Summary: there is no fault by the Council in relation to the action it took to provide Y with education between May 2017 and January 2019. The Ombudsman cannot look at education provision from January 2019 because Ms G exercised her right to appeal to the SEN Tribunal at that time.

The complaint

1. The complainant, whom I shall refer to as Ms G, says the Council has failed to make any educational provision for her son, Y, apart from around three weeks online and home tuition since he was permanently excluded from primary school in 2017.

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The Ombudsman’s role and powers

2. A child with special educational needs may have a Statement of Special Educational Needs (statement) or an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. These documents are set out in sections. We cannot direct changes to the sections about education or name a different school. Only the First Tier Tribunal can do this.
3. We can consider the other sections of an EHC plan or statement. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
4. The Council is responsible for making sure that arrangements specified in the EHC plan or statement are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
5. We have no jurisdiction where a parent has appealed to the SEND Tribunal from the date the appeal right arises until the appeal is completed. We cannot look at any loss of education or fault during this period which is a consequence of the decision being appealed.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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

8. I discussed the complaint with Ms G and considered the information she provided with her complaint. I made two sets of written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
9. I gave the Council and Ms G the opportunity to comment on my draft decision and took account of their responses before reaching my final decision on the complaint.

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What I found

What should have happened

10. If an EHC assessment leads to a decision to issue a Plan the Council has a duty to issue it and to ensure the provision in the Plan is put in place. It must ensure the Plan is reviewed annually and implement any changes from the review.
11. The Education Act 1996 (Section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made the duty full-time from 1 September 2011.

What happened

Background

12. Y is 11 years old and moved up to school year 7 in September 2019. Y is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and has also had a diagnosis of an Autistic Spectrum Disorder (ASD) since June 2018.

School/education provision

13. The Council says its records show that Y was permanently excluded from his mainstream primary school in May 2017.
14. The Council says that Y attended a Pupil Referral Unit (PRU) which is described as a short stay provision for children struggling to manage in mainstream schooling, from mid-June 2017 until early January 2019.   Ms G says that Y was permanently excluded from the PRU in January 2019 but the Council says he left before this happened but agrees that the PRU intended permanently excluding him. The notes of an annual review of the EHCP state that Y did not attend the PRU from May 2018.
15. Copies of emails between the PRU and the Council in April 2018 demonstrate that the PRU was telling the Council then that staff were struggling to manage Y’s violent and aggressive behaviour and that he had been given a number of fixed term exclusions and was heading for permanent exclusion. The emails show that the PRU was asking the Council when it would identify a long term suitable school placement for Y and telling the Council that this needed to be expedited.
16. A further email from the PRU to the Council in September 2018 states that whilst Y remained on roll at the PRU the PRU had concerns about Y’s long term placement. The PRU states in the email “As you are aware we had to remove provision due to his high levels of aggression and violence. I understand that Virtual Learning was put into place whilst a specialist placement was sourced. As far as I am aware this has not yet been done and I understand that he is no longer participating in the virtual learning. I need to know exactly where we are in relation to his next setting as we need to remove him from our roll, but more importantly we need to ensure his needs are being met”.
17. Between May and October 2018 the Council says it approached nine special needs schools for a school place for Y. Unfortunately none of these was able to offer him a place.
18. Copies of email exchanges between Ms G and the Council in July 2018 demonstrate that in mid-July the Council told Ms G it intended approaching three schools. One of these schools was the one that Y started attending in September 2019. At that time Ms G said she was particularly interested in one of the other three schools. She then chased the Council to see if the school had responded in later July and August. Email correspondence between Ms G and the Council in December demonstrate that this school did not consider it was able to meet Y’s needs so did not offer a place.
19. Emails demonstrate that the Council had approached a total of 15 schools for a place for Y by early December and the then another four from January 2019.
20. In December Ms G told the Council in an email that she considered the schools it had approached were too far away and asked it to contact two nearer schools that she had identified. She also said that she considered the schools approached were more behaviourally focussed than ASD (though the ASD diagnosis was not taken into account in the EHCP as it post-dated that assessment). In response, the Council’s special educational needs officer stated that she was aware that neither school had spaces and that they did not cater to Y’s identified needs but confirmed she would make a formal approach if Ms G wanted this. She refused a visit to another school as she considered it too far away. The records confirm that having been approached neither of the schools Ms G asked the Council to approach agreed they could meet Y’s needs.
21. The Council’s chronology states that it offered Y access to virtual learning in September 2018. Ms G says this was in fact offered in June 2018 and Y tried it for a couple of weeks but she told me he found it difficult to manage due to his special needs. The email from the PRU in September confirms that it was aware that Y was no longer participating in the virtual learning. Ms G says that after the virtual learning the Council put in place a tutor who came to the family’s home but says this did not work well either as the tutor did not visit at the same time and this didn’t provide the routine that Y requires due to his autism. Ms G says the virtual learning and tutoring provision was for two hours a day. An email from the Council to Ms G in October confirms that this offer was made again in September/October. In October Ms G emailed the Council to say that Y did not want the tutors to come out, was having “meltdowns” about it, that he wouldn’t do the work and that they were unable to go out because the tutors came at different times. In response, the Council urged her to consider the offer again as it was important for Y to receive education while it sought a school place, would help with his reintegration back to school and the officer reassured her that the Council would continue to seek a school place. I have seen no further response from Ms G on this but do note that in her later complaint to the Council Ms G says that such provision was not suitable for Y.
22. The Council says it told Ms G that on-line learning and home tuition were available for Y after he left the PRU in January 2019 but that Ms G did not want to pursue this for the reasons described above. Ms G confirms she was offered this.
23. Following the annual review meeting in January 2019 the Council approached three of the schools already approached again at Ms G’s request. Unfortunately, having been approached again, they advised they did not have space for Y.
24. In the Summer of 2019 the Council offered a place at Q school which Ms G was happy with and this was named on his EHCP in July 2019. This place was agreed to start in September 2019.

EHCP

25. The Council says Y was attending the PRU when the request for an EHCP assessment was received in October 2017 and it agreed to this request in November 2017.
26. The Council says the draft EHCP was issued in February 2018 and the final EHCP in April 2018. A specialist placement was recommended but a specific school was not named.  The Council sent Ms G the final EHC Plan in April 2018 and a covering letter telling her that she had a right of appeal to the SEN Tribunal. Ms G did not appeal to the Tribunal and the Council approached schools for a place for Y from May. Y remained on roll at the PRU but it seems he did not attend after May 2018 and this appears to be because the PRU was unable to manage his behaviour and were clear that he needed to be in a specialist placement.
27. Copies of email correspondence provided by Ms G show that in December 2018/January 2019 she started to raise concerns that the EHCP did not properly reflect Y’s needs and that she considered this was the reason none of the schools approached would offer a place. The diagnosis of ASD was reached after the EHCP was issued in April 2018.
28. Following Ms G’s request, the Council arranged an emergency annual review of the EHCP in January 2019. This resulted in a revised final EHCP being issued in February 2019. Ms G did appeal against the failure to name a school in this EHCP but withdrew her appeal when, in July 2018, the Council agreed to name Ms G’s preferred school on the EHCP from September 2019.
29. The Council says that its intention was that Y would remain at the PRU until a school placement could be found but before a placement was secured the PRU was going to permanently exclude Y and so Y left the PRU in January 2019 to prevent this.  The Council says that Y was on roll at the PRU until January 2019. It says that before this Y’s attendance had been a concern though he was still on roll but was at risk of permanent exclusion as a result of having been issued with a number of fixed term exclusions before that.
30. So it seems the Council had been unable to find a suitable school placement for Y between May 2018 and January 2019. Between April 2018 and January 2019 it had consulted around nineteen special needs schools for a place for Y.
31. From January 2019 to July 2019 Y did not attend school and Ms G did not accept a further offer of virtual learning/home tuition.

Ms G’s complaint to the Council

32. Ms G complained to the Council in December 2018 and the Council provided its response to this in February 2019. In its response the Council said that it had approached three schools following the update to the EHCP. The Council said that two of these had already said that could not offer a place at that time and a third was still considering. The Council also said that before this the Council had approached around 20 other schools for a place for Y but had not been successful. It further said that as many of these school were not schools over which the Council had any authority (for example, because they were independent schools) they could not challenge refusals from these schools. In response to Ms G’s assertion that Y was unable to manage the tuition due to his needs, the Council said that the tutors had considered that Y had progressed well whilst receiving the tutoring and that they felt the sessions had gone well. The Council said that when Ms G had said that Y found the sessions worsened Y’s anxiety, an officer at the Council had contacted her to discuss this. The Council’s response urged Ms G to agree to Y undertaking home tuition again whilst it continued to seek a place. The letter told Ms G that she could complain to this office if she was dissatisfied with the Council’s response.

Was the Council at fault and did this cause injustice?

33. It is not the case that the Council has failed to provide any education for Y since he was permanently excluded from primary school in 2017.
34. In its comments further to my enquiries the Council said “The Council acknowledges that there has been delay in determining an appropriate placement for Y. In acknowledging the delay the Council observes that the family were not amenable to some of the alternate interim provision on offer during the period…”
35. Y was in full time PRU from around three weeks after his permanent exclusion from primary school until May 2018. So it appears that Y was provided with suitable education from shortly after he was permanently excluded in May 2017 until around May 2018. There is no fault in its provision of education for Y at the PRU from May 2017 to May 2018.
36. I accept that the Council advised Ms G of her right of appeal to the SEN Tribunal following its issue of the EHC plan in April 2018. Ms G says she did not appeal as she did not understand the process at that time. On balance, though I consider she could have sought advice on this at the time, I accept that this process can be difficult for parents and that this coincided with Y’s PRU placement ending and Ms G has other children to look after and so there are grounds to consider she was not in the best position to pursue an appeal to the Tribunal at that time. I will therefore my exercise discretion to consider the period between May 2018 and January 2019 when the EHC plan was amended. Y received no educational provision during this period.
37. Whilst Y remained on roll at the PRU after May 2018 he did not attend. In the weeks after Y stopped attending the PRU I understand from Ms G that Y was provided with online/home tuition. Ms G said to me that this provision was not very successful for Y because it did not work well for his special needs. Unfortunately this is not what she said to the Council in October 2018 when she said Y did not like it and refused to do the work. It does not seem that it was until she complained later on that she suggested it was unsuitable for Y. I accept that the Council approached a large number of special needs school for a place for Y between May and December 2018. Unfortunately, none of these could offer a place. That these schools could not offer Y a place is not the Council’s fault and it had offered virtual learning and home tuition in the intervening period. Even if the virtual learning and home tuition were not ideal for Y the Council did attempt to make provision for Y and I am unclear what else it could have offered, particularly as there is no evidence that Ms G said that the tuition did not meet Y’s needs and why she could not accept it until she complained in late 2018. I therefore consider it attempted to meet its duties to provide Y with suitable education. So, whilst I accept therefore that Y did not receive education during the period May 2018 to January 2019, I do not conclude that this should be considered the result of fault by the Council.
38. Ms G appealed against the failure to name a place in the amended EHCP issued following the annual review in January 2019. After someone appeals to the Tribunal our jurisdiction is restricted as we cannot look at matters which are inextricably linked to the matters being appealed to the Tribunal. In this case, the matter being appealed related to the school provision and the matter I am being asked to consider is also linked to the provision of education. So, it seems these are inextricably linked and so I cannot consider the non-provision between January 2019 when the appeal was made and July 2019 when the Council agreed to name the school within the Tribunal process. Even if I could consider this period the evidence suggests that the Council again offered the virtual school/home tuition in January 2019 and to pursue a school place in March but Ms G refused these offers. So, even if I could consider this issue further it is unlikely I would consider the Council was at fault during the January to July 2019 period.
39. Ms G says she was unhappy with the Council’s communication with her regarding Y’s school placement. I have seen copies of some emails which demonstrate that Ms G was communicating with the Council and expressed satisfaction with the caseworker’s actions and communication with her. I consider the Council was trying to find a suitable placement as I have addressed above. I accept that Ms G was unhappy with the caseworker’s communication with her but do note that the caseworker’s manager responded to emails in some instances and, whilst it may be the case that there could have been more frequent communication, I find no grounds for considering the level of communication was so poor as to amount to fault.

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Final decision

40. There is no fault by the Council in relation to the action it took to provide Y with education between May 2017 and January 2019. I cannot look at education provision from January 2019 when Ms G appealed to the SEN Tribunal for the reasons given.

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Investigator's decision on behalf of the Ombudsman