The Ombudsman's final decision
Summary: Miss X complains the Council failed to secure full time education and EHCP provision for Child Y. This left him without education and the provision needed for his learning. There was fault with the Council for failing to provide full time education and provision in Child Y’s EHCP. The was also fault with the Council’s complaint handling. The Council will apologise and make financial payment to Miss X and Child Y.
The complaint
Miss X complains the Council has failed to provide her son with the provision he is entitled to according to his EHCP.
Miss X complains the Council has left her son in part time education without the correct support.
Miss X complains this has meant her son has missed the support he is entitled to, and has meant that she is providing extra support.
Miss X complains the Council has failed to suitably consider her complaint and the impact its maladministration has had on her.
The Ombudsman’s role and powers
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) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 considered Miss X’s complaint and information she provided. I also considered information from the Council.
I considered comments from Miss X and the Council on a draft of my decision.
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.
What I found
Legislation and Guidance Alternative provision 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those 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.” (Education Act 1996, section 19(1)).
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)).
The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA).
The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
Education Health and Care Plans A child with special educational needs may have an Education, Health and Care Plan (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. Section F sets out the specified special educational provision required.
Where a council maintains an EHC Plan for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
What happened Miss X’s son, Child Y, has an Education, Health and Care Plan. This sets out the provision that Child Y is entitled to meet his needs.
In April 2022, Miss X challenged the content of the EHCP at tribunal. The tribunal order said the Council needed to issue the EHCP and name a specific placement on Child Y’s EHCP.
The Council named the school and issued the EHCP. It also sought an updated Educational Psychology (EP) report for Child Y.
Child Y started at the named placement in April 2022, however, was only able to attend for two weeks.
After this time, the Council moved Child Y to a part time timetable. Communication between Miss X and the Council explained that it had placed Child Y on a part time timetable because of staff shortages at the placement.
The Council held an annual review for Child Y’s EHCP in June 2022. The Council recognised there had been difficulties in the transition of Child Y to full time education at the school. The Council said that it hoped Child Y would be able to recommence full time education in September 2022.
Miss X complained to the Council, as she felt that Child Y had not had full time education or the provision in his EHCP since the tribunal hearing.
In its complaint response, the Council accepted there had been poor communication, but was of the view the issues had been resolved as Child Y was now attending the named school.
Miss X complained to the Ombudsman that Child Y was without full time edication and his EHCP provision.
Analysis Alternative Provision and EHCP support As part of my enquiries to the Council. I asked it show how it had met the EHCP provision for Child Y since the tribunal. The Council was not able to show evidence of how it had done this. Instead, the Council provided evidence of a tutor that was previously used prior to the tribunal.
The Council has not been able to show how it has provided the support set out in the EHCP. Therefore, I find fault with the Council for failing to provide the agreed provision between April 2022 and July 2022.
The Council’s emails to Miss X show that Child Y was not in full time education between April and July 2022 because of staff shortage at the named placement.
The Council has not been able to show that it decided full time education was not in Child Y’s best interests. I accept that staffing levels were short at the placement, however, it was the Council’s responsibility to ensure that Child Y was accessing full time education and was receiving their EHCP provision. The Council should have sought to ensure Child Y was receiving full time education and EHCP provision until he could resume full time education at the placement.
This was fault by the Council causing Child Y to miss full time education and his EHCP provision. Child Y was transitioning to Year 7, and likely missed social opportunities as well as his education.
Complaint handling The Council has already recognised the communication to Miss X has been poor. However, the Council continued to not respond to Miss X’s concerns and failed to consider the part of her complaint where she said Child Y remained not in full time education. It felt it had resolved the issues as Child Y was on roll at the school.
I find fault with the Council for continuing to not suitably communicate with Miss X and failing to consider her complaint. This caused her distress and further time and trouble in bringing her complaint to the Ombudsman.
Additionally, I asked the Council if it had considered the issues Miss X had told the Ombudsman about the placement suitability. The Council said it had considered issues at a meeting in June about the complexity of the part time timetable.
The Council’s response does not how say how Miss X’s concerns about placement suitability were considered. The meeting minutes only recorded there had been issues with the transition and part time timetable. However, I have not seen evidence of Miss X telling the Council fully of her concerns. Therefore, I cannot say the Council has known the extent of her concerns about placement suitability to be able to fully respond.
EP Report Part of Miss X’s complaint is the Educational Psychology (EP) report for Child Y is not in line with the tribunal order. I note that Miss X feels the Council should have commissioned a new report instead of providing an updated one.
The tribunal order dated January 2022 says the Council must get an updated EP assessment. The EP report which the Council provided was an updated report, which I consider meets the outcome directed by the tribunal. I appreciate Miss X felt the Council should have commissioned a new one, but as this was not directed by the tribunal I cannot find fault with the Council for failing to recommission a new one.
Agreed action
Within 4 weeks the Council has agreed to Write to Miss X and apologise for the fault identified Pay Child Y £1800 in recognition of the loss of full-time education and EHCP provision.
Pay Miss X £300 in recognition of the time and trouble taken.
Final decision
I have now completed my investigation. I find fault with the Council for failing to provide alternative education and EHCP provision for Child Y. I also find fault with the Council for failing to suitably communicate with Miss X and properly consider her complaint.
Parts of the complaint not investigated Part of Miss X’s complaint is that her son did not have education and provision in the time that was appealable to the tribunal.
I have not investigated this part of Miss X’s complaint as it is not separable from the matters complained about to the SEN tribunal.
Investigator's decision on behalf of the Ombudsman