The Ombudsman's final decision:
Summary: The Council was at fault for failing to ensure Z received a suitable education. The Council also took too long to finalise Z’s Education, Health and Care Plan. The Council has agreed to make a financial payment to remedy the injustice it has caused Z and to make procedural changes.
- Mrs X complains the Council:
- took too long to finalise her grandson, Z’s, Education, Health and Care (EHC) Plan; and
- failed to ensure Z received a suitable education.
The Ombudsman’s role and powers
- 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)
- 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)
- The Special Educational Needs and Disability Chamber of the First Tier Tribunal (the Tribunal) is a tribunal that considers special educational needs.
- 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)
How I considered this complaint
- I considered the information supplied by Mrs X, the Council and the school.
- the Education Act 1996;
- the guidance issued by the Local Government Ombudsman in 2011 “Out of School...Out of mind?”;
- “Alternative Provision”, statutory guidance for local authorities published by the Department for Education in January 2013;
- “Children Missing Education”, statutory guidance for local authorities published by the Department for Education in 2013, updated September 2016;
- “School attendance”, Department for Education Guidance, first published November 2013, updated November 2016;
- the Local Government Ombudsman’s Guidance on Remedies.
What I found
- Under section 19 of the Education Act 1996 a council has a duty to “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”.
- Under the Alternative Provision statutory guidance, this 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.
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. A council must consider the individual circumstances of each particular child and be able to show how it made its decision.
- The education provided by the council must be full-time unless the council decides that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health.
- The Local Government Ombudsman has issued guidance to councils 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 Ombudsman made a number of 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;
- choose, based on all the evidence, whether to enforce attendance 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.
Education, Health and Care Plans
- A child with special educational needs may have an Education, Health and Care Plan (EHC Plan).
- When a council receives a request for a Plan, it must make a decision and communicate that decision within six weeks of the request being made.
- A council must finalise the Plan within 20 weeks of when the assessment is requested.
- The EHC Plan sets out the child’s needs and what arrangements should be made to meet them. It should detail suitable provision to meet each identified need. Provision should be quantified. Councils must arrange the special educational provision included in the EHC Plan from the date the EHC Plan is finalised. The Ombudsman cannot change the educational provision in an EHC Plan if a parent disagrees with it; only the Tribunal can do that.
- Z was born in 2001. He had been on the roll and attended a secondary school since the start of Year 7. Z lives with his grandmother Mrs X.
- On 16 July 2015, the school and Mrs X asked the Council to assess Z for an EHC Plan. On 2 September 2015, the Council wrote to Mrs X and said it would begin drawing up the Plan. The deadline for completing Z’s EHC Plan was
3 December 2015.
- In September 2015, when Z was 14, he returned to school after the summer holidays. He attended for one day and then refused to go back. He has not been in school since then.
- In November 2015, Mrs X telephoned the Council and said Z was not in school and was not receiving any work to complete at home. The Council advised her to contact the school directly about Z’s absence and the lack of work the school was sending home and lack of provision of any alternative education.
- The Council says it also phoned the school in November 2015. The Council says the school said it was supporting Z and had offered a Mrs X several courses for Z to help integrate him back into mainstream education. The Council says it advised the school “that this was for the school to resolve with [Mrs X] as [Z] should be in education.”
- Between September 2015 and February 2016, the school sent some work home for Z and provided access to online lessons. The Council and school arranged for Z to attend a two week course aimed at encouraging him to socialise and return to school. The school also paid home visits to Z and Mrs X.
- The contact log for Z’s Head of Year recorded on 11 February 2016 “Work sent recorded delivery as [Mrs X] had not been in to collect any further work since start of January or return any of [Z’s] completed work”.
- In April 2016, Mrs X complained to the Council about:
- the delays in finalising Z’s EHC Plan; and
- the lack of support provided by the school, which she said was not sending work home.
“Please accept my sincere apologies that the service you received was not as good as it should have been … I understand that this has been a difficult time, made more stressful by the delays in process and lack of support and I apologise sincerely for this.”
- On 18 May 2016, the Council issued Z’s finalised EHC Plan. The Plan said “attendance at school is key as [Z] needs a high level of differentiation and support in order to access the curriculum.” The EHC Plan said the educational outcomes would be achieved by the provision of 25 hours of support from a teaching assistant each week. The Council named Z’s current school on the EHC Plan.
- On 19 May 2016, Mrs X had a meeting with the Council. The minutes from that meeting note:
- Mrs X said the school had not contacted her since October 2015 and was still not sending work home for Z;
- Mrs X did not want Z to return to the school because he had been bullied. The Council said her “concerns are justified”;
- the Council had arranged sessions for Z with Voluntary Group A which provided support services for hard-to-reach children but Mrs X did not think these were the right way forward for Z;
- the Council suggested another mainstream school with teaching assistant support and a phased return; and
- the Council and Mrs X both agreed home tutoring was the best way forward for the moment. The Council stressed this could not be long-term and the Council needed to look at school based provision for Z’s education.
- drawing up a personalised package for Z;
- the school employing a supply teacher for two hours on three afternoons a week to home tutor Z as a short-term plan;
- finding additional outdoor based alternative educational provision.
term-time only. The Council agreed this could continue into the next school year.
- The Ombudsman investigates complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as schools. (Local Government Act 1974, sections 25 and 34A, as amended)
- Therefore I cannot comment on whether there was fault in the actions of the school.
- Although the school had a duty to provide Z with an education, the Council also has a duty under s19 of the Education Act to make arrangements to provide Z with a suitable education, if he would not receive an education unless the Council made arrangements for him.
September 2015 to November 2015
- Between September 2015 and February 2016 Z remained registered with the school, which was responsible for overseeing Z’s education provision. Z did not attend school. However, the Council was unaware of this until Mrs X phoned in November. Therefore I cannot be critical the Council took no action during this period.
November 2015 to May 2016
- From November 2015 to May 2016, Z attended an alternative educational course for two weeks. There is no evidence Z completed any school work or attended any other courses. The school’s notes refer to work it sent home in January and February 2016, but this was not returned.
- From November 2015 to May 2016, there is no evidence the Council kept the case under review although it was aware Z was not in school. That was fault. Because there is no evidence Z was provided with a suitable education from the end of February to June 2016, and the Council did not seek to take action against Mrs X for Z’s non-attendance, the Council failed to comply with its duty to ensure Z received suitable educational provision.
- The Council also failed to ensure a strategic and planned approach to reintegrating Z into mainstream education was adopted and followed.
- In addition, the Council had a statutory duty to finalise Z’s EHC Plan by the beginning of December 2015. This is 20 weeks from when it received the request. However, it was not until May 2016 the Council finalised it. This meant it took 44 weeks to finalise Z’s Plan.
- The Council is therefore at fault because it failed to:
- keep the case under review from November 2015 to May 2016;
- comply with its duty to ensure Z was provided with a suitable education from February to May 2016;
- ensure a strategic and planned approach to reintegrating Z into mainstream education was adopted and followed; and
- finalise Z’s EHC Plan within the statutory deadlines.
June to November 2016
- Z’s finalised EHC Plan is based on working towards getting Z back to school. The Council supports this outcome and is trying to work with Mrs X to achieve this. If Mrs X was unhappy with Z’s Plan, she had a right of appeal to the Tribunal.
- From 28 June 2016, the Council has provided home tutoring for Z, four days a week for two hours each session. The Council considers it is suitable education for Z taking his special educational needs into account and the fact the sessions are one-to-one. There is no legal definition of how many hours teaching constitute a full-time education. In a classroom setting of 30 pupils this may typically be around 23 hours. Education provided one to one is more intense and therefore a lower number of hours could be equivalent to the greater number of hours they would receive in a classroom. There is no fault in the Council’s actions.
- From May 2016, there is evidence the Council provided Mrs X with options for Z to access services to meet the social and emotional needs in Z’s Plan. The Council has also asked Mrs X visit alternative schools. Mrs X has either refused these options, did not consider them suitable or said she would wait until this investigation was complete to look into them. Therefore, the Council has tried to meet the educational, social and emotional needs in Z’s Plan.
- The Council has agreed it will within one month of the date of this final decision:
- pay Mrs X £300 for the education Z missed between February and May 2016, to be used for the benefit of Z’s education or training, to be spent in agreement with the Council; and
- apologise for the uncertainty over whether alternative educational provision could have been put into place earlier if the Council had not delayed in finalising Z’s EHC Plan.
- There was fault causing injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman