Summary: Mr B complained the Council failed to secure a place at school for his son. He also complained the Council failed to review his son’s education, health and care plan and secure the provision in the plan. Mr B says the Council’s failures led to C’s health deteriorating and left him isolated from his peers. We found fault with the Council. The Council agreed to pay a financial remedy to Mr B and C for the injustice caused by its faults.

The complaint

1. The complainant, who I shall refer to as Mr B, complained the Council failed to secure a place at school for his son. He also complained the Council failed to review his son’s education, health and care (EHC) plan and secure the provision in the plan. Mr B says the Council’s failures led to C’s health deteriorating and left him isolated from his peers.
2. I considered this complaint from September 2019 to December 2021.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. 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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How I considered this complaint

7. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
8. I considered comments Mr B and the Council made on a draft decision before making my final decision.

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What I found

Legislation and guidance

Education

9. A Council should secure sufficient schools for providing—
• (a)primary education, and
• (b)education that is secondary education by virtue of section 2(2)(a), are available for their area.
10. The schools available for an area shall not be regarded as sufficient unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education. (Education Act 1996, s.14)

Alternative education

11. Under Section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”.
12. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.

Special educational needs

13. A child with special educational needs (SEN) may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
14. The EHC plan is set out in sections. These include section I: the name and type of school. The council has a duty to secure the special educational provision in an EHC plan.
15. A review of the EHC plan must be held within 12 months of the date of issue of the final EHC plan.
16. The special educational needs and disability (SEND) Tribunal hears appeals against decisions made by councils in England in relation to children and young people’s EHC needs assessments and EHC plans. (Special Educational Needs and Disability Regulations 2014) The tribunal can direct changes to the sections of an EHC plan, including section I.

COVID-19

17. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.

Council’s complaint procedure

18. The Council considered this complaint using its two-stage corporate complaint procedure:
• Stage one: The Directorate that provided the service will investigate the complaint and respond within 15 working days.
• Stage two: An independent council officer will review the complaint and respond to within 20 working days.

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What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. C has a degenerative disease that affects his movement, mobility and ability to communicate. Mr B, C and their family moved to the UK in August 2019. In September 2019, C should have started year 7.
21. Mr B applied to School 1, a mainstream school, for a place for C. This was C’s nearest mainstream school.
22. In September 2019, C was referred to the educational psychology service and his parents asked for an EHC assessment. C’s Educational Psychologist raised concerns with the Council that C was not in education and asked if the Council could put in place provision while it was completing his assessment.
23. The Council issued a final EHC plan for C in January 2020. In section I the plan stated C should attend a mainstream school. It did not name a school. Mr B says the Council approved funding for C to receive 25 hours individual home tuition while it found a school placement.
24. C’s EHC plan said he had no ‘exceptional social care needs’ and therefore he did not need any social care provision. In the same month, the Council carried out a social care assessment and recommended C receive 12 support hours a month to help him to access the community, take part in age-appropriate activities and have opportunities to make friends.
25. The Council held a multi-agency meeting in February 2020 with Mr B. Professionals advised a specialist setting would be more suitable for C. Mr B agreed the Council could consult with School 2, a specialist setting.
26. C’s case was discussed at the Council’s community resources panel in March 2020. It agreed C should receive 12 hours of support for personal care and social activities every four weeks once the Covid-19 lockdown ended.  For the period of the lockdown, the Council made a one-off emergency Covid-19 direct payment to Mr B that was the equivalent of 12 hours support every four weeks to use for C’s benefit. 
27. In July 2020, the Council arranged for a Home Care Support Agency to provide C 12 hours support every four weeks.
28. In August 2020, the Council told Mr B it would put in place online tuition for C while it continued to try to find him a school placement. Mr B told the Council online tuition would be unsuitable for C because of his physical health needs. He asked for face-to-face tuition. The Council arranged for C to receive 12 hours of individual home tuition from the beginning of September 2020.
29. The Council consulted two local specialist settings. School 2 said it could meet C’s needs but was full for September 2020 admissions. In October 2020, Mr B visited School 2 and spoke with its headteacher. He raised concerns with the Council about whether the placement could meet C’s academic needs. He asked the Council to hold a multi-agency meeting to decide which school C should attend.
30. In November 2020, C’s social worker emailed Mr B. The social worker said one of the actions on C’s child in need plan was for him to access school to learn and socialise with peers. They asked Mr B if there was anything they could do to progress this.
31. In December 2020, Mr B applied for direct payments so he could arrange C’s support himself. The Council started paying direct payments for C’s 12 hours support every four weeks in January 2021.
32. In February 2021, Mr B queried the number of hours of home tuition the Council was providing C. He said he thought C would receive 25 hours a week, but he had only received 12 hours a week. The Council suggested C start at School 2 and that this placement was combined with home tuition. Mr B asked the Council to provide C 25 hours home tuition until they found a school placement.
33. In March 2021, the Council said it would increase C’s individual home tuition to 20 hours a week. Mr B challenged why the Council was offering 20 and not 25 hours a week. The Council increased C’s individual home schooling to 25 hours per week in April 2021.
34. In March 2021, the Special Educational Needs and Disability Information Advice and Support Service (SENDIASS) told the Council C’s EHC review was overdue, and it needed to hold one urgently. Mr B’s MP wrote to the Council in June 2021 to ask about C’s EHC plan and review.
35. Mr B asked the Council to consult with two mainstream schools, School 1 and School 3. The Council did so. School 1 said it could not meet C’s needs. Mr B and C visited School 3 in May 2021. Mr B asked the Council to consider it as C’s school placement. An occupational therapist completed an assessment of C at School 3. It gave recommendations about equipment, staffing and facilities C would need to safely access the school. It noted School 3 did not have everything C needed.
36. In September 2021, Mr B and SENDIASS asked the Council to hold an EHC plan review for C.
37. Mr B and C visited School 2 again in October 2021. They agreed the school would meet his needs.
38. The Council held an EHC review in October 2021. C’s consultant shared that C’s disease was progressing and had done especially in the last two years. The minutes noted all the provision in C’s EHC plan had not been secured. His parents highlighted C was missing the social and academic aspects of school and this was affecting his mood and mental health. Attendees recommended the Council amended C’s EHC plan. C’s parents agreed a specialist setting would be best for C and said School 2 was their preference.
39. The Council issued an amendment notice in November 2021. The Council consulted with School 2. School 2 said it could offer C a place from September 2022. The Council issued an amended final EHC plan for C in December 2021. It named School 2 in section I, stating he would attend from September 2022. Most of C’s EHC provision was to be delivered by School 2.
40. Mr B frequently and consistently chased the Council throughout this period to try to get it to fulfil its statutory duties. SENDIASS and Mr B’s MP also chased the Council on his behalf. He regularly highlighted the impact these delays were having on his son. Medical professionals also raised concerns about the impact on C of not attending school.

Complaint

41. In March 2021, Mr B complained the Council:
• had not secured a school place for C;
• had not review C’s EHC plan;
• delayed providing home tuition and did not secure enough hours; and
• did not communicate effectively.
42. The Council responded in April 2021. The Council upheld each complaint and apologised. It said it was seeking a suitable mainstream school for C, would arrange an EHC plan review and was developing processes to improve communication. It explained where a child is not in school and is receiving one-to-one tuition, the number of hours of provision can be fewer than 25 hours a week as this is more concentrated than whole class tuition. It said it considered 18 hours individual tuition per week for C constituted suitable full-time provision.
43. Mr B complained to the Council again in September 2021. The Council responded in October 2021 and agreed:
• it had not secured a school place for C;
• C’s EHC plan was issued in January 2020 and should have been reviewed in January 2021, but it had not been; and
• it should have arranged home tuition earlier.
44. It said it was aware of the issues Mr B had trying to communicate with staff and it was developing processes to address this. It said it considered 18 hours individual tuition per week constituted suitable full-time provision.

Council response to enquiries

45. In response to my enquiries the Council accepted it did not:
• provide C with education from January 2020 and July 2020;
• hold C’s annual review within 12 months of his EHCP being issued;
• provide a timely response to Mr B’s complaints; and
• keep accurate records.
46. The Council said it had taken the following measure to address these faults:
• increased staffing levels from 19 staff in September 2021, to 85 staff in March 2022.
• implemented a new case management system and expanded its case file system capacity to ensure all correspondence and documents are recorded.
• reviewed the resolutions teams procedures and improved them to ensure full and timely complaint responses.
47. To address the injustice caused by these faults, the Council proposed the following remedies:
• an apology to C and Mr B for the faults identified.
• a payment of £1,400 to C for the loss of education and support between January 2020 and July 2020.
• a payment of £500 to Mr B for any distress caused by the delay in arranging C’s annual review and for the time and trouble involved in bringing a complaint.
48. With regards the number of hours home tuition it secured for C, it said when it assessed C it found he had not previously attended a school. It said it considered C’s special educational needs, the time needed for therapeutic/medical intervention and his experience of education and decided 12 hours home tuition to be a suitable first offer. It explained the intensity of working one-to-one means some students, given their special educational needs, find it difficult to manage more than this at first. It said this also provides time for pupils to develop a relationship with their tutor.

Ofsted

49. Ofsted re-inspected Birmingham’s SEND service in May 2021. It found it had not made enough progress in 12 of the 13 areas of weakness it identified in its 2018 inspection. The Department of Education appointed a commissioner to hold the Council to account in the required SEND improvements.
50. In response, the Council published a SEND improvement update outlining what it will do to address the outstanding areas of weakness. Of relevance to this complaint the Council is:
• preparing an accelerated progress plan, which will show how the Council will resolve the 12 outstanding areas of significant weakness identified in the original inspection in 2018;
• recruiting staff to ensure all young people are assigned their own officer;
• working on a comprehensive accurate communication plan to all young people, families and schools so parents know who to contact and where to go;
• reviewing its case management system to establish new more streamlined processes; and
• working through the internal processes around reviews and assessment to ensure it streamlines the work to help it achieve 100% compliance with the timelines set in the SEND Code of Practice.
51. It has recruited an expert in the SEND Code of Practice to ensure all staff are acting within the guidelines set within the code. The officer is building a comprehensive training programme for all current officers and an induction programme for all new starters. 

Analysis

52. The Council accepts it was at fault for not providing C with education and support between January and July 2020. However, under Section 19 of the Education Act 1996 the Council had a duty to provide C with suitable full-time education from September 2019. Mr B applied for an EHC assessment and therefore the Council was aware C was not in school. The Council should have provided educational provision from September 2019, not doing so was fault. As a result, C missed out on an entire academic year of education.
53. The Council put 12 hours individual home tuition in place for C from September 2020. The Council told Mr B the number of hours of provision could be fewer than 25 hours a week because it is more concentrated than whole class tuition. It said it assessed C and decided 12 hours was suitable. The Council reiterated this in its response to my enquiries and said it considered C’s special educational needs, the time needed for therapeutic/medical intervention and his experience of home education when deciding the number of hours to provide. However, the Council did not provide a copy of its assessment and in April 2021 increased C’s hours of tuition to 25. Given C’s condition deteriorated over this period, on the balance of probabilities, there is no reason he could not have accessed 25 hours from September 2020, when his health was better. I consider C missed 13 hours of individual home tuition a week in term-time between September 2020 and March 2021. This was fault by the Council.
54. From January 2020, as well as providing education, the Council was responsible for securing the special educational needs provision in C’s EHC plan. Much of the EHC provision was to be provided by his educational placement. As C did not have an educational placement, this EHC provision was not secured. The Council was at fault for failing to secure all the provision in C’s EHC plan. From 1 May to 31 July 2020, the Council’s duty to secure the provision changed from an absolute duty to ‘reasonable endeavour’. There is no evidence the Council made ‘reasonable endeavours’ and this was fault.
55. The Council’s final EHC plan issued in January 2020 said C did not have ‘exceptional social care needs’ and did not need social care provision. However, in the same month, a social care assessment found he needed support to access the community, take part in age-appropriate activities and have opportunities to make friends. The Council did not properly assess C’s social care needs when it was assessing him for an EHC plan, and this was fault. Although this fault was remedied because the Council completed a social care assessment in January 2020. The Council awarded C 12 hours support every four weeks in March 2020. It provided the family with direct payments during the period of the COVID-19 lockdown, arranged support from July to December 2020, and provide direct payments when Mr B said he was unhappy with the provision.
56. The Council should have held an EHC review in January 2021. The Council did not hold an EHC review until October 2021. The Council was at fault for the delay. This was a missed opportunity for the Council to discuss the problems it was having securing a suitable educational placement for C and to consider whether to issue an amended plan naming specialist provision in section I.
57. In January 2022, the Council named a school placement for C from September 2022. The Council said Mr B could have appealed this decision and therefore it was not responsible for the EHC provision C missed from January 2022 onwards. This demonstrates a fundamental misunderstanding by the Council of its duties. The Council is responsible for securing C’s EHC provision whatever his educational placement. From January 2022 to the date C starts school the Council should secure the provision in his EHC plan. It has provided a tutor to provide education, but this individual does not provide EHC provision. Therefore, C will miss out on EHC provision until he starts school.
58. Because of the Council’s faults, C missed an entire year of education and over two years of EHC provision. Mr B says this led to C’s health deteriorating and left him isolated from his peers. C’s condition is degenerative, and, during the period of delay, he became less able to access education. Therefore, he lost the opportunity to use his higher functional capacity during the period of delay. The Council offered to pay C £1,400 for the loss of education and support between January 2020 and July 2020. Although the Council’s offer is welcome, I do not consider it remedies C’s lost provision or the distress this caused him. C wanted to attend school to learn alongside his peers and develop friendships, not being able to left him isolated.
59. Mr B was put to time and trouble chasing the Council to fulfil its statutory responsibilities and this caused him significant frustration. The Council offered to pay Mr B £500 for the distress caused by the delay in arranging C’s annual review and the time and trouble he was put to. I consider this a suitable remedy for the injustice caused to Mr B by the Council’s faults.
60. I do not consider it necessary to make any service improvement recommendations in this case. The systemic issues found in this investigation were identified by Ofsted in its May 2021 report. Ofsted has required the Council to make improvements, and these are being monitored by the Department of Education and its commissioner.

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Agreed action

61. Within one month of the final decision, the Council will:
• Apologise to C and Mr B.
• In recognition of the periods of lost and insufficient education, and a lack of EHC provision between September 2019 and December 2021, pay £6,150 to Mr B to be used for C’s benefit.
• Pay Mr B £200 each month, excluding school holidays, C is not in a specialist education placement from January 2022 onwards.
• Pay Mr B £500 for the distress caused to him by the Council’s delay arranging C’s annual review and the time and trouble he was put to chasing the Council to fulfil its statutory duties.
62. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

63. I have completed my investigation and uphold Mr B’s complaint. Mr B and C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman