Summary: Mrs K complained the Council failed to ensure her son received an education and his special educational needs provision during the summer term 2021. We found the Council at fault for failing to ensure her son received a suitable education and School Y had funding to provide his education. It also failed to provide some of her son’s SEN provision. The Council proposed remedies to acknowledge the injustice this caused the family. It also agreed to make payment for the distress Mrs K experienced and the costs she had to provide special educational needs provision for her son.

The complaint

1. The complainant, whom I shall refer to as Mrs K, complained the Council failed to ensure her son received an education and his special educational needs provision as set out in his Education, Health and Care (EHC) plan from May 2021.
2. As a result, Mrs K says her son experienced distress and had a loss of educational provision. She also said her family experienced distress, had financial costs for special educational needs provision and advocacy support, and had time and trouble to bring her concerns to the Council’s attention.

Back to top

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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. As part of my investigation, I have:
• considered Mrs K’s complaint and the Council’s responses;
• discussed the complaint with Mrs K;
• made enquiries to the Council, and considered the information it provided; and
• considered the relevant law and guidance to the complaint.
7. Mrs K and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

8. The Education Act 1996 (the Act) places a duty on local authorities to make arrangement to ensure a child has access to:
• a full-time education; or
• in the case of a child with special educational needs, education on such part-time basis as the authority consider to be in the child’s best interest.
9. The Act also says when a school is listed in a child’s Education, Health and Care plan, the school has a duty to place the child on its roll and admit them into the school.
10. The Department for Education guidance’ Children Missing Education’ (September 2016) and ‘School Attendance’ (August 2020) says:
• local authorities have a duty to make arrangements to find out which children in their area are not registered pupils at a school and are not receiving a suitable education otherwise;
• parents have a duty to ensure their children are receiving a full-time education; and
• schools must enter pupils on the admissions register at the beginning of the first day on which the school has agreed, or been notified, that a pupil will attend the school. If a pupil fails to attend on the agreed or notified date, the school should undertake reasonable enquiries to establish the child’s whereabouts and consider notifying the local authority at the earliest opportunity.

Education, Health, and Care plans

11. 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. Only the tribunal can do this.
12. Local authorities are responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

What happened

13. Mrs K has a son, Child B, who has a diagnosis of autism spectrum disorder with demand avoidance and anxiety. He was attending School X from September 2020.
14. In early 2021, the Council issued an EHC plan for Child B, which set out his special educational needs (SEN) and the provision he should be provided. This included:
• 32.5 hours 1:1 support in school;
• speech and language support;
• occupational therapy; and
• listing another school, School Y, which Child B should attend from April 2021.
15. The Council stopped its funding for School X in April 2021, as Child B was due to start at School Y.
16. However, Child B was not added to School Y’s admission roll, and continued to be on roll with School X. Mrs K continued to pay for Child B’s 1:1 support for a teaching assistant as the School.
17. Mrs K told the Council about her intention to appeal Child B’s EHC plan to tribunal. In May 2021, the Council asked her if she had appealed, which she later did.
18. In May 2021 Mrs K says she and School X told the Council her son’s placement at School X had broken down, and he had not been attending school.
19. In June 2021 Mrs K told the Council it was failing to provide her son with a suitable education, as he did not have access to School Y and the placement at School X had broken down.
20. The Council spoke with School X about Child B’s attendance and education. School X told the Council it had tried various techniques with him to provide an education, including sending him schoolwork at home. It also spoke with School Y about what support it could provide for Child B.
21. Mrs K appealed Child B’s EHC plan to tribunal in June 2021.
22. In July 2021, Mrs X complained to the Council about its handling of her son’s educational provision.
23. In July 2021, School Y added Child B to its roll and the Council provided it funding for Child B’s 32.5 hours 1:1 support, which should be used to provide alternative educational provision for Child B.
24. The Council told Mrs K it had arranged for School Y to add Child B to its roll and to provide the alternative educational provision for Child B. It explained the support package was to be discussed between School Y and Mrs K.
25. School Y has since paid towards some of the alternative provision which Mrs K paid for between June to October 2021.

Mrs K’s complaint

26. Mrs K complained to the Council that:
• Child B had not received an education since May 2021, which she and School X had told the Council about at the time. The Council had therefore failed to ensure he received a full time education, or suitable alternative provision;
• It wrongly told her Child B would be on roll at School Y, but this did not happen until July 2021. She said her son was therefore a missing child for education which the Council had failed to act on;
• Child B had not received the Speech and Language support and the Occupational Therapy (OT) set out in his EHC plan.
27. The Council’s initial complaint response set out what had happened, but it did not make a finding on fault or any remedy to resolve Mrs K’s complaint. So, Mrs K asked it to reconsider her complaint and provided further information.
28. The Council arranged for Mrs K’s complaint to be considered by an independent investigator. He found Child B was not a missing child as he had continued to be on roll at School X, and OT support could still be provided as set out in his EHC plan. He also said it was School Y which was at fault for not adding Child B to its roll in April 2021, however the Council was at fault for;
• wrongly telling School Y Mrs K would confirm if she accepted the placement. This was incorrect advice as it was not parental choice as School Y was listed in Child B’s EHC plan;
• failing to monitor and ensure Child B was on roll when it became aware he was not attending School X;
• failing to take action when it was told Child B was not attending education. However, the investigator could not confirm if this at the time Mrs K said it did due to lack of evidence;
• stopping Child B 1:1 top up funding from April 2021. This was because he was not on roll at School Y, but it was not at fault for stopping funding for School X;
• not providing Child B with some of the Speech and Language provision in the summer term, although there were some mitigating circumstances;
29. The Council agreed with the independent investigator’s findings, including the recommendations to:
• apologise to Mrs K and pay £600 for the distress and loss of education Child B experienced from June to July 2021;
• pay Mrs K a further £100 for the time and trouble she had to bring her complaint to its attention, and £100 for the distress its delayed complaint response caused her;
• review how it monitors children who are due to attend a new school to ensure they are on roll, including in year placements;
• remind its Officers of the Council’s duties to place a child on roll in the named school set out in an EHC plan and hold a meeting with School Y to ensure it also understands the School’s duty to do so; and
• arrange a debriefing session with professionals involved with Child B, and for the Speech and Language service to discuss Child B’s sessions with Mrs K for the Autumn term.
30. The Council has apologised to Mrs K and offered the payment in line with the recommendations to her.
31. Mrs K was not satisfied with the Council’s response and asked the Ombudsman to consider her complaint.
32. In response to my enquiries the Council said it would not refund Mrs K’s costs for a teaching assistant at School X until he was added to the roll at School Y in July 2021. It said this was because she preferred to send her son to School Y.

Analysis

33. I have considered the Council’s independent investigator’s findings, which the Council agreed to. I am satisfied the investigation was thorough and I agree the Council was at fault for:
• providing incorrect advice to School Y regarding adding Child B to its roll;
• failing to monitor and ensure Child B was on roll at a School Y, and failed to take action when it became aware he was not attending school;
• stopping the funding for Child B’s for his SEN in April 2021. This was because it failed to provide the funding for School Y in which he was not on roll;
• failing to provide Child B with Speech and Language support as set out in his EHC plan for the summer term; and
• delay in the Council’s complaints process.
34. In reaching my view, I am satisfied the only school which was available to Child B from April to July 2021 was School X, as he remained on roll there. I acknowledge School Y was at fault for failing to add Child B to its roll. However, once School X and Mrs K told the Council Child B was unable to attend the education provided, the Council had a duty to monitor its admission roll and resolve its admission issues with School Y, and ensure he received a full-time education, or a suitable alternative provision.
35. It took until July 2021 for the Council to do so, and most educational provision was not provided until the start of the Autumn term.

Injustice and improvements

36. The Council agreed with its independent investigator’s recommendations set out in paragraph 25, which had regard to the Ombudsman’s Guidance on Remedies. I am satisfied the remedies were appropriate to acknowledge:
• Child B’s distress and loss of educational provision from late May to early July 2021;
• the time and trouble Mrs K experienced to bring her concerns to the Council’s attention;
• the distress Mrs K experienced following the Council’s complaint’s handling delay; and
• the service improvement recommendations were suitable to address and prevent the issues from happening again.
37. However, I found the Council’s remedies did not properly consider:
• the distress Mrs K experienced as a result of the Council’s faults and her son being without a suitable education for two months. I am satisfied the uncertainty caused her some distress;
• Mrs K’s costs of alternative provision has only been partly covered by School Y. This is because, on balance I am satisfied had the Council not been at fault, Child B alternative education would have started in June 2021 and continued since. While, I understand the Council has backdated its funding to School Y, it should ensure Mrs K is refunded the alternative provision she paid for; and
• Mrs K’s cost to School X for 1:1 support up until School Y added Child B to its roll. This is because had Mrs K not paid for this SEN support Child B would not have been able to access any educational provision at all, as set out in his EHC plan.
38. I did not agree with the Council’s grounds for not paying Mrs K’s cost towards a teaching assistant at School X. This is because it was the Council’s responsibility to ensure Child B was on roll at a school and his SEN was properly funded as set out in his EHC plan. This included a teaching assistant for 32.5 hours per week.
39. I acknowledge the Council has since backdated its funding to School Y to April 2021. However, School Y did not provide Child B with an education, nor a teaching assistant at the time. I would therefore expect this funding to be provided to School X and Mrs K to cover the costs they had to provide Child B’s education.
40. I understand Mrs K also has had advocacy fees to challenge the Council’s decision and handling of her concerns. However, we only ask councils to pay for such fees in exceptional circumstances. I have not found this to be the case here. While Mrs K may have found the process challenging and frustrating, I have not found there was a need for her to seek professional support to bring her concerns to our attention.

Back to top

Agreed action

41. To remedy the injustice the Council caused to Mrs K, the Council should, within one month of the final decision:
1. pay Mrs K £600 to acknowledge the loss of educational provision and distress her son experienced;
2. pay Mrs K £200 to acknowledge the distress she experienced as a result of her son being without a suitable education as set out in his EHC plan;
3. pay Mrs K £100 to acknowledge the time and trouble she had to pursue her complaint, and a further £100 to acknowledge the distress its delayed complaint response caused her;
4. arrange for Mrs K to be reimbursed £912.20 for the costs of alternative provision between June and October 2021 (August 2021 excluded), which has not been reimbursed;
5. arrange for Mrs K to be reimbursed £3,710 for her costs to fund School X’s teaching assistant until July 2021.

In total the Council should pay Mrs K £5,622.20.

42. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4.  
5.  
6. review how it monitors children who are due to attend a new school to ensure they are on roll, including in year placements;
7. remind its Officers of the Council’s duties to place a child on roll in the named school set out in an EHC plan, and hold a meeting with School Y to ensure it also understands the School’s duty to do so; and
8. arrange a debriefing session with professionals involved with Child B, and for the Speech and Language service to discuss Child B’s sessions with Mrs K for the Autumn 2021 term.

Back to top

Final decision

43. There was fault which caused an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman