The Ombudsman's final decision:
Summary: Mrs B complained the Council failed to provide her sons with sufficient support for their education. There is evidence of fault leading to injustice and the Council has agreed to make a payment for missed education and uncertainty and to acknowledge delay in responding to her complaints.
- The complainant, whom I shall call Mrs B, says the Council has failed to ensure her three sons (U, V and W) have been given sufficient support in relation to their education. The Council has also failed to communicate appropriately with her and address her complaints.
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. (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 Tribunal (‘SEND’))
- 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)
- 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)
- 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.
- 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 provided by Mrs B and I made enquiries of the Council and assessed its response. I sent Mrs B and the Council a copy of my draft decision and considered the comments I received before issuing my final decision.
What I found
What the law says
- Section 19 of the Education Act 1996 says: ‘Each local education authority shall 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…may not for any period receive suitable education unless such arrangements are made for them’.
- The statutory guidance called ‘Ensuring a good education for children who cannot attend school because of health needs’ from January 2013, builds on this. Part of the summary says; ‘There will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the Local Authority (LA) – for example, where the child can still attend school with some support (or) where the school has made arrangements to deliver suitable education outside of school for the child. We would not expect the LA to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently’.
- The guidance acknowledges full time education might not be appropriate for all children. Councils are told they should ensure that children receive ‘as much education as (their) health condition allows for’.
- Children, with educational and health needs, often have Education, Health and Care Plans (EHCPs). These are legal documents setting out what support they need in school. EHCPs consider the views of the parents and the child and should include advice from medical practitioners and education specialists about the way education would need to be delivered. If a parent disagrees with a placement, or with provision, specified in an EHCP, they can go to the SEND tribunal to have it changed. There are statutory timescales with EHCPs, which we expect Councils to adhere to unless they have good reasons not to.
Background to the complaint
- Mrs B has three sons (U, V and W). She considered the Council had not treated her or her children properly. In particular, she felt the Council had delayed finding them appropriate school places that met their special educational needs. I will consider each of the children in turn and assess whether the Council acted with fault, which caused injustice. I shall also consider the Council’s complaints handling in this case.
- A request for U to have a needs assessment followed by an Education, Health and Care Plan (EHCP) was received by the Council on 12 February 2018. He was due to move from primary to secondary school in September 2018. EHCPs should normally be completed by 15 February in a transition year but this requirement could not have been met given the request was only received three days prior to this.
- In April 2018, the school he was attending had placed him on a part-time timetable so U only attended school on five mornings each week. The school said U was exhibiting ‘increased anxiety levels’ and they were concerned about the risk of him being excluded as a result.
- Mrs B was asked to consider what secondary school he should attend. Her first choice was School 1 and her second, School 2. School 1 did not think it could meet his needs so U was allocated a place at School 2.
- U’s EHCP was issued on 5 July 2018 so it took the Council just over 20 weeks to issue it. This delay is fault but the time and trouble it caused it is not so significant that a remedy is appropriate. If Mrs B thought School 2 could not meet U’s needs then she could have appealed this placement to the SEND tribunal at the time.
- A change of school was requested on 19 September 2018. Mrs B says she had a meeting with the special needs coordinator at the School 2 and reported the school and her both felt U was struggling. She told me the school said that if it had been aware of U’s needs, it would not have said it could meet them.
- U’s last day of attendance was 1 October 2018. School 2 said in an emergency SEN review on 22 October that U had only been able to attend one classroom lesson per day even though he had 1:1 support (although Mrs B says U did not have 1:1 support). Furthermore, U was ‘very often in crisis’ when he attended. Mrs B said she did not want to send him back to the school because of his anxiety and because the school was not putting in place the right support.
- The Council told me it knew U was out of school on 7 December 2018 at a ‘Team Around the Family’ meeting. I would not normally criticise it for a failure to take action if it did not know U needed provision. However, given U’s last day at school was over two months before this date, and there had been an emergency review, I consider it should have been aware U was not attending and Education Welfare Officers could then have become involved with the family. This is fault and the Council should apologise for the distress this caused. The Council should consider what information it needs from schools when children stop attending and when it should receive this.
- As early as possible, the Council should have considered what education U would have benefitted from if he could not go back to School 2. I note it was looking for school places for him in January and February. U missed education in November, December and January and did not start education again until February 2019. Although he may not have been able to attend full time at that point, because of his anxiety, there is nothing to suggest a part-time timetable would not have been appropriate. The Council should make a payment of £900 for approximately three months he missed out on education. There is no evidence School 2 was available for U over this period because it had yet to acknowledge significant changes to its practice were needed.
- From February 2019, School 2 paid for U to attend some alternative provision from 10am-2pm on Mondays to Thursdays. The report I have read suggested he was doing well because it included work in much smaller groups than would happen in a mainstream school (or School 1 or, under normal circumstances, in School 2). The Council should have considered whether U could have benefitted from any more education than he was receiving. Its failure to do this is fault. There is no assessment, and part time provision may have been appropriate given U’s anxiety, but I cannot say how much more education U may have been able to take advantage of. I consider this is fault and it causes uncertainty. The Council should make a payment for £200 for this uncertainty in February and March 2019.
- In April 2019, School 2 reported it was prepared to put in place further support if U returned. I cannot say a place at School 2 was inappropriate given U had previously attended there although Mrs B disagrees. I have no evidence of the Council saying School 2 could meet U’s needs or of a transition plan to enable U to return. This is fault. U was receiving alternative provision over this time so was not without education but it is not clear what additional education he may have benefitted from in April, May and June. The Council should make a payment of £300 for this uncertainty.
- An EHCP was issued in July 2019 so Mrs B could have asked the SEND tribunal for a different placement for September 2019. Given U was not attending a school, I consider this would have been appropriate. Because Mrs B had a right of appeal, I am not looking at the period from July to September 2019. The Council also asked schools whether they could meet U’s needs in September, which was appropriate.
- In October 2019, I note the Council arranged for Mrs B to see two schools that could meet U’s needs but it has told me she said she could not visit them and she did not want U to attend any additional alternative provision. There is no further evidence of fault. I have no grounds to say U would benefit from additional provision at this time. The Council should, however, keep this under review.
- The Council says V’s EHCP was finalised on 22 November 2018 naming his primary school. He was moving into secondary education in September 2019.
- Phase transfers (from primary to secondary) mean EHCPs have to be delivered by the statutory deadline of 15 February 2019. In this case, V’s EHCP was changed but School 1 could not be named as it did not have capacity.
- The final EHCP for V was issued on 9 July 2019, which did not allow very much time for transition. This was even though it was accepted V’s transition needed to be very gradual and he needed lots of reassurance through the process.
- I cannot say the Council was at fault for this. The Council issued the EHCP when it was able (when the school agreed it could be named) and it named the school of Mrs B’s choice. I accept it must have been difficult for Mrs B, and V, but I cannot conclude the Council was responsible. The Council has told me that, as a result of this, it approached School 2 (and other schools) to discuss how it could meet the demand for such places across the city. This is appropriate.
- The Council has told me W’s EHCP was finalised in May 2019 and named School 3 from September 2019. This gave W’s then school some time to manage transition. There is no evidence of Council fault.
- I note the Council assigned a case officer for the family. The Council has told me that she tries to ensure calls and telephone contacts are responded to within three working days. An Inclusion and Learning Mentor is also involved with U and the Council says she tries to do the same. Mrs B told me that she felt officers did not wish to call her and she felt she ‘constantly on the phone to people trying to do their job or even trying to speak to someone. I constantly feel upset that I'm unable to speak to anyone to get what my children are entitled to’. The Council should keep this under review to ensure Mrs B feels she is being listened to and that it is managing her contacts with it appropriately. Although the Council acknowledges Mrs B has been kept waiting for responses when officers have been off sick, it is not always practical for cases to be reallocated to others under these circumstances.
- The Council says it received Mrs B’s complaint on 5 March 2019 but did not send her an acknowledgement letter, which is fault and the Council should apologise. Although the Council’s target date for response was 2 April 2019, it did not respond until 12 June. It says it then re-sent this on 24 July when it realised Mrs B had not received the 12 June letter; Mrs B says officers she spoke to between these times said the matter had not been resolved. She did not receive a letter until the end of July. The delay in the Council’s complaints handling is fault and it caused time and trouble for Mrs B trying to chase up the Council’s response. The Council should apologise for this and make a payment for £100. Given the concerns Mrs B was experiencing at the time, this would inevitably have made the delay worse. The Council should assure itself that its procedures can adhere to the timescales set out in its policy.
- Within four weeks of the final decision the Council will:
- Apologise for the fault identified in this statement.
- Make a payment of £900 to Mrs B, for U’s missed education and £500 for uncertainty since she does not know how much more education U could have benefitted from over the time complained of.
- Make a payment of £100 for time and trouble for Mrs B in having to chase up a response to her complaint and then again when she did not receive it in June.
- Within three months of the final decision the Council will:
- Consider what information it needs from schools when children stop attending and when it should receive this.
- Consider how it assesses how much education children can access if they are out of school. Its assessments should clearly show what children are receiving and how much more education can be provided.
- Ensure its complaints handling system is robust enough to keep to its own timescales.
- I have reached a decision of fault leading to injustice. The Council has agreed actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman