Summary: Doncaster Metropolitan Borough Council failed to make adequate education and special educational needs provision for the complainant’s son between September 2021 and the end of the school year in July 2022. So, he missed out on a significant amount of education and other provision detailed in his Education, Health and Care Plan. The Council will take the agreed action to remedy the injustice this fault caused.

The complaint

1. The complainant, whom I shall refer to as Ms B, says there is fault in the Council’s handling of her son’s special educational needs provision since she moved to Doncaster Metropolitan Borough Council’s area in 2021. Specifically, she says it:

1. failed to provide her son with suitable education or any of the special educational need provision detailed in his Education, Health and Care Plan since Ms B contacted the Council to say she would be moving to the area in June 2021;
2. put in place minimal and unsuitable 1:1 teaching for one month in January 2022 and since May 2022 has arranged just four and a half hours teaching a week in a local primary school;
3. failed to amend or review his EHC Plan since the family moved to the area; and
4. failed to communicate with her effectively about her son’s education and special needs provision since June 2021.

2. Ms B says this has caused her and her son injustice in that X has missed out on school and special needs provision and the situation has caused both her and X 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 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)

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How I considered this complaint

5. I discussed the complaint with Ms B and considered with written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
6. Ms B and the Council 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. 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.
9. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
10. 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.
11. 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)
12. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council either on the day of the move or within 15 days if it has not been told of the move in advance. The requirement that the child should attend the placement named in the EHC Plan remains in place unless that would be impractical, as in this case. Where this is impractical the new council must temporarily place the child in an appropriate educational institution until the EHC Plan is formally amended. The new council may bring forward any review of the Plan or may complete a new EHC needs assessment regardless of when the last one took place. The new council must tell the child’s parent within 6 weeks of the date of transfer when it will review the plan and whether it intends undertaking a new assessment.
13. The new council must review the plan either within 12 months of previous review by the old council or within three months of plan being transferred, whichever is later.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
15. 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.
16. 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)
17. 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)

Background

18. X is now six years old. His current EHC Plan is dated June 2020. It names his provision as a nursery school up to September 2020 and then a specialist primary school for children with severe and profound learning difficulties. The EHC Plan was issued by a different council before the family moved to the Doncaster area in June 2021. X was five years old and in Reception year. He is now in Year 1.
19. The EHC Plan issued in June 2020 confirms X is diagnosed with global developmental delay, significant delays in learning skills largely linked to language and social communication problems which are in turn linked to a diagnosis of Autistic Spectrum Disorder (ASD). The Plan states X needs a differentiated and personalised curriculum, structured teaching, small group and 1:1 learning.
20. The family moved to Doncaster Council area in August 2021 and advised the Council of the move in June 2021. Ms B says the last review of the Plan took place before she moved. The Council has confirmed this was January 2021.

What happened

EHC Plan

21. The Council says it did not receive a copy of X’s EHC Plan from where the family previously lived until September 2021. The Council accepts it did not arrange a review within 6 weeks or transfer the Plan into Doncaster Council’s paperwork until June 2022. It has not arranged a review of the EHC Plan. The last review of the Plan took place since January 2021.
22. The Council says that it issued a draft amended plan in mid-June 2022. As this is a draft plan it does not name a school in section I. The Council did not obtain any updated assessments to inform this amended draft. Ms B expressed significant concerns with that draft including the lack of updated assessments and that a different child’s name was given on the front of the report.
23. I understand from Ms B that the final plan has still not been issued. Ms B has chased the Council about this and was initially advised that it had been sent to the School but not to her. However, when she checked with the school, they had not received it either and she now understands from the Council that has not in fact issued it at all.

Provision since family moved to the area in June 2021

24. The Council consulted a special needs school for children with severe learning difficulties (School Q) for a place for X in early September 2021. The school responded in late September stating it could not offer X a place broadly because it could not meet X’s needs as he needed a more specialist placement suited to ASD and complex needs.
25. The Council’s says it consulted six special needs school for a place for X in late October 2021. It says none could offer a place as all its special needs school were over their published admissions number. Based on the Council’s tracker only two of these schools responded to the consultation. One of these responded at the beginning of November stating it could not offer a place on the grounds it was full. The other responded in late November to say that it considered X’s needs were broader than the needs it could meet in terms of speech, language and communication needs.
26. The Council has said that it had some initial discussions with School Y (a special needs school) in November 2021 to discuss setting up a new class for X. This was eventually agreed in February 2022 but could not be staffed until September 2022.
27. Ms B has told me that one hour a day of 1:1 tuition in a local library was arranged for January 2021 when she chased the Council for this. Ms B says this was unsuitable as the teacher was told he would be teaching an 11 year old rather than a six year old and was not provided with a copy of X’s EHC Plan. The teaching was not suitable and Ms B ended the arrangement in early February when X broke his collarbone and could not travel very easily to the session. Ms B says she told the Council this. The Council argues it is not its fault that the tutor did not have correct information about X as it had provided this to the agency. The council has provided a copy of its referral to the tutoring agency and I confirm this is clear that X was 5 years old. The Council does acknowledge that it was Ms B who gave the tutor a copy of X’s EHC Plan.
28. In late March the Council says it emailed Ms B a timetable for educational provision for X to resume learning following his recovery from his injury. It accepts that Ms B did not receive this timetable for some reason and that it would have been helpful if a member of Council staff had followed up the email with a phone call. The email stated that provision would be:
• 1.5 hours on Tuesdays with two members of staff in a Council-owned building;
• 1.5 hours on Wednesdays with two members of staff in a Council-owned building;
• 2 hours on Thursdays at a play session with another child and facilitated by 2 members of staff;
• 1.5 hours on Fridays with two members of staff in a Council-owned building.
29. Ms B has provided copies of texting contact she had with Council staff around this time that demonstrates there were significant problems with practical arrangements around attendance at these sessions. In late March these included Ms B being wrongly advised as to the location of the sessions which meant she took X to the wrong place and sessions not going ahead as timetabled. A session clearly did go ahead at the beginning of April but then the school term ended for the Easter holiday break in the first week of April. The session after that was scheduled for Tuesday 19 April but this was only confirmed by the Council to Ms B on the day and Ms B struggled to confirm that it was going ahead with the venue. That session did not go ahead. It appears that a further problems then was that Ms B’s car had broken down so she was unable to transport X to the venue which was ?? miles from home. In any event despite the timetable stating provision was to be made on Tuesdays, Wednesdays, Thursdays and Fridays the next session after Tuesday 19 was not arranged until Friday 22 April. Ms B asked to be called by a manager in the SEN team as she was unhappy. The manager did not call her back and so Ms B presented herself at the Council offices. I assume she was seen. The session on Friday 22 April went ahead.
30. On Monday 25 April Ms B asked the SEN officer to call her. Ms B was struggling to get X to the sessions by bus. The SEN officer agreed to find an alternative venue that was easier for Ms B to get to. Ms B chased this up on 27 April when she had heard nothing further. The SEN officer agreed the school could provide a space for the venue and said he would check the tutors could attend that venue. Ms B chased up again the following day (Thursday 28 April). By 3 May the situation had still not been resolved and Ms B asked for a meeting with the Council. On 3 May a text form Ms B to the Council states that during the week beginning 2 May X was to receive tuition of one hour on one day that week. She said the following week the arrangements were for him to have one hour of tuition on three days.
31. On Thursday 12 May Ms B texted the Council officer and asked him to call her. She asked for this again o n 13 May. In response she was told the following week tuition would be provided for between 1 and 1.5 hours every day.
32. Ms B asked for further information again on 26 May. She chased this again on 27 May. On 28 May Ms B expressed concern that she had nothing further about a school place the Council had told her it had identified for X from September 2022. She chased this up on 6 June. In late June Ms B turned up for tuition with X but the school was closed and she had not been told about this.
33. By July it appears that the Council’s children’s services team started to provide sone additional support to Ms B and X from its short breaks team.
34. In its comments to me the Council has said that it provided X with four and a half hours a week 2:1 tuition and a further three hours a week “stay and play”. Ms B confirms that from mid-May to the end of the school term in July X was provided with:
• 1.5 hours in school with his tutors on Mondays, Tuesdays, Wednesdays and Thursdays;
• 1 additional hour two days a week when Ms B had to remain in school with him.
35. The Council says a place at School Y was identified for X from September 2022. It says its told Ms B about this in February 2022. It says it had to commission additional provision in that school and had to recruit additional staff for this. It says this has taken time as teachers have to provide notice in their existing teaching post. Ms B confirms she accepted this place and visited the school with X.
36. As planned X began attending School Y in September and I understand form Ms B that the placement is now going well.

The Council’s consideration of its section 19 duty to X

37. In response to my enquiry of the Council on how it considered whether it had a section 19 duty towards X it has stated:
• “The council did consider its duty under section 19 but also has to consider its duties under the C&F Act 2014 when we must consult with schools prior to placing a child and that we must have regard to the suitability of that school in terms of the nature of the special educational needs and of the efficient use of resources and the efficient education of others. That requires us to place X in a special school and at the time of consultation all our special schools were full. Extensive negotiations took place throughout autumn term and it was agreed that the most effective solution was to create and additional class at Y School. It was hoped to have this in place by summer term 2022 but this did not prove possible…All of our special schools are above PAN and placing X in any of these would not have been compatible with the efficient education of others”; and
• “In respect of the section 19 responsibilities the Council must replicate the provision that Ma B’s son had in his previous Authority meaning that we would place in an appropriate special school. Doncaster Council consulted with the schools that most closely matched his previous school…both schools for children with severe learning difficulties on 9 September 2021.  Further consultations were sent and an out of area search of non-maintained and independent special schools took place on 21 October 2021 but no offers of placement were received”. 

Communication

38. The Council says it accepts that its communication with Ms B has been poor but says it is now in weekly contact with her. Ms B says this is not the case and that she has no record of having received or missed either weekly telephone calls or emails.
39. In response to my request for evidence of this communication from the Council the Council has said that following a meeting with Ms B it agreed that a timetable of tuition would be shared with her on a weekly basis and says this started on 2 May. It says that from June contact was provided directly by X’s tutors.

Was the Council at fault and did this cause injustice?

The EHC Plan

40. It took nine months from the time the previous council sent Doncaster Council a copy of X’s EHC Plan before it seemingly took any action regarding it. This amounts to fault. The Council was required to tell Ms B within 6 weeks of the date of transfer when it would review the Plan and whether it proposed to undertake an EHC needs assessment. It did neither of these things. It has still not undertaken a review of the Plan nor has it advised whether it would undertake an EHC needs assessment.
41. A review of the Plan should have taken place either within 12 months of previous review by the old council or within three months of plan being transferred, whichever is later. Ms B confirms the last review was in January 2021. This means the Council should have arranged a review by January 2022. The Council’s failure to arrange a review amounts to fault.
42. The Council issued a draft plan in June 2022 but it seems this has still not been issued in final form. This is further delay.
43. The identified faults with regard to the EHC Plan have caused Ms B and X injustice in the form of uncertainty and frustration. Ms B may have also lost out on the opportunity to appeal to the SEND Tribunal as a result of any amended Plan that was the outcome of a review or re-assessment had this been completed on time. The ongoing delay issuing the final EHC Plan means that she continues to be delayed in having a right of appeal against the content or other aspects of that final Plan should she wish to submit such an appeal.

Education and special educational provision

44. 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)
45. 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.
46. X has received very limited educational or special educational needs provision since the beginning of the school year in September 2021. I accept that the Council tried to identify a suitable school place for X promptly in September 2021 but it was unable to find a suitable place for him in one of its special needs schools. However, the Council has a duty under section 42 of the Children and Families Act 2014 to secure the specified special educational provision in an EHC plan for the child or young person. It failed to secure the provision detailed in X’s EHC Plan at all between September and December 2021 and this therefore amounts to fault.
47. The comments the Council has provided in response to my enquiries regarding its section 19 duty lead me to conclude that it has failed to fully understand its duty to X in this respect. Once it became aware that it could not identify a school place quickly for X in the autumn term the Council should have considered its duty to put in place alternative provision for X under section 19 of the Education Act 1996. It is clear that it did not do so in the Autumn term of 2021 and this amounts to fault.
48. The provision that was made from January 2022 does essentially amount to provision under section 19 but the amount provided between January and July 2022 has not at any time been full-time or the equivalent of full time. There is no evidence that a decision was made at any point that full time education would not have been in X’s best interests. The amount of provision made during this period also therefore amounts to fault. To be clear the provision during this period was:
• One hour a day during January;
• No provision was made for X during February and most of March though this was due to X’s broke collarbone so is not attributable to the Council;
• Sessions arranged in late March did not go ahead due to poor communication around the location and arrangements for these;
• Either two or three 1.5 hour sessions in April (there was the two week school holiday period in April);
• A single 1 hour session during the first week of May 2022;
• Between 1 and 1.5 hours four days a week for the rest of May; and
• until the end of July 1.5 hours in school with his tutors four days a week and 1 additional hour two days a week when Ms B had to remain in school with him.
49. This inadequate provision caused X injustice as he missed out on most of the education and special needs provision he should have received during the academic year from September 2021 to July 2022. This also affected Ms B who was caused avoidable distress and worry.

Communication

50. The Council has accepted its communication with Ms B has not been good enough but has told me the matter has been resolved and that there is weekly communication. Ms B does not agree this was the case.
51. The Council has said that following a meeting with Ms B it agreed that a timetable of tuition would be shared with her on a weekly basis and says this started on 2 May. It says that from June contact was provided directly by X’s tutors. Whilst I accept this communication was probably made I do not consider it was sufficient. I have seen from Ms B’s frequent texts to the Council between March and July 2022 that she had to repeatedly contact the Council to obtain confirmation of arrangements and very often had to chase up responses to these. Communication about the school place from September also appears to have been unclear with Ms B again having to chase this up on a number of occasions. I consider the lack of clarity around this communication amounts to fault that caused Ms B injustice.

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Agreed action

52. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
53. To remedy the injustice caused by the identified fault the Council should within a month of the final decision on this complaint:
• apologise to Ms B and X;
• pay Ms B £2100 to recognise the impact of the complete absence of educational provision for X during the autumn term 2021. This is calculated at a rate of £600 per month;
• pay £500 to recognise the impact of the only very minimal provision made for X during January 2022;
• pay a further £250 to recognise the impact of the very small amount of provision made in April (this takes account of the fact that two weeks of April were school holidays);
• pay £500 for the minimal provision made in May 2022;
• pay £900 to recognise the slightly higher, but still inadequate, provision made in June and July 2022. This is calculated at a rate of £450 a month;
• pay Ms B £250 to recognise the uncertainty, frustration and lost opportunity that resulted from the failure to properly follow its processes regarding the transfer of the EHC Plan and to arrange a review of the Plan by January 2022;
• pay a further £150 to recognise the frustration and ongoing delayed right of appeal as a result of the delay in issuing the final EHC Plan;
• issue the final EHC Plan as soon as possible and within a month at the latest; and
• pay Ms B a further £500 to recognise the avoidable distress she has been caused by the failure to keep her adequately informed, that she had to repeatedly contact the Council about the arrangements made and the worry and upset caused by her son not being provided with education for a prolonged period of time.
54. In order to address the systemic failings identified as a result of this investigation the Council should, within three months of the date of the final decision on this complaint:
• provide us with details of how it will ensure it follows the correct process when a child with an existing EHC Plan moves into its area;
• confirm what processes it has in place to consider whether its section 19 duties are engaged when a child in its area is out of school; and
• say how it ensures that alternative provision it does put in place is suitable and full time.

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Final decision

55. The Council failed to make adequate education and special educational needs provision for X between September 2021 and July 2022 and this meant he missed out on a significant amount of education and other provision detailed in his EHC Plan. The Council will take the action detailed in paragraphs 53 and 54 above to remedy the injustice this fault has caused and to ensure similar faults do not happen again.

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Investigator's decision on behalf of the Ombudsman