Summary: Ms X complained the Council failed to provide her son with suitable education and that he had not been in school for long periods. This caused her distress and Y missed an education he was entitled to. The investigation found evidence of fault in failing to provide Y with a suitable education from December 2018 to July 2019. It also found evidence of fault in the final EHC plan causing uncertainty to Y. The Council has already accepted some fault and offered a financial remedy. The Council has agreed to apologise and make additional financial payments.

The complaint

1. Ms X complained the Council failed to provide her son Y with a suitable education and that he had not been in school for long periods. Ms X says, as a result of the Council’s failings Y missed out on education and this impacted the whole family.

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What I have investigated

2. I have investigated Ms X’s issues of complaint from December 2018 onwards.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
7. 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

8. I considered the information provided by Ms X and spoke to her on the telephone. I made enquiries of the Council and assessed its response.
9. I wrote to Ms X and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

Legislation and Guidance

Special educational needs

10. A child with special educational needs may have an Education, Health and Care (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 tribunal can do this.
11. We can consider the other sections of an EHC plan. We do this by checking the council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
12. The Council is responsible for making sure that arrangements specified in the 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.
13. Councils must review EHC plans at least every 12 months. It should consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan and consider whether the outcomes and supporting targets remain appropriate. These requirements still apply where the child or young person is not attending a school or college.

Child out of school

14. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
15. The statutory guidance says the duty to provide a suitable education 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”. It also states “there will be a wide range of circumstances where a child had a health need but will receive suitable education that meets their needs without the intervention of the local authority”. This includes where a school has arranged to deliver suitable education outside of the school.
16. A full-time education in secondary school amounts to 25 hours per week.

Alternative provision

17. Section 19 of the Education Act 1996 says councils must arrange suitable full-time education, or education adapted to the student's ability and needs, for pupils who cannot attend school because of illness, exclusion or otherwise.
18. The Department for Education issued guidance entitled 'Alternative Provision'. This guidance says 'Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who - because of illness or other reasons - would not receive suitable education without such arrangements being made'.
19. The courts have ruled that what is 'suitable education' is a matter for the council to decide. Whether an alternative placement is 'suitable' is not based on the parent or child's view but upon objective consideration of whether the education offered is reasonably possible or reasonably practicable for the child to access

Early help

20. Early help is a term used to describe support that is offered at an early stage. The hope is that early support will prevent problems escalating to the point where formal social care support is needed, such as a child in need plan.

What happened

Background and overview

21. Ms X is Y’s mother and Y lives with her and his younger sibling. Y has an EHC plan for complex social, emotional, and mental health difficulties. In September 2020 he became 16.
22. The EHC plan states that Y should receive a “highly differentiated and personalised curriculum where possible”. It recognises Y’s strengths in creative activities with an emphasis on visual learning approaches in favour of written tasks. It says Y requires a high level of stimulation in terms of academic work and frequent changes of activity. It also states that activities such as theatre, singing, drama and practical activities such as baking, or car mechanics are preferred as they play to his strengths.

23. I am investigating the issues of the complaint from December 2018.
24. This chronology includes key events in this case and does not cover everything that happened.

December 2018 to July 2019

25. Y was a pupil at a comprehensive school and his provision was provided by Project M, an alternative education provider working with young people who are unable to access the mainstream school system.
26. On 10 December 2019 Project M sent an email to the School. It said that following the EHC plan meeting it expected online learning to be in place on days Y was not attending the Project (Tuesday and Friday), however the current timetable showed online learning from Monday to Thursday. It also said that Y had no equipment at home to access the programme and Ms X had not received information about using the site. A copy of this email was sent to the Council and Project M raised further concerns about implementing the timetable and extra provision (aside from Project M). Project M said it had made several attempts to contact the School to discuss the issues but had not received a response.
27. In early February 2019 Y stopped attending the School/Project M. Ms X said the School was successful for a few years, but a change of staff resulted in challenges and changes to provision. Ms X told the School that Y would not be attending until a new timetable had been agreed. On 12 February 2019, Ms X contacted the Council and the School and raised concerns about Y’s mental health. Two days later Y was admitted to hospital.
28. In early March 2019 it was agreed that an educational psychologist would carry out an assessment with Y. On 15 March 2019 Ms X asked the Council for an update on access to online learning and an educational psychologist assessment. Ms X also complained about issues with the laptop provided for Y. The educational psychology assessment was completed on 19 March 2019.
29. On 21 March 2019 the Council spoke to Ms X and confirmed a visit to a placement (Project H) for Y. Project H provides a range of activities to children and young people aged 18 months to 25 years providing an extensive programme of sports, arts and other activities. The Council agreed to take Ms X to the placement. It provided information about bereavement counselling for Y and information about financial support and activities for Y to take part in the school holidays.
30. On 16 April 2019 Ms X asked the School for an update on the online learning programme and whether the Council had found a suitable tutor for Y. The School said that it was now responsible for appointing a tutor for Y. Ms X emailed the Council and said there was no education in place for Y. The Council said that it would liaise with the School to arrange a meeting to discuss next steps and issues with the laptop. Ms X told the Council that Y did not want to attend Project H.
31. The Council and School met with Ms X at the end of April 2019. It was noted that Y had access to an online learning package but there had been numerous issues with technology and payment which meant the service was stopped. It was acknowledged that Project M provision had broken down. It was agreed that Y required a tutor that could meet his needs and a clear transition plan to enable him to access KS4 education at a more appropriate setting.
32. On 14 May 2019 Ms X asked the Council for an update on access to online learning for Y. She said that Y was sat at home doing nothing while she was at work. On the same day, the School informed Ms X that the Council had asked it to find a suitable tutor for Y.
33. The Council said it was determined to get the best home tuition support for Y and the School was best placed to understand Y’s needs and support his relationship with the tutor. The Council acknowledged that it had taken some time to get the home tuition in place and confirmed a start date for early June 2019.
34. On 7 June 2019 the School wrote to Ms X and confirmed that Y would receive tuition three days per week, from 09:00 to 13:30. It said that the tutor would support Y with accessing online learning. The tuition commenced on 10 June 2019.

My findings

35. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must intervene and make such arrangements itself. The duty arises after a child has missed 15 days of education either consecutively or accumulatively.
36. In response to my enquiries the Council said Y had a timetable and place at Project M that he was able to attend so no further provision was put in place. From the evidence I have seen, the Council was aware of issues with implementing the timetable and provision in mid-December 2018. However, there is no evidence to show it responded to those concerns. This is fault. If the Council had responded to the concerns it may have prevented Y’s absence from school in February 2019. The attendance records show that Y stopped attending Project M on 7 February 2019. During this period Ms X informed the Council about her concerns for Y’s mental health and hospital admission.
37. Section 19 requires councils to make suitable educational arrangements for children who because of exclusion, illness or otherwise may not receive an education. Even without definitive medical evidence, the Council has a duty to consider arranging education under the “otherwise” category. Even without definitive medical evidence, the Council has a duty to consider arranging education under the “otherwise” category once Y was absent for more than 15 days. I have seen no evidence the Council considered the concerns raised by Ms X about Y’s mental health and his hospital admission and therefore it is not clear how it determined that Y was able to attend Project M. This is fault and Y could have received alternative provision that was suitable for him.
38. From March 2019 Ms X continued to chase the Council and the School for an update on an online learning package and tutor for Y. The Council knew there had been problems accessing online learning and that Y was therefore without a suitable full-time education. There is little evidence that the Council did enough at this time to satisfy itself that the School had suitable arrangements in place for Y. The Council had agreed to an online learning package and tutor for Y and I would have expected it to put that provision in place in a timely manner rather than leave Y without this education for long periods.
39. In May 2019 the Council acknowledged that it had taken some time to get the home tuition in place. Home tuition did not commence until 10 June 2019. This is fault and Y was without a suitable full-time education for three months, taking into account school holidays. In its stage two complaint response the Council acknowledged that there was mixed communication about who was going to deliver the tuition.
40. Where a child has not received a suitable education the Ombudsman’s guidance on remedies recommends a payment of between £200 to £600 a month to acknowledge the impact of that loss. We consider the impact on the child, the severity of their special educational needs and the amount of provision that they could have managed. I recommend a payment of £600 per month. This amounts to £1800.

July 2019 to July 2020

41. The final EHCP issued in July 2019 stated that Y would transfer to a maintained mainstream post-16/sixth form college in September 2019. At the end of July Ms X and Y met with the College and were told that the actual provision secured for Y was 14-16 alternative provision based at Campus F and not the mainstream college.
42. For reference, in March 2019 the College said that it could meet Y’s needs as specified in the EHC plan dated February 2019.
43. The final EHC plan stated Y would have access to online learning for core subjects: english, maths, science and KS4. It said the College would purchase a laptop and headset to facilitate this provision. It stated that all staff teaching Y would have an awareness of his needs and the most effective strategies to meet them and this would be communicated through a pen portrait (or similar).
44. The College organised several transition events for Y to attend over the summer. Y only attended two events as he felt he had been pushed into provision and this was not the education he desired.
45. On 23 August 2019 the Council’s Attendance Improvement Team carried out a home visit to share information provided by the College about Y’s induction. Y attended his induction on 5 September 2019. He was reluctant to go into the classroom because he felt uncomfortable around other pupils. Y said he thought he would be in the mainstream college environment. The records show that Y attended College every day for the first week.
46. On 15 October 2019 it was noted by the Attendance Improvement Team that Y was refusing to attend the provision at Campus F. The College said it was clear that Y was not happy and did not intend to stay in the provision. The College met with Ms X and Y and it was agreed that its 14+ Academy might be better suited to Y’s needs. Unfortunately, due to an incident that occurred within the Academy, Y refused to return and Ms X was not happy for him to do so either.
47. The College requested an early review of Y’s EHC plan. It arranged a home visit prior to the EHC plan review meeting. The College arranged a careers interview with a specialist SEND careers adviser who met with Y and Ms X. The College arranged for a workplace co-ordinator to work with Y on a weekly basis to explore options and re-engage Y and re-build a timetable. Y attended a couple of sessions and the last one was attended by Ms X. Ms X expressed her concerns for Y’s mental health and his disengagement from education. It was noted that Ms X was not willing to explore a work placement unless it had been confirmed and the duties had been clarified. The College offered one to one sessions with a progress mentor to explore personal development and interest in music, incorporating elements of maths and english. Ms X agreed to consider this. The College agreed to send through google classroom codes and hegarty maths as an interim that Y could access from home as he was reluctant to attend Campus F.
48. An annual review meeting of Y’s EHC plan was held on 8 November 2019. It was noted that Y’s attendance was 3.8%. Ms X said that Y had not engaged in education as the EHC was incorrect and still stated post-16 mainstream provision. Ms X left the meeting early. The EHC plan review was not completed or signed.
49. In November 2019 the Council made a referral to its Early Help Team, to develop relationships between the family and professionals and to enable Y to access education.
50. The records show that between 12 November 2019 and 4 December 2019 the College communicated with Ms X and Y about potential work placements. On 20 November 2019, the College sent Ms X an email with log in details for online learning for maths.
51. On 26 November 2019, Y attended Campus Q and was given a tour of the music and media departments. Y said he “would like to work but would also love to attend [Campus Q] for music production for his post 16 studies”. Y was shown how to access google classrooms for maths, english and music.
52. The College arranged to visit Project H (mechanics provision) with Y on 4 December 2019. However, Y did not attend due to personal circumstances. Ms X says she did not understand why Y would want to attend the Project as this was offered at his previous school and not deemed suitable.
53. The College carried out a home visit on 6 December 2019. It told Ms X there was an offer open to Y at Campus F. It could offer maths and english in smaller groups and it had been exploring placements. Ms X expressed frustration about the delay in securing a suitable placement for Y. The College explained that Y had to meet with the employer first and had not done so. It said that Ms X had refused the last placement offered as Y did not want to wash cars. Ms X denied this.
54. The College arranged for Y to attend Campus P to complete a maths and english assessment. Y did not attend the assessment due to illness. The College contacted Ms X on 12 December 2019 and 16 December 2019 to re-arrange the assessment. Ms X asked about a placement offer at a car showroom (Placement G) and whether they knew Y’s age. The College explained that further discussions were necessary however due to Christmas the manager of the placement was not available. Ms X said that Y would not be completing any assessments and ended the call.
55. The Early Help Team held an initial meeting with Ms X on 18 December 2019. Staff from the College and the Special Educational Needs Statutory Assessment and Provision team (SENSAP) were involved in subsequent meetings with the family on 7 January 2020, 24 January 2020, 7 February 2020 and 18 February 2020.
56. At the meeting on 7 January 2020 a proposed timetable was shared with Ms X and Y. This included maths, english, science, enrichment and 1:1 sessions with autism Special educational Needs Co-ordinator (SENCO) and two days’ work placement at Project H. Ms X and Y did not feel comfortable attending the lessons at Campus F. The placement was also deemed unsuitable by Ms X and Y due to negative relationships with other children that attended.
57. An alternative timetable was agreed however it did not meet the required 25 hours. The College suggested two days at a work placement, singing and gym sessions to achieve the required hours. A work placement (placement W) in Wakefield was offered. The next day Ms X and Y visited placement W. Ms X said the placement was “fantastic and couldn’t fault it”. The amended timetable and placement commenced on 13 January 2020. The College also developed sessions for Y in singing and arts, however Y “felt it was not for him”.
58. A further meeting was held on 24 January 2020. It was agreed that the timetable would remain the same, but the start-time would be amended to 9:30 as this was more realistic and manageable for the family. Y expressed that he was enjoying maths and english but did not feel placement W was suitable for him. Ms X requested another placement that was more suitable for Y’s needs and accessible for the family. It was agreed that Project H would be revisited. The Council confirmed there had been a provision offer from SENSAP for gym membership and singing and once in place these sessions would be included in Y’s timetable.
59. On 18 February 2020 a meeting was held with Ms X, Y and his grandmother. There were gaps in the current timetable which meant that Y was not receiving 25 hours education. SENSAP recorded that “[Ms X] and [Y] are refusing to attend provision at [Campus F] and Academy…. meaning the college is having to be creative to provide a bespoke timetable”.
60. An annual review of Y’s EHC plan was held on 10 March 2020. Y was not attending college and had not been able to access work from home as he did not have a laptop. The College said it had exhausted its offer and could not meet Y’s support needs as he was under 16. The Council said the College could meet Y’s needs. The review was inconclusive and stated “All in attendance agree that Y’s EHCP is focussed on the fact that he is a Post 16 student which he is not. The Pre-16 offer of LCC is not the same as the Post 16 offer. The EHCP names a Post-16 Mainstream college at the provider. The current EHCP outcome and provision was not visited as the offer at the end of the plan is for a post-16 provider”.
61. On 23 March 2020 schools in England closed to most pupils because of the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. From 1 May to 31 July 2020 a relaxation of the duty for councils to ensure provision in an EHC plan is arranged to one of making ‘reasonable endeavours’ to secure the provision.
62. During this period the Council provided Y with a laptop and the College offered Y remote learning. The College arranged for a student relations officer to provide 1:1 remote sessions each week which included music and singing. Y did not attend.
63. In June 2020 the Council liaised with Y’s grandmother (Mrs Z) who was advocating on behalf of Ms X. Mrs Z told the Council that Y wanted to study a business course at college. The Council pursued this with the College with a view that Y would start in September 2020. Y decided he no longer wanted to pursue a business course and asked if he could just do GCSE maths and english.
64. In September 2020, there were two offers of a timetable for Y. One at Campus F pre-16 offer and the second at Project M. Ms X and Y said both offers were unsuitable due to previous incidents at Campus F and Project M.
65. Y was then offered a timetable for maths and english. Ms X asked for this to be delivered at Campus P however due to COVID-19 restrictions this was not possible. The offer was either in person at Campus F or an online programme. Access to the online programme was sent to Ms X and Y in October 2020 and it was agreed that Y would be supported by a tutor from College. The tutor tried to contact Y on several occasions but was unsuccessful. The College confirmed that Y had not accessed any online lessons.
66. On 5 November 2020 the tutor received an email from Ms X stating that Y did not want to be contacted until a meeting had been arranged with the Council. A meeting was held on 9 November 2020 to address reasons why Y was not accessing the online programme. The Council recommended that MST (Multi-Systemic Therapy) visit the family to support Y with help from the College. The Council says Ms X was not in agreement with this and said she no longer wanted SENSAP involved with Y.

My findings

67. We cannot consider the role of the School/College as they are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
68. Councils have a legal duty to ensure the special educational provision in section F of an EHC plan is delivered from the date they issue a final EHC plan. This duty is non-delegable. It is not the Ombudsman’s role to determine the suitability of the education provision, or the quality or amount that a child should receive. Our role is to consider whether the Council provided education and support as set out in the EHC plan.
69. From the evidence I have seen, a review of Y’s EHC plan was completed in November 2019 and March 2020. The Council also made a referral to the Early Help team in November 2019, an early help plan was implemented, and frequent meetings were held with the family, staff from the College and SENSAP. The Council was aware of Y’s low attendance and absence. It liaised with the College to explore different options and create a bespoke timetable to encourage Y to return.
70. In addition to this, the support offered by the Council and the College included:

• online learning;
• personalised transition events in summer 2019;
• 14-19 academy at the College;
• exploring work experience at car garage/showroom;
• online hegarty maths and google classroom access for maths, english and music;
• further offer of mechanics at Project H;
• personalised singing and arts delivered by enrichment tutor;
• funding a dedicated key worker to co-ordinate online sessions;
• business course at the College;
• online maths and english timetable with tutor support; and
• Mult-Systemic Therapy.

71. The Council has demonstrated through the chronology that it was engaging with the College to assure itself that Y’s case was progressing. The Council agreed with suggestions made by the College to engage Y more successfully. The Council also sought to assure itself that the Early Help Team and the College were working together to adapt the educational offer so that Y might engage with it.
72. Despite this Y was without education for several periods from September 2020. Y’s attendance was 8.1% and significantly below 25 hours of provision he should have been accessing and the Council was aware of this. The Council is the ultimate responsible body for ensuring that education provision including that set out in Y’s EHC plan is secured. I find, the Council was involved and had oversight of the work undertaken by the College to provide a flexible and bespoke timetable which it said could meet Y's needs. The records show that Y did not always engage with the support offered and Ms X and Y declined offers made by the College. It is Ms X’s view the offers did not meet Y’s needs, however as explained in paragraph 19, the courts have ruled that it is for the Council to decide what is suitable. I find no fault by the Council.
73. It is Ms X’s view that Y’s education at the College has been negatively impacted because his EHC plan wrongly stated that he was a post-16 student, which he was not. In response to my enquires the Council maintains the error has had no material impact on Y’s provision or its appropriateness. It said:

“The Council remains of the belief that the placement from college does not need to change, and that is why there has been commitment and focus on making that placement work. This is because any future post 16 pathway would remain in the college environment as we know that [Y] is interested in various vocational pathways, so it is very important that the current pathway and the next pathway link up. This is an appropriately assessed offer to meet his needs as set out in his EHC plan”.

74. I cannot say the error in Y’s EHC plan was the cause of problems with the provision and Y’s low attendance. There are too many other factors involved but it did create a legitimate expectation for Y about the offer that was in place. This was confirmed by all professionals that attended the annual review in March 2020. The fault caused uncertainty and disappointment for both Y and Ms X over a significant period, from September 2019 to April 2020 when the EHC plan was finally amended. I recommend a payment of £700.
75. In its stage two response the Council said there had been periods where the College could have improved their co-ordination and planning. Specifically, between January 2020 and up to February 2020, totaling six weeks. The cost of provision was £600 per week. Therefore, the Council offered to put aside a sum of £3600 for any additional tuition that Y would benefit from. I am satisfied with this.

Pen Portrait

76. In its stage two response the Council said that all staff in direct contact with Y should sign a declaration indicating they have read and understood the EHC plan. Ms X says if the Council had read the EHC plan it would have established this had been in place since 2016.
77. In response to the Ombudsman’s enquiries the Council said, Ms X had stated she did not trust that staff had read Y’s EHC plan to understand and follow it. Therefore, the statement in the complaint response regarding staff signing a declaration was to reassure Ms X. I do not find the Council at fault here.

Support for Ms X

78. Ms X says the Council has failed to support her. A child and family assessment was completed on 31 July 2020. Ms X was offered MST. Ms X ended this support in December 2020. The Council confirmed that Ms X was referred to a bereavement service. Ms X was offered a financial assessment which she declined. The Council arranged for the family to receive food vouchers, a fridge freezer, washing machine and £200 payment towards buying a new bed for Y. I find no fault by the Council.
79. Ms X says the faults have caused her distress and frustration and impacted negatively on her well-being. It is my view that Ms X suffered a significant injustice followed by a prolonged period of uncertainty and distress for which I consider a financial remedy is appropriate. In its stage two complaint response the Council offered Ms X a payment of £250. I recommend that this payment should be increased to £350.

Agreed action

80. Within one month of my final decsion the Council will:
1. apologise in writing for the faults identified in this statement;
2. as per its stage two response make arrangements for additional tuition/provision for Y to the value of £3600;
3. pay Ms X £1800 to acknowledge the impact of loss education provision between February 2019 and June 2019. The payment should be used for the benefit of Y’s education;
4. arrange payment of £700 to Y to acknowledge the uncertainty, disappointment and distress caused by the fault in the EHC plan, as identified in paragraph 74. This payment will compromise of £600 in appropriate vouchers once Y has secured a tenancy on a property, enabling him to buy home products and £100 in cash or by bank transfer.
5. pay Ms X an additional £100 (total £350) to acknowledge her distress and frustration and time and trouble spent pursuing her complaint.

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Final decision

81. I have found fault by the Council causing injustice. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman