Summary: Dr X complained about the Council’s delay in the Education, Health and Care Plan annual review process for her daughter. She also complained her daughter was on a long term part-time timetable at school, which is against the Council’s policy. We found there was fault by the Council significantly delaying issuing a decision letter after the annual review. There was also fault for not taking action to consider or provide full-time education for Dr X’s daughter, and fulfilling its duties under the Equality Act 2010. The Council has agreed to our recommendations to remedy the injustice and to take action to prevent recurrence of fault identified.

The complaint

1. The complainant, whom I refer to as Dr X, complained the Council did not issue a decision within statutory timeframes after an annual review of her daughter’s Education, Health, and Care Plan (EHCP), where she requested a specialist placement. Additionally, she said her daughter, whom I refer to as J, was on a part-time timetable at her school but there was no plan in place to integrate her into full-time education. She said this amounted to disability discrimination.
2. This caused Dr X frustration, distress, and uncertainty. She said her daughter missed out on education she was entitled to, impacting on her development and ability to progress.

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What I have and have not investigated

3. I cannot investigate matters where Dr X has exercised her right of appeal. This is from the period April 2022 when appeal rights arose from the annual review decision letter, up until the end of the appeal in January 2023. I am also unable to investigate any matters inextricably linked to that appeal, which I have concluded applies here and explained further in Paragraph 40.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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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How I considered this complaint

7. I discussed the complaint with Dr X and considered her views and information she sent me.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Dr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plan (EHCP)

10. Children with complex needs may require an Education, Health and Care Plan (EHCP). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.

Annual Review

11. Councils must review EHCPs at least every 12 months. The procedure for reviewing and amending EHCP is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP.

Part-time Timetables

14. The Department for Education (DfE) non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. 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. Any pastoral support programme or other agreement must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.
15. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind? (amended January 2016) 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.

Equality Act 2010

16. The Equality Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.
17. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act. Disability is one of these. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

Public Sector Equality Duty

18. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
19. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Background

20. Dr X’s daughter, (J) has Down’s Syndrome and started at a mainstream Academy primary school (School A) in September 2021. She turned five that month.
21. In June 2021, a transition meeting for J’s move from pre-school to School A took place. The Council, Dr X, her husband, and School A discussed a part-time timetable for J as it did not have capacity for a full time adult to support her.
22. Evidence shows the following Children Missing Education (CME) forms submitted by School A to the Council:
• Sent in November 2021: J was attending 10 hours per week. The reason given for J’s part-time timetable was “Special Educational Needs and Disabilities (SEND)”. It stated “because she requires 1:1 support at all times because she will leave the classroom and we have to be able to support her safely”.
• Sent in January 2022: J was attending 16.25 hours per week. The reason for the part-time timetable was “SEND”.
• Sent in May 2022 (an Extension to Reduced Timetable Notification form): for the reason for the extension, it summarised actions it had taken with J. School A intended to increase to 22.5 hours by the end of the month. The form also asked, “Is the extended part-time timetable assessed as compliant with the school’s duties under the Equality Act 2010?”. The answer was left blank.

What happened

23. I have summarised below the key relevant events; this is not intended to be a detailed account of everything that happened.
24. On 15 December 2021, an Annual Review (AR) of J’s EHCP took place. The AR form noted J was attending part-time. It recommended an alternative setting should be considered. School A said J needed a specialist placement as it could not provide the level of additional support she needed. Dr X asked for two named specialist schools to be consulted, School B (the preference) and School C.
25. On 18 January 2022, School A sent the AR form to the Council, including Dr X’s request for specialist provision for J.
26. In February 2022, the Council asked School A for a signed parental statement and later, an Educational Psychologist (EP) report. These were needed to progress the request to Single Multi Agency Panel (SMAP), the Council’s internal decision making panel. The information was received by the start of March 2022.
27. At the end of March 2022, the school and Dr X chased up the request separately. The Council confirmed it had not yet been to SMAP for consideration.
28. On 31 March 2022, the Council emailed School B to consider J as an applicant. School B responded J would be suitable for its school or School C but there were no places available.
29. On 13 April 2022, the Panel considered Dr X’s request for J’s placement at either School B or School C.
30. On 21 April 2022, a decision letter was sent by the Council. It said, based upon evidence, it did not support the request for a specialist placement. The SMAP outlined the attendance of J would be incompatible with the provision of efficient education for others. The Council “concluded that [School A] would continue to be named on her EHCP”. The letter outlined Dr X’s appeal rights.
31. In May 2022, Dr X formally complained to the Council about the delay and disputed the reason given at SMAP about why J had not been offered a specialist place. She added this was disability discrimination and she was disappointed the Council had allowed for the part-time timetable solely on the basis of “SEN” in January.
32. The Council confirmed J was placed on the waiting list for both School B and School C. School C offered a specialist outreach worker to give enhanced support in the interim for J. It was felt with the right support, J could manage at her current mainstream school.
33. Dr X said she challenged School A about J being part-time, and it increased her attendance to 22.5 hours per week.
34. At the end of May 2022, Dr X appealed against Sections B (J’s Special Education Needs), F (Special Education Provision needed) and I (name and type of school where provision is to be delivered) of J’s EHCP. The appeal concluded in January 2023.
35. In June 2022, after contact from a local councillor, the Council responded to Dr X’s complaint. It apologised for the delay in the request being considered at SMAP. It explained the decision letter was written within a legal framework. School B was full so this was the reason why it was considered incompatible for J to attend as it would impact on the efficient education of others attending. The Council apologised it was not discussed beforehand.
36. Dr X escalated her complaint and the Council responded at Stage Two. The Council could see it had delayed and it accepted communication could have been better. With the part-time timetable, it noted additional funding had since been agreed for staffing to support J for full school hours. It apologised for the confusion and unnecessary anxiety for Dr X.
37. In August 2022, Dr X complained to the Ombudsman. In her view, School A’s budget had not affected the number of hours J’s peers attended, and so she was being treated less favourably and discriminated against because of her disability.

The Council’s response to my enquiries

38. I have seen the Council’s “Reduced Timetables – A Protocol for Plymouth Schools” policy document, amended January 2020. I noted the following:
• “All pupils should receive full-time education consistent with their key stage: 21 hours at Key Stage One”.
• Under “Best Practice Guidance”: it states part-time timetables should only be for a time-limited period, maximum six weeks, with a clear plan for reintegration back into full-time.
39. I asked the Council how children with part-time timetables are monitored. It stated in May 2022, it introduced new arrangements through an assurance framework. It outlined some of its processes under the new procedures to support schools in improving attendance and following up in respect of CME.

Analysis

40. I cannot take a view on events since April 2022, which is when Dr X was informed of her right of appeal. This includes the reason why J was not offered a specialist place or her part-time timetable from this point. These matters are linked to the placement which Dr X has appealed; therefore this part is outside of the Ombudsman’s jurisdiction to consider.
41. I have seen a copy of J’s latest EHCP dated March 2021. In Section I, it does not name School A (J’s current school) but J’s previous pre-school. In the Council’s decision letter dated April 2022 to not support a specialist setting, it stated “[School A] will continue to be named on J’s EHCP”. This is clearly an error, as the placement should have been updated after the December 2021 AR at the latest. Whilst there is no injustice as a result, it is fault as it is a legal document that should be correct.

Annual Review

42. I cannot consider the actions of any of the schools. The investigation is limited to considering the role of the Council. The Council holds ultimate responsibility for the EHCP process.
43. Following the AR in December 2021, the Council did not notify Dr X of its decision within four weeks (by January 2022). It was issued in April 2022, a delay of 14 weeks. While the school was late in returning the paperwork, I have not seen evidence the Council chased this beforehand. The Council also did not follow up further information it needed until the end of February. It did not meet the statutory deadline. This is fault and caused injustice as it delayed Dr X’s right of appeal, and she was also put to avoidable time and trouble chasing the Council for this.
44. The Council were aware of the specialist provision request in January 2022. The schools were not consulted until the end of March 2022. I find fault in the delay. I cannot say if, had it not been for the delay, whether the outcome would have been different. This uncertainty has caused an injustice to Dr X.

Part-time timetable

45. The Council was aware J was on a part-time timetable when she started in September 2021. It was put in place because there was not enough capacity at School A to support her needs, not because it was specifically decided full-time education would not be in J’s best interests. The Council has a legal duty to ensure full-time education for children of compulsory school age. For J, this should have been by January 2022.
46. The Council received further notification from School A in January 2022 about J’s continued part-time hours. This form did not state a plan of action to increase hours or how it was keeping it under review.
47. I have not seen evidence the Council stepped in at this point to make enquiries with School A or Dr X. It should have acted to get detailed information as to why full-time hours could not be provided for J and also considered how it could provide alternative or any additional provision for her. This was not in line with its own policy that a part-time timetable should only be for six weeks. The period between January and April 2022 notably exceeded this.
48. The Ombudsman 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.
49. The Council had a specific question on its form about the Equality Act which School A left blank (see Paragraph 22). This shows it is a relevant consideration. Whilst the main Equality Act duty in an education context is with the school, there is no evidence the Council considered whether there was less favourable treatment of J by the school and whether it was justified.
50. The Council’s failure to intervene sooner and take account of its responsibilities under the Equality Act to advance equality of opportunity between J and her peers was fault. This caused injustice to J as she did not receive the full-time education she was legally entitled to.
51. The Council has outlined new measures to its approach in monitoring children with part-time timetables from May 2022, which I commend. I am satisfied this goes towards improving its oversight of hours of education provided to children, to prevent recurrence of fault identified.
52. In our published Guidance on Remedies, reimbursement of educational materials purchased by parents can be recommended when linked to the fault identified. Where there has been a loss of educational provision, a symbolic payment can also be recommended. I have considered there was part-time education provided to J and the period affected was within her first year of compulsory education. This has been reflected in the amount I suggest below.

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Agreed action

53. In addition to the steps the Council has already taken, the Council has agreed to carry out the following actions:
54. Within one month of the final decision:
• Apologise in writing to Dr X and pay her £150 to acknowledge the delay she experienced with J’s EHCP Annual Review, and to recognise her time and trouble in pursuing a complaint;
• Pay Dr X £900 in recognition of missed full-time education for J between January and April 2022, to be used for J’s educational benefit. This is calculated at £225 per month. I have limited it to this period as this is when the Council’s legal duty to ensure full-time education started for J after reaching compulsory school age, up until Dr X’s appeal rights arose;
• Reimburse Dr X for reasonable educational materials and resources used for J during the above period (on receipt of copy invoices provided to it by Dr X); and
• Issue written reminders to all SEN case officers and their managers of the Council’s duties under the Equality Act 2010; how these may arise in cases of children with special educational needs and EHCPs and what they should consider.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I found fault with the Council causing injustice to Dr X and her daughter. The Council has agreed with the recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman