The Ombudsman's final decision
Summary: Mrs X complains the Council failed to provide a suitable education for her son, Y, who could not cope with attending a mainstream school due to anxiety and stopped attending in Summer 2021. We found there was fault by the Council and recommended a payment to reflect the loss of education.
The complaint
Mrs X complains the Council failed to provide a suitable education for her son, Y, who could not cope with attending a mainstream school due to anxiety and stopped attending in Summer 2021. She complained the Council did not find a special school placement for Y that he needed.
Mrs X complained that Y missed out on his education and free school meals while away from school and she incurred additional household costs and paid for tuition for Y.
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 significant injustice, or that could cause injustice to others in the future 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I spoke to Mrs X and considered the complaint she raised and the information she provided. I asked the Council for information and considered its response to the complaint.
Mrs X 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
Right to education Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
Our Focus Report from September 2011 amended in June 2016, ‘Out of school….out of mind?’, gives 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. It made six 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 (with the exception of 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.
Council’s ability to secure school attendance Sections 436 to 447 of the Education Act 1996 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must 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.
Our Jurisdiction Certain SEN decisions have a right of appeal to the Special Educational Needs and Disability Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
Where the parent or young person has appealed to the Tribunal we have no discretion to investigate from the date the SEN appeal right arises until the appeal is completed.
What Happened Y was on roll at a mainstream school (School A) and he has held an Education, Health and Care Plan (EHC Plan) since 2020. I understand Y stopped attending School A in summer 2021.
At the annual review of Y’s plan in June 2021, Mrs X asked for a change to a specialist placement.
The Council’s response to Mrs X’s complaint indicated that attempts at a phased return to School A in September 2021 were unsuccessful and some unsuccessful attempts were made to find Y another school in late 2021. At the review it was noted Mrs X was home-schooling Y. She disputed this, but I understand she had provided an online course for him.
In November 2021 the Council issued a revised final EHC Plan. This named Y’s existing mainstream school, School A. If Mrs X disagreed with the school named, she had a right to appeal this to a Tribunal.
On 7 May 2022 the Council held a further annual review of Y’s EHC Plan. At the review, it was noted that Y was out of school, he was not receiving home education and Mrs X again requested a specialist placement. The review stated Y was ‘still awaiting a placement’ since the request in July 2021 and he had been supported with some online learning from School A. The Council told us it issued a draft EHC Plan following this review, but never issued a final plan.
In July 2022 the Council sent consultations to three schools. All of which could not meet Y’s needs.
The Council carried out a further review of Y’s EHC plan in May 2023. This resulted in a revised EHC Plan being issued on 21 November 2023. Y remained on the roll of School A, but he was not attending school throughout this period.
Y had access to some online learning while he was out of school. The Council told us that it did not have details of the online course that Y was provided with, but it accepted this was not full-time education.
In response to Mrs X’s complaint about the lack of education provided to Y, the Council accepted it was at fault. It offered Mrs X a payment of £6331. This was based on 6 terms of missed education at £900 per term (£5400). This reflects the period from September 2021 to September 2023. It also included an amount of £931 to reflect that Y missed out on free school meals that he did not receive because he was not able to attend school.
The Council observed that, in practice, it delegated responsibility for providing an education to schools. However, it recognised that it had ultimate responsibility for ensuring children receive a suitable full-time education. The Council accepted it should have had better oversight of the provision Y was receiving and it had not properly monitored the situation in Y’s case.
The Council noted there had been a substantial increase in children not attending school for issues other than illness, and it now had dedicated officers who could oversee this cohort. It also had additional Special Educational Needs (SEN) officers who could provide insight into the needs of children with SEN who were out of school.
Was there fault by the Council Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. This provision generally should be full-time unless it is not in the child’s interests.
Statutory guidance - Ensuring a good education for children who cannot attend school because of health needs (January 2013, as amended) makes it clear that where a child cannot attend school because of health problems, and they are not receiving a suitable full-time education, the Council is responsible for arranging provision. The law states that councils must also arrange alternative education for children who are ‘otherwise’ unable to attend school. This is not defined in legislation but it has been explored in several judicial reviews. The common definition of ‘otherwise unable to attend school’ is any situation where it is not reasonably possible for a child to take advantage of any existing suitable schooling.
The Council accepts that Y was out of school from the summer of 2021 and that he did not receive a suitable, full-time education outside of school since that time. The Council accepts this was in part because it failed to properly monitor the education Y received. The failure to ensure Y received a suitable education since September 2021 is fault.
I note the Council has taken steps to enable it to better monitor children in Y’s situation in future to prevent the same situation reoccurring.
The impact of appeal rights on our investigation and remedy recommendations Mrs X requested a special school placement for Y in summer 2021. In November 2021, the Council issued a further EHC Plan which named Y’s existing school. When the Council issued a further EHC Plan, this gave Mrs X the right to appeal against the decision not to name a special school. In Y’s case, his reason for non-attendance is arguably linked to, or a consequence of the school placement named in his plan. The law says we cannot investigate any matter which was part of, was connected to, or could have been part of, an appeal to a tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
Mrs X did not use her appeal right, so we are not barred from investigating her complaint. However, we also have to consider if it was reasonable to expect Mrs X to have used her appeal rights to challenge the named school in November 2021. I decided, on balance, it was not reasonable to expect Mrs X to have appealed. I say this because, at around the same time the Council issued the EHC Plan in late 2021, the Council was also consulting other schools and pursuing alternative education providers. As a result, it was reasonable for Mrs X to conclude that the issue of Y’s school placement was being addressed outside the appeal process. As I have concluded it was not reasonable to expect Mrs X to appeal the EHC plan issued in November 2021, I have exercised discretion to consider this area of her complaint.
I note that in November 2023, a further EHC Plan was issued. I understand the plan names a school for Y from January 2024 and Mrs X disagrees with the plan and she has appealed against this. I have therefore considered events up to, but not beyond the date this second appealable decision has been made.
Injustice and Remedy We will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of the loss of education. Y has not received an education from September 2021 to November 2023. The Council accepted that during this period Y did not receive a suitable education.
As Y has additional support needs as set out in his EHC plan, and the loss of provision was over a prolonged period, I have recommended a payment of £1650 per term for 6 ½ terms to reflect the period of non-provision. This is an amount of £10,275.
I note the Council also acknowledged that Y had missed out on school meals while not attending school. It offered a payment to reflect this up to September 2023. I have recommended the payment is increased to cover the period up to 21 November 2023. The Council should make a payment of £1,065 to reflect the loss of free school meals.
I note Mrs X cites additional costs such as increases in electric and broadband costs due to Y being at home. I consider the amount recommended to reflect the impact of Y being out of school adequately reflects additional costs incurred such as these.
I acknowledge the Council had made an offer to remedy the complaint which had made reference to our guidance on remedy. Although I have recommended a higher figure, I am grateful to the Council for considering remedy for the complaint before it reached the Ombudsman. Any amount already paid to Mrs X should be deducted from the amounts I have recommended.
Agreed action
Within four weeks of my final decision: The Council should send a written apology to Mrs X and Y for the failure to ensure he was provided with a suitable education. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
To recognise the loss of educational provision Y has had from 2021 to 2023 I recommend the Council pays Mrs X, for Y £10,275.
To recognise the loss of Y’s free school meal provision, the Council should pay Mrs X £1,065.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman