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London Borough of Bromley (21 011 678)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 19 Jun 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to secure alternative education, including provision from his son’s Education, Health and Care plan, after it found out in June 2021 that his son was no longer able to attend school. The Council was at fault for the delay in securing alternative provision for Mr X’s son. The Council agreed to remedy the injustice its actions caused to Mr X and his son.

The complaint

  1. Mr X complained about how the Council handled his son, S’s, education and special needs provision. He said the Council failed to:
    • ensure his son received all the provision specified in his Education, Health and Care (EHC) plan;
    • arrange alternative provision for his son once it found out in June 2021 that his son was not accessing the education it commissioned for him; and
    • secure a place in a suitable school that met his son’s needs after the annual review the school held for him in July 2021.
  2. Mr X said that, because of the Council’s failures, his son missed out on education and specialist support which he needs and is entitled to under his EHC plan. He also said the lack of support for his son caused him avoidable distress which resulted in him having to take time off work.
  3. Mr X wanted the Council to secure a suitable school place for his son without any further delay. He also wanted the Council to remedy the injustice the lack of support caused to his son, and apologise for not upholding his complaint.

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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. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. 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)
  4. 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.
  5. 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)

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How I considered this complaint

  1. As part of the investigation, I considered:
    • the complaint and Mr X's comments;
    • the Council’s comments on the complaint and the supporting information it provided; and
    • relevant law and guidance.
  2. Mr X and the Council had an opportunity to comment on a draft of this decision. I considered their comments before making a final decision.
  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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What I found

Alternative provision

  1. Under Section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
  2. The Children, Schools and Families Act 2010 says that a suitable education means a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours, depending on the child’s age.
  3. The Government’s statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It says Council’s must:
    • have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy must make links with related services in the area, such as the Special Educational Needs and Disability Service (SEND), Children and Adolescent Mental Health Service (CAMHS);
    • have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
    • not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
  4. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
  5. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states 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”.
  6. The statutory guidance ‘Alternative Provision’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
  7. The Ombudsman issued a focus report in September 2011 amended in June 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including that they:
    • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
    • consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
    • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
  8. The report says local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

Annual Reviews

  1. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says:
    • councils should arrange for EHC plans to be reviewed at least every 12 months;
    • if a child attends a school, a council can ask the school to carry out the review;
    • within two weeks of the review meeting, the organisation arranging the review must prepare and send out a report setting out any amendments to the EHC plan it is recommending;
    • within four weeks of the review meeting, a council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision;
    • if the plan needs to be amended, a council should start the process of amendment without delay; and
    • a council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
  2. When changes are suggested to the draft EHC plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
  3. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
  4. In any case the Council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

What happened

  1. In December 2017 the Council arranged for S to attend School A, a mainstream primary school. At the time the school told the Council that it could meet S’s Special Educational Needs (SEN).
  2. S’s EHC plan for June 2021 said he needed:
    • a high level of adult support, with 1:1 support throughout the day;
    • small peer group and individual support to help him develop independent skills;
    • daily literacy support through a bespoke program offering regular review and feedback;
    • at least one hour per week of support from a specialist teacher with additional training and expertise in dyslexia;
    • 1:1 support during lunch times to help S develop and maintain relationships;
    • speech and language therapy;
    • therapies such as Lego Therapy or theraplay to allow S to take on different roles within a group;
    • half termly targeted input from a specialist teacher trained in dyscalculia; If after a period of six months S had not made the progress, this was supposed to increase to at least one hour per week;
    • access to touch typing service three times a week for ten minutes; and
    • access to alternative methods to record his ideas such as worksheets, laptop, voice to text.
  3. In April 2021, School A began to have problems with managing S’s behaviour. Mr X spoke to the school and agreed S was not managing full school days. Mr X agreed a temporary part-time timetable would be in S’s best interest and lower S’s anxiety. The school and Mr X hoped that, with time, this would allow S to increase his timetable to a full time one.
  4. In May 2021, School A emailed the Council and asked for further advice about how to best manage S’s difficulties with accessing education. It told the Council that it had not received S’s final EHC plan from the previous EHC annual review held in January 2021.
  5. In June 2021 School A arranged an interim review of S’s EHC plan. Mr X agreed a review was necessary because the part-time timetable was not having the effect on S the school and he hoped for.
  6. During the review meeting in July 2021, both the school and Mr X agreed that S needed to change school, as the current placement was no longer suitable for his needs. The review also considered if S could access online learning or a pupil referral unit, but these were believed not to be suitable. Mr X said it was unlikely that S would go back to the school, as it was not in his best interests. The school’s Special Educational Needs Coordinator (SENCO) agreed with him.
  7. The minutes from the meeting show the following was agreed by the attendees:
    • The current situation was not suitable for S or his parents.
    • S required a new school placement.
    • S was not able to access online learning, it would have to be a face to face 1:1.
    • S needed a new assessment by an experienced Educational Psychologist.
    • The Council should send the updated EHC plan without a further delay.
  8. In July 2021 the Council consulted with four schools to see if they would be able to meet S’s needs, however all four consultations were unsuccessful.
  9. In August 2021 Mr X asked the Council about the progress in finding S a new school placement. At the end of the month the Council told Mr X it considered S should remain at the current school to see if it can meet his needs with further support from the professionals at the Council. It also told him that at the time it would not consider commissioning a place outside of the Council’s area.
  10. In September 2021 the Council issued a final EHC plan following the interim review in July 2021. The plan continued to name School A.
  11. A few days later Mr X wrote to the Council and complained:
    • S was not accessing a full-time education;
    • the school was not providing specialist dyslexia and dyscalculia support for S, as named in section F of S’s EHC plan; and
    • S was not participating in a normal school day and had no social interactions with his peers and teachers, which was negatively impacting his social skills.
  12. Mr X asked the Council to consult with other schools and secure a placement for S as soon as possible. He explained the lack of support was have a significant impact on both S and Mr X’s family, including S’s anxiety, his behaviour getting worse and falling behind his peers.
  13. In October 2021, S stopped attending the school, because of his anxiety.
  14. Around this time, the Council responded to Mr X’s complaint and said that:
    • it commissioned a place at School A because it said it could meet S’s needs. The Council believed this was the case until March 2021;
    • it only found out S was on a part-time timetable in late June 2021, when the school sent out documents and called for an interim EHC plan review;
    • since the interim review in July 2021 the Council visited the school and advised it how to manage S’s behaviour;
    • the Council has consulted with other local schools, but none of them could meet S’s needs;
    • the school told the Council that the high level of S’s anxiety meant that he could not access any education until this was addressed;
    • it was carrying out a social assessment of S, and the Council felt it was not a good idea to move S to an alternative setting until this was finalised;
    • Mr X should speak to school about the dyslexia and dyscalculia support it was providing for S; and
    • it accepted that when S was on a part-time timetable, he could not access all of the services to meet his SEN needs, but the Council expected the school to continue supporting his SEN needs until it can secure another school placement.
  15. Between September 2021 and October 2021 the Council did not consult with any schools to see if they would be able to offer S a school place.
  16. Mr X appealed the September 2021 plan to the SEND tribunal in October 2021 and the Council acknowledged he had appealed. The following month, Mr X complained to the Ombudsman about the lack of education and SEN provision for S.
  17. The Council then consulted four further schools, and another two the following month. None of the schools offered a place for S.
  18. In February 2022 Mr X confirmed the Council had agreed to fund 1.5 hours of weekly personal tuition for S together with art therapy. The tuition was to be delivered at S’s home.
  19. In March 2022 the Council consulted another three schools to see if they would be able to offer a place to S.

Analysis

  1. The Council first knew S was not accessing full time education in June 2021. The evidence suggests the Council believed School A was suitable for S at the time and named School A in the September 2021 EHC plan. However, the Council failed to arrange any alternative provision for Y until February 2022. I am satisfied the Council failed to properly consider its duties to arrange alternative education under section 19 of the Education Act 1996. This was fault.
  2. The evidence also shows that Y did not receive the full provision named in his EHC plan during that time. Although the Council told us it believed School A was providing this to S, our focus report “Out of sight…. out of mind?” says that councils should not assume that schools shoulder the entire responsibility for a child’s education. The Council had reason to believe from June 2021 that S was not getting all the provision in his plan. This was a breach of the Council’s duty to secure that provision and was fault.
  3. This meant that S went without suitable full-time education and all the provision in his EHC plan between June 2021 and February 2022. The fact that S missed out on essential support means that an already vulnerable young person was further disadvantaged.
  4. The lack of provision had a significant personal impact on both S, and Mr X. It caused them distress and worry, both about when S would get the support he should receive and about where he would attend school.
  5. Additionally, Mr X complained about the Council’s failure to secure a suitable school placement, following the annual EHC plan review that took place in July 2021. At the review, the previously commissioned school told the Council that it was no longer able to meet S’s SEN needs.
  6. The Council’s records show that between July 2021 and March 2022 it consulted with 13 schools. In that period there were two two-month gaps when the Council did not consult with any schools. We consider this to be a further delay and fault contributing to Mr X’s frustration and uncertainty. However, I cannot say, even on balance of probabilities, that the Council would have found named a different school for S had it consulted more quickly. Therefore, I cannot say that that Mr X’s tribunal appeal would have been avoided.

Remedy

  1. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300.
  2. I am satisfied the distress and uncertainty caused to Mr X justifies a financial remedy after taking into account:
    • the delay in securing alternative provision for S between June 2021 and February 2022;
    • failure to ensure that S received the support and equipment listed in section F of his EHC plan; and
    • the avoidable time and trouble in Mr X having to complain about the Council’s actions.
  3. The Council should also pay Mr X a remedy to recognise the likely loss of education, including SEN provision between June 2021 and February 2022. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. Considering S’s needs, the stage of his education and the support he missed, I am satisfied that £400 a month would be the appropriate figure.

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Agreed action

  1. Within one month of the date of my final decision, the Council will:
    • pay Mr X £3,200 to recognise the education and therapy S is likely to have missed because of the delay in securing alternative provision June 2021 and February 2022;
    • pay Mr X £300 to recognise the avoidable distress and uncertainty caused by the Council’s delay in securing alternative provision for S;
    • pay Mr X £100 to recognise the avoidable time and trouble he was put to by having to complain to the Council about the lack of SEN and educational provision for S; and
    • review the tuition the Council put in place for S in February 2022 and decide whether it suitable to his needs and meets his entitlement to a full-time education. The Council should let Mr X know what decision it made about this.
  2. Within three months of my final decision the Council will review its alternative provision policy and procedure to ensure it promptly secures alternative provision for children who do not have access to full-time education at school.

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Final decision

  1. I have completed my investigation. The Council was at fault for the delay securing alternative provision for S after it found out in June 2021 that he was no longer attending his commissioned school placement.

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Investigator's decision on behalf of the Ombudsman

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