Summary: The complainant complains her son missed out on education for 14 months due to fault by the Council. Our decision is there were two periods where the Council could have done more to ensure the school was providing more education and also the contents of the child’s Education, Health and Care Plan. The Council has agreed to our recommendations.

The complaint

1. The complainant (Mrs V) complains, for 14 months, her son (X) missed out on education he could have managed but for fault by the Council.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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 have and have not investigated

6. Mrs V complains about events going back to around 14 months before she complained to the Ombudsman in May 2024. But Mrs V had first contacted us in March 2024. We asked Mrs V to first complete the Council’s complaint procedure. The Council then issued two stage one complaint responses, before a final response. That gives reasons why Mrs V’s compliant was slightly delayed, so I have investigated the whole period.
7. The period I have investigated ends in May 2024, when we accepted a complaint from Mrs V.

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How I considered this complaint

8. The information I have seen includes the documents Mrs V supplied with her complaint and the Council’s responses to the Ombudsman’s initial enquires. I have discussed the complaint with Mrs V.
9. I sent my draft decision to Mrs V and the Council and considered the comments I received.

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What I found

Part-time timetables

10. Department for Education guidance “Working together to improve school attendance” states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
11. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. The Ombudsman’s focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Alternative provision

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. For pupils absent for health reasons, this duty starts when it becomes clear the child will be away from school for 15 days or more, where no suitable education has been arranged.
14. The Council’s policy statement “Ensuring a good education for children who cannot attend school because of health needs” says:
• that schools are responsible for arranging education for pupils who are medically unfit to attend their school;
• when full-time education would not be in the best interests of a pupil because of medical reasons, the Council (through the pupil’s school) should provide part-time education.

Education Health and Care Plan 

15. A child or young person with special educational needs may have an Education Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

Maintaining the EHC Plan

16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reviewing EHC Plans

17. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. If the Council decides to amend a Plan, it muse issue the final plan within eight weeks of the amendments notice (so within 12 weeks of the review meeting). Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability Code of Practice: 0 to 25 years (The Code) paragraph 9.176) 

What happened

Background

18. X is a child with special educational needs (SEN). He has an EHC Plan. At the start of the Autumn term in 2022 X was at a mainstream primary school. Mrs V says he went onto a part-time timetable in January 23, around two weeks after having been signed off by his GP.

The first period

19. At the end of March 2023 the Council received an application from X’s school to fund some interim provision, as he was not attending school full-time. The Council agreed this funding application on 10 May.
20. On 12 April the Council amended X’s EHC Plan, naming a new school from the following September.
21. At the end of April Mrs V complained that X had been out of full-time education for some time. He was attending school for less than half a day. The family had spent money on private tuition for an hour a week. The Council responded in May, accepting a delay in dealing with the school’s application. It apologised. Mrs V then approached the Ombudsman. We advised she would need to complete the Council’s complaint procedure before complaining to us.
22. The school began providing some extra provision for three hours a week, from around the beginning of June.
23. Mrs V complained again. The Council’s response agreed a delay in setting up a package of support for X, for which it apologised. Mrs V later had a meeting with a Council officer. The Council agreed to refund her family the costs of the tutor they had paid for. The Council closed the complaint after this meeting, which was in the summer vacation.

The second period

24. X started at a new school in September 2023. Mrs V says it soon became apparent this was not the right school for him. X stopped attending the school from the second week in October.
25. Mrs V met with X’s SEN caseworker in the first week of November. According to a later complaint response, this was intended to be a meeting around a review of X’s EHC Plan, but was changed to discuss a package of alternative provision for X, as he was struggling to attend the new school. At this time, Mrs V said she did not want to consider a change of the school named in X’s EHC Plan.
26. After the meeting the Council’s SEN caseworker contacted the SEN co-ordinator at the school with a list of alternative providers. The caseworker chased a response towards the end of December 2023, the beginning of January 2024 and again at the beginning of February.
27. The Council carried out an annual review of X’s EHC Plan on 5 February 2024.
28. In early March Mrs V contacted the Council complaining and advising X was receiving, at most, five hours a week of provision from the school.
29. On 15 March, the Council made its decision to amend X’s EHC Plan.
30. The Council’s three complaint responses noted:

• its SEND Team was still awaiting the alternative provision package submission from the school. It accepted it could have done more to progress the situation;
• it upheld Mrs V’s complaint about a delay in arranging the annual review of X’s EHC Plan;
• it did not uphold a complaint about the suitability of X’s school, due to travelling distance, due to the distance being in line with Government guidance;
• accepted X’s school had not provided some parts of his EHC Plan since he started there.

31. At the end of April Mrs V confirmed her agreement with an education out of school package the Council had proposed, until a permanent full-time solution was found.

Was there fault by the Council?

The first period

32. The Council was aware of an issue with the amount of education X was receiving when it received the school’s end of March 2022 application for funding. So I have treated three weeks (15 school days) after that date as when the Council’s duty to consider alternative provision began (see paragraph 13). From around the beginning of June, the school put in place some alternative provision for the rest of the academic year. I find fault of around half a term with the delay in arranging that provision.

The second period – alternative provision

33. At the latest, by the first week in November 2023, the Council was aware X was not receiving a full-time education. It was under a duty from then to consider whether X needed any alternative provision.
34. The Council’s caseworker did try to liaise with the school. But this was not successful. It took a new complaint by Mrs V to get the Council to agree a package of education that was suitable. When the waiting period and vacations are discounted, that amounted to a delay of just under one and a half terms when, on the balance of probabilities, X did not receive all of the educational provision he could have managed.

The second period – ECH Plan

35. The Council has accepted that for the same period X was not receiving parts of the provision set out in his EHC Plan. That was fault.
36. The Council has also accepted a delay in reviewing X’s EHC Plan.

Did the fault cause an injustice?

37. The injustice to X was in missed education and SEN provision. When the school and Council did put in place extra provision after the first period it was for three hours a week, compared to the one Mrs V and the family had paid for. The Council has refunded those costs, but that still leaves the missed provision as an injustice.
38. The injustice for the second period is more significant as then X was not attending school at all. And, as the Council accepts, some of the provision in his EHC Plan was not being delivered.
39. Mrs V has suffered her own injustice in terms of the stress and frustration the delays will have led to.

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Agreed action

40. Within a month of my final decision, the Council has agreed to my recommendation to:
• pay Mrs V £750 for X’s loss of education for the first period;
• pay Mrs V £3000 for the loss of education and some missing EHC Plan provision in the second period.

(Mrs V should use these payments as she sees fit for X’s educational benefit.)

• pay Mrs V £400 as a symbolic payment in recognition of her avoidable distress as a result of the delays I have identified;
• write to Mrs V and X apologising. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.

41. The Council has also agreed that, within three months of my decision, it will review its policies and procedures to make sure it retains sufficient oversight and control over what a school is doing on its behalf.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman