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West Sussex County Council (21 000 584)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 19 Jun 2022

The Ombudsman's final decision:

Summary: The Council was at fault for failing to put in place adequate education for a child when he was out of school. The Council was also at fault for failing to put in place the provision listed in the child’s Education, Health and Care plan. As a result the child has fallen behind his peers. The Council agreed to apologise and make a payment for the benefit of the child’s education.

The complaint

  1. Ms X complains the Council did not provide adequate alternative provision to her son while he was out of school from September 2018 until March 2021.
  2. Ms X says her son has fallen behind his peer in terms of education.

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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)

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How I considered this complaint

  1. As part of this investigation I considered the complaint made by Ms X and the Council’s response. I discussed the case over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Law and guidance

  1. An Education, Health and Care Plan (EHC plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
  2. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child 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)
  3. 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). 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.   
  4. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
  5. 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))
  6. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  7. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
  8. 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))
  9. 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)
  10. 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. Evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

  1. There has been extensive correspondence between Ms X, the Council and other third parties since September 2018. In this section of the statement I summarise key events but I do not refer to every single contact and communication.
  2. Ms X’s son Y suffers with Autistic Spectrum Disorder and has other complex needs.
  3. In September 2018, Y stopped attending school. At this time he attended a mainstream school. Y was assessed by CAMHS in September 2018 and CAMHS produced its report in November 2018. This said Y was not mentally fit to attend school and said he needed support for alternative provision. In December 2018 the Council agreed to carry out an Education, Health and Care needs assessment to determine what support Y needed.
  4. The Council referred Y to its Blended Learning programme. This supported young people who could not attend school for medical reasons. This only lasted until January 2019 as Blended Learning pulled out due to Y being aggressive towards the tutor. Y started to receive support from another alternative provision provider in January 2019. Y attended two sessions per week for 6 hours per week with a tutor. The Council also put in place support from Aspens, of one session per week for two hours. The Council’s Intensive Planning Team (ITP) also became involved with Y and Ms X however this support was not educational.
  5. In February 2019 the Council consulted with Y’s school, however his school said it could not meet Y’s needs.
  6. In early April 2019 the Council issued Y’s final EHC plan. This included the following provision:
    • Y would have access to a consistent adult in school who he can turn to.
    • Y will have opportunities to work in small groups.
    • Y will have a broad PE curriculum.
    • Y would receive a minimum of 22.5 hours of support across the school week delivered through the provision specified in the EHC plan.
  7. The EHC plan also said Y’s achievements would be reviewed at least every term.
  8. In April 2019 the Council carried out a placement search for Y and contacted many schools and providers, however only two came back with an expression of interest. This included School A, who the Council consulted with in June 2019. School A agreed to assess Y in the autumn term of 2019. Y started to attend school A with his tutor from the alternative provider two times a week for 20 minute sessions, however after the assessment School A decided it could not offer Y a placement.
  9. In January 2020 the Council held a multidisciplinary meeting in relation to Y. The notes from the meeting showed Y was still on the role at the mainstream school he stopped attending in September 2018, however there was nothing this school could do for Y and the Council were looking at alternative placements. The Council agreed to discuss alternative education options following the meeting. The notes also showed Y’s support from Aspens had ended.
  10. In March 2020 the Council held an Annual Review of Y’s EHC plan. The Council agreed to consult with other schools following feedback from Y’s tutor. Following this the Council consulted with two schools and a placement option for Y. This was unsuccessful as one of the schools could not offer Y a placement. The alternative provider discussed, with the Council, the possibility of offering Y a package, however this broke down due to concerns about Y when he visited the setting.
  11. The Council held another multidisciplinary meeting regarding Y in June 2020. The Council also referred Y to SENSE learning who offer bespoke packages of support to children with complex needs.
  12. In August 2020 the Council held a multidisciplinary meeting. The notes showed a further two schools the Council previously consulted with could not offer Y a placement. The Council agreed to discuss Y’s education after SENSE learning assessed him. SENSE learning assessed Y but did not feel they had a staff member who would be a good fit for Y.
  13. In September 2020 the Council carried out a placement search for Y, again contacting schools and providers. In October 2020 the Council consulted with seven schools. Y had an assessment at one school, School B, but School B said it could not offer Y a placement.
  14. In December 2020 the Council carried out a further placement search, contacting schools and providers. The Council also consulted with School C, an independent specialist school, who agreed to offer Y a placement.
  15. The tutor who had been assisting Y since January 2019 offered to increase his hours and put in place a package of support for Y at an educational setting, in December 2020, due to the hiring of extra staff. The Council did not accept this offer as there were concerns about the provider appearing to set up as a school when it was not one. In addition, Y was making progress to commencing his placement at School C.
  16. In March 2021 Y started to attend School C with the support of his tutor. The Council issued Y with an EHC plan naming School C in April 2021.

Ms X’s complaint

  1. Ms X complained to the Council in December 2020 that the Council had not provided Y with suitable education since he stopped attending school and had not found him a school placement.
  2. Ms X re-submitted her complaint in February 2021 as she had not received a response. The Council merged this complaint with a previous complaint Ms X made, in August 2020, about another matter concerning Y’s tutor not being able to use his hours to take him to a museum. The Council told Ms X she could add this complaint onto her complaint from August 2020, which she had already received a stage one response to.
  3. Ms X was unhappy with this and contacted the Ombudsman. After making enquiries with the Council, the Council agreed to consider this complaint through its complaints process.
  4. In May 2021 the Council provided Ms X with its stage one response. The Council said it appeared Y was not well enough to access full time education. The Council said it put in place some provision for Y but due to his behaviour the provision stopped. The Council said it had looked for a placement for Y but the providers it contacted were unable to offer Y support.
  5. Ms X asked the Council to consider her complaint at stage two. Ms X said:
    • The Council failed to provide Y with full time education since September 2018. She said the tutor Y had offered to increase his hours.
    • She disputed the Council’s view that Y was too unwell for full time education and there was no evidence to support this. Ms X questioned what other professionals stated Y was unable to access full time education.
    • She disputed CAMHS letter to Y school said Y was not fit for school.
    • She disputed that Aspens withdrew support for son because Y was aggressive.
  6. The Council provided its stage two response in July 2021. The Council said:
    • It agreed the CAMHS letter to his school did not say Y was not mentally unfit for school. The Council said it found no evidence of a professional saying Y was unfit for school and upheld this part of Ms X’s complaint about terminology used.
    • The messages from Aspens in the meeting notes were mixed and it could conclude why Aspens ended its involvement with Y.
    • On 4 October 2019 a letter from CAMHS says the focus should be on re-integrating Y into school. The Council said the work it did with Y was to focus on getting him back to school. It also said it kept looking for an alternative placement.
    • It did not refuse to allow Y to access full time education. The Council said the views of professionals involved was that it would be a long process to help Y to a position where he would be able to access formal education. The Council said it sourced alternative provisions to continue Y’s education. However attempts at increasing the provision with alternative providers were not successful.
  7. Ms X remained dissatisfied and complained to the Ombudsman.

Fault

  1. Ms X complains the Council did not provide Y with adequate education when he was not at school, and this should have been full time provision.
  2. From September 2018 Y stopped attending school. The Council correctly intervened to put in place home tuition from Blended Learning, this was subsequently moved to another provider after concerns were raised about Y’s behaviour towards the tutor. Such provision should have been full-time (or equivalent to full-time through concentrated one to one tuition) and on a par with education received by Y’s peers in school unless Y was only medically able to manage part-time education.
  3. In the stage one response the Council said it did not think Y could handle full time education. The decision as to how many hours a pupil with medical needs can manage is one for a relevant medical professional, not for the Council. If a Council wishes to provide education which is less than full-time then it should do so only on receipt of medical advice supporting this.
  4. The Council did receive medical advice that Y was not able to attend school. CAMHS said alternative provision needed to be put in place for Y. However this advice failed to state how much education Y could manage. The Council did not seek to clarify the advice. This is fault. The presumption therefore is Y should have received full-time education or equivalent. Failure to provide this is fault.
  5. After Y stopped attending school he received 6 hours of education which was later upgraded to 8 hours per week. The range, quality and amount of tuition provided by the Council does not meet that required by the law and statutory guidance because six to eight hours tuition per week cannot be considered equivalent to full-time. While full-time is not currently defined in the law and guidance and one to one tuition is more intense and concentrated, six to eight hours was not enough to provide Y with an education on a par with his peers.
  6. In addition to education, Y did not receive the provision set out in his EHC plan. I do not consider it was reasonable to expect Y to access this provision at the school he was registered with as the Council had accepted this could not meet his needs and was looking for an alternative school placement.
  7. Ms X also complained the Council delayed in providing Y a school placement. I recognise it took a long time for the Council to find Y a school placement, however the Council did consult with many schools and assisted Y to have an assessment with at least three schools who confirmed they could potentially accommodate him. Therefore while it took a long time to secure Y a school place, I am satisfied the Council was actively looking for a suitable placement. The failure by the Council was not ensuring Y received appropriate provision while out of school.
  8. The Council was also at fault for how it handled Ms X’s complaint. Ms X initially complained to the Council in December 2020 and again in February 2021 that Y was not receiving full time education while out of school. The Council initially attempted to merge this with a previous complaint from August 2020. This complaint was about something different. As a result, Ms X contacted the Ombudsman for assistance with complaining to the Council.

Injustice

  1. Y has suffered a loss of educational provision from the Autumn term of 2018 until the spring term of 2021. In addition he did not receive the provision in his EHC plan from April 2019, causing him to fall further behind.
  2. The Ombudsman’s guidance on remedies recommends a payment in acknowledgement of lost education of £200-600 per month.
  3. In considering an appropriate figure I recognise the Council has provided part-time education to Y during this period. In addition I recognise when the Covid 19 pandemic occurred in March 2020 the Government introduced guidance for children with EHC plans, therefore I have taken account of the fact the Council may not have been able to provide the provision in Y’s EHC plan from March 2020 to September 2020. I also recognise the Council did look for alternative providers for Y, particularly from July 2020, and that some providers such as Blended Learning ended their involvement with Y due to his behaviour. I therefore consider £300 per month would be an appropriate figure for the loss of education and special educational provision to Y from October 2018 to February 2021.
  4. Ms X has also been put to additional time and trouble pursuing a complaint to resolve this matter. Ms X complained initially in December 2020 and had to approach the Ombudsman early due to difficulties progressing through the Council’s complaints procedure. Had the Council dealt with Ms X complaint appropriately when she raised it, she would not have needed to contact the Ombudsman to obtain a response.

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Agreed action

  1. Within one month of my final decision, the agreed to carry out the following and provide evidence to the Ombudsman it has done so:
    • Apologise to Ms X for the faults identified.
    • Pay Y £8,100 for failing to provide suitable education, the payment should be paid into an account in Y’s name but under parental control and used for Y’s educational or social benefit.
    • Pay Ms X £100 for her time and trouble pursuing the complaint.

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Final decision

  1. I have completed my investigation and found there was fault by the Council which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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