Summary: Miss X complains the Council failed to provide her son with suitable education between July 2018 and June 2019. We find fault with the Council for not making a decision on the suitability of the school’s alternative provision. We also find fault with the Council for failing to arrange suitable alternative educational provision for her son. We have recommended the Council apologise and make a financial payment.

The complaint

1. Miss X complains the Council failed to provide her son with suitable education between July 2018 and June 2019. Specifically:

• between September 2018 and December 2018, the school provided her son with alternative provision of one to one tutoring. She says she told the Council the provision was not suitable, but the Council did not do anything; and
• between January 2019 and June 2019, the Council did not provide any suitable educational provision for her son.

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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. The Council is responsible for making sure that arrangements specified in the Education, Health and Care (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
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)
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.

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How I considered this complaint

6. I spoke with Miss X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I have considered relevant legislation and guidance.
9. I have sent a draft decision to Miss X and the Council and considered their comments.

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What I found

Education for children out of school

10. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. The provision generally should be full time unless it is not in the child’s interests. (Education Act 1996, section 19)
11. 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.
12. Full time is not defined in law but should equate to what a pupil would receive in school. This is around 24 hours a week for children aged 11 to 15. If they receive one to one provision, the hours of face to face provision could be fewer as the provision is more concentrated
13. Where a council is not satisfied a child is receiving suitable education and it consider the child should be attend school, it may take legal action to enforce attendance. This may be through court orders, penalty notices or prosecution. (Education Act 1996, section 444)
14. Statutory guidance about alternative educational provision states those who commission the provision remain responsible for it and they should maintain on-going contact with the provider and pupil, with clear procedures in place to exchange information, monitor progress and provide support.

Education, Health and Care Plans

15. 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. Councils have a duty to secure the special education provision set out in an EHC plan. (Children and Families Act 2017, section 42)
16. Councils must review an EHC plan at least every 12 months. They may hold a review meeting earlier if an EHC plan needs amending because of a change of circumstances.

Background

17. Miss X’s son, Z, has an EHC plan. His plan sets out his needs and the special educational provision required by Z.
18. The EHC plan noted Z needed opportunities to engage in leisure activities, such as basketball. It also noted Z needed opportunities to engage with personal, social, community and health education activities.
19. The Council named a school in Z’s EHC plan as his educational placement.
20. Z started at the school in June 2015. Z would have started in Year 10 in September 2018.

What happened

21. In July 2018, Z received a three-day fixed term exclusion from his school. The exclusion happened near the end of the school term.

In August 2018, the Council held a meeting with the school and Z’s parents to discuss Z’s educational arrangements. In this meeting, the school said it was not the best option for Z to return to school and proposed a bespoke education programme for Z. The bespoke programme would be delivered off site. The school told the Council it had not yet finalised the programme because of the school holidays. The Council told the school it expected the package to be in line with the needs and provisions set out in Z’s EHC plan and for it to be a full-time offer. The Council said the package was due to start around the second week of September 2018.

22. In September 2018, the Council held a meeting with the school and Z’s parents to again discuss the educational arrangements for Z. At the meeting, Z said he wanted to go back to school. The school said it could meet Z’s needs through a bespoke package.
23. The school proposed to provide 15 hours of out of school provision. The school also said it had secured a place for Z at a moto vehicle workshop and that he would have basketball with his peers every Thursday at school. The educational package was not yet finalised by the school at this stage. The educational package offered by the school will be referred to as the LOOP provision.
24. Miss X told the Council Z decided he did not want to attend the moto vehicle workshop in September 2018. Miss X raised concerns about the LOOP provision to both the school and the Council in September 2018. Miss X highlighted that she felt the school was not being pro active in looking for suitable provisions for Z.
25. Near the end of October 2018, the Council met with Z’s parents and the school to review the LOOP provision. At this meeting, Z’s parents raised concerns the LOOP provision was not suitable for Z’s needs as he received no social interaction other than two hours at basketball.
26. The school said it was clear the current timetable was not working and that it needed to be more bespoke for Z. The school agreed to investigate getting more physical activity for Z.
27. Miss X made a complaint through her MP in October 2018. The Council responded to this in November 2018. In the Council’s response, it accepted Z was not receiving a full-time education offer, but that this was due to Z’s refusal to participate in some elements of the package arranged for him.
28. In December 2018, the Council had another meeting with the school, Z, and his parents. The meeting was to discuss Z’s current education arrangements. The purpose of the meeting was to:

• clarify the current provision arrangements in place;
• identify any gaps in the provision and the reason;
• identify what package of provision can be reasonably made by the school to meet Z’s special education needs; and
• to find out from Z and his parents what provision arrangement they feel would meet his special education needs.

29. Z told the Council he would like to be back in school and that he found the LOOP provision boring. Z’s parents also raised issues about the lack of social interaction within the LOOP provision.
30. The school confirmed Z should be educated off site because of previous behavioural incidents. The Council explained it had commissioned the school to provide the provision set out in Z’s EHC plan and that it was up to the school to decide how the provision was delivered.
31. The school agreed to look into the gaps of the current LOOP provision to ensure the offer was full-time. The school also agreed to consider the request for Z to return to school.
32. Miss X contacted the Council in December 2018 to again raise concerns about the LOOP provision and the fact it was not suitable for Z. Miss X asked the Council to ensure the school arranged a review of the LOOP provision.
33. In January 2019, the school told the Council Miss X had cancelled the LOOP provision because Z did not want to attend. The school also confirmed it would not allow Z to access his education on site.
34. The Council asked Z’s parents for a meeting to discuss the school’s decision and meeting Z’s needs moving forward. This was arranged for the end of January. However, the meeting did not go ahead as it was cancelled by Miss X. Miss X said she cancelled the meeting because the Council had told her it would be better to have an annual review.
35. The Council approached two other schools to see if they could deliver the provision required to meet Z’s special education needs as specified in his EHC plan. Miss X said she had identified one of these schools as a potential school for Z.
36. In February 2019, the Council met with Z’s parents. No minutes of this meeting was taken. One of the schools responded to the Council’s referral and said they could deliver the provision, but it would need to be at a particular site. Miss X turned this down as the site was too far for Z to travel to as it was about 20 miles away from home. Miss X also said after further research, she felt the provision was not a suitable environment for Z. She also highlighted the school’s recent OFSTED report was ‘required improvement’.
37. In March 2019, the Council held an annual review meeting with Z’s parents to review Z’s EHC plan. The Council sent out the draft EHC plan in April 2019.
38. At the end of April 2019, Miss X told the Council Z did not want to attend a school and asked the Council to arrange tuition instead. The Council made a referral for out of school tuition at the beginning of May 2019. The tuition provider arranged to complete a home visit at the end of May 2019. Z was removed from the roll of the school in May 2019.
39. At the beginning of June 2019, Z started his tuition. This was three hours a day, three days a week. It was expected the provision would then be increased to five days a week.
40. In July 2019, Z’s new EHC plan, which stated Z would receive an education other than at school, was finalised.

Analysis

August 2018 – December 2018

41. The Council met with the school and Z’s parents in August 2018 to discuss the LOOP provision the school would put in place. This was appropriate as the Council had a responsibility to ensure the LOOP provision provided by the school met the needs and provisions set out in Z’s EHC plan.
42. It is clear from the evidence the school had not yet finalised the proposed programme in August 2018. The school did tell the Council why it had not finalised the programme. Therefore, I am satisfied it was reasonable for the Council to have allowed the school the opportunity to organise the LOOP provision, ready for the start of the new school year in September 2018.
43. In September and October 2018, the Council met with the school and Z’s parents to discuss their concerns about the LOOP provision. I am of the view the meetings were appropriate as it demonstrates the Council was maintaining oversight of the LOOP provision and monitoring Z’s progress.
44. Following these meetings, the school committed to making changes to ensure the LOOP provision was more suitable for Z. The Council agreed to this. Again, I am satisfied it was reasonable for the Council to give the school a further opportunity to amend the education package for Z.
45. In December 2018, the Council again met with Z’s parents and the school to discuss the LOOP provision. The evidence shows the same issues and concerns that were brought up in the August, September and October 2018 meetings were also discussed in this meeting. The Council agreed to allow the school another opportunity to look at the gaps in the current LOOP provision.
46. I am of the view the Council should have, at the stage, taken a position as to whether the LOOP provision provided by the school was suitable for Z. This is because the Council had already given the school several opportunities to implement a package that was suitable for Z. While it was reasonable for the Council to allow the school an opportunity to make changes, the opportunities cannot be limitless.
47. The Council had a duty to ensure the special education provision set out in Z’s EHC plan was secured. The Council says it secured the special education provision by commissioning Z’s school. However, given the fact Z and his parents were regularly raising concerns about the suitability of the LOOP provision, there was uncertainty as to whether Z was receiving the special education provision as set out in his EHC plan. Therefore, the Council should have made a decision on the suitability of the programme. This is fault.
48. Further, the Council seems to accept the programme was not a full-time offer but says this was because Z refused to participate. However, this is exactly why the Council should have taken a view as to whether the LOOP provision provided by the school was suitable. By taking a view, the Council could then have either enforced Z’s attendance or provided Z with a suitable alternative provision.
49. It is not possible to know, even on balance, what decision the Council would have made. Therefore, I find the fault identified caused Z an injustice because there is uncertainty about whether the Council could have provided him with a suitable alternative provision sooner.

January 2019 – June 2019

50. The Council arranged a meeting with Z’s parents and the school to discuss how to meet Z’s needs moving forward. The meeting was cancelled by Miss X, so the Council approached two other schools to see if they could meet the provisions set out in Z’s EHC plan. This was appropriate as it shows the Council recognised Z was out of education and that it needed to secure suitable alternative provision.
51. Miss X turned down one of the schools because it was too far for Z to attend. I cannot find fault with the Council for this as it was Miss X’s choice to decline the alternative provision offered by the Council.
52. Further, although Miss X turned down one of the alternative providers, the Council continued to work collaboratively with Z’s parents. This is evidenced by the fact the Council met with Z’s parents in February 2019 and completed an annual review meeting in March 2019.
53. The Council explained it did not name the two other schools it approached in Z’s EHC plan because it wanted to maintain a good relationship with Z’s parents. I do not find fault with the Council for this as councils should be encouraged to take a collaborative approach with parents rather than an adversarial one.
54. There was also minimal delay in the Council issuing the draft EHC plan to Z’s parents as it was issued in April 2019. Further, when Miss X asked the Council to put tuition in place, the Council did not delay in making a referral to a provider and the tuition was in place by June 2019.
55. It is clear from the evidence Z did not receive a full-time education, or a suitable equivalent, between January 2019 and June 2019. The Council said there was suitable alternative provision available because the LOOP provision had been arranged by the school. However, Z had stopped attending this and the Council did not take enforcement steps to ensure Z attended.
56. It is acknowledged the Council was proactive in trying to arrange an alternative placement for Z. Nevertheless, the Council had a statutory duty to arrange suitable education and it failed to do so. This is fault.
57. The fault identified caused Z an injustice because he did not receive a full-time education for around five months, excluding school holidays. This had an impact on Z’s education and wellbeing, especially so because he was in a key stage of his education.
58. I also find the fault identified caused Miss X an injustice. This is because of the time and trouble taken to pursue the complaint and for the fact it would have been distressing for her knowing Z did not receive a full-time education for five months.

Recommended action

59. To remedy the injustice caused to Z, I recommend the Council complete the following:

• Write to Z and his parents to apologise for the distress caused, and to acknowledge the impact of its faults.
• The Ombudsman’s Guidance on Remedies say we can make a payment to a complainant in recognition of a loss of educational provision. It states the figure recommended should be between £200 and £600 per month of lost education. I recommend the Council make a payment of £400 a month. This is at the higher end of the scale to reflect the fact Z was at a key stage of his education when he lost the educational provision. The Council should also pay Z £400 in recognition of the uncertainty caused by its failure to decide whether the LOOP provision provided by the school was suitable.
• The total payment to be made is £2400. These funds should be used to benefit Z’s education and be over and above that used to provide any ongoing, day to day support Z is currently receiving. The Council will consult with Z and his parents and consider any suggestions they make in good faith before deciding how this money should be spent. The Council could also consider consulting other professionals who have worked with Z and who have a good understanding of his educational needs.
• Pay Miss X £300 in recognition of the distress caused by the faults identified and for the time and trouble taken to pursue the complaint.

60. The Council should complete the above remedy within four weeks of the final decision.

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Final decision

61. I find fault with the Council for not deciding on the suitability of the school’s LOOP provision. I also find fault with the Council for failing to arrange suitable alternative educational provision for Z. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman