Summary: Ms X complained the Council failed to provide any education for their child for 13 and a half weeks following exclusion from school. Ms X also complained their child missed free school meals during this time. Ms X also complained the Council failed to secure provision from their child’s EHC Plan. We found fault with the Council failing to provide education to Ms X’s child, failing to provide any funding for free school meals and delays in the EHC Plan process. The Council agreed to apologise to Ms X and pay her £100 for the distress, inconvenience and frustration caused, £1,350 for Y’s missed education and £181.50 for Y’s missed free school meals.

The complaint

1. Ms X complained the Council failed to provide any education to their child for 13 and a half weeks following their exclusion from school in March 2022.
2. Ms X complained the Council has failed to secure provision detailed in her child’s Education Health and Care Plan since 26 April 2022.
3. Ms X also complained the Council’s Stage 1 complaint response contained inaccuracies, it failed to provide financial support offered in the Stage 1 complaint response and it failed to adhere to statutory complaint timescales.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. 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.

Back to top

How I considered this complaint

8. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

Back to top

What I found

EHC Plans

10. 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.
11. The Council must respond to all requests for an EHCP. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.
12. Where there are exceptional circumstances it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
13. The Council can only issue an EHCP after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
14. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHCP meets the needs of the child.
15. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.
16. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Alternative Provision of education for children

17. 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))
18. 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))
19. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
20. The education provided by a council must be full-time unless a 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)
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
22. We made six recommendations. Councils should:
• 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;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
23. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
24. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
25. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
26. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
27. A compulsory school week in the UK is 32.5hours including breaks.

Council complaints procedure

28. The Council runs a two-stage corporate complaints procedure.
29. The Council says its will provide a response at Stage 1 of its complaint procedure within 20 working days of receipt of a complaint.
30. A person may dispute a Stage 1 complaint response if they are not happy with it. They can request consideration at Stage 2. The Council says it will provide a response within 20 working days of a request.

EHC Plan

What happened

31. On 12 December 2021, Ms X made a request for the Council to assess her child, Y, for an EHC Plan.
32. On 20 January 2022, the Council decided to continue with an EHC Plan assessment and confirmed this with Ms X.
33. The Council decided to issue an EHC Plan for Y on 26 April 2022 following its assessment of Y.
34. On 11 May 2022, the Council produced Y’s draft EHC Plan and sent this to Ms X.
35. The Council issued a final EHC Plan for Y on 11 June 2022. The Final EHC Plan detailed that Y was not currently enrolled at a school but detailed the secondary school placement to begin in September 2022. The EHC Plan detailed the support and provision it would provide for Y in the secondary school setting.

Analysis

36. Ms X applied to the Council on 12 December 2021 for an EHC Plan assessment for Y. The Council had 20 weeks from this date to produce the final EHC Plan for Y. This meant, the Council had until 1 May 2022 to produce the final EHC Plan.
37. The Council did not issue the draft EHC Plan until after this date, with the final EHC Plan following six weeks after the 20-week deadline. Failure to issue this final EHC Plan within the 20-week timescale is fault.
38. While this was fault, this did not cause a significant personal injustice to Y. This is because the educational provision detailed in Y’s EHC Plan was specific to the school setting. Since the School excluded Y by 1 May 2022 through to September 2022, Y would not have benefited from the provisions detailed in the EHC Plan had the Council completed this on time.
39. While this delay did not cause a significant personal injustice to Y, Ms X would have experienced distress and uncertainty about when the Council would produce the final EHC Plan.
40. The support detailed in the EHC Plan was due to come into place from September 2022 when Y started secondary school.

Y’s education

What happened

41. Y’s school excluded Y permanently on 21 March 2022. The School confirmed this with both the Council and Ms X. The School told Ms X it would provide education for Y for the first five days and then the Council would arrange Y’s education.
42. The Council did not arrange education for Y so Ms X contacted the Council in May 2022. The Council tried to arrange for Y to attend a Council inclusion centre for his education. The Council’s inclusion centre told the Council and Ms X it does not provide education for children with EHC Plans.
43. Ms X told the Council she would like to take up the offer of home tutoring until the end of the summer term. The Council completed a referral for home tutoring.
44. Ms X complained about the lack of education for Y in her Stage 1 complaint.
45. The Council put in place interim home tuition on 9 June 2022. This home tuition consisted of four hours each week until the end of the academic year.

Analysis

46. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence.
47. 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.
48. Y’s school excluded Y on 21 March 2022 and confirmed it was responsible for Y’s educational provision until 28 March 2022. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before 28 March 2022.
49. Y’s school told the Council about Y’s exclusion on 21 March 2022. It would have been clear from this date that Y would be absent from school for more than 15 days.
50. The Council was responsible for providing Y’s education from 28 March 2022. The Council failed to do this, and this was fault. The Council has accepted this fault and has advised the reason for the lack of educational provision was because of gaps in its process which it has now corrected.
51. From 28 March 2022 to 9 June 2022, Y received no educational provision. When considering the School’s holidays during this period, Y missed about seven weeks of education without any provision.
52. From 9 June 2022 to the end of term, totalling about seven weeks, Y received four hours each week of home tutoring. Education provided by a council must be full-time unless a council decides that full-time education would not be in a child’s best interests. The Council has never determined that full-time education would not be in the best interest of Y. The Council has shown no evidence why it considered 4 hours of home tutoring was suitable education for Y.
53. Y’s home tutoring of 4 hours each week only makes up about 20% of the educational time that Y would have experienced in school, when we consider breaks in the school-day. This amount of home tutoring was not suitable for a child who should have been receiving the equivalent of full-time education.
54. Our guidance on remedies for a loss of educational provision recommends a payment of between £200 and £600 a month to acknowledge the impact of that loss.
55. Y missed about one and a half months of education without any educational provision and about one and a half months with partial educational provision. Y missed this education during a transfer year from primary to secondary school. The Council should pay Ms X £600 for each month without any educational provision and £300 for the month with only partial educational provision.

Free school meals

What happened

56. In May 2022, Ms X contacted the Council and told it since Y’s exclusion she needed to cover the cost of her child’s meals. Ms X said the School used to provide free school meals.
57. On 13 May 2022, the Council told Ms X it believed the School should be providing free schools meals to Y despite the exclusion. The Council said it would speak with the School.
58. Following speaking with the School, the Council told Ms X that Y was not entitled to free school meals because the School had excluded him.
59. Ms X complained about the lack of free school meals for Y in her Stage 1 complaint.
60. The Council told Ms X that Y was not entitled to free schools meals in the Stage 1 complaint response because Y was not enrolled at a school. The Council promised to contact Ms X to discuss any other support in could provide instead of free school meals.
61. The Council did not contact Ms X to discuss this financial support.

Analysis

62. Section 512 of the Education Act 1996 puts a responsibility on the Council to provide free school meals for eligible pupils who are enrolled at a maintained school. These meals should be provided on the school premises or at any other place where education is being provided. Y was entitled to free school meals before exclusion.
63. The School excluded Y on 21 March 2022 but only completed the exclusion process on 8 April 2022. When the School completed this process it backdated Y’s exclusion to 21 March 2022 meaning that Y was not enrolled at a school from this date.
64. The Council has advised that if it had been able to enrol Y at its inclusion centre, Y would have been entitled to receive free school meals. However, this did not happen and Y received no provision until 9 June 2022, followed by home tutoring; neither of which provided free school meals.
65. The Council has accepted that because of the gaps in its process, Y has missed free school meals. The Council has proposed to pay the daily rate of free school meals for every school day Y went without provision totalling £181.50. I consider this suggested remedy suitable to reflect the time Y went without free school meals.

Complaint handling

What happened

66. Ms X made a Stage 1 complaint to the Council on 20 May 2022. Ms X complained the Council had failed to provide education or free school meals for Y since their exclusion.
67. The Council produced its Stage 1 complaint response on 29 June 2022. The Council has not evidenced sending this response to Ms X on this date.
68. Ms X chased the Council for the Stage 1 complaint response and the Council provided this on 18 July 2022. The Council said:
• It offered Ms X a placement for Y at its inclusion centre but Ms X rejected this offer.
• The Council put in place interim home tuition on 9 June 2022 until the end of the academic year and apologised for the delay in getting this put in place.
• As Y was not on roll at a school, Y was not entitled to free school meals.
• It would contacted Ms X to discuss what financial support it could put in place instead of the free school meals.
69. Ms X told the Council she wanted consideration of her complaint at Stage 2 of the Council’s complaints process. The Council responded to advise Ms X needed to outline her reasons for disagreeing with the Stage 1 complaint response.
70. On 4 October 2022, Ms X outlined her reasons for wanting a Stage 2 complaint response. Ms X complained about the delays in putting in place education for Y and the level of this education when this was put in place. Ms X also complained the Council failed to follow up on its offer to provide financial support from the Stage 1 complaint response. The Council promised a response within 15 working days to Ms X’s complaint.
71. On 2 December 2022, the Council provided Ms X with its Stage 2 complaint response. The Council said:
• It apologised for the time Y was without education and said this was because of confusion over who should provide this education.
• Y was not entitled to free school meals because he was not enrolled at an educational institution.
• Y was now on roll at a school with an EHC Plan in place.

Analysis

72. Ms X complained the Council failed to follow the statutory complaints procedure for children’s complaints. The statutory complaints procedure for children’s complaints does not relate to the issues detailed in Ms X’s complaint. The Council handled Ms X’s complaint under its corporate complaints procedure.
73. The Council’s corporate complaints procedure gives the Council 20 working days to provide a response to a complaint at both Stage 1 and Stage 2.
74. Ms X requested her Stage 1 complaint on 20 May 2022 giving the Council until 17 June 2022 to provide its response. The Council did not send Ms X a copy of its Stage 1 complaint response until 18 July 2022, four weeks after the timescales detailed in its complaints procedure. This was fault.
75. Ms X first requested consideration of her complaint at Stage 2 on 18 July 2022. The Council acted suitably to ask Ms X to explain the reasons for her request for escalation to Stage 2 before logging this.
76. Ms X provided her reasons for her request for Stage 2 on 4 October 2022 giving the Council until 1 November 2022 to provide a response. The Council did not provide its Stage 2 complaint response until 2 December 2022, four weeks after the timescales detailed in its complaints procedure. This was fault.
77. In total, the Council delayed for eight weeks outside its complaint timescales in providing responses to Ms X’s complaint. These delays caused Ms X inconvenience, frustration and distress.

Back to top

Agreed action

78. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and pay Ms X £100 for the inconvenience, frustration and distress caused through delays in completion of the EHC Plan process and handling of her complaint.
• Pay Ms X £1,350 to address the Council’s failure to provide suitable Alternative Provision for Y resulting in missed education. Ms X may use this as she sees fit for Y’s educational needs.
• Pay Ms X £181.50 to reflect the time Y went without free school meals.
79. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

80. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman