Summary: Ms X complained the Council failed to ensure provisions in an Education, Health and Care plan for her daughter, Y, were met. She also complained the Council delayed in securing Y a new school placement. This caused the family financial stress and Y missed out on education. We found the Council at fault and recommended it apologise to Ms X, pay her £2400 for loss of education; £500 for distress; £300 for delay and act to prevent recurrence.

The complaint

1. Ms X complains the Council failed to ensure provisions in an Education, Health and Care plan (EHCP) for her daughter, Y, were met between June 2020 to May 2021. She also complains the Council delayed in securing Y a new school placement from February 2021. Ms X said Y missed out on education and had to repeat the school year. She also said she was unable to work when Y was not in school which had a financial impact on the family.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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.
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. I spoke to Ms X, and I reviewed documents provided by Ms X and the Council.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and statutory guidance

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Councils have a duty to ensure the special educational provision set out in an EHCP is arranged. (Children and Families Act 2014 section 42)
10. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in an EHCP has not been provided or where there have been delays in the process.

SEN provision

11. Where a council maintains an EHCP then, unless a child’s parent has made suitable arrangements, the council must arrange the special educational provision specified in the EHCP.

Right to Education

12. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full-time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
13. Sections 436 to 447 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must identify children not receiving an education.
14. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
15. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
16. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
17. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
18. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
19. The Department for Education issues statutory guidance on exclusions. This says, where a pupil has an EHCP the council must ensure that an appropriate full-time placement is identified in consultation with the parents, who can express a preference or make representations for a placement in another school.
20. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

21. Y has an EHCP. Section F of the EHCP says what provisions are needed to support Y achieve her outcomes. These include:
1. continued adult support, with ‘adults that are trusting’ and provide consistency of approach daily.
2. therapy support to help develop peer relationships, programs to promote co-social behavior and increase Y’s social skills, e.g., Thrive, as appropriate.
3. ensuring changes are communicated ahead of time and shared with family, as appropriate.
4. access to equipment and activities that can be used to aid regulation, as required.
5. Speech and Language Therapy (SALT), Occupational Therapy and Art Therapy. However, Ms X said in communications with School A, SALT should have been removed from the EHCP and Y no longer received Art Therapy.
22. There is no further detail as to the frequency or nature of this support.
23. In May 2020 Ms X raised concerns with School A about section F provisions, in Y’s EHC plan, as above, not being met.
24. An emergency annual review meeting took place on 15 June. The parties, including the Council, discussed the plan and School A agreed it could still meet Y’s needs.
25. School A said it had introduced a new therapy support provision, the ‘Boxhall Profile’, which had replaced ‘Thrive’. It said it would meet the other provisions in line with changes it planned to make in its communication with Y.
26. Ms X said when Y started Year 10 in September, the school failed to follow section F provisions in Y’s EHCP, as discussed at the annual review in June.
27. The Council said it did not hear anything from Ms X after the annual review until the end of October, when she raised concerns about the missed provision for Y.
28. On 5 November, Ms X sent School A an email which she copied to the Council. Ms X asked why the school was not following provisions in Y’s EHCP or the Boxhall strategies.
29. In response to Ms X’s concerns, School A arranged a meeting with all parties on 6 November, to discuss Y’s EHCP.
30. The Council provided minutes from the meeting. The minutes show School A had devised an action plan to ensure it met the provisions in Y’s EHCP, which it planned to review in three weeks. It also planned to communicate with Ms X weekly to update on its progress. Ms X also provided minutes for the meeting which were agreed by School A and copied to the Council.
31. Ms X exchanged emails with School A on 13 and 16 November, which she copied to the Council. The emails provided an update on Y’s progress, and noted some positive interaction with staff members working with Y.
32. On the 25 November, Y received a half day exclusion for an incident at School A. Ms X was unhappy with how School A handled the situation. Ms X believed it was a result of School A not following the section F provisions in Y’s EHCP.
33. On the 25 November Ms X sent the Council a copy of an email she sent to School A about her plans to challenge Y’s exclusion.
34. School A arranged a re-integration meeting for Y the next day. Ms X refused for Y to attend the meeting until it was arranged with a member of staff Y trusted, which is a provision set out in Y’s EHCP.
35. Emails were exchanged between Ms X and School A about the meeting. Ms X explained in each email her reasons for not returning Y to a re integration meeting with the staff member suggested.
36. Ms X said the school refused to hold the meeting with a staff member Y trusted and was familiar with, and it did not respond with a plan to effectively re-integrate Y back into school. Ms X said she could not send Y back as she was ‘becoming suicidal’.
37. Ms X copied the Council into all communications exchanged with School A, so it was aware Y was out of school from 25 November. The Council did not provide any evidence of action it took at this time.
38. In an email of 27 November School A informed Ms X it planned to hold an annual review of Y’s EHCP. School A noted Ms X said she no longer had faith in the school and therefore the school felt it was appropriate to meet within the framework of an annual EHCP, so Ms X could express her views and give notice on Y’s placement. An annual review was then arranged by School A for 17 December.
39. At the annual review on 17 December, Ms X raised concerns about School A at the start of the meeting. The Council decided it was not possible to continue the meeting as a review, as it was not following the correct format.
40. I have not been provided with minutes or any record of the meeting, but an email from Ms X to School A following the meeting, suggests the school had agreed to work with Ms X to re-integrate Y back into school.
41. However, on 21 December School A sent an email to Ms X giving notice on Y’s placement at the school.
42. Y’s last day on roll at School A was 11 February 2021. The Council said a school place remained available for Y in the meantime, though Y did not attend. Ms X said Y was not able to attend School A, during this time, as it was still refusing to advise how it would support Y and did not provide a trusted member of staff for the reintegration meeting.
43. Ms X complained to the Council on 23 December about School A and the Councils failure to intervene and ensure children remaining at the school were also not failed.
44. Ms X contacted the Council on 23 December and asked for the consultation process to start in finding a new school for Y. Ms X also asked for Y to be moved to Acorn Digital Learning (ADL), an online learning provision.
45. The Council liaised with School A in early January and secured ADL for Y.
46. The Council started consultations with two specialist schools, School B and School C on 12 January 2021.
47. On 29 January the Council responded to Ms X’s complaint. It explained since Autumn term it had been conducting regular contract review meetings with School A and recently carried out a review of all Suffolk pupils at the school, to discuss progress and address concerns.
48. Ms X contacted the Council on 3 February asking for an update on the consultations. The Council responded by email on 4 February. It said School B had not offered Y a placement and School C had responded but the correspondence had not yet been viewed. It also asked Ms X if the ADL provision it had secured was still working for Y.
49. Ms X emailed the Council the same day and explained ADL was working but expressed concerns it was a short-term answer and could only offer Y three GSCE’s. Ms X also noted Y did not get to interact with other children, which she needed, to maintain her social skills.
50. The Council acknowledged Ms X’s concern and said ADL was a short-term provision.
51. Ms X said ADL was provided by School A from January to February, then provided by the Council from February to May. This was for 12 hours per week and covered three subjects: English, Maths and Science.
52. The Council started consultations with School D, School E and School F on 18 February 2021 and School G on the 23 February.
53. Ms X contacted the Council on 24 February asking for an update on the consultation on School C. The Council responded on the 26 February. It said it had not yet followed up with the school but had arranged for this to be done.
54. The Council emailed Ms X on 2 March confirming School C could not offer Y a place. It explained a consultation was still out to School G and was waiting for a response.
55. Ms X complained to the Council on 2 March about delays in the Council securing a new school placement for Y.
56. On 29 March the Council responded to Ms X’s complaint. It said it had been in regular contact with Ms X about consultations for a new school placement. It explained a consultation was in progress for School G and it had been in contact with them requesting a response.
57. In comments on a draft of this decision Ms X said School G had responded sooner but the Council had not noticed. Ms X had emailed School G directly on 29 March. School G explained to her it had tried to telephone the Council on 26 March, the last day of term, but no one answered. It explained it wanted to double check a few things on Y’s EHCP. Ms X responded to say she would encourage the Council to return the call.
58. The Council said, School G offered a placement to Y starting on 7 June for a transition period before joining Year 10 in September 2021.
59. On 30 July the Council issued its final response to both Ms X’s complaints. It maintained it was taking concerns about School A seriously and dealing with them appropriately. It acknowledged its communication with Ms X could have been better and apologised. It said it had undertaken a review of its service to identify where it needs to improve.
60. Ms X told the Ombudsman she was unhappy with the Council’s final response.
61. In response to enquiries the Council said:
1. School A was still available for Y to attend until the end of the placement, and it tried to support and facilitate reintegration, however Ms X chose not to send Y.
2. It made consults about a new school placement in a timely manner with no delays.
3. There was an educational offer already in place.
4. It worked with Ms X and Y to support consistent, known education whilst a new placement was found.
5. It accepted some social provision was not available as part of the online package.
62. When I spoke to Ms X, she told me she had reduced her hours at work from mid-January, to stay at home with Y as her mental health had deteriorated as a result of what had happened with School A. She said Y had also received some private counselling.
63. Ms X said she resigned from her job at the end of July to be able to fully support Y when she started at her new school.
64. In comments on a draft of this decision, Ms X said, in summary:
• failures by School A to support Y started in May 2020, not June 2020.
• she provided minutes for the meeting on 6 November, which were agreed by School A and copied to the Council.
• the Council did not support Y around the re-integration meeting with School A and did not challenge the school’s decision.
• she did not choose to not send Y to school, School A refused to make the reasonable adjustments and continued to refuse to advise how it would support Y, and by this stage her mental health was poor.
• school G had responded to the consultation, but the Council had not noticed and there were avoidable delays in consulting School G.
• Y’s downturn in mental health started with the actions of School A and lack of support from the Council.
• she reduced her hours at work to also ensure Y completed her educational tasks.
• reducing her hours and resigning from her job were direct results of the Council failing to hold School A to account and ensuring Y could continue her education there.
• Y had to resit Year 10 as the Council did not support her in ensuring her EHCP was met.

Findings

65. At the emergency annual review in June 2020 School A acknowledged it was not meeting all of Y’s SEN provision and agreed to provide it going forward. The Council was aware of Ms X’s concerns and was satisfied School A had plans in place to address them. The Council cannot be expected to act unless it is aware of an ongoing issue. As the Council heard nothing to the contrary until the end of October, I cannot find the Council at fault.
66. In October Ms X raised concerns which again School A appeared to address. The Council was not aware otherwise and so I do not find fault.
67. On the evidence provided, I am however satisfied the Council knew Y was not in school and receiving suitable full-time education and SEN provision from 26 November 2020. Irrespective of Ms X reasons for not sending Y to school, the Council should have either enforced attendance or provided suitable full time alternative provision. The Council did neither. This is fault.
68. While I appreciate the Council secured online learning provision from January 2021 to May 2021 and considered Ms X and Y were happy with this, it remained responsible to ensure Y received suitable full-time education and appropriate SEN provision.
69. Year 10 is an important year for education and Y was working towards her GCSEs. Online learning did not provide Y with the full range of GCSE subjects, neither did it meet her SEN provisions. I will take this into account when calculating a suitable remedy for missed educational provision and missed SEN provision.
70. This fault also caused Y and her family frustration, uncertainty and stress. I will recommend the Council provides an apology and makes a payment to remedy this injustice.
71. While Ms X said reducing her hours and resigning from her job was a direct result of the Council’s inaction to hold School A to account, we cannot find the Council at fault for what happens in schools. The Council is not responsible for School A’s decision on Y’s fixed term exclusion, decision on staffing for the reintegration meeting or decision on the later exclusion. Y stopped attending School A in November 2020 but Ms X only reduced her working hours in January 2021. Further, Ms X said she stayed at home to support Y’s mental health but I cannot say any fault by the Council directly resulted in Y’s poor mental health. Due to the number of variables, I cannot say the Council is directly responsible for Ms X reducing her hours or resigning from her job.
72. Although Y joined her new school in June 2021, she planned to re sit Year 10 from the September due to missed education. While Ms X said it was the Council’s fault Y had to resit a year, Y may have decided to resit the year even if there was no fault by the Council. I say this because even if the Council secured a school place promptly in March, Y’s mental health may have prevented an immediate start, or a resit of the year may have been necessary due to the impact of joining a new school. I therefore have not considered a further remedy for this but I have taken into account that Y's GCSEs were disrupted when calculating a suitable remedy for missed educational provision and missed SEN provision.
73. The Council made efforts to find a school place for Y and consults were issued in a timely manner. I find no undue delay by the Council except as below.
74. There are three months from March 2021 to May 2021 where the Council has not provided information on progress with consultations. In particular, the Council consulted with School G from the end of February yet did not secure a place for Y to start until early June. Without further information, there appears to be delay by the Council in securing a new school placement, and this is fault.
75. This fault caused Y and her family further uncertainty and frustration. And Y was out of school for longer than needed. This is a further injustice, beyond the failure to provide suitable alternative education, as there are additional benefits to school attendance, including social aspects.
76. I will recommend the Council take action to prevent recurrence of the faults identified.

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Agreed action

77. To remedy the fault set out above I recommend the Council carry out the following actions:
78. Within one month of the date of my decision:
• Provide a written apology to Ms X for the failings identified;
• Pay Ms X £2400 for Y’s loss of education and SEN provision.
• Pay Ms X £300 for distress arising from the delay in securing a new school placement.
• Pay Ms X £500 for the distress and uncertainty suffered by Y and her family.
79. Within three months of the date of my decision:
• Provide training to SEN staff to ensure awareness of the Council’s legal duties under the Education Act 1996 and the expectations as set out in our focus report.
80. The Council has accepted my recommendations.

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Final decision

81. I have found fault by the Council. This fault caused Ms X injustice and the Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman