Summary: Mrs X complained about the lack of full-time education for her son (Y) when attending Reception and the Council’s failure to deliver all special educational provisions (SEP) included in Y’s Education Health and Care Plan (EHCP). Mrs X said this had detrimental effect on Y’s development, caused her and her husband distress and resulted in their financial difficulties. We find the Council at fault for failing to ensure Y received all SEP included in his EHCP and fulfilling its duties under the Equality Act. The Council accepted our recommendations for personal remedies and service improvements.

The complaint

1. Mrs X complains about the lack of full-time education for Y in Reception since his EHCP was issued in October 2021. This was caused, she says, by the school’s difficulties in recruiting a full-time teaching assistant for Y. Mrs X says this amounts to disability discrimination.
2. She says the alleged insufficient support for Y when he first started school, which continued throughout his time in Reception, increased his difficulties in adapting to the school environment and caused regression in his development.
3. Mrs X says her husband had to reduce his working hours to support Y when not in school and lost two working days a week. Mrs X and her husband also had to secure care for Y which would normally be covered by the after-school club. This caused them financial hardship and affected their mental health.

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What I have investigated

4. I have investigated whether the Council failed by not ensuring Y would receive full-time education in the first two terms of his Reception.
5. I have investigated the way the Council carried out its duty to secure SEP named in Y’s EHCP.
6. I have investigated whether the Council took account of its duties under the Equality Act 2010.

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The Ombudsman’s role and powers

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
9. We cannot investigate complaints about what happens in academies, as they fall outside our jurisdiction. However, we can investigate the actions taken by councils to arrange special educational needs provision for children in academies.
10. 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)
11. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can decide whether when exercising their functions councils have had due regard to the need to eliminate discrimination and advance equality of opportunity.
12. 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

13. I reviewed the documents sent by Mrs X and the Council.
14. I reviewed the Ombudsman’s ‘Guidance on Jurisdiction’.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
16. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal framework

Full-time primary education

17. Councils must secure efficient primary and secondary education in their area. Primary education means:
• full-time or part-time education suitable to the requirements of children who have attained the age of two but are under compulsory school age; and
• full-time education suitable to the requirement of junior pupils of compulsory school age who have not attained the age of 10 years and six months.

(Education Act 1996 S.13 and S.2)

18. Admission authorities must provide for the admission of all children in the September following their fourth birthday and make it clear in their arrangements that where they have offered a child a place at a school:
• that child is entitled to a full-time place in the September following their fourth birthday;
• the child’s parents can defer the date their child is admitted to the school but not beyond the point at which they reach compulsory school age and not beyond the beginning of the final term of the school year for which it was made; and
• where the parents wish, children may attend part-time until later in the school year but not beyond the point at which they reach compulsory school age.

(School Admissions Code 2021 paragraph 2.17)

19. A child attains compulsory school age on the first day of the term after they are five. (Education Act 1996 S.8)

Delivery of special educational provisions

20. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
21. 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)
22. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Disability discrimination

23. The Equality Act 2010 prohibits direct and indirect discrimination, victimisation and discrimination arising from disability (where a disabled person is treated unfairly because of something connected with their disability and the unfavourable treatment cannot be justified).
24. Section 20 of the Equality Act places a duty to make reasonable adjustments for those with disabilities on councils and schools.
25. Section 149 of the Equality Act sets out the Public Sector Equality Duty (PSED). This says a public authority (such as a council) must in the exercise of its functions have due regard to the need to eliminate unlawful discrimination and advance equality of opportunity between persons who share a protected characteristic and persons who do not share it.

What happened

Background and pre-school education

26. Y has a Global Developmental Delay and features consistent with Autistic Spectrum Disorder (ASD). Before starting school Y attended an Early Years setting full-time.
27. Y turned five in January 2022.

Support in Reception class

28. In September 2021 Y started his education in Reception in a mainstream Academy (the school).
29. The Council issued Y’s EHCP in mid-October 2021. The EHCP specified that funding to support the provision detailed in section F will be provided through the delegated budget, supplemented by a top-up funding to the equivalent of 17.5 hours, totalling 32.5 hours of support per week.
30. Before issuing the final EHCP, the school supported Y using its current staff funded through its delegated special educational needs (SEN) budget. He was on a part-time timetable.
31. Once the Council issued Y’s EHCP the school started a recruitment process for a teaching assistant (TA). Y continued attending school part-time with the same level of support.
32. In mid-November 2021 Mrs X asked the Council why Y had not been attending his school full-time. Her understanding was that although Y was not legally required to attend school until the summer term, he was entitled to a full-time education from September 2021. Mrs X expressed her concern about Y missing a lot of education. She also mentioned strain caused by Y’s part-time timetable to her and her husband as they had to make adjustments to their work time.
33. In the third week of December 2021 the Case Officer explained it was Y’s school responsibility to arrange an early Annual Review or a meeting of professionals if it had difficulties in delivering education or special educational provisions for Y.
34. Following further correspondence from Mrs X the Case Officer told her:
• there was a plan to increase Y’s time at school;
• Y should be attending full-time by the summer term at the latest as he would be of statutory school age then;
• professionals involved in supporting Y expressed their views he needed a gradual and carefully planned increase to his timetable.
35. The school appointed a TA for Y from the beginning of January 2022. The TA worked only part-time. Until March 2022 they worked on Mondays, Wednesdays and Thursdays, increasing their working time from March 2022 to include Fridays until 1:00pm. From the end of April 2022 the TA worked a full day on Fridays.
36. In mid-January 2022 professionals involved with Y, his parents and the school met to discuss Y’s education and the difficulties he was experiencing at school. The discussion focussed on the gradual increase of Y’s timetable.
37. In the beginning of March 2022 the school’s headteacher told the Council of the school’s difficulties in meeting Y’s SEN. Although staffing issues continued, the headteacher explained this was not the main problem. He reported Y was overwhelmed in a mainstream setting and might need a change of school.
38. An emergency Annual Review for Y took place in the third week of March 2022. As part of this review Y’s parents asked the Council to name a special school in Section I of Y’s EHCP.
39. In the beginning of May 2022 the Council issued Y’s draft amended EHCP. The amendments included:
• information Y works entirely on his own agenda;
• estimate of Y’s social and emotional development for 15-22 months at the chronological age of 62 months (change from 22-36 months at the age of 52 months);
• extra Speech and Language therapy sessions.
40. In the summer term of his Reception Y attended full school days on Mondays, Wednesdays, Thursdays and Fridays and on Tuesdays only part of the morning.
41. To provide care for Y on the days when TA was not working or not working full-time, Mrs X’s husband reduced his working time from five to three days. Y’s parents also had extra costs of care for Y which, in their view, should have been provided by the after-school club.

Complaint – stage one

42. Mrs X complained to the Council in the second week of December 2021. She raised the following issues:
• only a part time TA for Y due to start in January 2022;
• lack of full-time education;
• disability discrimination;
• lack of support outlined in Y’s EHCP.
43. The Council did not uphold Mrs X’s complaint, saying:
• children are entitled to full-time education (25 hours per week) following the school term after their fifth birthday. Children do not legally have to start school until they are of statutory school age, but they should attend full-time as soon as possible;
• the school has taken relevant and purposeful action in recruiting the right level of support for Y. The reduced timetable is based on recommendations provided by the specialist professionals involved with Y and there is a clear plan in place to increase Y’s hours;
• the Council is organising a meeting with the parents, the school and the professionals to discuss Y’s transition to full-time education. The expectation is Y will be accessing full-time education by the summer term as he will then be of statutory school age.
44. The Council said the school would continue to make reasonable adjustments to deliver provisions detailed in Y’s EHCP and the Council would monitor delivery of the provisions and support the school.

Complaint – stage two

45. Unhappy with the results of the stage one of the complaint process, Mrs X asked for the Council to review her complaint at stage two. She said:
• the school tried very hard to recruit a 1:1 TA for Y since the beginning of November 2021 but only managed to find a part time TA;
• the school stated the full-time funding did not cover what was actually required in practice so they were unable to recruit a full-time TA;
• none of the professional reports recommended Y should be on a reduced timetable;
• a meeting of professionals involved with Y took place in mid-January 2022 and it was agreed Y’s time at school could be increased by half an hour each day every week, building up to full-time over the period of six weeks. As TA only works three days a week, the school did not seem to have a plan to increase hours on the remaining two days;
46. Mrs X asked for the details of the Council’s support for the school to ensure SEP included in Y’s EHCP were delivered.
47. In its response at the end of March 2022 the Council stated:
• it is the school’s responsibility to ensure proper use of the support staff and delivery of SEP named in Y’s EHCP;
• if the school has concerns about the level of funding or/and implementing Y’s SEP, it should raise it with the Council;
• the Case Officer communicated with Y’s school at the end of January 2022 and is currently liaising with the school to identify any concerns;
• Y’s increase in school hours by half-hour increments has been agreed;
• children do not legally have to start school until they are of statutory school age which, for the children born between 1 January and 31 March is the summer term.

Analysis

Investigation time limits

48. Mrs X complained in December 2021, receiving the final stage two response from the Council at the end of March 2022.
49. I cannot investigate any events which happened after the Council’s stage two complaint response. Before we look at the issues raised by a complainant, the Council should be given an opportunity to provide its response. Also in the summer term 2022 Y’s circumstances changed as he reached his compulsory school age and the Council proposed amendments to his EHCP following the emergency Annual Review.
50. I, therefore, limited my investigation to the period from October 2021, when the Council issued Y’s final EHCP, till the end of March 2022.

No fault

51. I do not find fault with the Council for not providing Y with full-time education in the first two terms of his primary education. Primary education before a child reaches compulsory school age can be delivered either full-time or part-time. The Council’s duty to ensure Y can access primary education was, therefore, fulfilled by securing him a place in the school.
52. Y turned five in January 2022 so he reached compulsory school age at the beginning of the summer term. This was after Mrs X’s complaint had been through the Council’s complaint process.
53. The part-time timetable was introduced for Y by his school. Academies are outside the Ombudsman’s jurisdiction except actions taken by councils to arrange special educational needs provision for children.
54. However, the Council had a duty to ensure that Y received the provisions of his EHCP. It also has a duty under the Equality Act to eliminate discrimination and advance equality of opportunity.

Fault

55. The Council’s failure to provide SEP included in Y’s EHCP is fault.
56. As explained under the paragraphs 20 and 21 the Council cannot delegate its duty to ensure delivery of all SEP included in a child’s EHCP. Even when schools arrange support for a child, the Council holds ultimate responsibility.
57. By including in Y’s EHCP reference to the top-up funding for additional 17.5 hours in addition to 15 hours covered by the delegated budget, the Council indicated the way it proposed to meet Y’s special educational needs. Most of Y’s special educational provisions were to be delivered by school staff, however the additional funding suggests the Council agreed to secure extra staff for Y to ensure he can access learning full time.
58. The evidence available suggests Y’s timetable was dependant on the school’s staffing rather than based on his special educational needs (SEN), as the school claimed. I am led to this conclusion by the following facts:
• the gradual increase in Y’s timetable only started in late January, after the school employed a new TA;
• on the days when newly recruited TA was not working Y attended school only in the mornings;
• there was no mention in the EHCP of Y’s need for a part-time timetable or gradual transition.
59. This was despite the school’s unquestionable efforts to find proper ways to support Y, recognised by Mrs X.
60. The Council issued Y’s final EHCP in October 2021, after he started attending the school. Most of SEP included in Y’s EHCP were, by their very nature, to be delivered throughout the school day by a person (or persons) supporting Y. The full-time attendance was necessary to ensure delivery of all the provisions.
61. The Council was aware of the school’s difficulties in delivering SEP for Y since mid-November 2021, when Mrs X told the Case Officer Y was not attending the school full-time because of the limited availability of the support staff. On many occasions after this date Mrs X expressed to the Council her frustration with Y attending his school part-time. She also formally complained about this matter.
62. The Council failed to act to ensure delivery of all special educational provisions to Y. The Council was referring Mrs X to Y’s school, not accepting its responsibility for the delivery of the content of Section F of his EHCP.
63. It is for the Council to decide how to discharge its duty. As suggested in the Council’s comments to my draft decision, the Council could have referred the matter to the Regional Schools Commissioner.
64. In its comments to my draft decision the Council said it could not be held responsible for non-delivery of SEP as its duties are not matched with commensurate powers to ensure the school’s compliance with EHCPs, especially in case of academies.
65. In determining whether the Council failed in its non-delegable duty to ensure delivery of SEP for Y the only relevant consideration is whether the Council knew or should have known Y was not receiving all his SEP.
66. Although as explained under paragraphs 51-53 the Council was not at fault by not providing Y with full-time education in the first two terms of his Reception, it failed to consider its responsibilities under the Equality Act to advance equality of opportunity between Y and his peers.
67. Y’s school treated him differently than non-disabled children in his class who were below statutory school age but were allowed to attend school full-time. If the Council had investigated the complaint about the part-time timetable, it would have considered whether this less favourable treatment of Y was justified.
68. While the Council was not responsible for the school’s actions, it had placed Y there, naming the school on Y’s EHC plan. The Council did not challenge the school about its failure to secure full-time support for Y, although additional funding was provided for this purpose. The Council instead supported the school’s decision of a reduced timetable, without evidence of any health needs. In advising Mrs X about Y’s entitlement to education the Council failed to consider why other children in his class who were below compulsory school age were allowed to attend more hours or how Y’s EHC provision would be made.

Injustice to Y

69. In the first two terms of his school education Y missed many hours of support which would allow him to access education and develop both academically and socially.
70. Through the amendments proposed to his EHCP in May 2022 there is evidence of his increased difficulties listed in the paragraph 39 of this decision, which became obvious within a space of a few months since issuing Y’s original EHCP.

Injustice to Mrs X

71. Mrs X and her husband experienced frustration and distress once they realised Y was not sufficiently supported at school and he was not getting all the provisions named in his EHCP.
72. Trying to get the matters resolved, Mrs X spent much time communicating with the Council and eventually complaining.
73. Mrs X and her husband suffered financial loss when reducing their working time to support Y when not in school.
74. I do not consider the extra costs of care, which might have been provided by the after-school club, were consequential to the Council’s fault of not delivering SEP. The after-school provision was not included in Y’s EHCP and therefore the Council was not responsible for Y’s support outside the school hours.

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Agreed action

75. To remedy the injustice caused by the faults identified, we recommend the Council completes within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her and Y by the faults identified;
• pay Mrs X £200 a month to recognise Y’s loss of special educational provision caused by non-delivery of all the special educational provisions included in his EHCP. The total the Council should pay is £900 for the period of four and a half months from the middle of October 2021 till the end of March 2022, excluding a month for the Christmas break and two half-terms. This payment should be used for Y’s educational benefit;
• pay Mrs X £2,250 for the financial loss they suffered when reducing their working time to support Y. This is calculated on the basis of £150 a week for the first three months when Y was attending his school only in the mornings and £75 a week for the remaining one and a half month when his timetable was gradually increased.
• pay Mrs X £300 to recognise the distress caused to her by the Council’s failure to secure the provision and the time and trouble taken to resolve the complaint.
76. We also recommend the Council within four weeks of the final decision remind all SEN case officers and their managers of:
• the Council’s non-delegable duty to ensure all the special educational provisions included in a child’s EHC plan are delivered. The Council will provide the evidence that this has happened;
• the Council’s duties under the Equality Act 2010, how these may arise in cases of children with special educational needs and EHC plans and what officers should do if they have concerns about schools’ discriminatory practices.

The Council should provide the evidence of how it implemented these recommendations with staff.

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Final decision

77. I uphold the part of this complaint about the Council’s failure to deliver all special educational provisions included in Y’s EHCP and to take account of its duties under the Equality Act. The Council has now accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman