The Ombudsman's final decision
Summary: Mrs D complains on behalf of her son (Young Person A) who has special educational needs. The Council maintain an Education and Health Care Plan (EHCP) for Young Person A which includes the provision he is legally entitled to receive so to support his education. Mrs D says the Council has failed to provide Young Person A’s EHCP provision.
Further, she says the Council has failed to provide her son with a suitable full-time education when he was no longer permitted to attend two different schools. We found the Council failed to provide Young Person A with his needed EHCP provision. This fundamentally undermined Young Person A’s educational development. There was no fault however by the Council in respect of its duty to provide Young Person A with alternative education provision when he was out of school. The failings identified have caused an injustice and the Council has agreed to our recommendations to remedy this.
The complaint
The complainant, who I refer to as Mrs D, is making a complaint in her relation to her son (Young Person A) who has special educational needs (SEN). She says the Council has failed to provide her son with an educational psychologist assessment as part of an assessment for an Education and Health Care Plan (EHCP).
In addition, Mrs D says that Young Person A has not received his EHCP support as a result of not being able to attend school. She also says that Young Person A, for a period of time, was not provided with a full-time education.
In summary, Mrs D says the impact of not obtaining an agreed assessment meant her son was not provided with the necessary support by the Council. She also alleges Young Person A has not received the education and support he is entitled to which has had an adverse impact on his education. As a desired outcome, Mrs D wants the Council take responsibility for its failings and to be held accountable.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended).
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).
How I considered this complaint
I have read Mrs D’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation. I also invited both Mrs D and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made in this case.
What I found
Background and legislative framework Council’s duty to provide alternative education The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states: “Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”
The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.
Education and Health Care Plan An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
EHCP provision A council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the Young Person And is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
Chronology of events In November 2019, Mrs D requested an EHCP assessment for Young Person A.
In January 2020, the Council agreed to carry out an EHCP needs assessment for Young Person A. The purpose of this was to inform whether the Council should maintain an EHCP for him. This would identify any support he should be provided.
In April 2020, a psychologist report was produced which recommended a further assessment be undertaken.
In October 2020, the Council issued a final EHCP for Young Person A.
In May 2021, the Council issued an amended final EHCP for Young Person A following Mrs D’s appeal to the SEND Tribunal. This included the following: “Fortnightly therapy with a Speech and Language Therapist (must have at least two years post graduate experience) for one year – 20 weeks. The 1:1 therapy will consist of 45 minutes direct work and 15 minutes liaison with staff. The placement support will observe and discuss the targets with SLT, to follow up with daily activities in 1:1 to practise activities from the SLT session (30 minutes) and to utilise strategies for the classroom (to aid memory processing).”
“The SLT will attend meetings with parents, school staff and other professionals once per term to update the whole team regarding Young Person A’s new targets and to discuss his progress” In June 2021, Young Person A’s mainstream school told Mrs D that he could no longer attend due to a serious incident taking place. Mrs D explained the Council immediately provided alternative education provision while Young Person A was out of school following this incident. However, this was only a temporary provision pending an alternative placement being found.
From September 2021, Young Person A began attending a specialist education setting. However, Mrs D says the setting was only available two or three times a week and was not therefore full-time education.
In October 2021, the Council partially upheld Mrs D’s complaint because she sent information to the Council which was not shared with the Educational Psychology (EP) ser-vice. The Council also said the EP service was not clear how it uses information for the purposes of carrying of EHCP assessments.
In January 2022, Mrs D escalated her complaint to stage two of the Council’s complaints policy and procedure. The Council issued its final response. However, this contained fundamental incorrect information and was based on flawed understandings. Mrs D later brought her complaint to the LGSCO.
In March 2022, Young Person A was stopped from attending the specialist education setting. This was due to significant staff shortages and Young Person A’s conduct and behaviour towards others. The Council offered him an alternative education package which included remote learning and one to one tuition.
In April 2022, Young Person A’s one to one tuition ended due to him refusing to engage with the service. It was later agreed that a member of staff from his previous school visit for three hours each week to offer him teaching.
In June 2022, the Council issued an amended EHCP for Young Person A. This removed the provision outlined at Paragraph 21 (above).
My assessment
Assessment reports The central issue of Mrs D’s complaint is that Young Person A’s EHCP has not been properly informed by professional advice. Specifically, she says the Council failed to provide Young Person A with an educational psychologist assessment as part of the assessment process. However, this is not an issue I can, by law, investigate. This is because professional advice informs the content of an EHCP and what is or is not included within an EHCP is an appealable matter to the SEND Tribunal.
Importantly, Mrs D appealed the contents of Young Person A’s EHCP which led the Council to issue another EHCP in May 2021. The law says I cannot investigate any issue where the complainant has exercised their right to the SEND Tribunal. For these reasons, the restriction I describe at Paragraph 5 applies. That said, the Council accepts fault in respect of the advice it has provided Mrs D with respect to the assessment process. It also accepts wrong information was provided in response to Mrs D’s formal complaint which caused stress, uncertainty and an unnecessary burden on the family. I agree these failings caused an injustice and so have made a recommendation to remedy this.
EHCP provision The Council has a legal duty to secure the specified special educational provision in an EHCP for Young Person A (see Paragraph 16). As a result of a serious incident involving Young Person A and another pupil at his then EHCP placement, he was excluded and unable to attend school. In summary, Mrs D says that as a result of Young Person A being unable to attend school on a full-time basis, he has not received his SALT education provision. Initially, the Council says all of the SALT provision has been available for Young Person A to receive. However, following investigation of this matter, the Council has now accepted that it failed to meet provide Young Person A his needed SALT provision from mid-May 2021 to early June 2022. This means, for 13 months, Young Person A did not receive the identified support which was deemed necessary for him to receive an education on par with his peers. This is serious fault by the Council and I consider it has not only undermined Young Person A’s educational development, but also caused deep anxiety and uncertainty for Mrs D and her family.
Alternative education provision The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school (see Paragraph 9). Following Young Person A’s exclusion from school, the Council provided him with alternative education provision from late June 2021 whilst it sought to identify an alternative placement for him. The alternative education provision was for 25 hours a week which did not include the SALT provision. I have reviewed Young Person A’s attendance record and this shows the provision was not accessed by him. Out of all sessions Young Person A could have attended, he was absent for over 90% of these.
In September 2021, Young Person A was placed on the pupil roll at a new school. However, Mrs D says the school was not available as a result of closing down in December 2021 following an Ofsted inspection which classed the school as ‘inadequate’. I found however that the school was not closed down, but rather placed into special measures. The Council says the school remained open and Young Person A continued to be on the roll and has access to a full-time place. That said, the Council accepts there were staffing difficulties at the school.
The Council also provided me a written record of Young Person A’s conduct while in school. This relates to concerns it had about the perceived risk Young Person A presented to other. As a result, the Council offered him an alternative education package and he stopped attending the setting in March 2022. Importantly, it is not my role to validate whether the Council’s perception of Child A’s behaviour is accurate and therefore this assessment by the school should not be taken as fact. I have also reviewed Young Person A’s attendance record from September 2021 to March 2022. This shows that Young Person A attended 35% of all available teaching days.
I must now consider whether the Council has provided Young Person A with suitable alternative education provision for the following periods: First Period: June 2021 to September 2021 (when Young Person A was excluded from his then school up to the point he started at a new school) and; Second Period: March 2022 to July 2022 (then Young Person A stopped attending his new school up to the point he finished his compulsory education).
(i) First period Following Young Person A’s exclusion, the Council arranged full-time alternative education provision for Young Person A. The provision included 25 hours of education per week at an alternative education setting. The evidence shows that Young Person A did not access that provision as a result of unauthorised absences. Mrs D says this was because Young Person A was being bullied by other pupils and he felt unable to engage successfully at the setting. She also made the important point that Young Person A was denied his much-needed SALT provision which is geared towards supporting his identified needs and promoting his engagement in education. This being said, Young Person A did not attend the alternative education setting the first week he was supposed to. So, I do not consider it credible for nonattendance to be associated with issues at the setting itself. I also note attendance has been a longstanding issue, not isolated to this particular setting.
In addition, the alternative education provider informed the Council that there were serious issues with Young Person A’s attitude and engagement, and that he continually disrupted the learning of others, and absconded. In my view, it is important to note that Young Person A has SEN and the fundamental SALT support he should have received was not provided by Council for 13 months.
My role is to determine whether the Council has complied with its s19 duty to provide suitable full-time alternative education provision in resect of the First Period. The evidence fully supports the Council arranging full-time alternative education and making this available. I recognise Mrs D says Young Person A felt he could not engage with his education at the alternative setting due to bullying, but that is an internal school matter for which I have no jurisdiction to investigate. In any event, I have commented above that there were serious issues with attendance even prior to Young Person A attending the setting.
Whether the alternative education provision was suitable for Young Person A is complex in my view. I do consider there has been serious issues with Young Person A’s engagement with education and that his behaviour has been a cause of significant challenge. That being said, Young Person A’s identified needs were unsupported by the Council failing to make his SALT provision available. I have therefore weighed whether, absent Young Person A’s SALT provision, this alternative provision was unsuitable to fully meeting his needs.
In my view, I do not consider the alternative education provider, which was commissioned in the First Period, was afforded a chance by Young Person A to teach him in a tailored way according to his needs. He was absent from over 90% of all learning which included many days from the date he was due to start there. It cannot therefore be said that Young Person A’s placement was unsuitable. I have not identified any fault by the Council with respect to offering suitable alternative education to Young Person A.
On balance, I believe Young Person A has developed a deep level of mistrust in education which has fundamentally undermined his willingness to engage. In my view, the Council’s failure to meet his identified needs and provide the provision he was legally entitled to receive is a contributing factor to Young Person A’s engagement with education generally. I have therefore taken this into account for the purposes of reaching a remedy in respect of the loss of SALT provision.
(ii) Second period Turning now to the Second Period which is relevant to when Young Person A stopped attending his new school in March 2022. The evidence I have reviewed is that Young Person A should have been provided with a remote learning from home package, including online learning and work packs. It also should have included a member of staff visiting the home to deliver lessons and offer one to one support. A referral was also made to a tuition service to obtain 4.5 hours a week of one-to-one tuition for Young Person A.
It the Council’s position that Young Person A did not engage with this alternative education package. The bulk of the provision is remote learning and homework packs which is complimented by three one-to-one tuition sessions per week. On the issue of remote learning, there is mutual acceptance between the parties that Young Person A did not engage with this, though Mrs D says it was never made available. My investigation found: The school providing the remote learning made 14 telephone calls to the family home in respect of Young Person A’s remote learning package.
There were regular work packs sent to the family home for Young Person A to complete.
There were a number of home visits by the school to support Young Person A with the remote learning package.
The school offered Young Person A afternoon learning back in school, but this declined.
In conclusion, I am satisfied that a remote learning package was made available to Young Person A. If it was not engaged with, I do not consider this was due a lack of effort by the school organising this part of the alternative provision.
With respect to the one-to-one tuition part of the alternative education provision, it is also clear that arrangements were made for Young Person A to receive this. The records I have reviewed show communication with Young Person A’s family was difficult and that his parents told the tuition service Young Person A would not attend morning sessions because he struggles with sleep and does not wake up until late. Further, these state that Young Person A would not engage with sessions after 2pm because this is when he sees his “girlfriend”. When the tuition service telephoned to organise the first week of tuition, it became clear the proposed times did not fit the very narrow window Young Person A informed he would be willing to attend. Further, Mrs D explained the family had a wedding to attend on the initial dates proposed and so would need to be rescheduled. It was agreed to commence the following week.
When the tuition service was due to commence the rescheduled tuition, it had a telephone call with Mrs D. It was reported that Young Person A’s friend had been in an accident and was in hospital and so he was not free for tuition. The following week Mrs D told the tuition service Young Person A would only be free for sessions between 12:00pm and 2:00pm. The next day, Young Person A received his first tuition session and the records state he arrived late and did not engage with the learning. The following week, Young Person A did not attend a scheduled session and explained this was due to him not liking the tutor. Moreover, the tuition service received an email from Young Person A’s father stating he would not attend future sessions, citing a lack of trust in the system. The tuition arrangements made therefore ended and the file was closed.
Following this, agreement was reached that a tutor from Young Person A’s previous school would visit him for three hours a week. It is recorded that Mrs D stated she wanted support to start low and grow gradually where possible This arrangement continued until Young Person A ended his schooling in July 2022.
I do not propose to comment on whether the reasons presented about why Young Person A could not be available for certain dates and times are reasonable. As a child of compulsory school age, he should be available and in education. However, this not my role, but rather to assess whether suitable alternative education provision was made accessible. In any event, it is clear to me that the scope to provide Young Person A with tuition was being made difficult and impractical. The Council has complied with its legal duty to make full-time education provision available to Young Person A. The evidence supports the view this was not engaged with by him. I have not determined any fault by the Council with respect to this issue.
Agreed action
To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 6 November 2022: Provide Mrs D a written apology which acknowledged the fault and injustice identified. It will also provide Young Person A with a written apology.
The Council will pay Mrs D £750 to acknowledge the stress and uncertainty the fault caused, as well as the incorrect advice provided in respect of the EHCP.
The Council will pay Mrs D £4,550 (£350 per month) because of the Council’s failure to provide Young Person A with his need EHCP provision for 13 months. This money is to be used for the benefit of Young Person A’s educational development (such as SALT sessions).
The Council will provide evidence that it is has complied with these actions.
Final decision
The Council failed to provide Young Person A with his needed EHCP provision. This fundamentally undermined Young Person A’s educational development and caused him distress. There was no fault however by the Council in respect of its duty to provide Young Person A with alternative education provision when he was out of school. Such provision was made available, though not engaged with by Young Person A. The failings I did identify however have caused an injustice and so the Council has agreed to our recommendations to remedy this.
Investigator's decision on behalf of the Ombudsman