Summary: Miss X complains the Council failed to ensure her daughter B received adequate education and support at school as set out in her Education, Health and Care Plan (EHCP), then failed to make alternative provision after B stopped attending school. She also complains of delays in updating B’s EHCP and of poor complaint handling. There is fault by the Council in that B’s EHCP was slightly delayed, but no evidence this caused injustice.

The complaint

1. The complainant, who I refer to here as Miss X says that:
1. The Council did not respond adequately on being made aware that the school was failing to provide the education and support set out in B’s EHCP;
2. After she removed B from the school due to this lack of provision and other issues, the Council failed to make alternative provision for B for several months. Miss X says she was obliged to fund private tuition to mitigate this;
3. The Council delayed in updating B’s EHCP; and
4. The Council’s response to complaints has been inadequate. In particular, Miss X says she received an email from the Council which she felt was derogatory. She feels she has been victimised by the Council.
2. Miss X says professionals have concluded B has regressed educationally and is now 2-3 years behind her peers. She seeks compensation for missed education, recompense for the private tuition she paid and for B’s EHCP to be amended.

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What I have investigated

3. I have investigated the Council’s fulfilment of its duty to provide B with a suitable education, its approach to her EHCP and its complaints handling.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

7. I spoke to Miss X and considered information provided by Miss X and the Council. I have shared the draft version of this statement with Miss X and the Council and considered their comments on it before making my final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Legislation

9. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils have the power to take enforcement action where it considers a child’s non-attendance to be unauthorised.
10. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils for arranging suitable alternative education. The only exception is when suitable provision is already being made.
11. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be fulltime, unless the physical or mental health of the child means that full-time education would not be in their best interests.
12. An Education, Health and Care Plan (EHCP) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
13. Councils must review EHCPs at least yearly. Councils should also complete interim reviews if a child’s educational needs change throughout the year. This is to make sure any provision continues to meet the needs of the child.
14. Following a review, councils must send parents a decision notice within four weeks confirming if the EHC plan is to continue; be amended; or if it is to end.
15. If the EHC plan needs amendments, the Code states councils should “start the process of amendment without delay”. The council must send the parents a copy of the existing plan with a notice explaining the proposed amendments and the evidence for these. It must then issue the amended EHC plan within eight weeks of the amendment notice.

What happened

16. B has Special Education Needs (SEN) and an Education Health and Care Plan (EHCP).
17. In July 2019 Miss X raised multiple concerns with the Council about teaching staff at B’s school and of a lack of rapport between B and her SEN teaching assistant support worker. She complained B was not receiving the support she required under her EHCP. The Council’s notes record Miss X as saying she was concerned about the school’s headteacher and did not want B to continue at the school while the head was in place. The Council’s notes also say B’s father felt a move would not benefit B.
18. The Council arranged for support to be provided for B and her support worker by a specialist team within the Council. The team attended the school in July. The Council also gave Miss X advice on making complaints about school staff directly to the school and offered help in finding a different school for B.
19. In early September Miss X told the Council the school was not providing maths lessons for B as required in her EHCP. The Council advised Miss X to request an early review of B’s provision. It told me it had no opportunity to provide further support regarding this matter before B’s parents removed her from school.
20. In late September Miss X complained to the school that B’s father had found her alone in the school playground with no peers or staff in the vicinity and that the teaching assistant had not presented for B’s “meet and greet” in the morning. She said this was a serious safeguarding incident.
21. Shortly afterwards B’s parents removed her from the school. Miss X told the Council the teaching assistant was bullying B and that B would not return to school until it had employed a new teaching assistant to work with her. Miss X also said the school was not safe for B. The Council told Miss X it would arrange an emergency review. It met the school to discuss B’s non-attendance.
22. Miss X raised concerns about the safeguarding incident with the Council’s multi-agency safeguarding hub (MASH) which decided not to investigate. Much later, in 2020, the Council arranged for the Local Authority Designated Officer (LADO) to review school CCTV footage in respect of Miss X’s safeguarding allegation in order to provide a view to the school complaints panel. The LADO’s view was that the footage did not support the allegation and no further investigation was warranted.
23. B remained out of school through October and November. The school told the Council during this time it left homework in its reception for B’s parents to collect, but by late November they had only collected one set of work despite reminder emails. Miss X told me “we only received work from them on one occasion”. She also said this homework was too hard for B and as the school had not responded to her emails about this, she had not collected any further work. The school’s view is that the homework provided was tailored to B’s ability. The Council told me it took evidence internally on B’s ability and agreed with the school that she could engage with the work sent.
24. Miss X also denied receiving reminders from the school and said the Council should have ensured these were sent. The Council said it had sent Miss X two emails in November 2019 pointing out that homework was being set weekly while the school referenced the accumulation of uncollected work in an email of December 2019.
25. The school decided, and the Council agreed after consideration of the evidence, that B’s absence was unauthorised. The Council also again offered to facilitate a change of school. Miss X declined this as she felt it was in B’s best interests to remain at the school as she had friendships there and it was within a short walk of her home.
26. In early November 2019 Miss X emailed the Council to complain that B had now been out of school for seven weeks. A senior Council manager responded on 11 November, pointing out that Miss X had declined multiple offers to consult on alternative schools and that the Council had “worked consistently with the school to arrange urgent review meetings”. The manager also said Miss X’s partner had written to the Council to thank it for this. The letter concluded: “May I politely check if you have been into school to agree dates to meet in collaboration with the head.”
27. Miss X told me: “This email came out of the blue, I hadn’t personally emailed [the manager] ever before this email”. She felt the manager was not aware of the full situation which meant the school’s head was avoiding a meeting. She said the email made her feel as if the problems with the school were her fault, while omitting to mention that the Council itself had been unable to arrange a meeting with the school. Miss X was also unhappy which the manager’s insinuation that her partner, with whom the manager had a personal connection, was happy with the Council’s actions. Miss X told me her partner had simply added a thank you note to the end of a letter to the Council.
28. In November 2019 Miss X asked the Council to fund private tuition for B. The Council declined on the basis that B was still on roll at the school and the only reason for her non-attendance was family choice. On 19 November Miss X also emailed the Council asking it to update B’s EHCP.
29. The Council considered prosecuting Miss X for B’s non-attendance but ultimately decided against this. It attempted to arrange mediation in November between the school and B’s parents. The mediator advised the parties were beyond mediation. Miss X has told me she would have been happy to enter mediation.
30. Between October and December 2019, the Council attempted to convene an emergency meeting. A meeting was offered in late October to Miss X in the early morning which she declined due to B’s “late starts”. She said the time offered was discriminatory but offered to attend in the afternoon. The school did not co-operate with the Council in arranging an alternative date in 2019.
31. In January 2020, the Council arranged a reintegration meeting with a view to B’s return to school with a support plan. Under the plan, B would have a new support worker. Updating B’s EHCP was also mentioned in the plan alongside a request for B’s parents to send information to the Council. The Council has told me that during the integration meeting it asked Miss X to provide information from B’s private tutors.
32. In the event the school did not accept Miss X’s complaints and she decided B should attend a different school. The Council agreed to fund home tuition for B during the interim period.
33. In June Miss X contacted the Council to ask whether B’s EHCP had been updated since the January meeting. The Council responded to say it was still waiting for updated information from Miss X as discussed in that meeting. Miss X responded to say: “I’m not sure what information I can provide you to enable the team to correctly rewrite [B]’s EHCP but I’d be happy to have a meeting with you to enable us to rewrite it together based on the information I have.”
34. In late August, following an annual review in July, the Council informed Miss X it had decided to amend B’s EHCP. Under the statutory timescale for EHCPs, it then had eight weeks in which to produce a final plan. B started at her new school in September.
35. The EHCP was finalised on 5 November, which was two weeks late. The Council said: “In addition to the difficulties faced as a result of COVID-19, there were a number of factors in [B]’s case that needed to be carefully considered to ensure [B]’s ECHP was accurate and thorough. These considerations include [B] commencing in her new setting in September and her being out of school.”
36. Miss X told me the Council did not send the updated EHCP to B’s school. She said as a result it drew up a support plan based on B’s previous EHCP. She said professionals had found B is now 2-3 years behind her peers in English and maths. She feels this is due to the Council’s failure to make suitable educational provision. The Council provided evidence it had sent the EHCP to B’s school on 5 November.
37. In response to my draft decision Miss X said she had provided all the relevant information she had about B at the January 2020 reintegration meeting and that the Council should therefore have made its decision to update B’s EHCP much earlier. The Council disagreed. It pointed out that the action plan sent to Miss X following the meeting placed a requirement on B’s parents to provide additional information. The Council said Miss X did not query the action plan.

Analysis

38. The Council responded to Miss X’s concerns about B’s provision by sending a specialist team into the school in July and by providing advice to Miss X about complaining to the school. I can see no fault in the Council’s response. B’s parents removed her from school within a few weeks of the start of term meaning a further response was not possible.
39. Between January and March, the Council decided that B’s absence was unauthorised. It therefore considered it was not under a duty to make alternative provision for B such as home tuition. I can see no fault in the way the Council reached this decision. It considered evidence from B’s parents and the school.
40. The Council decided against prosecution of B’s parents but did take steps to ensure B’s return to school. These steps included attempting to arrange dispute resolution between B’s parents and the school, although this was unsuccessful. The Council took until January to arrange a reintegration meeting between the school and B’s parents. I have seen evidence that the school failed to respond to the Council’s attempts to arrange this earlier. While the Council could have been firmer with the school I can see no evidence an earlier meeting would have made a difference to B. Miss X said later that she would not consider B’s return to the school until her complaint against the school, which was being handled under a separate process, had completed. In my view it is unlikely, given the positions of the school and Miss X, that an earlier return to school could have been negotiated before the complaints process had finalised.
41. Miss X has complained the Council failed in its duty to provide a suitable education to B during her absence because the school’s homework was too hard. Miss X came to this conclusion after collecting one set of homework. I have seen evidence that the school continued to prepare homework for B over several months. As Miss X did not collect this it is not possible for her to say whether it was also too difficult for B. The Council and school were confident the work was appropriate for B’s ability and reminded Miss X that uncollected homework was accumulating. I can see no fault by the Council in deciding that the provision of homework satisfied its duty to ensure B received a suitable education between September 2019 and March 2020. Once Miss X had decided to transfer B to a different school, the Council made suitable arrangements for alternative provision.
42. Having made its decision to update the EHCP in late August, the Council failed to issue a final plan within the statutory eight- week period. However, B received an EHCP within 13 weeks of the date of her annual review and the Council explained the short delay was partly due to the impact of the Covid-19 pandemic. I find fault by the Council, with no evidence of injustice to Miss X or B.
43. I can see no evidence the Council should have made its decision to update the EHCP earlier.
44. I can see no evidence Miss X was victimised by the Council. In my view the letter of 11 November 2019 did have a slightly accusatory tone and was not particularly well worded. Given the sensitive nature of the situation a different tone and wording may have avoided causing offence to Miss X. However, in my view this is insufficient for a finding of fault.

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Final decision

45. I have completed my decision with a finding of fault by the Council which did not cause injustice.

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Parts of the complaint that I did not investigate

46. I did not investigate the school’s actions or the Council’s involvement in the school complaints process.

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Investigator's decision on behalf of the Ombudsman