The Ombudsman's final decision:
Summary: Mr C complains the Council failed to fulfil its duty to ensure his daughter (D) had access to full time education. Mr C says this resulted in a loss of education for his daughter and additional difficulties and distress to her and his family. We have found delay by the Council in arranging education provision but consider an apology and payment provides a suitable remedy.
- The complainant, whom I shall refer to as Mr C, complains the Council failed to fulfil its duty to ensure his daughter (D) has access to full time education. He says the Council’s failure to do so has resulted in a loss of education for his daughter and additional difficulties and distress to her and his family.
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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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)
How I considered this complaint
- I read the papers provided by Mr C and considered some information from the Council. I have provided a copy of this information to Mr C. I explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.
What I found
- Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them” (Education Act 1996, section 19).
- 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 16(6)).
- Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
- Councils must arrange suitable full-time education for permanently excluded pupils from the sixth day of exclusion (The Education (Provision of Full-Time Education for Excluded Pupils (England) Regulations 2007).
- The guidance says if a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
Special educational needs
- A child with special educational needs may have an Education, Health and Care (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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- Local authorities have a duty to arrange for the special educational provision set out in an EHC Plan (Children and Families Act 2014, section 42).
Impact of COVID-19
- The Coronavirus Act 2020 (Schedule 16) means the council’s duty, under Section 19 of the Education Act to arrange for exceptional provision of education does not apply where the school or year group concerned is closed. The council does not have to continue to offer education at the particular placement the child normally attends if it is closed. Where a child has home tuition as a consequence of section 19 this would continue to apply.
- On 30 April 2020 the Government issued new guidance about changes to the law, which temporarily relieved councils of their duty to arrange provisions in EHC Plans (section 42 of the Education Act). The new legislation was enacted on 1 May. This meant councils were only required to make ‘reasonable endeavours’ to arrange SEN provision. This power lasted until 31 July 2020, after which point the absolute duty to arrange SEN provision was reinstated.
- The Government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ on 30 April 2020. The guidance notes it may be difficult to provide all elements of support in an EHC Plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
- If it is not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered include the availability of those who should deliver what is needed and whether anything can be done differently to deliver provision.
- The guidance provides examples of the types of alternative arrangements that may be made including moving to a part-time timetable, change in placement to another school; reduced class sizes; specialist teachers providing advice and support to parents; widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
- Mr C’s daughter (D) attended one primary school from September 2017 to August 2019. D then attended a different primary school from September 2019. Mr C says D was isolated and only received part-time teaching at the school. The Council confirmed D was receiving a part time timetable in October.
- The school put in place a pupil reintegration plan. The plan was dated 15 October 2019 which was due to end on the 20 November 2019 with weekly reviews. The agreement was signed by D’s family on 7 November 2019. The Council’s inclusion advisor visited the school at the end of November to highlight the need to put in place a plan to increase D’s timetable.
- D has a diagnosis of attention deficit hyperactivity disorder (ADHD) and autistic spectrum disorder (ASD). The Council received a request for an EHC assessment on 26 November 2019.
- D had a managed move to a different primary school in early January 2020. Mr C contacted the Council at the end of January about concerns over D’s timetable and exclusions. The placement was ended in early February as the school was not able to meet D’s needs. D returned to her previous school but was immediately excluded.
- The Council sent a section 19 letter to D’s family on 10 February and became responsible for providing appropriate education at home or in an appropriate setting from 11 February. The Council confirmed it would make a tuition referral until a short stay school placement could be found.
- The Council initially made a referral for three full days tuition each week. The tuition service advised it could not offer three full days and so the Council sent an amended request for four or five half days on 12 February.
- The Council visited D’s family with the tuition service on 24 February after the school half term. The family sought tuition away from the home for D.
- D’s tuition started in early March. This was cancelled by D’s parents after four sessions.
- The Council met with D’s parents on 11 March when it was discussed that full time tuition was not currently suitable for D and it was agreed that a part time timetable should be started initially and to build this up to full time on a timetable that met D’s needs.
- The Council issued the EHC Plan on 19 March 2020. This recorded interim educational provision at a short stay school pending identification of a long-term placement.
- The Council started a series of consultations with local specialist schools and has provided the reasons why individual schools could not meet D’s needs or did not have available places.
- The Government announced the national lockdown on 20 March including the closure of schools from 23 March.
- The Council sought a therapeutic assessment for D on 20 March but the service was not accepting any new referrals due to the lockdown restrictions.
- The Council contacted the family to explain D would remain on roll at her old school (although not attend) to enable access to alternative provision. It was also explained that this would be difficult to access due to the school closures under COVID-19 restrictions. The tuition company offered the possibility of remote support but this was declined. The Council offered home learning packs which were declined. The Council subsequently provided learning resources and a printer to D’s parents and completed weekly welfare checks by telephone.
- A place became available for D at a short stay school from 27 April.
- The Council reviewed the EHC Plan in July and issued an amended Plan on 28 September 2020. This names a short stay school as interim provision pending identifying a long-term placement. This Plan included a recommendation for lego based therapy.
- The Council received notification that D’s parents were appealing the EHC Plan on 12 October as they were unhappy with the named school.
- Mr C raised concerns with the Council about D not receiving the therapy included in her EHC Plan. The Council contacted the school which had its own in-house therapy and noted the school had not able to provide this for periods when the staff member had to shield due to being vulnerable but this was to restart. Mr C says this therapy was still not being provided at the time of an earlier draft of this statement. I reminded the Council of its responsibility to secure the provision of therapy as included in the EHC Plan if the school remained unable to do so. The Council has received confirmation from the school that D was receiving lego therapy from April.
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- Once a council issues a EHC Plan the Ombudsman normally cannot investigate the education provision as there is a right of appeal the parent can use, unless it is not reasonable to expect them to do so. In this case the Council issued the EHC Plan on 19 March 2020. Mr C had a right of appeal from this date and used this right in October 2020. In these circumstances, the Ombudsman has no discretion and cannot investigate the provision of education to D for the period after 19 March 2020 until the conclusion of the appeal process.
- This leaves the period from October 2019 when the Council was aware D was not receiving full time schooling to 19 March 2020 when the EHC Plan was issued.
- I cannot investigate the actions of the schools involved for the reason set out at paragraph 3 above. I am satisfied the Council took appropriate action to address the part-time timetable and worked with the school to ensure there was a plan to increase D’s timetable including a managed move to a different school. When this placement ended and D was permanently excluded on her return to her previous school in February 2020 the Council arranged a tuition service.
- However, there was a delay in the Council arranging education provision for D between her exclusion in early February and the start of tuition in early March which is fault. D missed a period of education as a result.
- The Council has agreed to the following action to provide a suitable remedy to Mr C:
- write to Mr C to apologise for the delay identified above; and
- pay Mr C £150 in recognition of D’s lost education within one month of my decision.
- I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.
Investigator's decision on behalf of the Ombudsman