Bracknell Forest Council (20 007 057)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Jun 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to provide full time education for his son. He also complains the Council failed to find his son a school place and delayed in completing an EHC assessment. We find fault with the Council for not issuing the final EHC plan within the statutory deadline. However, the fault did not cause any significant injustice. We also find fault with the Council for not properly considering whether part time education was more suitable for the child. We have made recommendations.

The complaint

  1. Mr X complains the Council failed to provide full time education for his son for three years. He also complains the Council failed to find his son a school place after his exclusion. Mr X also complains about the delay in the Council completing an EHC assessment. He says the Council’s actions meant his son lost out on education and was caused distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I spoke with Mr X and considered the information he provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Mr X and the Council for their comments.
  4. 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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What I found

Legislation and guidance

  1. Under the Children and Families Act 2014, councils have a duty to identify and assess the special educational needs of children in their area. To do this, councils carry out Education, Health and Care assessments. In an assessment, councils will ask for information from sources including the child and their family, the school, medical professionals and social care providers. It will consider what provision is needed to meet the child’s special needs, including what type of school or institution the child should attend.
  2. If the assessment finds the child has a need for special educational provision, the council must prepare an Education, Health and Care (EHC) plan.
  3. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
    • The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
  4. There are some circumstances in which a council may not be required to comply with the 20 week time limit if it would be impractical for it to do so (Regulation 13, Special Educational Needs and Disability Regulations 2014). These are where:
    • the council requested advice as part of the EHC needs assessment from a nursery, school or post-16 institution attended by the child or young person during a time when it was closed for a period of longer than four weeks, or in the week immediately before such a closure.
    • exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period; or
    • the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.
  5. Section 19 of the Education Act 1996 says that councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
  6. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. It should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable.
  7. Government guidance, ‘Alternative Provision’, notes that full time education is not defined in law. The Ombudsman’s view is full-time education is commonly held to be equivalent to between 22 and 25 hours a week. We also note that the law allows councils to view one-to-one tuition as worth more than provision delivered to groups.
  8. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. Local authorities should arrange provision as soon as possible.

What happened

  1. Mr X’s son, P, had attended a mainstream secondary school, School A. The Council said P was on a part time timetable, attending school for around two hours a day. While at School A, P received several fixed term exclusions, but was never permanently excluded. In February 2019. School A asked the Council to complete an EHC assessment for P. The Council agreed to complete an assessment.
  2. P left School A in March 2019. He moved to another school, School B, which was the Council’s pupil referral unit (PRU). PRUs are a type of school for children who cannot attend a mainstream school. Students are often referred there if they need greater care and support than their school can provide.
  3. In March 2019, P received 17.5 hours of education a week, over five days. This consisted of:
    • One day at School B (five hours).
    • One day at a one-to-one outdoor education programme (five hours).
    • Three days of one-to-one tuition (two and a half hours).
  4. At the end of March 2019, P received 20 hours of education a week, over five days. This consisted of:
    • Two days at School B (five hours).
    • One day at a one-to-one outdoor education programme (five hours).
    • Two days of one-to-one tuition (two and a half hours).
  5. In May 2019, the Council issued a draft EHC plan. The draft plan set out P’s educational needs would be met at a special school. The Council consulted with two special schools at the end of May 2019. Both special schools did not offer P a place. Both schools provided reasons for declining P a place.
  6. In July 2019, the Council approached six other special schools to consult on whether they could meet P’s needs. All but one school responded to confirm they could not offer P a place. All schools provided reasons for declining P a place. The Council said it had approached every suitable special school with day provision and within a reasonable travel distance, as P’s parents did not want him to live away from home.
  7. The Council issued the final EHC plan at the end of July 2019. As the Council could not secure P a placement at a special school, the Council named a type of school. The EHC plan set out that P’s educational needs would be met at a special school.
  8. The Council accepted it had issued the plan four weeks after the 20-week deadline. The Council said the delay was caused by P’s non-attendance at two medical assessments which in turn delayed the medical reports necessary for the EHC assessment. The Council also said the deadline did not apply as the delay in the medical reports was classified as a ‘statutory delay’ under SEND regulations. The Council relied on Regulation 8.
  9. The EHC plan highlighted P had special educational needs in relation to his social, emotional, and mental health. It noted P had significant difficulties with keeping his attention and concentration.
  10. P continued to receive 20 hours of education a week until the end of July 2019.
  11. In September 2019, P was no longer on the roll of School B. He received 12.5 hours of education per week, over four days. This consisted of:
    • One day at a one-to-one outdoor education programme (five hours).
    • Three days of one-to-one tuition (two and a half hours).
  12. P received this provision until May 2020. During the lockdown in March 2020, caused by the Covid-19 pandemic, P received tuition by video. The outdoor education programme was also stopped.
  13. In May 2020, the Council arranged for P to receive an extra day of tuition as the outdoor education programme had stopped due to the lockdown. P received this provision until the end of July 2020.
  14. In September 2020, P received 15 hours of education a week, over five days. This consisted of:
    • One day at a one-to-one outdoor education programme (five hours).
    • Four days of one-to-one tuition (two and a half hours).
  15. The Council consulted with two more special school in mid-September 2020. The Council said it did not continue consulting with special schools before this as it had already consulted with all the possible suitable schools within a reasonable travelling distance from the family home. The Council also explained there was no point reapproaching the same schools for another consultation so soon after they had already declined to offer P a placement.
  16. In November 2020, P started his placement at a special school.
  17. In response to our enquiries, the Council explained P could not cope with a school day and was often excluded from School A because of defiant and risky behaviours towards staff and students. The Council said because of this, there was no realistic expectation that he would cope with a standard-length school day when he transferred to School B.
  18. The Council also said it provide alternative provision that was always higher than the 10 hours of education he received when he was attending School A. The Council also explained it did not offer full time one to one tuition because P’s ability to engage with academic learning was impacted by his mental health. There were also concerns about his attendance. The Council provided some evidence that P did not always attend his tuition sessions.

Analysis

Full time education

  1. The law notes that councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. It should also be on a full-time basis unless, in the interests of the child, the council considers part-time education to be more suitable.
  2. It is also important to note that full time education is not defined in law. However, the Ombudsman’s view is that it is commonly held to be equivalent to between 22 and 25 hours a week. We also consider that one to one tuition is worth more than provision delivered in a group.
  3. I note that between February 2019 and July 2019, P received between 17.5 hours and 20 hours of education a week. Given part of the education he received was one to one tuition, I consider P likely, on balanced, received close to full time hours of education during this period.
  4. Between September 2019 and July 2020, P received 12.5 hours of education a week. Between September 2020 and November 2020, this increased to 15 hours. On balance, I am of the view that this is unlikely to be considered full time hours of education.
  5. The Council can provide part time education if it considers it to be more suitable and in the best interests of the child. The Council said it did not provide P with full time education as his ability to engage with academic learning was impacted by his mental health.
  6. However, there is no evidence to show how the Council reached its view, or what information it considered to reach its view, that P’s ability to engage with academic learning was impacted by his mental health. While I appreciate the Council now says that is its position, the Council should be able to show how it made the decision at the time. The lack of evidence suggests this was not properly considered at the time.
  7. The Council also said it had concerns about P’s attendance. There is some evidence to show P did not always attend his tuition sessions. However, there is no contemporaneous evidence of how the Council considered P’s attendance and why this meant it was more suitable for him to receive part time education.
  8. Further, there is no evidence the Council considered why it was more suitable for P to only access education for 12.5 hours a week between September 2019 and July 2020, and 15 hours between September 2020 and November 2020.
  9. This is especially relevant given P had previously received 20 hours of education a week between March 2019 and July 2019. The Council would have been entitled to provide part-time education if it could show it had properly considered that it was more suitable for P to access part-time education. However, there is no evidence the Council considered this at the time. This is fault.
  10. I consider the fault identified has caused some injustice. This is because it is not possible for me to say how much provision P could have coped with, or to say what the Council would have decided if it had properly reviewed and considered whether it was in P’s best interest to receive part time education at the time. This means there is uncertainty as to what provision P could have received between September 2019 and September 2020.

Special school placement

  1. The evidence shows the Council consulted with several special schools in May and June 2019. This was appropriate as it showed the Council made reasonable efforts to find P a special school place after it had assessed that was the most suitable placement for him. However, all the schools that responded to the consultation told the Council they could not offer P a place.
  2. The Council has also provided a reason for why it did not continue to look for a school placement for P between August 2019 and August 2020. I consider the Council’s explanation to be reasonable in the circumstances. Therefore, I consider the Council did all it could to reasonably find P a special school placement.

Delay in completing the EHC assessment and finalising the EHC plan

  1. The law and statutory guidance says the whole process, from when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks. The Council does not need to comply with the time limit if it is impractical to do so under certain specific circumstances.
  2. The Council accepted it had sent the final EHC plan four weeks after the 20-week deadline. It accepted it should have issued the final plan in June 2019. The Council said the 20-week deadline did not apply as the delay in the medical reports was classified as a ‘statutory delay’ under SEND regulations.
  3. However, none of the circumstances set out by Regulation 13 of the SEND regulations apply in this case. Therefore, I am satisfied the Council did have to comply with the 20-week deadline. Therefore, I find fault with the Council as there was a service failure as it did not issue the final EHC plan within the statutory 20-week deadline.
  4. However, I do not consider the fault identified caused P any significant injustice. This is because, on balance, it was unlikely the Council would have secured P a school place, even if it had issued the final EHC plan without delay as the evidence shows the Council approached some schools in May 2019 without success.
  5. Further, Mr X has not complained about P not receiving the special educational provisions set out in his EHC plan. This suggests the delay in issuing the final EHC plan has not impacted on P receiving his special educational provision as the Council provided P with alternative provision during the four week delay.
  6. In response to our draft decision, the Council said it disagreed with our findings. It said there was never any doubt by the professionals involved in the case that part time education was appropriate for P and his circumstances.

Recommended action

  1. To remedy the injustice caused by the fault identified, I recommend the Council complete the following:
    • Apologise to Mr X for the uncertainty caused by its failure to properly consider whether part time education was more suitable for P.
    • Pay Mr X £300 in recognition of the period of uncertainty caused by the fault identified.
    • Remind staff of the need to have clear written records of their decisions and reasons when deciding on the suitability of part time education.
  2. The Council should complete the above within four weeks of the final decision.

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Final decision

  1. I find fault with the Council for not issuing the final EHC plan within the statutory deadline. However, the fault did not cause any significant injustice. I also find fault with the Council for not properly considering whether part time education was more suitable for P. I do not find fault with the Council for not securing a school place earlier than November 2020.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mr X’s complaints that the Council should have completed an EHC assessment for P earlier in October 2018. This is because this is outside our jurisdiction as Mr X would have had the right to appeal to the Tribunal when the Council declined to complete an assessment in November 2018.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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