Summary: Mr X complained the Council has not ensured his son, Z, received provisions in his Education, Health and Care Plan. He also said it has failed to provide Z with a suitable education since April 2021 and has not provided the family with any social care support. The Council was not at fault.

The complaint

1. Mr X complains the Council has not:
• ensured his son, Z, received provision in his Education, Health and Care Plan since April 2020;
• provided Z with alternative educational provision since accepting the parents’ decision to remove Z from school in March 2021;
• identified a suitable educational setting for Z, despite him being without education since March 2021; or
• provided himself, Ms Y (Z’s mother), or Z with any social care support despite completing a Child in Need and carer assessments in the spring/summer 2021.
2. He says Z has missed out on education and special educational needs (SEN) provision and the family have missed out on social care support. He wants the Council to provide suitable education for Z, support for his SEN and appropriate social care support for his family.

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The Ombudsman’s role and powers

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

6. I read Mr X’s complaint and spoke with him about it on the phone.
7. I made enquiries of the Council and considered information it sent me.
8. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Background information

Education, Health and Care Plans

9. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
10. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
11. If a parent is unhappy with the final EHC Plan, they can appeal to the first tier Tribunal (Special Education Needs and Disabilities (SEND)).

Alternative Education

12. 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.
13. 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 to arrange suitable alternative education. The only exception is when suitable provision is already being made.

Relevant case law

14. The Courts have established how a council’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. The duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question. The question of what is ‘suitable education’ is for the council.” (R (R) v Kent County Council [2007] EWHC 2135 (Admin)).

Child in Need

15. The Children Act 1989 says children “in need” includes children who need councils to provide them with services to either maintain a reasonable standard of health and development, or to prevent them suffering further harm to their health and development.
16. The Act sets out a council’s duty to safeguard and promote the welfare of children within their area who are in need. The council has a duty to assess a child and offer services appropriate to the child’s needs.

Parent Carer assessments

17. Section 97 of the Children and Families Act 2014 requires Councils to assess parent carers on the appearance of need or where an assessment is requested by the parent.
18. The Council must assess whether the parent has needs for support and what those needs are. It must also assess whether it is appropriate for the parent to provide care for a disabled child considering the parents needs for support, other needs and wishes.

What happened

19. Mr X’s child, Z has moderate learning difficulties and special educational needs. In May 2020, Z attended school A, a mainstream primary school. The Council issued a final amended Education, Health and Care Plan (EHC Plan), which named school A as Z’s placement. Section F included specialist provision and educational support to meet Y’s identified needs. Mr X did not appeal to the Tribunal about the final plan.
20. Due to the COVID-19 pandemic, the Council said it contacted school A throughout the summer term and during September 2020, to check for any concerns about children at the school with EHC Plans. The Council said neither the school nor Z’s parents raised any concerns about Z’s provision during this time.
21. In October 2020, the Council reviewed Z’s EHC Plan. The review notes recorded that:
• Z had made a brilliant start to the new school year at school A;
• There had been improvements in his behaviour since starting at school A;
• He had made positive relationships with adults and peers;
• His attendance had improved.

The notes record that all agreed Z had settled well and was doing well at school A with the provision in place. It said Z’s parents reported they were happy with the school and how Z had settled.

22. The Council proposed amendments to the plan to correct some factually inaccurate information. The provision in the plan remained largely unchanged.
23. In January 2021, the country entered a national lockdown due to COVID-19 and schools closed to most pupils except vulnerable children and children of keyworkers. The Council says school A offered Z a school place due to his needs, but Z’s parents declined this.
24. The Council sent Z’s parents a draft amended EHC Plan. Z’s parents told the Council they were unhappy with the draft plan and requested amendments.
25. Mr X asked the Council for a referral to children’s disability services for an assessment.
26. Between January and March 2021, school A provided Z with a laptop and sent work home. Mr X said that due to Z’s special educational needs, himself and Ms Y were unable to support Z with schoolwork.
27. The Council sent Z’s parents a revised draft amended plan in February 2021. Z’s parents requested further amendments and the Council produced a further revised draft in March 2021.
28. In March 2021, Ms Y told the Council they were not happy with school A and felt Z needed a specialist school. They decided Z would not return to school A. They told the Council they had arranged to visit a special school to see if it could meet Z’s needs. They remained unhappy with the draft EHC Plan.
29. Mr X complained to the Council. He complained children’s services had not completed an assessment, despite him requesting this in January 2021. He also requested a carers assessment and said he and Ms Y were unhappy with the content of Z’s draft amended EHC Plan, including the named school placement.
30. The Council responded and said his requests for assessments were being dealt with by the children’s team. The Council was aware he no longer wanted Z to attend school A and had agreed to consult with other schools.
31. In April 2021, the Council completed a Child in Need assessment with the family. The assessment recorded the Council was concerned that Z was missing out on education and had not been at school since December 2020. Although they accepted Z’s parents’ decision to remove him from school A and their view that he needed a special school, they were concerned that special schools would not consider Z had sufficient needs to require special education and so would not accept him. It also recorded concerns that school A had provided a laptop and learning resources for Z to use at home, but Mr X and Ms Y had said they could not educate him at home due to his learning difficulties.
32. The Council decided Z needed support as a Child in Need and to complete carers assessments with Z’s parents. It held an initial Child in Need meeting which both parents attended.
33. In May 2021, the Council consulted with two special schools which Z’s parents had requested. Both schools said Z was working at a higher level that other students in their schools and so it was not appropriate to offer him a place.
34. Mr X remained unhappy with the Council’s actions and complained to us.
35. The Council completed a carers assessment with Z’s parents over the summer. This identified some ongoing needs and support.
36. Between May and September 2021, the Council held two further Child in Need meetings, and a third meeting was planned but cancelled at short notice due to illness. The Council visited the family at home 16 times. The Council told us support provided during this time included:
• Support and encouragement to return Z to education, either at school A or another placement.
• Support for Z’s parents – both practical support and in relation to their mental health needs.
• Advice related to housing.
37. In July 2021, the Council produced a fourth draft amended EHC Plan. Z’s parents remained unhappy and the Council decided, as it could not reach agreement, it should finalise the plan, so as not to further frustrate their appeal rights. Ms Y responded asking the Council not to finalise the plan.
38. In response to our enquiries, the Council told us its view remained that school A was suitable and could meet Z’s needs. It had accepted the parents’ decision to remove Z in April 2021 and consulted with special schools at the parent’s request, but both schools consulted did not offer him a place. It said school A had continued to offer home learning resources and also offered to send a teaching assistant to support Z’s learning at home, but Z’s parents had declined this. It said it was working with the family to re-integrate Z into education as soon as possible and that Z’s parents had recently agreed to meet with school A’s headteacher, which was a positive step forward.
39. The Council said it considered whether to take any enforcement action against Z’s parents for his non-attendance but did not consider this was the right approach.
40. Since September 2021, the family situation has deteriorated and Z is now subject to a Child Protection Plan.

Analysis

Delivery of EHC Plan provisions since April 2020

41. There is no evidence school A or Z’s parents raised concerns Z was not receiving provisions during Summer 2020. The annual review in October 2020 noted Z had settled at school A and was doing well. The notes do not record any concerns from school A or Z’s parents that provision in Z’s plan was not being delivered and instead document that Z was making good progress. Z continued to attend school A up until December 2020. There is no evidence Z’s parents told the school or the Council of any concerns that Z was not receiving provision during this time.
42. Between January and March 2021, Z did not attend school due to the COVID-19 national lockdown. Z was offered a place at school during this time, but Z’s parents declined this. This was their choice to make. However, as Z was not in school, Z could not receive provisions in the plan designed to help him during the school day. This was not Council fault. School A appropriately provided Z with a laptop and learning resources to support home learning. The Council said school A had also offered a teaching assistant to visit to support Z with home learning, but Z’s parents had declined this. The Council was not at fault.

Educational provision since March 2021

43. It was Mr X and Ms Y’s choice to remove Z from school A in March 2021. Although the Council agreed to consult special schools at the parents’ request, the Council’s position remained that school A was suitable for Z and could meet his needs. There is no evidence to suggest otherwise. School A continued to provide learning resources and offer support during the summer term and it was Mr X and Ms Y’s choice whether to accept the support. The Council also provided support to the family during this time as Z was a Child in Need and it tried to encourage Z’s parents to re-engage Z with education. The Council considered whether to take formal action for non-attendance but decided this was not the right approach. School A has offered support for Z since March 2021 and Z remains on roll at school A and can attend at any time. The Council continues to work with the family to re-integrate Z into the school setting. The Council is not at fault.

Provision of social care support

44. The Council completed child and family and a carers assessment as Mr X and Ms Y requested. It agreed the family had needs and accepted Z needed services. It has met with the family multiple times since April 2021 and provided both advice and practical support for Z, Mr X and Ms Y. The Council continues to work with the family and work to ensure Z ‘s safety and wellbeing through a Child Protection Plan. The Council is not at fault.

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Final decision

45. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman