Summary: There was no fault in the Council securing suitable full time education for a boy with special educational needs when he moved into its area. However, there was delay by the Council in arranging speech and language therapies once it found the boy suitable full time education placement. The Council should provide additional provision to allow the boy to catch up.

The complaint

1. Ms X complains the Council failed to deliver education provision in her son’s Education, Health and Care Plan when she moved into its area. Ms X says the Council failed to secure a suitable school for her son and there were delays in arranging sensory occupational therapy and speech and language therapy. Ms X says her son missed out on suitable education as a result of this and she was caused time and trouble pursuing her complaint.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)

Back to top

How I considered this complaint

4. I have spoken to Ms X about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaints.
5. 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.
6. I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.

Back to top

What I found

7. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
8. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6)
9. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
10. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
11. The guidance says if a child receives one-to-one provision the hours of
    face-to-face provision could be fewer than full-time, as the provision is more concentrated.

Education Health and Care Plans (EHCPs)

12. Children who have special educational needs may have an EHCP. This sets out the child’s special educational needs (SEN) and the provision required to meet them. The EHCP will name the educational establishment where a child should attend as well as what special educational provision will be provided.
13. The Special Educational Needs and Disability (SEND) Code of Practice Statutory Guidance says where a child moves to another council area the “old” council must transfer the EHCP to the “new” authority. This must happen on the day of the move. If the “old” council was not provided with 15 days notice of a move the transfer must take place within 15 days of when the “old” council became aware of the move.
14. Once the EHCP is transferred the “new” council becomes responsible for maintaining the plan and securing the special educational provision set out in the EHCP.
15. The guidance says the requirement for the child to attend the educational institution specified in the EHPC continues after the transfer. However, where attendance would be impractical, the “new” council must place the child at an “appropriate educational institution” temporarily until the EHCP is amended.
16. When an EHCP is transferred the “new” council may decide to bring forward the review of the plan and may carry out a new ECHP assessment. The “new” council must tell the child’s parent or carer when it will review the plan within 6 weeks of the EHCP being transferred.
17. Parents have a right to appeal to Tribunal if they disagree with a council’s decision:
• not to assess their child for an EHCP;
• not to provide an EHCP on completion of its assessment;
• any aspect of an EHCP which they disagree with.

What happened

18. Ms X notified the Council she was moving into its area on 25 May 2018 with her son, whom I shall call Y. The Council received a copy of Y’s EHCP from the “old” council on the same day.
19. Due to distance it was not possible for Y to continue to attend his previous educational setting in the other council’s area.
20. The Council met with Ms X on 8 June 2018. Ms X requested a specific school in the Council’s area be named on Y’s EHCP. The Council said it would consult with the school (School A) to see if it could meet Y’s needs. In the meantime, the Council agreed to pay for individual tutoring for Y.
21. The Council says the tutors were denied access to Ms X’s home when they visited. Ms X says the tutors turned up to her property an hour before the appointment and she was not at home.
22. Ms X arranged for Y to receive tutoring from another organisation and the Council agreed to fund this.
23. Ms X believes the Council should also have arranged to provide direct therapies for Y that were set out in his EHCP alongside the tutoring. The Council says the EHCP requires the therapy work to be done alongside teaching assistants in a school setting so it was not possible to deliver this whilst Y was receiving tutoring.
24. On 2 July 2018 School A informed the Council it did not have a place for Y. On 4 July Ms X asked the Council to approach another school, School B. School B said it would assess Y over the summer holidays.
25. Ms X and Y were away over the summer holidays so an assessment could not take place until the start of September 2018.
26. On 18 September 2018 Ms X told the Council that School B was not appropriate for Y and the Council agreed. On 19 September the Council provided Ms X with details of other schools which could meet Y’s needs.
27. On 21 September 2018 Ms X requested an updated EHCP. The Council said it would work with the previous council until Y was in full time education.
28. On 28 September 2018 Ms X advised the Council that none of the schools would be able to meet Y’s needs.
29. On 1 October 2018 Ms X asked the Council to approach another school, School C. The Council consulted with School C and Y began receiving tutoring from the school on 29 October and began attending full time from 12 November 2018.
30. The Council arranged for speech and language therapies to be delivered at School C. It said this would either start on the 26 November 2018 or 3 December 2018. Ms X contacted the Council on 17 December 2018 to say the provision was still not in place.
31. The Council says there is no need for it to deliver sensory occupational therapy for Y as he has achieved the outcomes set out in his EHCP linked to these therapies. The Council says it will review what occupational therapy is required as part of the review of Y’s EHCP.

My findings

32. There is no fault in the way the Council arranged suitable education for Y when Ms X moved back into its area. The Council agreed to fund tutors found by Ms X until it secured a place for Y in a suitable school.
33. There is also no fault in the Council’s attempts to secure a place for Y in school in line with his EHCP. The Council consulted with schools put forward by Ms X and provided Ms X with details of other schools which may be suitable. School B also offered to assess Y over the school holidays but Ms X was unavailable. Although School B was not suitable for Y it may have been able to decide this sooner if it had been able to asses Y over the school holidays. Therefore, the Council is not responsible for any delays in this process.
34. Ms X says the Council failed to deliver direct therapies for Y whilst he was being tutored. The Council says the EHCP said the therapies were to be delivered in a school setting. Therefore, the Council was not obliged to provide these until Y was in a school setting. As set above there was no fault in the Council’s attempts to secure a place for Y in school.
35. There has been delay in the Council delivering speech and language therapy
    for Y at School C. This should have been in place from the day he began attending full time. As a result Y has missed out on therapies set out in his EHCP.
36. The Council has still not issued Y with a revised EHCP. The Council was reviewing the provisions of the EHCP when Ms X complained to us in January 2019. I have only investigated events up to the date Ms X complained to us.

Recommended action

37. The Council should write to Ms X to apologise for the delays in setting up speech and language therapies for Y at School C within 8 weeks of my final decision.
38. I recommended the Council should calculate the number of hours Y missed as a result of the delays and arrange equivalent additional provision over a suitable period of time to allow Y to catch up. The Council has sought advice from a Speech and Language Therapist and confirmed no further sessions are necessary.

Back to top

Draft decision

39. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

Back to top

Investigator's decision on behalf of the Ombudsman