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Barnsley Metropolitan Borough Council (20 009 692)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 19 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s actions in relation to her son’s special educational needs. She says the Council did not provide her son with the special educational provisions as set out in his EHC plans, and did not provide suitable alternative provision. We find fault with the Council’s actions and have made recommendations.

The complaint

  1. Mrs X complains about the Council’s actions in relation to her son’s special educational needs. She complains the Council:
    • Produced a flawed Education, Health, and Care (EHC) plan in February 2019 as it removed provisions from the plan for no good reason.
    • Did not provide her son with the special educational provisions as set out in his EHC plans between September 2019 and July 2020.
    • Did not provide suitable alternative provision between January and July 2020.

She says because of the Council’s actions, her son missed a full year of education in school and that the education he did receive was not enough to meet his needs.

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What I have investigated

  1. I have investigated Mrs X’s complaint that the Council did not provide her son with the special educational provisions as set out in his EHC plans between September 2019 and July 2020. I have also investigated her complaint that the Council did not provide suitable alternative provision between January 2020 and July 2020.

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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 Mrs X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Mrs X and the Council and considered 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. A child with special educational needs (SEN) may have an 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 which include:
    • Section F: The special educational provision needed by the child or the young person.
    • Section I: The name and type of the school or other institution to be attended.
  2. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Section 42, Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible.
  3. 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. 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 more suitable.
  4. Government guidance, ‘Alternative Provision’, notes that full time education is not defined in law. The Ombudsman’s view is full-time education is held to be equivalent to between 22 and 25 hours a week. We also note the law allows councils to view one-to-one tuition as worth more than provision delivered to groups.

What happened

  1. Mrs X’s son, A, attended a mainstream primary school. He had an EHC plan. In October 2018, the school held an annual review of the plan in preparation for A’s transition to secondary school. The Council did not attend this annual review.
  2. In February 2019, the Council sent Mrs X a final EHC plan. Mrs X said the Council had removed many of the special educational provisions A previously had in section F. The EHC plan also named a mainstream school. Mrs X preference was for a specialist school. Mrs X was not happy with the plan and appealed to the SEND tribunal.
  3. Most of the special educational provisions set out in section F of the February 2019 EHC plan were related to techniques or actions to take place within a school setting.
  4. In September 2019, as a secondary school placement had not been agreed and the case had been appealed at the Tribunal, the Council arranged for A to have five tuition lessons per week. There was no evidence the Council took steps to secure the special educational provisions as set out in section F of A’s February 2019 EHC plan.
  5. In December 2019, the Council agreed to name the specialist school Mrs X wanted. The Council also agreed to amend the special educational provisions outlined in section F of A’s EHC plan. Mrs X was happy with the amendments made to the EHC plan and withdrew her appeal. The final EHC plan was issued in December 2019.
  6. As with the February 2019 EHC plan, most of the special educational provisions set out in section F of the December 2019 plan were related to techniques or actions to take place within a school setting.
  7. As a placement at the specialist school was not available until September 2020, the Council continued to provide tuition to A between January 2020 and July 2020. The education provided consisted of seven hours a week.
  8. There was no evidence the Council took steps to secure the special educational provisions set out in section F of A’s December 2019 EHC plan.
  9. The Council said it considered the alternative provision put in place for A between January and July 2020 was satisfactory in the circumstances. The Council said it recognised the offer of seven hours per week was not full time education. The Council did not provide any reasons for why it considered part time education to be more suitable for A.
  10. In July 2020, Mrs X asked the Council to educate A out of year group. Mrs X said this was because A had missed a year of education. The Council agreed A could benefit from repeating year seven and so agreed for A to start in year seven in September 2020, rather than year eight.

Analysis

Special educational provisions

  1. The law is clear the Council’s duty is to secure the provisions set out in section F of an EHC plan. This is the case even if the plan has been appealed, as in this case.
  2. It is acknowledged the special educational provisions set out in section F of A’s February and December 2019 EHC plans mainly related to techniques and actions to be deployed within a school setting. This could mean it was not possible for the provisions to be provided outside of a school.
  3. However, there is no evidence the Council considered this. The Council has also not provided us with any rationale for why it was not possible to secure the special educational provisions. Therefore, I consider there was fault by the Council as it did not comply with its duty to secure the special educational provisions set out in A’s EHC plans between September 2019 and July 2020.
  4. I consider the fault identified caused A an injustice as he did not receive the provision he needed, and this may have impacted on his progress and educational development. However, the Council had agreed to A starting in year seven, rather than year eight, in September 2020. This means it is likely, on balance, that any impact of the loss of provision will be reduced. Therefore, I consider the injustice to A has largely been remedied.
  5. I also consider the fault identified caused Mrs X some distress at knowing A did not receive the special educational provisions he needed.

Alternative provision between January and July 2020.

  1. The Council said it provided tuition between January and July 2020 because the specialist school which had been agreed during the Tribunal process did not have a placement available for A until September 2020. I consider it was appropriate for the Council to have arranged alternative provision for A given he was out of school. This was compliant with the Council’s Section 19 duty.
  2. The Council has said it recognised the offer of seven hours tuition per week was not full time education. The law states councils must make suitable educational provision for children who are absent from school. The provision should be on a full-time basis, unless, in the interests of the child, part-time education is considered more suitable.
  3. The Council has not provided any reasons for why it considered part time education to be more suitable for A. Therefore, I consider there was fault by the Council as it did not provide full time education for A between January and July 2020.
  4. I consider the fault identified caused A an injustice. This is because he did not receive full time education when he should have, and this may have impacted on his progress and educational development. However, as above, as the Council has agreed to allow A to start in year seven in September 2020, it is likely any impact of the loss of full time education will be reduced. Therefore, I consider the injustice to A has largely been remedied.
  5. I also consider the fault identified caused Mrs X some distress at knowing A did not receive full time education.

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Agreed actions

  1. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
    • Apologise to Mrs X for failing to secure the special educational provisions set out in A’s EHC plans between September 2019 and July 2020, and for not providing full time education between January and July 2020.
    • Pay Mrs X £300 to recognise the distress caused by the faults identified.
  2. The Council will complete the above within four weeks of the final decision.

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Final decision

  1. I find fault with the Council for failing to secure the special educational provisions set out in A’s EHC plans. I also find fault with the Council for not providing full time education between January and July 2020. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mrs X’s complaint that the Council produced a flawed EHC plan in February 2019. This is because she appealed to the SEND Tribunal. Therefore, Mrs X had used her alternative remedy. This also meant I could not consider the claimed injustice that her son missed out on a full year of education in school.

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Investigator's decision on behalf of the Ombudsman

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