Summary: We upheld Miss X’s complaint about the Council’s failure to secure the provision in her daughter Y’s education, health and care plan. The Council agreed to apologise to Miss X and Y and make a payment to recognise Y’s lost provision.

The complaint

1. Miss X complains the Council failed to secure the provision in her daughter Y’s education, health and care plan when she attended an alternative provision setting. She says the lack of support resulted in Y being excluded from the setting which has affected her well-being. She would like the Council to apologise to Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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

5. I have considered the complaint made by Miss X and the documents she provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Miss 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

Law and guidance

Alternative provision

8. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise.
9. Where a school permanently excludes a child, or if they cannot attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils for arranging suitable alternative education.
10. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.

Education, health and care plans

11. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
12. 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.
13. Councils must make sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Impact of COVID-19 pandemic

14. On 23 March 2020, schools in England closed to most pupils as part of the first national lockdown, apart from the children of key workers and those who were vulnerable including children with EHC plans.
15. In May 2020, the Secretary of State for Education issued a notice which temporarily changed the duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice expired on 31 July.

What happened

16. Miss X’s daughter Y has complex needs. She has an EHC plan which was first issued in 2016. This says Y will be supported one-to-one by a learning support assistant in all areas of the curriculum and at all times while in school. Until schools closed in March 2020, Y attended a special school, School A.
17. Miss X says School A refused to allow Y to attend school during the period of school closures. School A began working with an alternative provision, School B, to arrange education for Y.
18. In May, School A contacted Miss X to arrange some sessions for Y. Miss X asked School A what the arrangements were for Y to attend School B. School A said School B felt Y needed one-to-one support, but it did not have the staff available to provide this. Miss X said when she had recently spoken with School B it told her it did not feel Y needed one-to-one support as Y had previously joined in with the other children there without any support.
19. Y began attending School B in June for three days a week. Miss X says she agreed Y could attend School B without one-to-one support because she needed respite from her caring role for Y. In July Y returned to School A but continued to attend School B for one day a week. Miss X and the Council say the placement was successful during this time.
20. When schools reopened in September, Y returned to School A. However, Miss X says there were difficulties which result in Y being excluded and kept apart from other children.
21. School A held a planning meeting in October. The Council attended. The written record of the meeting notes Y had found the return to school difficult and was being supported by two staff. The notes record Y “will always need 1:1 and maybe 2:1”.
22. In November Y began attending School B again for part of the week, without one-to-one support. Miss X says she was not told Y would not receive one-to-one support. She says she believed the support would be in place because the reasonable endeavours period had ended, and the Council knew Y had needed a higher level of support when she had returned to School A in September.
23. Y received a one-day exclusion from School B at the end of November and shortly afterwards returned to School A. School A held a further meeting in December to discuss future provision for Y. The Council attended.
24. In January 2021, Y returned to School B three days a week. Miss X says she assumed one-to-one support was in place.
25. In February, Miss X exchanged text messages with School B about some behaviours Y was displaying in school. Miss X questioned whether Y had one-to-one support. School B said the Council was not paying for one-to-one support. It said it did not have the staff to provide one-to one support and this was never requested for Y.
26. Miss X complained to the Council about the lack of one-to-one support. She said the placement at School B was at risk of breaking down and she would not have agreed to Y attending if she had known she would not have the support in her EHC plan. Shortly afterwards, School B said it could no longer meet Y’s needs.
27. The Council responded to Miss X’s complaint in early March. It said:
• In June 2020, School A sent School B a copy of Y’s EHC plan and offered to provide staff to support Y. School B told School A it did not feel there was a need for extra staffing. The Council said it understood School B had spoken to Miss X about this at the time.
• In November 2020, School A and other professionals working with Y re-engaged School B, but it did not recall discussing extra staffing. It shared an updated risk assessment for Y, which it completed with the Council. The Council said School B would have had reasonable knowledge of Y and would have assessed staffing needs as part of the commissioning process.
• In January 2021, the Council agreed a plan with School B and Miss X which was based on its previous knowledge of Y, her EHC plan and risk assessments.
28. Miss X told the Council she was not consulted about whether Y could manage without one-to-one support. She shared the text message exchange with School B which said one-to-one support was never requested. She said the Council’s failure to secure the provision had contributed to Y’s placement breaking down.
29. The Council responded to say there were no agreements between the Council and School B and all commissioning was undertaken by School A. In further correspondence, the Council accepted Y needed one-to-one support but said Miss X was aware in May, before Y began attending, that she would be attending School B without this support. The Council said it was justified in allowing the placement to continue so long as it met the needs of the child and the parent was happy with the arrangement. It said it only became aware of Miss X’s concerns in February 2021.

Analysis

30. Miss X accepted one-to-one support would not be available in June and July 2020 when the Council’s duty to secure the provision was changed to require reasonable endeavours. She agreed to continue with the placement at School B despite this. Miss X and the Council agree this period of the placement was successful. Therefore, I do not find fault with the lack of one-to-one support in this period.
31. However, from September 2020 the Council’s duty to secure or arrange the provision in Y’s plan came back into force. The Council was involved in the arrangements for and funded Y’s placement at School B between November 2020 and February 2021. Besides the provision in Y’s EHC plan, the Council was aware she had needed increased support on her return to School A. The Council failed to secure the one-to-one support for Y. This was fault.
32. I cannot say whether the outcome for Y would have been different if the support had been in place. Records suggest Y was experiencing difficulties at School A, even with increased support in place. However, the lack of one-to-one support creates uncertainty about whether Y would have had a different experience at School B if the support had been in place. Additionally, the failure to communicate the lack of one-to-one support to Miss X during the later placements meant she lost an opportunity to decline the placement and ask the Council to seek an alternative where one-to-one support could have been provided.

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Agreed action

33. Within one month of this decision, to remedy the injustice caused, the Council will:
• apologise to Miss X and Y for failing to secure one-to-one support in the periods Y attended School B between November 2020 and February 2021 and failing to communicate this to them. The Council’s apology to Y will be in an accessible format which takes account of her complex needs.
• pay £300 to Y to recognise the injustice caused by the loss of one-to-one provision in the periods she attended School B between November 2020 and February 2021 and the uncertainty about whether her experience would have been different if the provision had been in place.
• remind officers that when arranging alternative provision the Council should ensure it records how it will arrange or secure the provision in a young person’s EHC plan.

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Final decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. Miss X and Y were caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman