Summary: Mrs B says the Council failed to provide full-time education to her son from March 2020 and delayed reassessing his education, health and care plan. There is no fault in the Council’s provision to Mrs B’s son until January 2022 when the Council failed to increase Mrs B’s son’s provision at the point at which he was ready for it. There was delay completing the reassessment for the education, health and care plan. A payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to provide full-time education to her son from March 2020; and
• delayed reassessing her son’s education, health and care plan (EHCP).
2. Mrs B says fault by the Council meant her son received limited education at home for two years which has impacted on his physical and mental health and has caused her significant distress.

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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. 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

5. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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

What should have happened

8. The Special Educational Needs Code of Practice (the code of practice) says a local authority must make a decision and communicate the decision on whether to complete a needs assessment for an EHCP to the child's parent or to the young person within 6 weeks of receiving the request.
9. The code of practice says the whole process of EHCP needs assessment and EHCP development, from the point when an assessment is requested until the final EHCP is issued, must take no more than 20 weeks, subject to various exemptions.
10. The Special Educational Needs and Disability Regulations 2014 set out specific exemptions. These include where:
• appointments with people from whom the local authority has requested information are missed by the child or young person;
• the child or young person is absent from the area for a period of at least 4 weeks;
• exceptional personal circumstances affect the child or his/her parent, or the young person, and
• the educational institution is closed for at least 4 weeks, which may delay the submission of information from the school or other institution.
11. The code of practice says the child's parent or the young person should be informed if exemptions apply so that they are aware of, and understand, the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should endeavour to complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements.
12. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability, and aptitude, including any special needs.
13. Statutory guidance, 'Education for children with health needs who cannot attend school' published in May 2013, (the guidance) makes clear councils are responsible for arranging suitable full-time education for children of compulsory school age who, because of illness, would not receive suitable education without such provision. This applies whether or not the child is on the roll of a school and whatever the type of school they attend.
14. The guidance says 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.
15. The guidance says where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests.
16. The guidance says the LA should review the provision offered regularly to ensure it continues to be appropriate for the child and is providing suitable education.

What happened

17. Mrs B’s son has special educational needs and has an EHCP. Mrs B’s son was attending a mainstream school until the end of term in 2020. From September 2020 Mrs B’s son did not attend school due to difficulties with his mental health. From that point he had in place four hours online provision per week, covering Maths and English.
18. When Mrs B reported struggling to cope or get education for her son in October 2020 the Council said it could organise a reintegration back into his allocated school as it had advised it was able to meet his needs. Mrs B said that was not appropriate at that point due to issues with how the school was treating her son before he stopped attending. Mrs B said that if he went back he would only be able to manage a part-time timetable for English and Maths. Mrs B asked the Council to consider special educational needs schools. Mrs B had requested a reassessment for her son’s EHCP, which the Council had declined as it did not consider it necessary.
19. By December 2020 Mrs B was reporting that her son was doing well with the online education. Mrs B told the Council she would not send her son back to his allocated school and said her son could only cope with tuition in English and Maths.
20. There is no evidence of further contact until 5 August 2021 when Mrs B requested a reassessment of the EHCP. Mrs B told the Council her son could only manage tuition in English and Maths as he was so far behind and that she would like alternative provision from September at a specialist school which she had identified. Mrs B said if not the alternative tuition service should continue as planned but possibly on a face-to-face basis. Mrs B raised concerns though about her son’s mental health if he spent another year sat in his bedroom learning and not mixing with his peers and other children his age. The Council told Mrs B it would review the schooling situation once it had completed the reassessment process for the EHCP.
21. Mrs B’s son started back with his alternative education package in September 2021.
22. The Council suggested some additional provision for Mrs B’s son which the school had identified in September 2021. Mrs B told the Council she would rather wait until the EHCP process completed. Mrs B reported that her son was settled with the alternative education service.
23. The Council issued a draft EHCP at the end of September. In response to that the allocated school told the Council it could meet some of the requirements set out in the draft plan. The school suggested though it would be better for Mrs B’s son to attend a smaller, more specialised and nurturing setting.
24. In November 2021 the Council’s specialist education panel considered the case. The specialist education panel agreed for the Council to consult for in year admission to two schools, one of which was the school Mrs B had identified. One of those schools reported it was not suitable for Mrs B’s son. The school Mrs B had chosen was full but said it did not consider it was a suitable placement given Mrs B’s son would transition to 16+ education the following year.
25. The Council’s specialist education panel reconsidered the case in December 2021. The panel agreed to continue the alternative provision and provide an interim package for the next two terms. The panel suggested consulting two other provisions. The Council consulted those provisions and although both provided details of a potential package in January 2022 they both subsequently told the Council they did not have any places available.
26. Meanwhile in December 2021 Mrs B had submitted a complaint. In that complaint Mrs B said the provision her son was receiving was not adequate. When responding to that complaint the Council pointed out the school Mrs B had chosen was full and had advised it was not a suitable placement for her son. The Council told Mrs B it was consulting a college for her son to begin in September 2022.
27. The Council issued a final EHCP on 2 February 2022. That named the allocated school but noted that Mrs B’s son would continue to receive alternative provision until he began college in September 2022.
28. Mrs B chased the Council for additional provision for her son in February and March 2022. The Council suggested a meeting, although I do not have any evidence of a meeting taking place. Mrs B’s son has continued to receive four hours online education per week and will start college in September 2022.

Analysis

29. Mrs B says the Council is at fault for failing to put in place education for her son from March 2020 onwards. The first part of that period, between March 2020 and September 2020, was affected by COVID-19, when schools were not fully open. I am satisfied Mrs B’s son had access to the same education provision as was available for all children during that period. I therefore do not criticise the Council for the provision in place between March and September 2020.
30. I am satisfied though that from September 2020 Mrs B’s son was no longer able to attend school due to mental health issues. I am satisfied since September 2020 Mrs B’s son has been receiving four hours online tuition per week. That is not full-time education. However, as I say in paragraph 15, Government guidance is clear that where a child is unable to take part in a full-time timetable it is acceptable to provide less than full time hours. The evidence I have seen satisfies me it was Mrs B that told the Council her son could not cope with full-time timetable and that he could only manage Maths and English. Mrs B told the Council that in October and December 2020 and was of the same view when she contacted the Council in August 2021. As I am satisfied the four hour per week timetable was in place to reflect the fact Mrs B’s son was not in a position to access a wider timetable I do not criticise the Council for putting in place four hours provision for Mrs B’s son in September 2020.
31. The guidance is clear though that the Council should keep part-time timetables under review and increase provision when a child is able to manage it. I have seen no evidence to suggest the Council regularly reviewed whether Mrs B’s son could access more hours per week. However, the evidence is also clear that even in August 2021 Mrs B was advising the Council her son could only manage the tuition in Maths and English and was not ready for an increased timetable. Given that evidence I do not consider it likely, on the balance of probability, the Council would have increased the provision available to Mrs B’s son before December 2021 if it had reviewed the case. December 2021 is the first point at which Mrs B raised concerns about the level of provision in place.
32. In addition, between September 2021 and December 2021 the Council was reviewing Mrs B’s son’s EHCP. At that point the allocated school was still available to Mrs B’s son and the Council had not established that a specialist school placement was required. I therefore do not criticise the Council for not seeking an alternative school placement during that period as it would have needed to complete the EHCP process to identify the type of placement that was suitable. I note though that when the Council issued the final EHCP in 2022 it still named the mainstream school and Mrs B’s son is due to attend a mainstream college placement from September 2022. While there were delays completing the EHCP process I do not consider it likely, in those circumstances, the Council would have sought a specialist school placement for Mrs B’s son.
33. I am concerned about what happened after December 2021 though. At that point Mrs B was saying her son needed more education. Mrs B had also raised concerns about her son continuing to receive an education based at home as she believed that was contributing to mental health difficulties. I am satisfied the Council acted on that initially by arranging a specialist education panel to consider the case. Following that panel the Council consulted with two alternative provision placements, both of which would have increased the number of hours available to Mrs B’s son. While the Council has not provided me with evidence to show why those placements did not go ahead I understand it was because neither placement had any spaces available.
34. I understand the Council’s difficulties here. Nevertheless, the Council remains responsible for providing a full-time education to Mrs B’s son. Up until December 2021 I am satisfied the part-time timetable was based on a shared understanding about what Mrs B’s son could manage. That was not the case from December 2021 though. As the Council did not put in place any additional provision between January 2022 and the end of term in July 2022 I consider the Council at fault. I therefore consider it likely Mrs B’s son missed out on seven months additional provision. I recommended the Council apologise to Mrs B and her son and pay Mrs B £300 for each month where her son received only four hours education per week. That amount reflects the fact that some education was in place, that Mrs B’s son would have been unlikely to be able to move straight into full time provision given the length of time out of education and the fact Mrs B’s son likely missed out on some of his special educational needs provision given the provision in place was online only. That makes a total payment of £2,100 for the seven month period. I further recommended the Council remind officers dealing with children out of school of the need to keep any part-time provision under review to ensure it is increased when the child is ready to do so. The Council has agreed to my recommendations.
35. Mrs B is also concerned about the delay completing the EHCP. As I said in paragraph 9, the maximum timescale from the request for a reassessment until a final plan is issued is 20 weeks unless certain circumstances apply. I do not consider any of those circumstances apply here. In this case the Council took nearly 26 weeks and therefore failed to comply with the guidance. That is fault. Given there was only a six week delay though I do not consider it likely this caused Mrs B’s son a significant injustice which would warrant any further remedy other than the remedy I refer to in the previous paragraph. I recommended though the Council pay Mrs B an additional £250 to reflect her time and trouble pursuing the complaint. That makes a total remedy of £2,350. The Council has agreed to that recommendation.

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Agreed action

36. Within one month of my decision the Council should:
• apologise to Mrs B and her son;
• pay Mrs B £2,350; and
• send a reminder to officers dealing with children out of education to remind them of the need to keep part-time education packages under review and increase them when the child is ready.

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Final decision

37. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman