The Investigation

The complaint

1. Mr X complained that the Council:

• failed to ensure Y received full-time education from when he started Reception class in September 2020 until he moved to a new school in July 2021;

• failed to secure all the special educational provision in Y’s Education, Health and Care (EHC) plan or provide the school with necessary funding;

• failed to intervene when a school discriminated against Y due to his disability (the School has subsequently admitted discrimination);

• failed to properly investigate his complaint;

• delayed in arranging suitable alternative education when Y was permanently excluded in Spring 2021; and

• failed to agree a personal budget or use a tutor already known to Y when the Council’s usual tutors were not able to assist causing unnecessary delay.

2. Mr X says fault by the Council:

• negatively affected Y’s integration into school life, his learning and development;

• impacted on his and his wife’s employment; and

• led to him incurring significant legal fees.

Relevant law and guidance

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:

• The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this report. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

• The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.

5. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Early years education

6. A child attains compulsory school age on the first day of the term after they are age 5.

Equality considerations

7. Section 13(A)(1) Education Act 1996 says councils must ensure their relevant education functions are exercised with a view to ensuring fair access to opportunity for education. This applies to persons who are under compulsory school age and are registered as pupils at schools maintained by the local authority.

8. The Equality Act 2010 prohibits direct and indirect discrimination, victimisation and discrimination arising from disability (where a disabled person is treated unfairly because of something connected with their disability and the unfavourable treatment cannot be justified).

9. Section 20 of the Equality Act places a duty to make reasonable adjustments for those with disabilities on councils and schools.

10. Section 149 of the Equality Act sets out the Public Sector Equality Duty (PSED). This says a public authority (such as a council) must in the exercise of its functions have due regard to the need to eliminate unlawful discrimination and advance equality of opportunity between persons who share a protected characteristic and persons who do not share it.

Part-time timetables

11. Section 19 Education Act 1996 says councils are responsible for arranging suitable education for pupils of compulsory school age who are permanently excluded or who, because of illness or otherwise, would not receive suitable education without such provision. The education must be full-time unless the council considers that, for reasons which relate to the physical or mental health of the child, it would not be in the child’s best interests for full-time education to be provided.

12. Department of Education statutory guidance says that as a rule, part-time timetables are not permitted as all pupils of compulsory school age are entitled to a full-time education. Part-time timetables can be used to meet pupil’s individual needs, for example where a medical condition prevents full-time attendance. Where used, part-time timetables should be temporary and have a time limit when the pupil is expected to return to attend full-time or alternative education is provided.

Education, Health and Care plans

13. A child with special educational needs (SEN) 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.

14. Section 42 of the Children and Families Act 2014 says where a local authority maintains an EHC plan for a child or young person the local authority must secure the specified special educational provision for the child or young person. 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

15. We expect councils to have systems in place to check that provision in an EHC plan has been secured.

16. Under section 61 of the Children and Families Act 2014, councils may arrange for special educational provision to be made otherwise than in a school if it is satisfied it would be inappropriate for the provision to be made in a school. Before doing so it must consult the parent or young person.

How we considered this complaint

17. We produced this report after considering the complaint made by Mr X and the documents he provided; the Council’s comments about the complaint, and the documents it provided in response to our enquiries.

18. We took account of relevant law and guidance including:

• The Education Act 1996;

• The Children and Families Act 2014;

• The Equality Act 2010 and guidance;

• Statutory guidance: Alternative Education; Ensuring a good education for children who cannot attend school because of health needs;

• Our focus report: Out of school…out of mind. How councils can do more to give children out of school a good education;

• Our focus report: Not going to plan? Education, Health and Care Plans two years on;

• Our Guidance on Remedies; and

• Our Principles of Good Administrative Practice.

19. We also considered the Council’s own policy on part-time timetables.

20. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

21. The Council issued an EHC plan for Y in August 2020. Y was due to start Reception in September 2020.

22. Mr X appealed Sections B (needs) and F (provision) of the EHC plan to the SEND Tribunal. Mr X wanted Y’s one-to-one support in school to be experienced in applied behaviour analysis (ABA) and for ABA provision to be added to the EHC plan. Parents had self-funded ABA at home before Y started school.

23. Special educational provision set out in Y’s plan included adult support throughout the day at school and a very detailed list of individualised programmes to be carried out daily or weekly. This included speech and occupational therapy.

24. On the first morning of term the School said Y had to be collected each day at 11am not 3pm as Mr X had expected.

25. Mr X immediately complained to the Council the School was only allowing Y to attend part-time (two hours a day), which he said was discriminatory. Mr X said the reduced hours did not allow enough time for the provision in Section F of the EHC plan to be met, so the Council was in breach of its duty to secure this. Mr X told the Council that the School had not yet hired a teaching assistant (TA), speech therapist or occupational therapist to work with Y because the Council had not yet provided necessary funding.

26. Mr X told us as he was concerned Y would go backwards. He self-funded ABA and speech therapy outside school from September 2020.

27. The Council asked the School to complete a checklist of provision. The School confirmed therapies were not in place because the School was waiting for advice. The Council said it would follow this up every two weeks until provision was in place. The Council told us it did follow up by telephone, but it has not kept any records of these calls.

28. The Council told Mr X it was satisfied ‘the School is making all of the provision it currently can’. Mr X and the School were meeting weekly and the Council’s specialist teacher had visited to provide advice and strategies.

29. With regard to the restricted timetable, the Council told Mr X that as Y was not yet of statutory school age he was only entitled to fifteen hours a week of education, not full-time education.

30. Therapists visited monthly from October to December, but delayed sharing written recommendations with the School. Mr X asked the Council if therapy could start based on oral advice given but got no response. The therapy was not implemented regularly until January 2021.

31. We asked the Council why the School could not implement therapy before January. The Council told us assessments were delayed when therapists were redeployed during COVID-19; reports were available in June 2020, but while COVID-19 restricted face-to-face therapy, the therapists liaised closely with the School and the Council’s specialist teacher. The Council told us it had not considered commissioning private therapy because it was ‘confident that this provision would be in place when practicable given the unprecedented circumstances’.

32. Mr X’s lawyer wrote to the Council disputing Y was only entitled to fifteen hours education at age four because, regardless of his age, he was entitled to all the provision in Section F of his EHC plan. The only way to deliver this was for Y to attend school full-time. Y was also being denied education provided to the rest of the class.

33. The lawyer advised the School Mr X expected Y to attend full-time from mid- October but, as the TA was only employed mornings, for Y’s safety, Mr X would collect Y at 1pm until this was resolved. When Mr X did not collect Y at 11.30 on 13 October, the School threatened to report Mr X to social care.

34. After the October half-term Y was allowed to stay for lunch and attended four hours a day. Y could not attend afternoons because Y’s TA was only employed for 0.4 of the timetable. The School said it could not keep Y safe. Mr X said not being able to stay for lunch from the start of term meant Y struggled socially.

35. In November 2020 the Council’s specialist teacher visited Y and advised a timetable should be agreed with parents to slowly increase Y’s time in school, but by no more than fifteen minutes a week depending on how Y was ‘coping in school’. Mr X says this did not happen and Y continued to be sent home at 1pm.

36. The Council provided funding in November, but this was less than the School said it needed. A mediation meeting was held between the Council, School and Mr X in November and an early review of the EHC plan was held in December. The Council agreed to increase funding however the reduced timetable continued.

37. In January 2021 Mr X made a further complaint to the Council as Y was now of statutory school age. The Council replied that the reduced timetable was in place with Mr X’s agreement and he was choosing to ‘withhold’ Y from full-time school.

38. Following several legal letters, Y started full days from late January except for Fridays when, as his TA did not work, Y had to leave early.

39. Attendance records show Y attended 47% of morning lessons and 16% of afternoon lessons between September 2020 and March 2021.

40. The Council’s policy states part-time timetables must be agreed with parents and where parents do not agree a reduced timetable, it cannot be implemented as this would amount to an unlawful exclusion. The Council requires schools to notify it where a child of compulsory school age is on a reduced timetable. The policy has a risk assessment matrix where red means a school has used a reduced timetable ‘inappropriately based on the evidence obtained’.

41. We asked the Council why Y was on a restricted timetable as we did not find any reasons for this in the records. The Council told us the School’s professional judgment was that ‘making Y attend full-time would have been detrimental to his wellbeing and the safety of others’. There was no medical evidence to support part-time education on physical or mental health grounds.

42. The Council told us it was never ‘formally notified’ the School would not allow Y to attend full-time and ‘neither the School nor the parents ever indicated to the Council there had been a disagreement over a part-time timetable in this case’.

43. The Council told us regardless how many hours a TA was employed it would expect all pupils to be in school full-time ‘unless stated and agreed otherwise as a short-term measure’.

44. The Council agreed Y would not be able to receive all his Section F provision via part-time attendance but told us Y was highly likely to have been too distressed and upset to engage with the provision full-time.

45. Mr X says when Y started to attend more hours, the School started to sanction him for behaviour linked to his disability. In March 2021 Y received a fixed term exclusion. Mr X told us it was obvious the School did not want Y to remain there.

46. In late March 2021, the School permanently excluded Y. The specialist teacher later told the SEND Tribunal she visited the School in March 2021 due to concerns her advice about how to support Y to stay calm was not being implemented.

47. In mid-April the Council offered Y two hours a day alternative education at a support base. Mr X says the base was only temporary until the Governors considered the appeal. Mr X said due to the nature of Y’s disability he needed a predictable routine and a two hour placement for a few days was not suitable. Mr X wanted Y home schooled with a tutor until permanent provision was found. The Council agreed to interim tuition, although it considered the base suitable. It requested fifteen hours tuition a week until a new school was found. Mr X queried the ceiling of fifteen hours tuition. The Council said as one-to-one was more intense it found three hours a day with one adult tends to be what most children can manage, however it said it could review this depending how well Y engaged with provision.

48. The ABA tutor used by the family offered her services to the Council, but the Council wanted to use its own tutors. A tutor identified by the Council was due to start in May but cancelled saying they were no longer available. The Council said it would try and find a replacement but there was high demand and short supply. The Council again declined the offer from the ABA tutor.

49. In its response to our enquiries the Council told us Mr X refused both the base and the first tutor and his view was only the ABA tutor could support Y.

50. In mid-May the Council did agree to employ the ABA tutor on a temporary basis as it was unable to find an alternative. The tutor could offer 11 hours a week. As parents already self-funded a two-hour session a week the Council said it would only pay for nine hours and parents should continue to pay for the two hours they had privately arranged.

51. The Tribunal about the EHC provision was completed in July and Y started at a new mainstream primary school, but again only a few hours a day. The Council agreed to fund tuition until the Summer holidays to supplement the education Y received in his new school.

52. Y received the following tuition funded by the Council:

• May – 24 hours

• June – 47 hours

• July – 43 hours.

This did not include any speech or occupational therapy.

53. Mr X brought a claim for disability discrimination against Y’s school. The School admitted it had discriminated against Y because of his disability and its actions were not compliant with the Equality Act. It said it had failed to make reasonable adjustments to its behaviour policy, failed to provide auxiliary aids (including support from suitably qualified staff) and failed to provide interventions in the EHC plan including therapies. It had wrongly limited Y’s time in school and wrongly excluded him because of behaviours that arose from his disability. The School acknowledged it should not have left it to Mr X to chase the Council for funding and Y did not merit exclusion for behaviours which were not his fault.

Conclusions

Part-time education September 2020 to March 2021

54. The EHC plan intended for Y to attend school full-time from September 2020. It was not possible to deliver the amount of provision in Section F other than via full- time attendance. The Plan did not mention Y needing a part-time timetable or gradual transition.

55. The Council told us it would expect a pupil (including those below compulsory school age) to be in school full-time unless parents agreed to part-time.

56. Contrary to what the Council told us it is clear the parents disagreed with the reduced timetable. We find the Council was aware of Mr X’s objections from September 2020.

57. The Council told us the part-time timetable was a professional judgment by the School that Y was unable to cope with full-time school. However, Mr X’s evidence was that the reduced timetable was imposed from the first morning, before the School could have assessed Y’s tolerance to full-time education, and due to lack of staff and funding.

58. We have not found any evidence Y needed a reduced timetable due to health needs, which was the only basis a temporary part-time timetable could be put in place against parent’s wishes. The School told the Council it could not keep Y safe, but this was not a basis to reduce his education below full-time. If the Council considered Y could not receive all his education within school, it could have considered whether education should be provided to him otherwise than at school. (s.61 Children and Families Act 2014).

59. The specialist teacher gave evidence to the SEND Tribunal that despite inconsistency by the School, Y did make progress between her visits and was able to engage with education in a mainstream primary school. This does not fit with the Council’s statement Y would have been too distressed to engage with provision in his EHC plan even if it had been provided in full.

60. The Council’s policy for children of compulsory school age is that schools must formally notify it of a part-time timetable and the Council will then assess if a school has used a reduced timetable ‘inappropriately based on the evidence obtained’.

61. We consider as the Council’s view was that part-time timetables could not be imposed on children below statutory school age without parental agreement, the Council should have made a similar assessment when it received Mr X’s complaint. The Council did not seek evidence or make its own assessment of the part-time timetable. This was fault.

62. Instead of investigating, the Council told Mr X that Y’s entitlement to education before compulsory school age was only fifteen hours. It did not provide any rationale for this view. This is fault.

63. The Council did not revisit the situation in January 2021 or ensure full-time education was available to Y, although he was then compulsory school age. This is fault. The Council continued to suggest the part-time timetable was Mr X’s choice.

64. The Council told us in response to a draft of this report the specialist teacher ‘challenged the School regarding the part-time timetable emphasising that Y had entitlement to full time education’. The specialist teacher did advise the School to gradually increase Y’s time in school but the evidence we have seen shows the Council did not uphold Mr X’s complaint about the part-time timetable and instead supported the School’s position at the time.

Equality Act

65. Y attended a local authority maintained primary school. We find the Council failed to consider its responsibilities under the Equality Act and s.13 Education Act to advance equality of opportunity between Y and his peers.

66. Y’s school treated him differently than non-disabled children in his class who were below statutory school age who were allowed to attend school full-time. If the Council had investigated the complaint about the part-time timetable it would have considered whether this less favourable treatment of Y was justified. The discrimination by the School (which the School has now admitted) may have come to light sooner.

67. While the Council was not responsible for the School’s actions, it was providing funding to the School and had placed Y there, naming the School on Y’s EHC plan. The Council did not challenge the School about its failure to employ a TA for the necessary number of hours so Y could attend full-time, although additional funding was provided for this purpose. The Council instead supported the School’s decision of a reduced timetable, without evidence of any health need. In advising Mr X about Y’s entitlement to education the Council failed to consider why other children in his class who were below compulsory school age were allowed to attend more hours or how Y’s EHC provision would be made.

Failure to secure special educational provision in Section F of an EHC plan

68. Mr X appealed to the SEND Tribunal about some of the provision in the August 2020 EHC plan. The appeal does not alter our ability to consider whether the Council was implementing the provision stated in the plan. Y was attending the school and his parents wanted him to receive all his Section F provision.

69. We cannot look at any additional provision Mr X asked the Tribunal to consider adding to the plan. (Local Government Act 1974, section 26(6)(a), as amended)

70. Mr X has calculated that to deliver the special educational provision in the Plan would take five to six hours a day. We agree. Irrespective of Y’s age, Y was entitled to the provision from August 2020 and the Council had a non-delegable duty to secure it (s.42 Children and Families Act). It failed to do so. This was fault.

71. The Council said it followed up speech and occupational therapy every two weeks, but it has no evidence to support this. This is fault. There is evidence of therapist visits, but not that the School implemented interventions as set out in the EHC plan.

72. The Council told us COVID-19 was responsible for delayed therapy advice, but it also said the relevant therapy reports were available in June 2020 and the School received visits from a specialist teacher and the speech therapist in October 2020. We can therefore see no reason why recommendations were not in place in Autumn 2020.

73. The School has now admitted provision was not in place because it did not employ sufficient staff or implement the interventions. This evidence would have been available to the Council at the time if it had made enquiries. Mr X raised lack of staffing and funding repeatedly in his letters.

74. The Council should either have ensured the School put in place the special educational provision or made its own arrangements to do so. Failure to do so was fault.

Alternative education

75. As well as the duty to secure the provision in Section F of the EHC plan, from January 2021 the Council also had a legal duty to provide full-time education under s.19 Education Act. Y was then of compulsory school age. It failed to do so; this is fault. Y remained unable to attend school on Friday afternoons.

76. In March 2021 Y was excluded. The Council was responsible for providing Y with suitable full-time education from the sixth day after his permanent exclusion under s.19 Education Act. Provision should have started in mid-April but did not begin until a month later despite a tutor known to Y being available to start immediately. This was fault.

77. The Council says it made an appropriate offer of alternative education, but Mr X refused the offer of a support base and council tutors. We accept Mr X did refuse the base on the understanding the placement would last only a few days which he felt would be too unsettling to Y. The Council accepted this view as it immediately agreed Mr X’s alternative proposal of home tutoring. Tutoring should then have been put in place without delay.

78. We have not found that Mr X would only consider his own choice of tutor. Mr X did agree to the Council’s tutor, and it was the tutor that cancelled, not Mr X. Mr X offered the ABA tutor because the Council could not find an alternative.

79. Full-time education for a child of Reception age is assumed to be twenty-two hours a week (Focus Report Out of school…out of mind). Statutory guidance says the number of hours of one-to-one tuition can be fewer as this is more concentrated, but this will usually be academic tuition alongside independent study. Y was five years old and his education would have been largely play-based. Mr X was satisfied Y could manage full-time hours. Y had previously had ABA tuition alongside nursery and was attending extra tuition outside of school. At the SEND Tribunal the Council agreed Y required 32.5 hours a week education with full-time one-to-one support.

80. We find the Council was at fault in seeking to restrict tuition to fifteen hours, but in any event, Y did not receive fifteen hours. He did not receive any speech or occupational therapy.

81. Section 19 Education Act 1996 does not allow councils to fund less provision where a parent has a prior private tuition arrangement. It was fault for the Council to require parents to pay for two hours when the overall education remained below what the Council judged was necessary.

Complaint handling

82. We have significant concerns with the way the Council has handled this complaint.

83. The Council provided inaccurate information both in its responses to Mr X and to us. It blamed a delay in therapy reports before June 2020 as a reason for delay after September 2020. It said COVID-19 prevented therapist visits, when visits clearly took place. It appears to have provided us with a stock response for delay during COVID-19 that does not fit the facts of this case. The Council has now accepted in its response to our draft report a stock response was provided. The Council gave Mr X inaccurate advice about Y’s legal entitlement to education which led him to seek his own legal advice. It made unevidenced claims about Y being unable to engage with education which are contradicted by its own specialist teacher. It claimed the reduced timetable was agreed with parents when it knew this was not the case. It said Mr X had chosen to ‘withhold’ Y from school but also that the decision was made by the School for Y’s wellbeing and on grounds of pupil safety.

84. The Council’s handling of Mr X’s complaint and its response to us falls short of the objectivity and accuracy we expect of councils.

Injustice

85. Y missed out on full-time education for the whole of his Reception Year. He received about half the education hours he could have expected to receive. He received little of the special educational provision he was entitled to.

86. Between mid-April to July 2021, when Y was excluded from school, he could have expected to receive thirteen weeks of education of up to twenty-two hours a week (286 hours). He received 114 hours tuition plus a small number of hours in his new school.

87. Our Guidance on Remedies suggest a financial payment in lieu of lost education of between £200 to £600 a month, where the top of the band would reflect a child with special educational needs who received no education.

88. We consider a sum of £5,000 is appropriate to acknowledge the lost education calculated as follows:

• £3,500 (£500 a month for seven months) for the education provided from September 2020 until Y’s permanent exclusion;

• £600 for the one month delay in starting tuition after the exclusion; and

• £900 (£300 a month for three months) for the period May to July 2021 when some specialist tuition was provided.

89. Mr and Mrs X had their work lives disrupted due to Y being unable to attend school full-time. They were not given any notice that Y would not be in school full- time in September 2020 and had to work late at night to make up the time to their employers. Y needed constant supervision while at home, including the period he was excluded from school and received tuition. Mr X said this amounted to 465 hours when parents had to look after Y when he should have been in school.

Mr X said at times his job was at risk and the whole situation was extremely stressful and exhausting.

90. Mr and Mrs X incurred private costs to supplement Y’s lost education:

• £1,300 speech and language therapy; and

• £1,825.60 autism therapy.

91. Mr X’s case was complex, concerning eligibility under an EHC plan and legal entitlements to education, in school or otherwise, below statutory school age. The Council did not provide accurate advice about the legal position when Mr X complained. In these circumstances we are satisfied it was reasonable for Mr X to have sought specialist legal advice to counter the Council’s position and these costs flow from fault by the Council.

92. Mr X has provided us with invoices for his legal costs which exceed £10,000. We cannot consider the legal fees in relation to the actions of the School or for the appeal of the EHC plan. We consider £2,500 reflects the avoidable costs Mr X incurred because of faults by the Council.

Recommendations

93. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

94. Within three months of the date of this report, to remedy the injustice caused, the Council should:

• apologise to Mr and Mrs X and to Y for the faults identified in this investigation;

• refund Mr & Mrs X’s private tuition and therapy costs of £3,125.60;

• pay Mr & Mrs X £2,500 towards avoidable legal fees incurred;
• pay Y £5,000 to remedy the injustice of lost special educational needs provision to be used for his educational benefit;

• pay Mr and Mrs X £4,650 (£10 an hour for 465 hours) for the additional care parents provided during school hours and to acknowledge the significant adverse impact on their employment; and

• pay Mr & Mrs X £500 to recognise the frustration and distress caused by the Council’s failure to secure the provision and the time and trouble to resolve the complaint.

95. To improve services, within three months of the date of this report, the Council should ensure officers are reminded of the following & provide us with evidence of this:

• The Council’s duty to secure the special educational provision in an EHC plan, which is non-delegable.

• The Council’s duty to provide full-time education to children of compulsory school age, this could include making supplementary provision within or otherwise than at school to make education up to full-time where a school cannot provide it.

• The requirement to make alternative education available as soon as possible that meets individual needs, councils must not have rules that may limit the offer of education provided.

• The Council’s equality duties, how these may arise in cases of children with special educational needs and EHC plans and what officers should do if they have concerns about schools discriminating against pupils.

• The requirement to carry out thorough, impartial complaint investigations based on evidence and consider the facts of the individual case. (The Ombudsman’s Principles of Good Administrative Practice)

Parts of the complaint we have not investigated

96. We have not investigated the actions of the School or matters appealed to Tribunal; these fall outside our jurisdiction.

97. We have not investigated the adequacy of school funding. This was a matter for the School and the Council and does not alter the Council’s legal obligations to Y.

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