Summary: Mrs B complained the Council failed to provide education to meet her son’s needs as specified in his Education, Health and Care Plan (EHCP). She said that as a result her son missed education. There was fault in the delay by the Council which caused injustice to Mrs B and her son. The Council agreed to apologise and to make a payment.

The complaint

1. I call the complainant Mrs B. She complained the Council failed to provide education to meet her son’s needs as specified in his Education, Health and Care Plan (EHCP). She said that as a result her son missed education.

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The Ombudsman’s role and powers

2. 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)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered the complaint and documents provided by Mrs B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mrs B and the Council and considered their comments.
8. 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 shared this decision with Ofsted.

Summary of relevant guidance

9. A child with special educational needs may have an 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.
10. There is a right of appeal to the SEND Tribunal against a decision not to assess or not to issue a plan.

Education for children out of school

11. Councils have a duty to make arrangements for the provision of suitable education at 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)
12. Statutory guidance ‘Alternative Provision’ says this duty applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
13. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says in considering alternative education local authorities should not:
• have processes or policies in place which prevent a child from getting the right type of provision and a good education; or
• have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
14. It also says that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned.
15. We issued a Focus Report in September 2011 amended in January 2016, ‘Out of school…out of mind?’. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Our report made six recommendations based on examples of good practice seen. We said councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• 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.

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What I found

Summary of events

16. Mrs B’s son, X, attended a residential special school. In late June 2018 Mrs B raised safeguarding concerns about the school. By September the Council had agreed to find an alternative placement for X and was actively considering other school options for him.
17. Over the autumn of 2018 there was discussion between Mrs B and the Council about alternative schools for X and whether his EHCP needed to be reissued. Mrs B removed X from school at the end of October.
18. The Council put in a package of care at home seven days a week of six hours a day.
19. Mrs B wanted X to attend a school close to home which meant there were only two schools that would be able to meet his needs. The Council issued a revised EHCP at the end of the year. This did not name a school but said the appropriate provision for X was an independent residential special school.
20. Early in 2019 school 1 said it could not meet X’s needs. In early February a community based provision offered a trial place but this was dependent on X being on roll at a school and the provision recruiting people who could make the provision in the community. As far as I could establish no provision or support was ever actually provided to X by this service. And in July the provider stopped giving any support to young people.
21. Over 2019 X remained at home. The package of seven day a week care continued but the care at weekends reduced to three hours. The Council provided other resources to support X while he was at home including sensory equipment.
22. In October there was some contact by the Council with the other local school, school 2, and in November the Council sent formal placement requests to both the local schools. Over this period X’s EHCP was being amended to reflect the progress he had made. In January 2020, after assessing X, school 1 agreed to make an offer of a place. It was to be a phased start to enable transition into provision in the school. This started at the end of February 2020.

Analysis

23. The crux of Mrs B’s complaint was that she considered the Council failed to provide the speech and language therapy (SLT) and occupational therapy (OT) specified in X’s EHCP and that it did not provide any education for him for the period he was at home.
24. The move to being at home was not planned as Mrs B withdrew X from the residential placement before an alternative provision had been found. Once that had happened there were other schools that were willing to assess X but Mrs B wanted X to be close to home. That meant there were only two possible schools. But neither of the schools considered they could meet his needs at that point (the end of 2018/early 2019) and the Council’s view was that he would not be able to manage in a school environment.
25. It was clear at this point (February 2019) that X was going to be at home for a while until a place was available at one of the local schools and he was able to make the move to an educational setting.
26. There was some limited involvement from the community based provision but nothing came of this in terms of actually providing education for X. So, as Mrs B says, X did not have any educational provision for almost 18 months. The Council’s position is that due to both X’s needs and the restrictions of the home environment it was not possible to put in more structured educational provision. The assessment was that the best provision was to support X to access the community and undertake activities that engaged him. This was done through the care package that was in place.
27. I accept the Council’s position, but only up to a point. The Council was expecting the community based provider who assessed X in February to put in place a clear plan of community based learning. But that did not happen. The Council should have been actively reviewing and considering other options when this was not in place by the end of March. At the beginning of July the possibility of community provision was completely withdrawn but there is nothing to show the Council took any steps to review or consider what should be happening in terms of educational provision for X.
28. In October the Council reviewed X’s EHCP. There was some disagreement between Mrs B and the Council about the proposed changes but the significant point here, in terms of the provision for X, was that an up to date EHCP was needed to reconsult the two local schools to see if they were able to make provision for him. Once this was in hand there was not any significant delay by the Council in terms of its contact with the schools. But, although there was no delay from October onwards, X was still at home without any educational provision.
29. In November Mrs B expressly requested a special educational needs teacher in the home but the Council said that none of the local agencies considered they could meet X’s needs.
30. The Council did not properly address itself to educational provision for X from April onwards. That was the point when it should have been clear that the community based provision was not likely to be able to provide support. It is not clear-cut what difference a closer focus at that point would have made. There were few options available and the objective at this point was to ensure X had the skills to be able to attend school. But, on the balance of probabilities, I consider there would have been an earlier approach to School 1 and that given X was making progress he would probably have been in school sooner. I consider it would be reasonable to say that three months were lost.
31. Mrs B was also concerned about the level of SLT and OT provision for X while he was at home. There were home visits from both services and some support and resources provided. I recognise that this was not the equivalent to the support he would have received had he been in school. But there was no fault here. The Council did all it could under the particular circumstances to make that specialist provision.
32. In assessing the injustice that has been caused to X as a result of the faults I find above I must consider the difference it has made for him. The Council was providing care and support over the whole period but it is accepted that X did need to be in a specialist school. Being at home meant he simply wasn’t getting the same provision he would have had in the right school. I say above three months were lost and the Council should provide a financial remedy for X of £400 for each month. The Council should also make a payment to Mrs B of £200 in recognition of the impact on her.

Agreed action

33. Within one month of the final decision, the Council will apologise to Mrs B and pay her £1200 for the benefit of X’s education and £200 in recognition of the injustice to her.

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Final decision

34. There was fault in the delay by the Council which caused injustice to Mrs B and her son.

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Investigator's decision on behalf of the Ombudsman