Plymouth City Council (21 017 441)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Jun 2022

The Ombudsman's final decision:

Summary: The complainant (Ms X) said the Council failed to provide suitable education for her daughter (B) following her permanent exclusion from the school. She said the lack of full-time education for 18 months affected B’s academic and personal development and had detrimental impact on the whole family. We found fault with the Council’s school consultations, the lack of full-time education for B and with the Council’s Annual Review processes. The Council accepted our recommendations.

The complaint

  1. The complainant (Ms X) says the Council failed to provide a school placement and a full-time alternative education for her daughter (B) for 18 months after she was excluded from her school. She also complains about the lack of support for the whole family who struggled because of the complexity of B’s needs. Ms X says the loss of education and special educational provisions (SEP) resulted in B working below age-related expectations and having gaps with her learning. Not attending the school, her daughter also missed her free school meals. Ms X says she had to postpone her own studies and could not work as she had to supervise B.

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What I have investigated

  1. I have investigated the educational issues of the complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. (Local Government Act 1974, section 26(5))
  4. We usually expect people to have exhausted a Council’s complaints procedure before we consider whether to investigate their complaint.
  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)

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How I considered this complaint

  1. I considered the information Ms X provided and discussed this complaint with her.
  2. I made enquiries with the Council and considered the information it provided.
  3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  4. 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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What I found

Legislation and Guidance

Schools

  1. Councils have a duty to secure sufficient schools for providing primary and secondary education in their areas. (Education Act 1996, section 14(1))
  2. When parental preference for a child with EHCP is a mainstream school, a council must secure a place in a mainstream school unless it would be incompatible with efficient education of other children and there are no reasonable steps to prevent this incompatibility. (Children and Families Act 2014 S.33)
  3. If Councils decide it is necessary for child’s special educational provisions to be delivered otherwise than in a school they may arrange for this to happen only if they are satisfied it would be inappropriate for the provision to be made in a school. (Children and Families Act 2014 S.61)

Provision of alternative education

  1. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

  1. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
  2. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
  3. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Education and Health Care Plan (EHCP)

  1. 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.
  2. The Council is 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.
  3. 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)
  4. From 1 May to 31 July 2020, section 42 of the Children and Families Act 2014 was modified by a notice from the Secretary of State for Education issued under the Coronavirus Act 2020. During this period, local authorities and health commissioning bodies were required to use their ‘reasonable endeavours’ to discharge this duty.

Reviews

  1. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
    • Councils must review an EHCP at least every 12 months;
    • Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments;
    • Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
    • The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content;
    • When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible;
    • Where the council does not agree the suggested changes it may still issue the final EHCP;
    • In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
  2. Council may propose to amend an EHCP at any time. It should proceed as if the proposed amendment were an amendment following a review. (SEND Regulations 2014 regulations 28)

What happened

  1. I have set out a summary of the key events on B’s education from February 2020 till September 2021. It is not meant to show everything that happened. I have not included any details of social care involvement with B for the reasons provided under paragraph 79.

Background

  1. In 2015 the Council issued a Special Educational Needs (SEN) Statement for B, which it transferred into an EHCP in 2017.
  2. Following the family’s move, in February 2016 B started School 1 – a maintained special school for children with social, emotional and mental health (SEMH) needs who might also have Autistic Spectrum Condition (ASC).
  3. In summer 2018 Ms X sought a mainstream school (School 2) for B’s secondary placement. School 2 offered a place for Year 7 and B started attending in September 2018. In the school year 2018/2019 B was on a part-time timetable, supported by Advisory Centre for Education (ACE) when not on the school site. Because of the increased behaviour concerns, from September 2019 B started attending ACE, but was reluctant to continue and returned to School 2.
  4. When attending School 2 B received free school meals.

February 2020 – July 2020

  1. In February 2020 B was permanently excluded from School 2, although the headteacher’s decision was initially not fully ratified by the Board of Governors. Ms X appealed B’s permanent exclusion. The Governing Body of School 2 upheld the Headteacher’s decision in March 2020.
  2. The Council offered Ms X a placement for B through ACE. Ms X declined this offer as thought B would not engage with ACE. Ms X told the Council she would be educating B at home but refused to register this arrangement as an elective home education.
  3. Following her permanent exclusion B still wanted to be educated in a mainstream secondary placement. Ms X supported B in her wish. At the same time Ms X was open to any suggestions of school placements, including special schools.
  4. In the beginning of March 2020 an Annual Review for B took place for which an Educational Psychologist prepared her advice. Because of the COVID pandemic and the imminent lockdown, the decision was taken for B to remain on roll in School 2 until the end of July 2020 with some tutoring arranged by the Council. The school would keep weekly telephone contact with B and Ms X.
  5. The Council arranged for 1:1 support for B from an independent educational provider (Provider 1). The support was in the form of 6 hours tutoring each week – a combination of online and face to face work and started in April 2020. At the parental request the focus was to support B’s SEMH needs. There was regular liaison between Provider 1, B’s school, and Ms X.
  6. The Council also offered B some tutoring sessions with another educational provider but this was not successful.
  7. At the end of the summer term 2020 and following discussions with Ms X, the Council consulted with School 3 (another mainstream school), attended by B’s older sister. The school declined to offer B a place as it said it was full.

September 2020 – December 2020

  1. In September and October 2020 the Council consulted with some independent special schools, suggested by Ms X. One of these schools (School 4) was not carrying out assessments until February 2021 due to the COVID-19 pandemic, the others declined to offer B a place.
  2. The Council and Ms X also considered School 1 but at first Ms X and B did not want B returning there because of the events leading to the breakdown in that placement at the end of her primary education.
  3. At the same time the Council offered increased support from Provider 1, a total of 15 hours per week and individual tutoring from another independent provider (Provider 2). Ms X rejected these offers as she wanted B to be educated at school. Ms X was concerned that accepting the Council’s tutoring offer would prevent it from looking for a school placement for B.
  4. In the end of September 2020 the Council re-assured Ms X that B’s alternative providers are only an interim arrangement until it can find a school placement for her. As a result Ms X accepted the Council’s offer.
  5. In the beginning of October 2020 Provider 2 started delivering 12 hours of weekly tutoring for B. After a few sessions B refused to attend. At the same time Provider 2 expressed concerns about its suitability to support B. Following the meeting with Ms X, B’s Educational Psychologist and Provider 2, the tutoring stopped.
  6. In the fourth week of October 2020 Ms X discussed with the Council the option of ACE placement. Although Ms X was not happy for B to attend this placement due to B’s bad experiences in the past, she agreed to consider a bespoke educational offer from ACE.

December 2020 – July 2021

  1. Following careful planning which began at the end of October 2020, in the beginning of December 2020 B started attending ACE three days a week. The plan was for this placement to be supplemented by two days a week support from Provider 1 but due to the second lockdown this provision was not available until April 2021. There was an alternative two-day provision offered but Ms X declined it as not suitable.
  2. In February 2021 the Council again consulted with School 4 for a place for B but the school did not offer a place.
  3. In March 2021 the Council held a placement planning meeting following which the Council consulted with School 1.
  4. Provider 1 started its two-day package of support for B after Easter holidays 2021. In May Ms X told the Council B did not wish this to continue.
  5. B reluctantly attended ACE and in the summer term of 2021 did so only to prevent her mother being fined by the Council’s education welfare team.
  6. In the beginning of June 2021 the Council told Ms X B’s placement at ACE could gradually increase to five days a week. This, however, did not happen.
  7. In the second week of June 2021 B’s Annual Review took place. B’s return to School 1 was considered and later this month the school offered a place from September 2021.
  8. Around this time Children and Adolescent Mental Health Services (CAMHS) closed B's referral. This was because of the difficulties in engaging B with therapies, including family therapy. CAMHS recommended support for Ms X following B’s ASC diagnosis and a full sensory assessment for B.
  9. After the exchange of correspondence between Ms X and the Council, planning and preparations for B’s placement at School 1 started in September 2021.
  10. In the second week of November 2021 the Council issued B’s final amended EHCP, naming School 1 in Section I. As part of her contribution to amend her EHCP B confirmed she was happy to be back at school and enjoyed seeing her old friends. Ms X was also very positive about the impact of attending school on B.

Complaint

  1. In the beginning of May 2021 the Council acknowledged Ms X’s complaint about B’s education and following a telephone conversation provided its Stage 1 response a month later.
  2. As part of its Stage 2 response to the educational complaint, in the middle of September 2021 the Council offered Ms X £1000 as a resolution to her complaints about B and her sister. Ms X rejected this offer as unsatisfactory.
  3. In the beginning of November 2021 the Council provided its final, Stage 3 response to Ms X’s educational complaint.
  4. Ms X also lodged two complaints about various social care issues and received Stage 1 responses in July 2021 and December 2021. As Ms X was not satisfied with its responses, the Council offered to consider matters at Stage 2. Ms X, however, asked to hold off any further considerations until the Ombudsman reviewed the matters.

Analysis

Exercising discretion to consider B’s school placement

  1. We normally would not look at placement issues for children with EHCPs as Section I of the plan can be appealed to the tribunal. In this case, however, I consider it would be unreasonable to expect Ms X to appeal mainly because the Council failed to follow the correct review process. Thus Ms X’s appeal rights were not triggered and Ms X was not aware she could have challenged the Council’s position on B’s placement:
    • After B’s Annual Review in March 2020 the Council failed to issue a letter with the information it would continue to maintain B’s EHCP or with the proposal to amend. If the Council had continued maintaining B’s EHCP, it would have also advised Ms X on her right to appeal this decision. Without this correspondence Ms X was unaware she could have used her appeal rights and could have asked for a specific placement.
    • Despite taking B off School 2’s roll following Ms X’s exclusion appeal, B’s EHCP was not amended until November 2021. This means for over a year School 2 was named in Section I of B’s EHCP with her not attending and not on roll. The Council failed in its duty to identify a suitable school or at least a type of school. This meant Ms X was deprived of her appeal rights.

School placement

  1. Throughout the process of identifying the right educational provision for B following her permanent exclusion from School 2, Ms X and B were consistent in asking for a school placement.
  2. When looking for a school placement for B after her permanent exclusion from School 2 the Council failed through:
    • Delay to consult with schools. At no stage did the Council claim it was necessary to deliver B’s special educational provisions otherwise than in a school. Therefore to discharge its duty to provide B with education the Council should have secured a school placement for her as soon as practicable. Timely school consultations were, therefore, necessary to meet this statutory duty.
    • Lack of robust approach to finding a school place for B. The evidence shows the Council failed to identify all the local mainstream and special schools which could potentially meet B’s SEN and failed to approach them. The next step should have been to identify schools which are further from B’s address, including those located in different local authorities and approaching them. Most consultations were triggered by Ms X’s specific requests which suggests the Council was not pro-active in its approach to finding B a school place, despite its statutory duty.
    • Lack of challenge to school responses. There is no evidence the Council applied any legal tests to the schools’ refusals to offer B a place, which was particularly critical when Ms X asked for a placement for B in a mainstream school. For some time after B’s permanent exclusion, Ms X and B’s preference remained for a mainstream school although Ms X was prepared to consider any school placements suggested by the Council. The only other mainstream school the Council consulted with was School 3. This happened in August 2020 and the Council failed to challenge School 3’s refusal to offer B a place because of being full. If a mainstream school is parental preference, the only lawful reason for it to decline an offer of a place is incompatibility with the efficient education of other children with evidence there are no reasonable steps to prevent this incompatibility. Not challenging School 3’s reasons for its refusal to offer B a place and lack of consultations with other mainstream schools is fault.
  3. The failings listed above amount to fault and caused Ms X and B frustration, uncertainty and distress.
  4. The Council failed to amend B’s EHCP following her permanent exclusion from School 2. Thus Ms X could not challenge the Council’s position on B’s placement, which is fault.

Full-time suitable alternative education

  1. Currently there is no statutory definition of full-time education, but generally it is considered individual tutoring is more intensive than learning at school and therefore needs less hours per week. Usually 15 hours per week of individual tuition is considered enough to reflect the learning accessed at schools.
  2. In the summer term of 2020 the Council offered B six hours of individual tuition, which was addressing mainly her SEMH needs rather than supporting her academic studies. Although the evidence suggests there were good reasons for such approach, it was not an equivalent of a full-time education.
  3. The only time B did not receive any tutoring or teaching was from September to November 2020. This was because at first Ms X was reluctant to accept any tutoring for B as she thought the Council might consider it as an alternative solution to the school placement. After Ms X had accepted it as an interim arrangement, the Council offered B 12 hours a week from Provider 2. B started accessing this provision but very quickly disengaged and Provider 2 queried its ability to meet B’s SEN. I cannot, therefore, accept the Council at this time offered a suitable alternative provision for B.
  4. From December 2020 until July 2021 B attended ACE for three days a week. The Council offered education for two remaining days but it could not be delivered until April 2021 due to the reasons outside the Council’s control. It seems, therefore, the Council accepted B needed provision for five days a week as an equivalent of a full-time education.
  5. In April 2021, after a try to attend Provider 1 for the remaining two days a week, very quickly B refused to continue.
  6. The main obstacle in accessing the Council’s full offer of education was B’s reluctance to engage with various providers, including ACE. Ms X explained B had a bad experience when she had attended ACE in the past. She also found it hard to engage with new providers. Additionally, B wanted to be educated at school and was not happy accessing alternative educational provisions. In view of B’s SEMH difficulties, lack of continuity with her education can explain some of her difficulties with engagement. The evidence suggests not all of the Council’s offers of alternative education could meet B’s SEN.
  7. Despite its efforts, the Council failed to provide B with full-time alternative education following her permanent exclusion from School 2. I consider it, however, a service failure rather than maladministration as the evidence shows the Council tried very hard to ensure B received full-time alternative education.

Delivery of Special Educational Provisions

  1. The Council’s failure to consistently deliver B’s SEP is consequential to its failure to secure a school placement for her and provide a full-time alternative education. This is because B’s SEP, by their nature, could only be delivered during provision of her education.
  2. When looking at the extent of the Council’s fault in non-delivery of B’s SEP I consider between 1 May and 31 July 2020 the Council discharged its “reasonable endeavours” duty by making arrangements for Provider 1 to support B 6 hours a week. It is recorded this support focused mainly on B’s SEMH needs which is her main area of SEN.
  3. The only times when B did not receive any education and no SEP were delivered was from March to April 2020 and from September to the beginning of December 2020. This is fault.

Annual Review

  1. The Council failed to comply with its statutory duties after the Annual Reviews in March 2020 and June 2021, which is fault. In particular:
    • After both Annual Reviews the Council failed to send Ms X letters communicating its intention to amend B’s EHCP, as discussed during the meetings;
    • After the Annual Review in March 2020 the Council failed to send Ms X a draft EHCP with suggested amendments, including a new placement offered by the Council or a type of placement;
    • After the Annual Review in March 2020 the Council failed to amend B’s EHCP which meant Ms X was not able to challenge its position on its content and, most importantly, B’s placement;
    • After the Annual Review in June 2021 the Council delayed issuing B’s draft EHCP with the amendments discussed at the meeting and a new placement.

Injustice

  1. The Council’s various failures to comply with its duties for B’s education following her permanent exclusion from School 2 caused her and Ms X injustice.
  2. B’s injustice resulting from the faults identified under paragraphs 58-72:
    • Delayed academic progress – despite her abilities B is now working below expected levels and has significant gaps in her knowledge;
    • Negative impact of the lack of a school placement on B’s SEMH difficulties as well as social communication;
    • Uncertainty and distress caused by the lack of consistency with educational support.
  3. Ms X’s injustice resulting from the faults identified under paragraphs 58-72:
    • Lack of possibility to challenge the Council’s position on B’s placement through an appeal;
    • Distress and uncertainty about B’s education and prospects;
    • Negative impact on Ms X’s work life as she had to stay at home to supervise B;
    • Negative impact on Ms X’s professional development as she had to adjust her programme of studies;
    • Financial loss by the lack of free school meals for B.

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Recommended action

  1. To remedy the injustice caused by the faults identified, we recommend the Council complete the following:
    • Apologise to B and Ms X for the injustice caused to them by the faults identified;
    • Pay Ms X £3,875 to recognise B’s loss of education and special educational provisions - £350 a month for two and a half months from September to November 2020 and £300 a month for ten remaining months where B was out of school and not receiving full-time education;
    • Pay Ms X £855 as an equivalent of missed free school meals;
    • Pay Ms X £300 to recognise the distress caused to her by the faults identified.

The Council should complete the above within four weeks of the final decision.

  1. We also recommend the Council complete the following:
    • Review its Annual Review process to ensure sending a letter to the parents/young person with the Council’s position on the content or maintenance of Education and Health Care Plan within timescales specified in SEND Regulations is part of the post-review actions in every case. This letter should inform of the appeal rights, if relevant. If the Council proposes to make amendments to the plan, a draft plan with the proposed amendments should also be attached to the Council’s letter;
    • Provide all front-line staff with a training on councils’ duty in relation to Section I of Education and Health Care Plans – required content of Section I, legal test for securing mainstream schools and complying with parental preference depending on the type of a requested placement.

The Council should complete the above within four months of the final decision.

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Final decision

  1. I have completed my investigation and for the reasons given in paragraphs 58-72 uphold Ms X’s complaint. I found fault with the Council’s school consultations, the lack of full-time education for B and with the Council’s Annual Review processes. The Council’s faults caused injustice to Ms X’s and B. The Council accepted my recommendations.

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Parts of the complaint that I did not investigate

  1. I did not investigate parts of this complaint which refer to the social care support for B. The Council have not yet had a chance to fully respond to Ms X’s concerns through its three stages complaint process, therefore this part of Ms X’s complaint is premature.

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Investigator's decision on behalf of the Ombudsman

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