The Ombudsman's final decision:
Summary: Mr X complains about the Council’s response when the school his daughter, Y, attended reported it could not make the provision specified in her Education, Health and Care (EHC) plan. Subject to further comments by Mr X and the Council, I intend to find there was fault by the Council in how it responded to the schools request for support when it reported Y’s non-attendance at school. The Council will, within a month of this decision, make a payment to Y and Mr and Mrs X and apologise.
- Mr X complains about the way the Council responded when the school his daughter attended reported it could not make the provision specified in her Education, Health and Care (EHC) plan. He considers that because of the Council’s failing there was delay in arranging the specialist provision his daughter needs.
The Ombudsman’s role and powers
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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. But we cannot investigate a complaint if someone has appealed to a tribunal (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- The Council is responsible for making sure that arrangements specified 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.
- 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)
- 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.
How I considered this complaint
- I considered the complaint and spoke to Mr X. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr X and the Council and invited their comments.
What I found
- 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
- Where a child has an EHC plan, it is the responsibility of the local authority to ensure the provision specified is made.
- Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide ‘suitable education’ either at school or elsewhere – at home, for example.
- The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The education to be arranged by the local authority should be on a full-time basis, unless, in the interests of the child, part-time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health
- Mr X’s daughter, Y, attends school A which is an academy. Y had an EHC plan in July 2017. This named school A. Y has anxiety and cannot attend school regularly. Over the autumn term of 2017 her attendance was very low and the school approached the Council for funding for support from a specialist provision, college B.
- The Council’s panel for considering special educational needs placements considered the request. It was turned down because it did not consider the provision was a specialist placement but provision school A should itself be able to make, with top up provided from the special educational needs advisory service.
- There was a review of the EHC plan in March. The Council agreed at this point that the support provided by college B would be available over the summer term but this was not naming college B as the provider. This was provided by what the Council describe as “cluster funding”. Mr X wanted the provision by college B to be formalised in the EHC plan.
- The Council issued a final revised EHC plan in June. This named school A. Mr X appealed against that decision. Before his appeal was heard the Council agreed to name college B in the EHC plan and Mr X withdrew his appeal.
- The Ombudsman will not, generally, investigate matters where someone has the right of appeal to a tribunal. We cannot consider those matters where the appeal right has been used. Nor can I consider the actions by school A.
- The issue for me to consider here is what happened over the first six months of 2018. At the beginning of January the special educational needs coordinator (SENCO) at the school emailed the Council requesting an emergency EHC plan review. She referred to having emailed in December but I have not seen that email. The SENCO said it was essential that a representative from the Council was at the review. They said that Y was not in school and hadn't been for some time.
- There was a meeting on 10 January. It was agreed at the meeting that the school would apply to the panel for funding for college B. I consider it should have been clear to the officers that such funding was not going to be forthcoming. The purpose of panel funding was for independent specialist placements. It should have been evident to officers that the appropriate route was for the school to apply for cluster funding at the outset. The advice to apply to panel meant the provision of support from college B was delayed. Had this happened when the school first approached the Council I consider it likely that it would have been in place from the half-term in February.
- The Council has commented that it expects the school to continue to meet the need and put the provision specified in the EHC plan in place until a suitable placement is found even once they have told the Council they cannot meet need. This is not acceptable. The duty is on the Council to secure the provision is made. Once it is on notice that the school is not making the provision then the Council must arrange the provision.
- There is a further issue in that the Council was on notice that Y was not attending school because of her anxiety. Where a child cannot attend school because of illness the Council must arrange suitable full-time education. I have seen nothing to show the Council had any regard to its duties to Y in this respect.
- In the review the Council continued to name school A. I understand that Mr X wanted to formalise the placement at college B and he rightly appealed against the EHC plan. This means I cannot consider the Council’s decision to continue to name school A on the EHC plan.
- Y has missed two months of education because she was unable to attend school and the additional support she needed was not in place. To remedy that the Council should apologise and pay her £600. Mr and Mrs X arranged private tuition for Y and the Council should pay them £300 to reimburse them for those costs.
- There was fault by the Council in how it responded to the school’s request for support when it reported Y’s non-attendance at school. The Council will, within a month of this decision, pay Y £600 and Mr and Mrs X £300 and apologise to them.
Investigator's decision on behalf of the Ombudsman