Summary: Ms X complained that the Council failed to provide her daughter, C, with alternative education for a period of two years when she was only attending school part-time. We found the Council was at fault in failing to ensure the school increased C’s educational provision from September 2020. As a result, she lost out on education. The Council also delayed in issuing C’s final education, health and care plan so Ms X lost the opportunity to appeal sooner. It also delayed in responding to her complaint causing uncertainty and frustration. The Council has agreed to apologise to Ms X and make a payment to her in recognition of the injustice caused.

The complaint

1. Ms X complains that the Council failed to provide her daughter, C, with alternative education for a period of two years when she was only attending school two days per week. She says this has negatively impacted her education and has caused Ms X distress and inconvenience. She had to teach her daughter herself and so was unable to work and was put to the expense of paying for an online tuition programme.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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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How I considered this complaint

8. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Legal and administrative background

General duties

10. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.

Alternative provision

11. Section 19 of the Education Act 1996 says that, if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the council must make arrangements to provide ‘suitable education’ either at school or elsewhere, for example at home.
12. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The education arranged by the council should be full-time unless, in the interests of the child, part-time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

A full-time education

13. The number of hours teaching that constitutes a full-time education varies according to the year a child is in. The assumptions schools work on are:
• Reception and Years 1 and 2 (children aged 5 to 7): 21 hours
• Years 3 to 6 (children aged 7 to 11): 23.5 hours
• Years 7 to 10 (children aged 11 to 15): 24 hours
• Year 11 (children aged 15 to 16): 25 hours.
14. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. We have issued a focus report on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016). The focus report says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases. It also says councils should consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis)-even when a child is on a school roll.
15. If a council becomes aware that a child is not receiving their educational entitlement, it should clearly raise this with the school and satisfy itself that appropriate action is being taken. In the interim, the Council may have a duty to provide education directly to the child.

Education, health and care plan

16. A child with special educational needs may have an Education, Health and Care (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
17. The council is responsible for making sure that arrangements specified in the EHCP are put in place.

EHC assessment

18. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCP’s. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHCP’s “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

Key facts

19. Ms X’s daughter, C, started primary school in September 2019 two days per week.
20. On 11 May 2020 C’s primary school, School A, asked the Council to complete an education, health and care needs assessment (EHCNA). The school stated in the EHCNA request form “As [C] is still only 4 and presents with some additional needs, mum and school agreed for a 2 day part-time timetable”. It also stated that C “is very young in her year group (not yet 5) and in discussion with mum, we decided to continue the reduced timetable she had been on at her nursery, with a view to build up to a full-time timetable by the time she was 5…COVID-19 has interrupted this, however [C] was struggling to manage the two days and moving up to 3 days was looking unmanageable for her”.
21. On 18 May 2020 the Council agreed to carry out an EHCNA.
22. On 25 June 2020 the special educational needs coordinator (SENCO) at School A submitted Ms X’s contribution towards the EHCNA.
23. On 23 July 2020 Ms X contacted the Council asking about the progress of the EHCNA. She also said C was only attending school two days per week despite the fact the school kept saying this would be increased. The Council increased the funding to the school from September 2020 and says it assumed it would increase C’s provision.
24. On 18 August 2020 the SEN panel considered C’s case and agreed to issue an EHCP. The following day Ms X notified the Council that her preferred school was School B, a specialist school.
25. On 4 September 2020 the Council issued a draft EHCP. It stated that C was attending school two days per week and was receiving one-to-one support for these two days. C was currently being assessed to see whether a diagnosis of autism spectrum condition (ASC) and attention deficit and hyperactivity disorder (ADHD) was appropriate. She was identified by a speech and language therapist as having severely delayed language and some social communication needs. Ms X had been home educating C because of COVID-19 restrictions. She considered a special school setting would be the best placement for C.
26. The Council formally consulted with C’s current School to get a place at the school based on the EHCP. The SEND team explained to Ms X that it could not yet consult School B without a diagnosis of ASC but that C had been referred for an ASC assessment.
27. The Council issued two further draft plans in October/November 2020 following Ms X’s requests for amendments. Both stated that C was attending School A two days per week.
28. On 5 November 2020 the country entered a national lockdown because of COVID-19.
29. On 13 November 2020 the Council consulted Ms X’s preferred school, School B. It also consulted other mainstream schools.
30. On 18 November 2020 the Council issued a final EHCP naming School A. The provision set out in the plan included speech and language therapy and daily one-to-one support for reading, writing and maths.
31. On 2 December 2020 the national lockdown ended.
32. On 12 December 2020 the SENCO at School A advised the SEND team that Ms X had not returned C to school since October half term. The school said it had been sending work home even though Ms X was choosing to keep C at home. The SEND team forwarded the school’s email to the Safeguarding in Education team.
33. On 17 December 2020 the Council issued a revised final EHCP again naming School A.
34. On 19 December 2020 the Government issued ‘stay-at-home’ guidance.
35. In January 2021 another national lockdown began.
36. In February 2021 Ms X appealed to the Tribunal for a place at School B. The SEN team chased up a response from School B to the consultation.
37. On 8 March 2021 the lockdown ended. Also in March, the Council sent a further consultation to School B.
38. On 13 April 2021 School B responded stating that, as C did not have a diagnosis of ASC, it could not offer her a place because this would be incompatible with the efficient use of resources (its bespoke therapies, adapted curriculum and specialist resources).
39. The Council consulted with other local mainstream primary schools because School A was due to close permanently at the end of July 2021.
40. On 26 May 2021 School B responded to the second consultation stating that it could not meet C’s needs. The Council negotiated with the school and, in June 2021, it confirmed it could meet C’s needs and offered her a place from September 2021.
41. In June 2021 C’s attendance at School A increased to three days per week.
42. On 12 August 2021 Ms X complained to the Council saying C was only allowed to attend school for two full days for almost the entire time she was at School A (from September 2019 until July 2021) so had missed out on education. She said she had had to educate C herself and had incurred costs in doing so. She also said that, because C was only at school two days per week, she was unable to find employment. Ms X said that each term there was supposed to be a meeting to increase the number of days, but this never happened. She said the days were eventually increased to three per week on 7 June 2021, six weeks before the end of the school year and before the school closed permanently. Ms X also complained about the way she had been treated by the school.
43. C started at School B in September 2021.
44. On 1 November 2021 the Council responded to Ms X’s complaint. It apologised for the time taken to respond. It also apologised that C may not have received the expected support and provision. It said that, if School A was still operational, this would be a complaint for it to answer. The Council said that when it became aware C was on a part-time timetable, it gave the school additional funding with the expectation that C’s hours should increase to full-time. It said “we were not fully aware that this did not happen as expected”. It also stated that, during this period, it was trying to secure a change in education placement for C so the needs in her EHCP could be fully met.
45. On 1 December 2021 the Tribunal ordered the Council to issue a final EHCP for C as per agreed terms. The Council issued a final amended EHCP on 15 December 2021 naming School B.
46. On 7 March 2022 Mrs X again complained to the Council saying she was promised C’s days at school would increase each term but this never happened. She asked whether the Council had followed up the situation with the school after providing the additional funding. She also complained about various actions of the school.
47. The Council responded on 18 May 2022. It apologised for the delay in providing the stage 1 and stage 2 responses and also the fact that, in its stage 1 response, it failed to provide Ms X with information on how to escalate her complaint.
48. The Council said this was the first time Ms X had raised issues concerning the behaviour of school staff and, as the school was now closed, it was not possible to address these concerns.
49. As regards C’s part time attendance, the Council said Ms X contacted the SEND team on 23 July 2020 saying the school’s SENCO had told her C would have one-to-one assistance the following year but later said it would be difficult to find assistance for three days a week. The SEND team told Ms X to speak to the head teacher. It also told her the school could apply for top up funding for one-to-one support if necessary. It said additional funding was provided to the school specifically for one-to-one teaching and, as Ms X raised no further concerns, it assumed the matter had been addressed. The Council did not uphold the complaint.

Analysis

Alternative provision

50. Ms X says the Council failed to provide C with alternative education between September 2019 and June 2021 when she was only attending school two days per week.
51. I have seen no evidence to suggest the Council was aware that C was only attending two days per week until May 2020. School A’s EHCNA request form referred to the fact that C only attending two days per week but stated that this had been agreed between the school and Ms X because C was not yet five and had additional needs. The school explained it had intended to build up to a full-time timetable by the time C was five but this had been interrupted by COVID-19 and, in any event, it considered C was struggling to manage two days and moving up to three days would be unmanageable for her.
52. The Council received Ms X’s contribution to the EHCNA on 25 June 2020. She explained that C was attending school part-time. But she did not say she was unhappy with this.
53. The Council’s duty is to provide education suitable to the child’s age, ability and to any special educational needs they may have. The school explained its view that two days was suitable for C and said this had been agreed with Ms X. So, there are no grounds to criticise the Council for failing to arrange additional provision at this time.
54. The Council only became aware that Ms X was unhappy with C attending part-time when she explained this on 23 July 2020. I find the Council acted appropriately by increasing the school’s funding for one-to-one provision. However, I find the Council was at fault in failing to follow the matter up with Ms X and the school. It should have satisfied itself that the matter had been resolved and that C was now receiving full-time education. Its failure to do so meant the school continued to provide C with only two days education per week until June 2021 and she lost out on education for a further school year. The Council says it heard nothing further from Ms X about this and so assumed the situation had been resolved. I accept Ms X should have notified the Council that the matter had not been resolved. But this does not alter the fact that the Council should have satisfied itself that appropriate action was being taken by the school and, if necessary, put in place alternative provision in the interim.
55. The Council says that, when it gave the school additional funding, it expected C’s hours would increase to full-time and said it was “not fully aware that this did not happen as expected”. The draft EHCPs issued in September and October 2020 stated that C was attending school two days per week. In addition, the final EHCP issued in November 2020 stated that C was attending primary school “two days a week, which was to be increased over the year after reviews. At present, [C] is still only attending school for two days per week since COVID-19 lockdown”. So, I find the Council was aware that provision had not increased.
56. The Council says that, in December 2020, the school’s special educational needs coordinator (SENCO) advised the SEND team that Ms X had not returned C to school since October half term because of concerns relating to COVID-19. She said Ms X and C were not isolating and Ms X was choosing to keep C at home. She asked for advice. The SEND team passed the information on to the Safeguarding in Education team which gave the SENCO advice on how to engage with Ms X.
57. Ms X says she home-schooled C during the COVID-19 pandemic because C was classed as vulnerable and the risks outweighed the two days she was offered by the school. She says she purchased an online tuition subscription and made her own adapted lessons. I find it was Ms X’s choice not to send C to school when it was open. A place was available at School A, albeit only two days per week, and it was Ms X’s choice not to send C to school when it was open. But this does not alter the fact that C should have been receiving more education from September 2020. Ms X could reasonably have expected C to attend three days per week from then increasing to four days the following term (January 2021) and five days in April 2021.
58. I find the Council was at fault in failing to ensure the school increased C’s educational provision from September 2020 or putting in place alternative provision. As a result, C lost education from 1 September 2020 until half term October 2020 (a period of six weeks). The Council was not responsible for the loss of provision between October half term and 18 November 2020 when the final EHCP was issued because Ms X chose to keep C at home then there was a lockdown from 5 November until 2 December.
59. Ms X appealed to the SEND Tribunal about the educational placement named in the final EHCP (School A). We have no jurisdiction where a parent has appealed to the SEND Tribunal from the date the right of appeal arose (the date the plan was issued) until the appeal is completed. This means I cannot investigate any lack of educational provision after 18 November 2020 because any alleged failure by the Council to provide alternative education is too closely linked to the placement which was the subject of the appeal.
60. Our guidance on remedies says that, where fault has resulted in a loss of educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss. I have recommended a remedy at the lower end of the scale because C was receiving some education during this period.

Delay in issuing final EHCP

61. The Council agreed to complete an EHCNA on 18 May 2020. Under the SEND Regulations it should have issued a final EHCP within 20 weeks (by 28 September 2020). The Council did not issue a final EHCP until 18 November 2020. This delay caused Ms X a significant injustice. She did not agree that School A should be named in C’s plan and wanted School B to be named but was unable to appeal until the final EHCP was issued.
62. The Council says the reason for the delay in issuing the final EHCP was that, following the draft being issued, Ms X and School A requested some amendments to the plan and clarification from the educational psychologist about some of the provision. While I appreciate this may have added to the delay, this does not alter the fact that the Council did not issue the final EHCP within statutory timescales. This is an absolute duty.

Complaint response

63. Ms X complained to the Council on 12 August 2021. The Council did not send a stage 1 response until 18 October 2021. This was fault. The Council says there was a delay in communication internally as there was some uncertainty as to whether the complaint should have gone to the school in the first instance. As a result, the complaint was not received by the service as soon as it should have been, causing a delay in responding. The Council has apologised for the delay.

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Agreed action

64. The Council has agreed that, within one month, it will:
• apologise to Ms X for the failings identified above;
• pay Ms X £100 in recognition of the delay in issuing the final EHCP as a result of which she lost the opportunity to appeal sooner;
• pay Mrs X £300 in recognition of the provision C lost between September and October 2020; and
• pay Mrs X £100 in recognition of the uncertainty and frustration caused by the delay in responding to her complaint.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I find the Council was at fault in that it failed to ensure School A was providing a suitable education for C from September 2020.
67. I also find the Council was at fault in that it delayed in issuing a final EHCP and in responding to Ms X’s complaint.
68. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman