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Essex County Council (21 005 470)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 13 Jun 2022

The Ombudsman's final decision:

Summary: Mrs B says the Council failed to put in place alternative education provision for her son despite agreeing his placement was no longer appropriate for him. There were some delays by the Council ensuring the school put in place alternative provision and some communication issues with Mrs B. An apology to Mrs B and her son and payment to Mrs B is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained the Council failed to put in place alternative education provision for her son from 19 May 2021, despite agreeing her son’s placement was no longer appropriate for him. Mrs B says that failure meant her son did not receive the provision he should have received in his education, health and care plan.

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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. 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. As part of the investigation, I have:
    • considered the complaint and Mrs B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. 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

What should have happened

  1. Section 19 of the Education Act 1996 (the Act)) says education authorities 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.
  2. The Government has issued statutory guidance on alternative provision (Ensuring a good education for children who cannot attend school because of health needs 2013). This says while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.

What happened

  1. Mrs B’s son has an education, health and care plan (EHCP). Mrs B’s son began experiencing difficulty attending school and received remote learning, followed by a reintegration plan which began on 17 May 2021. Mrs B’s son was only able to attend on 17 May and the morning of 18 May. A meeting took place on 19 May to discuss the situation. At that meeting Mrs B agreed to provide homeschooling for her son on a temporary basis.
  2. On 8 June Mrs B requested a reassessment of her son’s EHCP and said she did not believe the allocated school was suitable for him. Mrs B asked the Council to provide alternative education as she did not consider homeschooling a suitable arrangement. In the meantime Mrs B began visiting various alternative provisions she had identified.
  3. Mrs B put in a complaint on 16 June as her son still had no education provision. The Council confirmed on 23 June it would carry out a reassessment for the EHCP. The Council told Mrs B it could not arrange alternative provision because it could not anticipate what the reassessment process would decide in terms of suitable provision for Mrs B’s son. The Council explained the school was responsible for arranging tuition in the meantime.
  4. On 1 July the school told the Council it would need additional funding to provide alternative education for Mrs B’s son given the funding for his EHCP had already been spent on a full-time class-based adult.
  5. Mrs B contacted the Council again on 2 July as she was concerned about the lack of education provision for her son. Following that Mrs B put in a complaint on 8 July.
  6. The Council contacted Mrs B on 21 July to tell her it was working with the school to organise a tuition package.
  7. Mrs B provided details of alternative provision she had identified as suitable for her son on 22 July. The Council noted the provisions identified did not meet the required quality threshold for the Council.
  8. Mrs B chased the Council on 4 August. The Council told Mrs B it would provide further clarification to the school about its responsibility for arranging tuition.
  9. At the beginning of the new school term in September 2021 the school told the Council it had identified an alternative provider. On 16 September the school sought confirmation from the Council it would provide the additional funding. The Council agreed to provide the funding later that day. Alternative education provision began on 20 September but was subsequently put on hold at Mrs B’s request and reinstated again in October. The provision was for three hours a day but Mrs B’s son was only able to manage one hour per day.
  10. In November 2021 the Council decided to issue a new EHCP and sent Mrs B a draft plan. In December 2021 the Council decided Mrs B’s son needed an autistic spectrum disorder specific education provision. The Council began consulting suitable schools. The Council issued a final EHCP later in December, naming the type of provision required.

Analysis

  1. Mrs B says the Council failed to put in place alternative education provision for her son from 19 May 2021. Mrs B says that is despite the fact the Council agreed with her that her son’s placement was no longer appropriate for him. Mrs B says as a result her son also missed out on provision in his EHCP.
  2. The evidence I have seen satisfies me Mrs B’s son was having difficulty attending the allocated school which resulted in a period of remote learning and then a reintegration timetable in May 2021. Unfortunately that reintegration process did not work and Mrs B’s son stopped attending the school on 18 May 2021. I am satisfied a meeting took place promptly with Mrs B and the school to discuss the situation on 19 May 2021. Mrs B says the Council agreed at that meeting the allocated placement was no longer suitable for her son. However, the records from the meeting do not confirm this was the Council’s view. Mrs B has provided a copy of her own notes from the meeting on 19 May though which she emailed to the Council later that day. Those notes record that a short-term solution had been identified on an interim basis for Mrs B to provide homeschooling for her son with support from the school. As Mrs B’s own notes record this was the decision I could not say the Council was at fault for not putting in place provision for Mrs B’s son from 19 May 2021. From the Council’s point of view Mrs B’s son was receiving homeschooling at that point and that is supported by Mrs B’s records. I therefore cannot criticise the Council for failing to put in place provision for Mrs B’s son from 19 May 2021.
  3. It is clear though that by 9 June Mrs B was asking the Council to make alternative provision for her son because she did not consider homeschooling appropriate for him. At that point there is no evidence in the Council’s paperwork to show it had agreed the son’s school was no longer suitable for him. At the same time Mrs B requested alternative provision she also asked the Council to carry out a reassessment of the EHCP to address provision for her son and to change the school named in the existing plan. Given there is no evidence to show the Council agreed the placement was no longer suitable and as it was in the process of reviewing the EHCP I do not criticise the Council for asking the school to identify suitable provision for Mrs B’s son initially.
  4. I am concerned though that despite the school telling the Council it needed additional funding to put in place alternative provision for Mrs B’s son on 1 July 2021 there is no evidence the Council put the additional funding in place until September 2021. I appreciate Mrs B’s son remained on the school’s roll and therefore from the Council’s point of view it was the school’s responsibility to make the additional provision. Nevertheless, the Council retains the responsibility for ensuring a child receives education. In this case the documentary evidence shows it was clear to the Council the school was not putting in place alternative education and could not do so without additional funding. I have seen no evidence to suggest the additional funding issue was resolved until 16 September. That delay is fault and meant Mrs B’s son missed out on education provision and provision in his EHCP at the end of the school year in July 2021 and at the beginning of the school year in September 2021.
  5. I am also concerned that despite repeated contact from Mrs B the Council did not provide clear updates about what was happening with her son’s education provision. Instead, the Council’s responses to Mrs B largely referred her back to the school. In some cases there was also a failure to respond to Mrs B’s communications. Failure to communicate properly with Mrs B is fault and led to her having to go to time and trouble to pursue her complaint. It is also likely to have added to Mrs B’s distress.
  6. For the lack of education at the end of July 2021 and the beginning of September 2021 I recommended the Council pay Mrs B £200. The amount recommended reflects the fact Mrs B’s son is not able to access a full-time timetable and that in September and October 2021 Mrs B asked the Council to delay alternative education provision. I recommended the Council pay Mrs B an additional £250 to reflect the time and trouble she had to go to and the impact on her of having to repeatedly chase the Council for progress. That is a total financial remedy of £450. In addition to that I recommended the Council apologise to Mrs B and her son. The Council has agreed to my recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mrs B and her son;
    • pay Mrs B £450; and
    • send a memo to officers dealing with children not attending school to remind them it remains the Council’s responsibility for ensuring education provision is in place if a school fails to make alternative provision even if the child remains on the school’s roll.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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