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Southend-on-Sea City Council (21 005 548)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 24 Feb 2022

The Ombudsman's final decision:

Summary: Ms A complains the Council failed to provide the provision in Child X’s Educational Health and Care plan. Ms A complains this means her son has missed education and support he should have been receiving. The Ombudsman finds fault with the Council for failing to provide the agreed provision, and for failing to provide suitable alternative provision in the interim. The Council has agreed to provide a financial remedy in recognition of the lost provision and distress caused. The Council has also agreed to consider service improvements.

The complaint

  1. Ms A complains the Council has failed to name a school for her son as outlined in his Education, Health and Care Plan (EHCP).
  2. Ms A complains the Council has failed to provide education for her son.
  3. Ms A complains the Council has delayed acting and this has caused her son to miss two years of education.
  4. Ms A also complains the Council has failed to recognise the impact this has had on her son and his needs.

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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. I considered Ms A’s complaint and information she provided. I also considered information from the Council. I considered comments from Ms A and the Council on a draft of my decision.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal and administrative background

Children with special educational needs (SEN)

  1. A child with special educational needs may have an education, health and care plan (EHCP). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.

Alternative education

  1. The Education Act 1996 (Section 19) says councils must make arrangements for the provision of suitable education 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 Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education and should enable the child to achieve good educational attainment on par with their mainstream peers. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
  3. There is no legal deadline by which local authorities must have started to provide education for children with additional health needs. But Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils should arrange provision as soon as it is clear the child will be away from school for 15 days or more and should do so “at the latest by the sixth day of the absence”.
  4. We issued a focus report in 2016, “Out of sight…. out of mind?”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations including that councils:
  • consider the individual circumstances of each case and be aware that they may need to act whatever the reason for absence, even when a child is on a school roll;
  • consult all professionals involved in a child's education and welfare;
  • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
  • adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
  • act without delay to ensure the child is back in education as soon as possible.

What happened

  1. Ms A’s son, Child X, has several disabilities and special educational needs. In order to ensure he has support, Child X has an education and health care plan (EHCP).
  2. In September 2018, Child X transitioned to a school that would try to provide him with further support for his needs.
  3. Child X struggled after transitioning from the school and was excluded on a fixed term basis several times over a five month period, the last occasion being March 2019.
  4. The Council held its annual review for Child X’s EHCP in March 2019. A draft EHCP was issued to Ms A in June 2019. The Council and Ms A could not agree on which educational establishment to name in the EHCP. The Council issued a final EHCP in November 2019 naming the school Child X was excluded from.
  5. Ms A challenged this at tribunal and requested a residential placement for Child X. In December 2020 the case was heard at tribunal. The tribunal did not agree a residential placement, and did not name a specific establishment, instead only naming the provision that Child X needed. However, the tribunal ruling also said that Child X’s previous placement was not a suitable placement and should not be named.
  6. The Council told Ms A the provision needed could be provided by the school Child X was excluded from, and that he would be provided with a specialist outreach package of support.
  7. Ms A declined the package of support due to the previous experiences with the School and Child X’s previous exclusions.
  8. In January 2021, the Council consulted with several specialist provisions about whether any of them could meet his needs. The Council could not identify an appropriate provision, and widened its search in April 2021.
  9. Between April 2021 and January 2022, the Council consults with several provisions about whether any can meet Child X’s needs. Some provisions required assessments of Child X before an answer could be given. These assessments were completed and it was determined the provisions could not meet his needs.
  10. Ms A complained to the Council in April 2021 about its failure to provide Child X with an educational placement. The Council did not respond to Ms A through its complaints procedure but it did acknowledge she had complained and continued to communicate with her about the ongoing search for a placement.
  11. Ms A remained unhappy with the Council and complained to the Ombudsman.
  12. In January 2022, the Council emailed Ms A to propose Child X attend two sessions a week at a local social care setting. It also proposed a placement for Child X in an educational establishment from September 2022.

Analysis

  1. By law, the Ombudsman cannot consider issues that have previously been considered at tribunal. Therefore, I am only investigating Ms A’s complaint from the time the tribunal decision was made in December 2020.
  2. The tribunal decision clearly stated that Child X’s previous placement was not a suitable placement and should not be named on the EHCP. Although the Council did not name the previous school on the EHCP after the tribunal, it remained of the view that Child X could access the provision from the previous placement.
  3. The tribunal ruling was clear in saying the previous placement was not suitable for Child X. Therefore, it was fault by the Council to offer this as provision for Child X whilst it sourced an alternative permanent placement. This has meant that Child X has been without suitable provision to meet his needs since the outcome of the tribunal in December 2020.
  4. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
  5. There is no legal deadline by which local authorities must have started to provide education for children with additional health needs. But Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils should arrange provision as soon as it is clear the child will be away from school for 15 days or more and should do so “at the latest by the sixth day of the absence.
  6. The Council did not offer to provide Child X with suitable alternative provision until January 2022 when it offered a package of support that was not from the previous school. By that time, Child X had been without suitable provision for 14 months. This is fault by the Council resulting in significant injustice to Child X.
  7. The Council consulted several providers to try and find a placement for Child X, however, was not able to find one that would meet his needs until September 2022.
  8. The Council’s failure to provide Child X with suitable alternative provision while they were not attending school also caused Ms A significant injustice. The impact of this on Ms A was significant. For the period Child X has not been in education Ms A is unable to work and was managing the stress of Child X’s situation.
  9. During my investigation, the Council said that some delay had been caused by COVID-19, where staff had needed to prioritise tasks, and some provisions limited their responses and capacity to accept new students.
  10. I accept that COVID-19 may have caused some delay, however Child X would have still be entitled to the provision in his EHCP, which the Council had a duty to provide.

Complaints procedure

  1. The Council accepted that it did not issue a formal response to Ms A’s stage one complaint. This was fault by the Council causing further injustice and distress to Ms A.
  2. Ms A’s complaint should have been considered under the Council’s complaints procedure. By failing to do this the Council has not provided Ms A with the opportunity for her complaint to be fully investigated. The Council added to Ms B’s distress by failing consider her complaint. 

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Agreed action

  1. Within 4 weeks of this decision, the Council has agreed to
  • Write to Ms A and apologise for the fault identified above
  • Pay Ms A £8400 in recognition of the lost provision for Child X. This is calculated at £600 for every month that Child X was without suitable alternative provision.
  • Pay Ms A £600 in recognition of the distress caused to her by failing to provide child X with provision and for failing to consider her complaint under the complaints process.
  • Urgently put in place alternative provision for Child X until it can provide a suitable school place in accordance with his EHCP.
  1. Within 12 weeks of my decision the Council has agreed to
  • Remind relevant staff of their duties under the Children Act 1996 to provide alternative provision when a child is out of school. The Council should consider sharing a copy of our focus report ‘Out of school…. Out of mind?’ and our final decision with the reminder. Staff should include, but not be limited to:
  • SENDIASS.
  • The Council education legal intervention team.
  • The resolution team within the education and skills directorate.
  1. Review the approach it takes to the provision of alternative education for children who are not in school for whatever reason. It should provide training and appropriate guidance to staff. It should tell us of the action taken.
  2. It should also remind relevant staff of the importance of meeting timescales set out in its complaint procedure and updating complainants where there are unavoidable delays.

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Final decision

  1. I have now completed my investigation. I find fault with the Council for failing to provide the provision in Child X’s EHCP, and for failing to provide suitable alternative provision in the interim. This caused Child X to miss out on support and education, and caused him and Ms A significant distress.

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Investigator's decision on behalf of the Ombudsman

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