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Birmingham City Council (20 002 072)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 16 Feb 2021

The Ombudsman's final decision:

Summary: Ms X complained the Council did not provide any alternative educational provision for her son while he was out of school between April 2019 and November 2020. Ms X also complained the Council delayed in identifying an appropriate school for her son and failed to comply with the statutory timeframes for completing his EHC Plan. The Council’s failure to provide Y with alternative educational provision between April 2019 and November 2020 amounts to fault. As does the delay in issuing a final EHC plan. These faults have caused Ms X and Y an injustice.

The complaint

  1. The complainant, whom I shall refer to as Ms X complains the Council did not provide any alternative educational provision for her son while he was out of school between April 2019 and November 2020.
  2. Ms X also complains the Council delayed in identifying an appropriate school for her son and failed to comply with the statutory timeframes for completing his EHC Plan.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Ms X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Ms X;
    • Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education provision

  1. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
  2. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
  3. 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)

Education, Health and Care Plans

  1. 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 council is responsible for making sure that arrangements specified in the EHC Plan are put in place and are reviewed each year.
  2. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in legislation and Government guidance. If a parent asks for an EHC assessment for their child, the local authority must decide whether an assessment is necessary. It must tell the parent its decision within six weeks of receiving the request.
  3. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ says:
    • The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
    • The Council should tell the parents of its decision to assess or not to assess within six weeks of the from the request.
    • The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
  4. Parents have a right of appeal to the SEND Tribunal if the Council refuses to carry out an assessment, or if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

What happened here

  1. Ms X’s son, Y was struggling with the school environment and in 2019 he began to refuse to attend. School 1 implemented a part time schedule for Y, but this did not assist. Due to his significant anxiety, Y stopped attending School 1 in April 2019. School 1 recorded his absence as authorised illness.
  2. Ms X states School 1 did not provide Y with any work to complete at home.
  3. In July 2019 School 1 asked the Council to complete an EHC assessment for Y. The Council considered the request and decided not to carry out an assessment. It stated the evidence suggested Y’s needs were being appropriately met in School 1 and his needs were not so severe as to require additional provision via an EHC plan. Ms X appealed this decision. The Council conceded and agreed to carry out an assessment.
  4. The Council began the assessment in October 2019 and in December 2019 decided not to issue an EHC plan. The Council considered Y’s needs could be addressed via a personal SEN support plan. Ms X appealed this decision.
  5. In February 2020 Ms X also made a formal complaint to the Council that Y had not received any educational provision while he was unable to attend school. Mrs X stated she had asked School 1 for a package of work to complete with Y at home and had recently started to receive a couple of pages each week relating to work covered by Y’s class. School 1 did not provide teaching notes or topic explanations, so Y was unable to do this work. As Y had been out of school for over 200 days, Mrs X questioned why the Council had not provided a tutor.
  6. The Council did not respond to Ms X’s complaint at this stage but conceded her appeal to the Tribunal and agreed to issue a draft EHC plan. Ms X met with council officers and a representative from School 1 in March 2020.
  7. Following this meeting a council officer advised that if Ms X did not provide medical evidence Y was too ill to attend school within a week or so, School 1 should stop sending work home and mark Y’s absences as unauthorised.
  8. Ms X was unhappy with this approach as despite numerous attempts to contact Y’s GP, she had been unable to get an appointment. Mrs X asserted the Council’s requests for medical evidence should take account of the COVID-19 restrictions. She also noted School 1 had already stopped sending work home and that prior to that the work sent home was inadequate.
  9. Ms X’s MP also contacted the Council, at Ms X’s request, to raise concerns about the Council’s intention to prosecute Ms X for Y’s non-attendance if she was unable to provide medical evidence he is too ill to attend. The MP also asked the Council to identify an appropriate educational setting as soon as possible. The Council did not respond to the MP at this stage.
  10. The Council issued a draft EHC plan on 8 April 2020 and asked Ms X to identify which school she would like Y to attend. The Council also consulted its two preferred schools regarding a place for Y. School 1 and the two schools consulted confirmed they were unable to meet Y’s needs.
  11. Ms X instructed solicitors who made representations on the draft plan. They considered there was a lack of detail in sections B and F of the plan and were disappointed the plan did not refer to the professional reports Ms X had commissioned. The solicitors confirmed Ms X’s preference was for School 2 and that School 2 had offered Y a place from September 2020. The Council consulted Ms X’s preferred school, School 2 on 29 May 2020.
  12. Ms X’s solicitors chased the Council for a copy of the final EHC plan in early June 2020. A few days later the Council issued an updated draft EHC plan. Ms X’s solicitors responded raising concerns it still lacked details and was not as comprehensive as they would expect. The solicitors asserted Y had been unable to attend school for a significant period of time because his complex special educational needs could not be address at School 1. They considered the problems would continue if Y were to attend another mainstream school and asked the Council to consider a placement at School 2.
  13. School 2 responded to the Council in June 2020 and confirmed it could offer Y a place from September 2020. The Council did not agree to this placement and instead consulted another special school. Ms X did not consider this an appropriate placement. She informed the Council this school had advised her that Y did not meet its intake criteria. Ms X asked the Council to agree to a placement at School 2.
  14. In July 2020 the Council responded to Ms X’s MP’s correspondence from March 2020. It acknowledged the quality of home learning provided when Y stopped attending School 1 in April 2019 was not optimum and apologised for this. It stated that since then, a pastoral support worker had visited Y at home once a week to support his wellbeing and to hand deliver a learning pack during the COVID-19 lock down period. The Council noted Ms X had asked whether a tutor would be appropriate during the meeting in March 2020, but that she had not directly asked School 1 for a tutor. It also noted School 1 did not have available funding for a tutor, so Ms X would have to privately fund this if she thought a tutor would be beneficial.
  15. In relation to its request for medical evidence that Y was too ill to attend school, the Council acknowledged the timeframe given was unrealistic, given the COVID-19 lockdown. It also confirmed it should not have given Ms X an ultimatum regarding unauthorised absences or being taken to court for non- attendance.
  16. As the Council had not responded directly to Ms X’s complaint, she contacted the Council asking to escalate her complaint to stage 2 of the complaints procedure. Ms X asserted the Council had been negligent in its duty to provide Y with an appropriate education. She stated she had repeatedly requested education support from School 1 since Y began a reduced timetable in March 2019. She also raised concerns about the quality of work School 1 began sending home in 2020.
  17. The Council’s response advised its had intended its response to Ms X’s MP to provide her with further information and apologised for not sending a copy to her directly. The Council reiterated the work School 1 initially provided was not optimum. It noted School 1’s pastoral support worker was now delivering work as part of a weekly safe and well check, but Y was not completing this. The Council suggested Ms X’s refusal to allow the support worker into the house to see Y indicated she was unwilling to engage with or accept help from School 1.
  18. The Council considered School 1 should have sought support from the Council when it realised it was not able to provide effective home-schooling provision for Y. It stated that had it been clear Y would not be attending for an extended period and not returning to School 1, there should have been a prompt referral to the Council’s tuition service. As the Council had not yet secured a placement for Y for September 2020, it referred him for access to home tuition.
  19. As Ms X was not satisfied by the Council’s response, she has asked the Ombudsman to investigate her complaint. Ms X states it was clear that Y’s absence would be long term, until suitable provision was found. She states Y missed half of his Reception year and all of Year 1. Ms X was concerned Y would also miss part of Year 2 as the Council had not finalised Y’s EHC plan.
  20. Ms X complains Y received no educational provision from School 1 until December 2019 when the school began sending home a single sheet of work, which Y could not complete, each week. In March 2020 School 1 then began providing a fuller pack of work, but this was sporadic during the lockdown.
  21. Since Ms X complained to the Ombudsman, the Council has issued a final EHC plan naming School 1. Ms X appealed to the Tribunal and the Council conceded and agreed to name School 2. Y started at School 2 in November 2020. Ms X states she has still not received a final plan naming School 2.
  22. In response to my enquiries the Council states Y was supported at School 1 via the Council’s Communication & Autism Team (CAT). While the Council undertook Y’s EHC assessment he remained on the roll at School 1 and the pastoral support worker provided work for him to complete each week. The Council does not consider there was any delay in providing these services but notes that Y experienced difficulties engaging with the provision.
  23. The Council states Ms X agreed to the Council consulting Resource Based settings where Y could access a greater amount of specialist support, and access mainstream classes. However, Ms X could not identify a Resource Base which she felt would meet Y’s needs and requested a placement at a specialist setting.
  24. The Council acknowledges there was a delay in finalising Y’s EHC plan. It states it issued the draft plan on 8 April 2020 and the final plan on 29 May 2020 and apologises for the delay.
  25. In addition, the Council recognises its communication with parents and children has suffered significant difficulties and delays in recent times. It is working on a programme of improvement to strengthen communication and resolve historic complaints and concerns. It has also identified a member of staff from CAT as a Link Advisor.

Analysis

  1. The law requires a council to arrange suitable education for a child it knows cannot attend school due to medical reasons. The evidence shows the Council was aware of Y’s difficulties at School 1 and that reintegration plans had not assisted him in returning to school. The Council was, or should have been, aware Y stopped attending school on medical grounds in April 2019, yet it did not consider referring him to its tuition service until July 2020.
  2. Y did not receive any work to complete at home until December 2019 when School 1 began providing limited and sporadic work which Y was unable to complete. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
  3. The Council’s failure to ensure Y received a suitable education when he was unable to attend school in April 2019 amounts to fault.
  4. It is also of concern that the Council advised Ms X’s MP that if she considered a tutor would be beneficial for Y, she would need to fund this herself. This is not an accurate representation of the Council’s duty to provide full-time education where a child cannot attend school because of medical reasons. And suggests the Council has not taken account of Y’s individual circumstances.
  5. The failure to provide an alternative education is compounded by failings in the EHC plan process. The Council states it issued a draft EHC plan on 8 April 2020 and the final plan on 29 May 2020. However, the Council’s correspondence to Ms X on 4 June 2020 refers to this latest plan as an amended draft plan. The Council specifically confirmed this was not the final plan and that Ms X could request changes. It is unclear exactly when the Council issued the final EHC plan, but the documentation shows it was still outstanding in July 2020. Ms X was unhappy with the Council’s preferred special school and on 16 July 2020 asked the Council to finalise the plan so that she could appeal to the tribunal.
  6. The delays in issuing a final EHC plan amount to fault.
  7. I also consider there to be fault in the way the Council responded to Ms X’s formal complaint. Although the Council acknowledged Ms X’s complaint in February 2020, it did not respond until July 2020, when Ms X asked for her complaint to be escalated. This is clearly an unacceptable delay and amounts to fault.
  8. Having identified fault, I must consider whether this had caused Y and Ms X an injustice. The Council’s failure to provide alternative provision after April 2019 meant Y has lost out on a suitable education for more than a full academic year. That is a significant injustice.
  9. The delay in finalising Y’s EHC plan and in agreeing to a placement at School 2 compounded this as Ms X was unable to exercise her appeal to the SEND tribunal. It also meant Y was unable to start at School 2 until November 2020 and missed the first half term.
  10. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
  11. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
  12. In determining an appropriate level we will take account of factors such as:
    • The child’s SEN;
    • Any educational provision that was made during the period;
    • Whether additional provision now can remedy some or all of that loss; and
    • Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education.

Agreed action

  1. The Council has agreed to apologise to Ms X and Y for its failure to provide alternative education for Y between April 2019 and November 2020, and the delay in issuing a final EHC plan.
  2. The Council has also agreed to pay Ms X:
    • £7,000, to be used for Y's educational benefit, to acknowledge the impact of the loss of education on Y between April 2019 and November 2020. This amounts to £500 per month and takes into consideration this period included a key milestone in Y’s education.
    • £200 to acknowledge the distress and anxiety they experienced, and the time and trouble Ms X was put to in trying to resolve this matter.
  3. The Council should take his action within one month of the final decision on this complaint.
  4. In addition, the Council has agreed to provide reminders/training to ensure that staff understand the Council’s duty to offer suitable alternative educational provision when children are out of school and not receiving a full-time education.
  5. The Council should take his action within two months of the final decision on this complaint.

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Final decision

  1. The Council’s failure to provide Y with alternative educational provision between April 2019 and November 2020 amounts to fault. As does the delay in issuing a final EHC plan. These faults have caused Ms X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman

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