wished to provide any additional comments about his absence or the suitability of the school, she could request that the decision was reconsidered.
The following day the school asked for the panel’s decision to be reconsidered. It said staff representing the school at the annual review did not make its views clear enough and apologised for this. It explained that, because of C’s behaviours, high level of anxiety and mental health needs, it was not able to ensure his safety or that of other students and staff. It confirmed it was not able to meet C’s needs and supported the change of placement request.
In August 2021 School Y informed the Council it could not meet C’s needs. The Council notified Mrs B and School X and said it expected C to return to School X in September.
In September 2021 the Council began seeking an alternative placement for C.
In February 2022 Mrs B complained to the Council that it had not found an alternative school placement for C and had not put in place alternative provision in the meantime.
The Council responded at stage 1 of its complaints procedure and apologised that it had not yet been able to find a school place for C. It explained that, since September 2021, it had contacted 27 special schools both in its area and in neighbouring local authorities. None had been able to offer a place either because they were unable to meet C’s needs or had no vacancy. The Council also confirmed it had now made a referral to home tuition for C.
In March 2022 the Council agreed to remove C from the roll of School X. It put in place alternative educational provision through a teaching agency. As C had been out of formal education for some time, and in view of his presentations, the Council agreed tuition would start at two hours per week and increase when Mr and Mrs B considered C was ready.
In mid May 2022 C’s tutor left the tuition company. Mrs B notified the Council. It confirmed it would arrange a new tutor as soon as possible. Unfortunately, the Council was unable to source a new tutor.
Meantime, the Council consulted with further schools and educational provisions for a placement for C. It received an offer of a school place from an independent special school at the beginning of October 2022 and C started at the school in mid-October.
Analysis Alternative provision When a child is not able to go to school because of ill-health and where suitable education is not being provided by the school, councils should ensure the child receives a suitable education as soon as it is clear they will be away from school for 15 days or more. The Council has a statutory duty to make alternative provision.
The school sent work home for C between May and July 2021. It says that, during a telephone conversation in July 2021, Mrs B said C was not well enough to access any learning or activity and asked that no academic work was set for him. The school sent a pack of practical activities home to encourage C to engage in learning but received no feedback from Mrs B as to whether these were completed. So, it did not send any further activities pending guidance from the children and young people’s mental health service as to when C may be able to access more formal learning.
Following the unsuccessful trial return day in June 2021, the School informed the Council of the situation. It says it agreed with the Council that C would continue to stay home and was unable to access the school or education. It was clear from this point that C would not be returning to school within 15 days. So, the Council should have put alternative provision in place without delay. It had a duty to intervene and assess what suitable alternative education it could provide for C. But it did not do so until March 2022. That was fault.
In addition, at the meeting on 6 July 2021, it was recorded that an independent tuition agency may be a possibility because C was “still unable to attend school due to his unsafe behaviours but does not engage with independent learning”. It was therefore clear at this point that C was receiving no education and could not attend school. Although the Council said an independent tuition agency may be a possibility, it did not action this until March 2022.
The Council focused on trying to arrange a suitable new placement for C and relied on the school providing work, rather than assessing what alternative education he could cope with. We do not consider schoolwork being sent home to be a suitable education. It is not the same as teaching and does not count towards the Council’s duty to provide education. A suitable education should consider the age and aptitude of the child and should include teaching by a teacher through online, group or one-to-one provision. Sending work home was not enough.
The home tuition arranged by the Council in March 2022 ended in May 2022. The Council has failed to provide an alternative. This is further fault. C has been out of school since April 2021 and is still receiving no education or SEN provision.
The failure to provide C with alternative education means he has missed out on a total of ten months’ education. He has also missed out on SALT and OT provision. In addition, the situation has caused the family avoidable distress, frustration and uncertainty and Mrs B has been forced to give up her job to care for C.
Our guidance on remedies says that, where fault has resulted in a loss of educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss. Because C also lost SEN provision, I have recommended a remedy at the higher end of the scale.
Annual review The annual review for 2022 should have been held in July. The Council says it is aware it is overdue and will arrange it as soon as possible. This delay is further fault and causes Mrs B and the family additional distress.
Agreed action
The Council has agreed that, within one month, it will: send a written apology to Mrs B for the fault identified and the injustice caused; pay Mrs B £500 to acknowledge her avoidable distress, frustration and uncertainty; pay Mrs B £5000 to remedy the loss of education provision and SEN provision between June 2021 and October 2022 (a total of 10 months after deducting school holidays). Mrs B may use this as she sees fit for C’s educational benefit; and holds an annual review and amend C’s EHCP to reflect his new school placement if it has not yet done so.
The Council has also agreed that, within two months, it will issue a written reminder to relevant staff to ensure they are aware of the Council’s duties under Section 19 of the Education Act 1996 to provide suitable education for children of compulsory school age who cannot attend school because of exclusion, medical reasons or otherwise.
Final decision
I uphold Mrs B’s complaint.
I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.
Investigator's decision on behalf of the Ombudsman