Summary: Mr X complained the Council failed to ensure his son (Y) received an adequate fulltime education from September 2020 as set out in his EHC Plan. He also said Y was wrongly excluded from accessing his designated safe space within his school. The Council said some provision was provided, but agreed it failed to ensure Y received all the agreed provision. It apologised and made payment to Mr X. It did not agree Y had been discriminated against. We found the Council had considered its equality duty, but its faults also caused Mr X and his family distress. The Council agreed apologise and make payment to acknowledge the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council failed to ensure his son (Y) received an adequate full-time education from September 2020. He also said Y was wrongly excluded from accessing his designated safe space within his school.
2. As a result, Mr X said Y experienced distress and had a loss of educational provision. He also said he experienced distress and had time and trouble to bring his concerns to the Council’s attention.

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What I have investigated

3. I have investigated Mr X’s complaint for the academic year from September 2020 to summer 2021.
4. The final paragraph of this decision explains why I have not investigated Mr X’s other concerns before or after this period.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. As part of my investigation, I have:
• considered Mr X’s complaint and the Council’s responses;
• discussed the complaint with Mr X and considered the information he provided, including Y’s Education, Health and Care Plan; and
• considered the relevant law, guidance and Council Policy.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plans

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
10. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
11. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
12. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

13. Mr X’s son, Y, has an EHC plan due to his complex needs relating to his autism, ADHD, extreme anxiety, demand avoidance and cognitive processing. These needs have resulted in Y having low school attendance for several years.
14. Y was receiving support from the Council’s Disabled Children’s Service and was classed as a Child in Need. This meant he had an allocated social worker who would assess his needs and provide support for his daily life in and outside the school environment.
15. Y’s EHC Plan set out his special educational needs (SEN) and how his needs should be met to ensure he could access his educational provision. This included:
• 1:1 support in class;
• 2:1 support for any off site activities;
• a named keyworker and a team of no more than three trusted adults;
• access to a suitable space for regular sensory breaks (designated safe space);
• access to a quiet and private space for time alone (designated safe space);
• small group learning when Y was not able to engage in whole class teaching;
• regular meetings between the school and Y’s parents;
• a multi-agency approach to agree shared outcomes to support Y to re-engage in education and promote the family stability. This was to be reviewed at regular intervals during the year.
16. In September 2020, Y started attending school (the School). Mr X attended a meeting shortly after with the School to plan for some of Y’s agreed educational provision to be put into practice over time.
17. Mr X raised concerns to the School and the Council about the educational provision Y received soon after the academic year started. He continued to raise his concerns about the lack of suitable provision and space for Y throughout the year.
18. In December 2020, Y’s new EHC Plan was issued, which the Council reviewed again in May 2021.
19. In May 2021 the Council’s social worker also reviewed Y’s Child in Need Plan. This made reference to concerns about Y only having limited access to education as the School had not been able to offer a full time education which met Y’s needs. It also said Y was isolated and desperate for engagement with peers in school.

Mr X complaint

20. In June 2021 Mr X complained to the Council. His complaint was very detailed and set out each of his concerns which he felt the Council had failed to resolve. His key concerns included:
• the Council had failed to understand Y’s needs and provide him with a suitable fulltime education as set out in his EHC Plan, or ensure this was delivered by the School;
• the teacher assigned to Y was not a suitable fit. This was first recognised and changed towards the end of the academic year;
• the dedicated space for Y was only made available at the end of the first term. The space was then found to be unsuitable for Y, which would not have happened if Mr X and Y had been involved in the process and design. When the School agreed the dedicated space was unsuitable for Y, it failed to provide an alternative space;
• the Council failed to do anything about Mr X concerns the School had discriminated against Y as it had excluded him from his space and failed to provide any other suitable space; and
• the Council’s current and past failures had impacted the whole family’s health, wealth and wellbeing. He asked the Council to propose a suitable remedy for their injustice.
21. In response the Council found it had made the EHC Plan provision available to Y. However, it agreed Y had not received the amount of educational provision set out in the Plan. So, it apologised to Mr X and offered £4,300 to acknowledge the injustice the lost educational provision caused Y.
22. The Council also said:
• it did not agree it or the School had discriminated against Y. It explained there had been incidents within the area of Y’s designated space where he had caused upset to other children and put their safety at risk. The School therefore balanced his needs with that of the other children; and
• It acknowledged it had been a difficult year for Y and the family. However, compensation for the impact on the family’s health and wellbeing was not something it could consider under its complaint’s procedure. Such matters would have to be considered by a court.
23. Mr X accepted the Council’s remedy offer for Y’s lost educational provision. However, he said he would continue with his complaint to the Ombudsman. This was because he felt the Council’s response did not accept Y had been discriminated against and this had therefore not been remedied. He also said it had failed to consider the impact its failures had on the health, wealth and wellbeing of his family.

Analysis

Educational provision

24. The Council agreed it was at fault for its failure in ensuring Y received his special educational provision as set out in his EHC Plan. This meant Y only had a limited amount of education during the academic year of 2020/2021.
25. The Council has apologised to Mr X and offered £4,300 to acknowledge Y’s lost educational provision. Mr X has accepted the Council’s offer. I cannot therefore consider Y’s lost educational provision any further.
26. However, in reviewing Mr X’s complaint, it is clear to me much of Y’s lost provision could have been prevented if the Council and the School had properly reviewed, engaged and listened to the information it received from its social worker and Mr X. It is therefore appropriate for me to make service improvement recommendations to avoid such issues in the future.

Discrimination

27. The Ombudsman’s role is not to make determinations whether a local authority has breached the Equality Act 2010. Such matters can only be considered by a court. However, we can consider if a local authority was at fault for failing to take account of their duties under the Act.
28. The Council found the School did not discriminate against Y when it restricted his access to his designated space. It explained the School had to balance Y’s needs with that of other children as he had caused upset to others. It also said he had some access to the space afterwards.
29. I found the Council have had consideration of its equality duties. This is because Y EHC Plan set out his needs which included a designated space. His needs were therefore considered and agreed. It also considered the School’s reasons for restricting Y’s access to area of his designated space. This again shows it took account of its equality duties. The failure to provide a suitable alternative space is part of Y’s lost educational provision, which the Council has remedied to Mr X.
30. I understand Mr X still believes discrimination took place as other children were not excluded from the space. I also acknowledge Mr X was given different reasons why Y could not access the space. However, whether the School and the Council’s actions breached their duties under the Equality Act, is a matter for a Court to decide. Such action remains open to Mr X should he decide to do so.

Injustice

31. Mr X told the Council he and his family had been impacted by the Council’s failures over the past years, which included health, wealth and wellbeing.
32. The Council said such matters should be considered by a court.
33. I partly agree with the Council’s view. This is because any concerns Mr X may have about lost earnings or similar losses can only be considered by a court. However, I can consider the distress the Council’s faults caused Mr X and his family during the academic year of 2020/2021.
34. The Council agreed it had failed to ensure Y received some of his special educational needs as set out in his EHC Plan. I found Mr X, and his family, experienced distress for Y’s lack of progress and how this affected him.
35. In addition, while I acknowledge the Council and the School took some actions during the year, these did not resolve Mr X’s concerns about Y’s special educational needs provision issues. Therefore, I found Mr X also unnecessarily had time and trouble to raise his concerns to the School and to the Council throughout the year as he became aware of issues with Y’s education.

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Agreed action

36. To remedy the injustice the Council caused to Mr X, the Council should, within one month of the final decision:
1. apologise in writing to Mr X, and pay him £250 to acknowledge the distress he, and his family, experienced as a result of the Council’s failure to ensure his son’s special educational needs were delivered as set out in his EHC Plan;
2. pay Mr X a further £150 to acknowledge the unnecessary time and trouble he had to bring his concerns to the Council’s attention.
37. Within three months of the final decision the Council should also:
1. Remind its staff to work jointly with parents, schools, and other professionals to ensure children’s EHC Plan provision is delivered as set out in the statutory guidance and its internal procedures. In particular, when it receives concerns about a school’s failure to provide the special educational needs provision of a child’s EHC Plan.

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Final decision

38. There was fault leading to injustice. It is on this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

39. Mr X’s complaint referred to issues for Y’s special educational needs provision over the past 5 years and how this impacted Y and the family. As part of this investigation, I can only consider matters from September 2020. This is because earlier matters are late, and I have seen no good reason to exercise my discretion to consider these.
40. Mr X also said he continues to have issues with his son’s special educational needs provision for the 2021/2022 academic year. These are new matters which are outside my investigation. However, Mr X can bring these to the Council’s attention.

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Investigator's decision on behalf of the Ombudsman