Summary: Mrs X complains the Council failed to provide suitable education to her son and delayed issuing a final Education Health and Care Plan, resulting in missed education and stress to Y and his family. The Ombudsman finds the Council at fault. He recommends the Council provides an apology, pays £3200 in total for missed education, distress and uncertainty, time and trouble. And, takes action to prevent recurrence.

The complaint

1. Mrs X complains the Council failed to provide suitable education to her son Y from December 2018 to September 2019 and delayed in the Education Health and Care Plan process. Mrs X says Y has missed education and the whole family has suffered stress.

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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. 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.
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
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 spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

SEN Code of Practice; Annual Reviews

8. Councils must review an Education Health and Care Plan (“EHCP”) at least every 12 months.
9. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
10. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
11. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
12. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
13. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
14. Where the council does not agree the suggested changes it may still issue the final EHCP.
15. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Right to Education

16. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
17. Sections 436 to 447 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must identify children not receiving an education.
18. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
19. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.

20. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
21. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
22. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
23. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It 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 (with the exception of 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.

REACH

24. REACH is an alternative education provider. It offers one to one placements or small group placements for key stage 3 and key stage 4 students.

Ombudsman Guidance

25. The Ombudsman publishes “Principles of Good Administrative Practice” which sets out the standards we expect of local authorities. This includes having an effective complaints procedure, which offers a fair and appropriate remedy when a complaint is upheld.

What happened

Background

26. Y’s EHCP named School A as the nearest suitable school and School B as parental preference.
27. Y started School B in September 2017.
28. In May 2018 Mrs X and School B agreed Y would no longer attend school to avoid a permanent exclusion.
29. Y was out of school from 17 May to 4 December. On 4 December 2018 the Council issued a final EHCP naming College C.
30. Mrs X complained to the Ombudsman. The Ombudsman found while Y was out of school the Council had made efforts to find a school place. However, it failed to provide suitable alternative provision. It had also delayed issuing Y’s final EHCP of 4 December 2018. The Council explained the delays were because of staffing issues. It confirmed it was recruiting more staff to deal with the volume of work. And, it now ran regular reports to identify overdue complaints and reassign if necessary.
31. The Ombudsman issued a decision finding the Council at fault and recommending an apology and payment for the injustice to Mrs X and Y.

This complaint

32. Y’s EHCP of 4 December 2018 outlines his SEN provision which can be met through resources ordinarily available in schools. It names College C, a community special school.
33. Mrs X was unsure whether College C would be suitable for Y but says she did not appeal because they were willing to try it. However, Mrs X says there were issues around Y’s travel to school. Mrs X says Y did not attend College C for any meaningful period, though he did attend REACH, which was available two days a week.
34. The Council’s records show College C arranged for Y to attend REACH two days’ a week and he attended on most occasions throughout the school year. The records also show Y remained on roll at College C until the end of the school year in July 2019, but he only attended on four occasions in February 2019.
35. Mrs X has provided correspondence which shows she told the Council Y was not attending College C on 8 February 2019 and asked for an emergency annual review.
36. The Council held an annual review meeting on 2 April 2019 and discussed solutions. It has provided a chronology which shows it then made efforts to find suitable educational provision for Y.
37. On 20 May Mrs X complained to the Council about its delay in issuing a final EHCP following the annual review meeting. She said it had not kept her informed of its consultations with schools and Y had been out of education since 4 December. She asked the Council to consult with School D.
38. The Council sent Mrs X notice to amend Y’s EHCP in early June. I note this was four weeks late.
39. In the Council’s response of 30 June it accepted and apologised for its delay. It explained this was due to the number of annual reviews and a lack of capacity. It asked Mrs X if it should issue a final EHCP naming the type of provision only to allow her a right of appeal.
40. Mrs X told the Council its apology was an insufficient remedy and asked to go to stage 2.
41. The Council responded further to confirm it upheld her complaint, apologised and took action. It felt there was nothing to warrant a stage 2 investigation and confirmed she could contact the Ombudsman.
42. Mrs X provided comments on the draft EHCP on 5 June.
43. On 13 June the Council issued a final EHCP with the placement left blank.
44. On 16 July the Council consulted with School D. School D refused the placement but the Council told Mrs X it would speak to the new headteacher in August.
45. In July Mrs X complained to the Ombudsman about the Council’s actions, seeking a remedy for the missed education and delays in the EHCP process. She explained Mr X could not return to work as he stayed home with Y. Y had increased drug use and anti-social behaviour due to the impact of being out of school. They spent money trying to keep Y engaged and they had all suffered stress. She wanted the Council to fund additional after school education or tuition for Y, pay for an Education Psychologist (“EP”) report to evaluate the impact on Y, compensate them, investigate off rolled children in the area, work harder to meet provision and secure a school place for Y to start in September.
46. The Ombudsman forwarded this to the Council and asked if it wanted to consider the complaint at stage 2.
47. The Council explained it upheld the complaint in full at Stage 1 and provided the outcome Mrs X wanted - for Y to be in education. It said it was unsure what it could add to the complaint investigation.
48. On 8 August Mrs X applied to appeal the EHCP, seeking to name School D.
49. On 11 September Y started at School D.
50. The Council says it has not yet issued a final EHCP naming School D as it waiting for the Tribunal to confirm the consent order.
51. When I spoke to Mrs X she said Y’s time out of school had led to his anti-social and criminal behaviour. She provided a report from the Youth Justice Board which says his non-attendance at school in 2018 led to anti-social behaviours including criminal offences recorded from November to 15 December 2018.
52. In response to enquiries the Council said College C did not provide full time education as Y could not cope with attending school. It explained College C commissioned REACH for two days a week and it has provided a copy of Y’s attendance record. In regards to delays in the EHCP process, the Council explained it was still embedding new processes to try and address the timescale issues. There had been staff turnover and an unprecedented number of requests for EHCPs.

Findings

53. I note there were issues around Y attending College C that the College tried to resolve with Mrs X and Y. However, I will not comment on this as I cannot investigate what happens in schools.
54. Although Y remained on roll at College C he was not attending College C or receiving any education other than REACH alternative provision on two days a week.
55. On the evidence provided, I am satisfied the Council knew Y was not receiving suitable full time education from 8 February 2019. The Council has provided no evidence to demonstrate Y could not cope with full time education or alternative provision while it arranged a suitable placement. And, although I acknowledge the Council made efforts to find provision for Y from April 2019, Y remained out of school until 11 September 2019. I find the Council at fault as it did not arrange suitable full time educational provision for Y from February to September or, take steps to ensure Mrs X ensured Y received suitable education.
56. The Council also delayed in the EHCP process. While I recognise the Council is stretched due to high demand, its statutory responsibilities remain. The Council’s delay amounts to fault.
57. Mrs X made clear to the Council she wanted a further remedy for their experience, beyond an apology. The Council therefore should have considered a further remedy or escalated the complaint to stage 2. However, it told Mrs X further investigation was not warranted, without addressing her request. I find this amounts to fault.
58. Our approach is to remedy any injustice arising as a direct result of the Council’s fault. I can therefore consider the injustice to Y and his family caused by the Council’s fault. But it is not appropriate to ask the Council to fund an EP report to see if there may be a further, unknown impact on Y. It is also not proportionate to ask the Council to carry out a wider investigation into off-rolled children in the area.
59. Y was out of full time secondary education for approximately six months because of the Council’s fault. I note REACH was available for Y to attend on two days a week. I also note the Council agreed to fund some tuition for Y over the summer holidays. I will take this into account in calculating a suitable remedy for missed educational provision.
60. Y and his family suffered stress due to Y being at home and uncertainty due to delays in the EHCP process. While I accept Y’s behaviour deteriorated while he was out of school, I cannot say this was as a direct result of the Council’s actions as other factors may have increased or reduced his negative behaviours.
61. I cannot say the Council’s fault directly resulted in Mr X needing counselling sessions to cope with stress. Or, that Mr X could not return to work as a direct consequence of the Council’s fault. I also cannot say the Council’s fault directly resulted in Mrs X spending money to incentivise Y. This is because there may be other factors involved outside the Council’s control.
62. Mrs X was put to avoidable time and trouble in pursuing a complaint to the Ombudsman, when the Council could and should have provided a remedy earlier.
63. I will recommend the Council take action to prevent recurrence of the faults identified. Though I note the Council is already taking action to resolve delays in the EHCP process.

Agreed action

64. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Provide Mrs X with a written apology for the identified failings;
• Pay Mrs X £2400 for Y’s loss of education, for her to use for the benefit of Y’s education or, arrange extra tuition for Y to this value, at Mrs X’s preference;
• Pay Mrs X £500 for the distress and uncertainty suffered by Y and his family;
• Pay Mrs X £300 for the time and trouble in pursuing her complaint;
• Take steps to ensure staff are aware of the Council’s legal duties under section 19 of the Education Act 1996;
• Take steps to ensure staff offer a fair and appropriate remedy when they uphold a complaint.

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Final decision

65. I find the Council failed to ensure Y received suitable education and delayed in the EHCP process. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman