Summary: There was fault by the Council as it did not organise alternative education when D was medically unable to attend school. D had an Education, Health and Care plan and did not receive the provisions in it for three months. The Council has apologised and should make a payment towards D’s lost education.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council did not provide the Education outlined in her son’s Education, Health and Care Plan from April 2021 until July 2021.
2. Mrs X says that her son (who I shall call D) has missed out on education during that period and the Council’s complaints process was very hard to follow.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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. 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 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

6. I read the papers submitted by Mrs X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mrs X and the organisation 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

9. Mrs X’s son had an Education, Health and Care (EHC) plan which named a primary school in January 2021. The provision specified in Section F includes:
• Weekly social skills training.
• Weekly 15 minute session with a Teaching Assistant (TA) on communication system cards.
• A suitable timetable of support.
• A TA will talk to him after any incidents causing him anxiety.
• A high level of support with a familiar TA.
• Technology and software to support his learning.
• A 15 minute daily slot to work with a TA on organisation skills.
• 15 minute daily reading.
• Daily group intervention for handwriting and hand dexterity.
10. In April 2021 D was medically unfit to attend school. The Council referred him to a reintegration service, who had no capacity to take him until August 2021.
11. In April 2021 the primary school said that it would send work home or could put work on google classroom. It said that no work was being sent home in agreement with home and the Educational Psychologist. The Council said ‘it was felt such provision (sending work home) would only increase D’s anxieties about school’. I cannot see written evidence of this specific wording from the Educational Psychologist, although I can see that there is evidence that an alternative provision was mentioned.
12. In response to my enquiries the Council said that D was receiving weekly outreach sessions and that his parents were undertaking project based learning with him. The Council said that ‘a home tutor was not considered for D as such provision would be anxiety inducing if delivered in the home and the focus should be on re-engagement’. Mrs X says that the outreach sessions were online and that they received constant pressure to reintegrate D into a school they felt was unsuitable.
13. Mrs X made an official complaint. The Council said that it upheld her complaint and acknowledged that due to a lack of availability of appropriate provision, no educational provision was implemented from April to July 2021. The Council apologised for this.
14. D obtained a place at a specialist school from September 2021.

My analysis

15. Section 42 of the Children and Families Act 2014 requires that, when a council maintains an EHC plan for a child, it must make sure it delivers the special educational provision set out in the plan.
16. Section 19 of The Education Act 1996 requires councils to provide suitable education 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’.
17. It is clear, from the wording of D’s EHC plan, that much of the special educational provision it sets out was designed to be delivered in a school setting. This means there would undoubtedly be difficulties in delivering all the provision while D was at home.
18. Despite this, the Children and Families Act is clear: councils must deliver the provision set out in a child’s EHC plan. The Act does not make allowances for children who are out of school.
19. The Council has accepted it was at fault during its complaints process. It failed to provide alternative provision for D from April to July 2021, a period of 3 months. The Council has apologised to Mrs X but failed to provide a remedy for D’s lack of education and her time and trouble in pursing the complaint.
20. Our guidance recommends a payment of between £200-600 for each month of lost education. D did receive some sessions from an outreach worker. However, he has special educational needs and did not receive much of the provision in his EHC plan. So, I consider the remedy should be at the higher end of the range.

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Agreed action

21. The Council should make a payment of £1350 (£450 a month for 3 months) to Mrs X within one month of the date of the decision on this complaint.

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Final decision

22. I have completed my investigation of this complaint. This complaint is upheld as I have found evidence of fault which has caused injustice. The action above remedies the injustice to Mrs X and D.

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Investigator's decision on behalf of the Ombudsman