Summary: Ms X complained the Council failed to ensure her daughter received suitable full-time education for an academic year. We find some fault with the Council’s approach. It failed to intervene to secure a reintegration timetable for D quick enough. This caused Ms X the uncertainty of not knowing if D could have reintegrated more quickly. Ms X also complained the Council did not follow the statutory procedure for an annual review of her Education, Health and Care Plan. We found fault with the Council although we do not consider this caused Ms X a significant injustice.

The complaint

1. Ms X complained the Council:

• Failed to ensure her daughter, D, was provided with full-time suitable education from September 2020 to September 2021.
• Failed to ensure D was provided with the education set out in her Education, Health and Care Plan (EHCP).
• Did not follow its complaint’s procedure. It failed to explain to her what part of her complaint it upheld. It also failed to escalate her complaint when she was unhappy with the outcome at the first stage of its process.

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What I have investigated

2. I have investigated the above issues. I have not investigated Ms X’s concerns about the actions of the school her daughter, D, attended. As set out below, we do not have the jurisdiction to investigate what happens in schools.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. If we are satisfied with an organisation’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 reviewed the Council’s response to enquiries.
8. I reviewed Ms X’s response to enquiries we made of her.
9. Ms 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

Relevant law

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. EHC plans must be reviewed by the Council as a minimum every 12 months. The Council’s decision following the review meeting, to either keep the EHC plan as it is, amend the plan or cease to maintain the plan must be notified to the child’s parents within four weeks of the review meeting. If the Council decides not to amend the plan, it must notify the child’s parents of the right to appeal that decision and the time limits for doing so, of the requirements for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (SEND, Code of Practice 2015, sections 9.1666, 9.169, 9.176)
13. The Ombudsman recognises 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 considers 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.

14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he/she may have. (Education Act 1996, section 19(6))
16. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
17. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

18. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind? says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
19. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
     

What happened

Relevant Council policy on reintegration timetable guidance

20. The Council says there is no statutory basis upon which to establish a reintegration timetable. However, its policy sets out that with the agreement of parents, in exceptional circumstances, short, fixed term part time education can be agreed. It must be judged to be in the interest of young people who are finding full time education very challenging. The policy says this must be for a short, agreed period that has a planned progression back to full-time within a maximum of six weeks.

Background

21. Below is a summary of the relevant facts in this complaint. It is not meant to record everything that happened.
22. D has an EHCP and several diagnoses, as well as other special educational needs, including hypermobility, global development delay and anxiety.
23. The Council completed D’s EHCP in October 2019. It specifically set out the provision D should have. This included:

• D should be taught in a whole class, in small groups and with some individual work.
• As part of her curriculum D would be supported by a teacher or teaching assistant.
• D’s timetable would be adjusted accordingly to accommodate that D could be tired in the afternoon after busy mornings.
• D would be supported by the equivalent of 25 hours per week and 5 hours per week lunchtime support.

24. D’s EHCP was reviewed in July 2020. D’s parents and a Council officer were in attendance at the review meeting. The review notes said:

“Parents have requested [D] start part-time in September, which will gradually increase to full time, to allow her a chance to transition from the home-learning environment that she has experienced due to the Corona Virus.”

25. The report document says a copy should be sent to all in attendance within two weeks of the meeting. The Council cannot confirm that it was sent to D’s parents.
26. The Council says D’s EHCP was not amended. It says it is unable to find any correspondence that it informed D’s parents that the EHCP would not be amended.
27. When D returned to school in September 2019, she initially began by only attending in the mornings. After 11 September 2019, she attended four mornings and one full day.
28. In October 2020 a complex needs specialist officer visited the school. She reported:

• the school had sought further support in developing an appropriate timetable and curriculum for D.
• D was on a phased timetable to help her return to school after COVID. She noted that D became quite tired in the afternoons during full days.
• D tired easily and had not shown the resilience for a full timetable. Both parents and staff agreed the part time provision “…the right amount.” This was reviewed with D’s parents regularly.

29. Ms X says D continued with the part-time timetable until the end of the winter term.
30. D did not attend school between January and March 2021. The school said it offered D a place because she had an EHCP. However, this place was not taken up.
31. The Council says the first time it became aware that D was not in full-time education was on 16 March 2021 when the school requested a meeting with the Council to discuss concerns about D’s part time timetable.
32. A meeting was held on 1 April 2021. The Council advised the school to investigate alternative provisions for afternoons.
33. Following an annual review in June 2021, a reintegration timetable was put into place for D. Ms X thinks this should have been put into place at an earlier stage.
34. Ms X complained to the Council about a number of issues, including the Council’s failure to ensure D received a full-time education. Initially, the Council partially upheld her complaint. In September 2021, it reviewed the complaint and, fully upheld Ms X’s complaint. It said, “…the Local Authority should have done more to ensure that [D] could access full-time education.”
35. It said it was reviewing its procedures on how it manages children who are out of education.

Analysis

36. All pupils of compulsory school age are entitled to a full-time education. However, there are sometimes circumstances where part-time timetables can be appropriate for a short period. In this case, the evidence shows that when a part-time timetable was first considered in July 2020, D’s parents, the school and the Council were in agreement this would be a good option for D, given the difficulty anticipated in coming back to school full-time after a period of absence due to the COVID pandemic.
37. What is notable though, is that although the Council says the first time it was aware D was on a part-timetable was in March 2021, it is clear from the records that it was aware of this arrangement in July 2020. A Council officer attended the annual review meeting where the decision was made. It may be the case that the Council’s attendance department was unaware until March 2021, but a Council representative was involved in the early implementation of the part-time timetable.
38. The Council was not wrong to agree to a part-time timetable, but it should have had greater oversight from the point at which it was aware this had been set-up.
39. Council guidance says that a part-time timetable should not go on past a maximum of six weeks. This means that after mid-October 2021, D should not have been on a part-time timetable or at least that there should have been some provision for D to try alternative education in the afternoons she was not attending school.
40. However, it is clear from the records that:

• the school was reviewing the situation, with D’s parents’ involvement
• professionals thought it wise to continue with the part-time timetable through October to December 2021 and there is no evidence of the parents disagreeing with this approach
• D’s EHC plan made provision for professionals to adjust her timetable if she became tired after morning sessions in school.

41. With the above in mind, I cannot be sure that even if the Council had intervened at an earlier stage, D would have been able to engage with alternative activity in the afternoons. It was specifically reported that D was too tired to attend the afternoon sessions at school and it is reasonable to assume she would also have been tired at home. Ms X did not take up an offer of a place at the school during January to March 2021. As a child with an EHCP, D could have attended during that period.
42. It is for the above reasons, that although I find the Council at fault for not having greater oversight during the winter term of 2020, I cannot say that its failure caused D the injustice Ms X considers it did. I cannot say that D would have been able to access a full-time education during that period.
43. Equally D was not given the opportunity. Therefore, I have made a recommendation to acknowledge the uncertainty that Ms X suffered, not knowing whether D might have been able to reintegrate sooner, had she been put on a reintegration plan at an earlier stage.
44. Once the Council’s attendance officer was informed that D was on a part-time timetable, the Council acted in the way it should have. It sought to put a package in place to reintegrate D and this was up and running in a reasonable period.
45. Another issue I considered was whether the Council was at fault for not informing Ms X of the outcome of its 2020 annual review. This was fault. As set out in paragraph 12 above, the Council has a duty to notify the parents how it has dealt with the annual review. It has no record that it did so. However, I do not consider that this caused a significant injustice. Both D’s parents were in attendance at the annual review. There is no evidence they would have sought to appeal any decisions made at that review.
46. Ms X also complained about the Council’s complaint process., I do not consider the Council to be at fault. While the Council did not initially fully recognise Ms X’s concerns, it did finally accept fault for not doing enough to provide D with a full-time education. It gave Ms X the option of coming to the Ombudsman if she remained unsatisfied with its approach. While Ms X considers its complaint response could have been more focused, and I accept that it is not very detailed, I do not consider this warrants a finding of fault.

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Agreed action

47. Within a month of our final decision, the Council should:

• Pay Ms X £300 to acknowledge the uncertainty caused by the Council’s failure to intervene and offer D an alternative education during the period from October to December 2020.

48. Within two months of our final decision, the Council should:

• Inform the Ombudsman and Ms X of the steps it has taken to review its processes and procedures around the use of reduced timetables and provision for young people who are out of education.
• Any review should also involve an assessment of how to improve the communication between departments in the Council so that, for instance, the attendance team is always immediately informed when a child is receiving part-time provision.

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Final decision

49. I have found the Council at fault and made recommendations to address the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman