Summary: Mr X complained about the Council’s failure to provide his son, Y, with educational provision in line with his Education, Health and Care (EHC) plan between July 2021 and July 2022 after Y moved to the Council’s area. The Council was at fault for failing to provide any educational provision for 17 weeks, and for only providing some provision for 7 weeks. The Council will pay Mr X £2,250 for the benefit of Y’s education and socialisation. It will also pay Mr X £300 to recognise the distress caused to him.

The complaint

1. Mr X complained about the Council’s failure to provide his son, Y, with educational provision in line with his Education, Health and Care (EHC) plan between May 2021 and July 2022 after Y moved to the Council’s area.
2. Mr X says the lack of provision impacted on Y’s academic and social development. He says the matter has caused him distress and frustration and led to a deterioration in Y’s mental health.

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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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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

10. I spoke to Mr X about the complaint and considered information he provided.
11. I considered information provided by the Council.
12. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

EHC plan

13. A child with special educational needs (SEN) 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.
14. 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.

Alternative provision

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 statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
22. The 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. 

Background

23. Y is a child with Special Educational Needs (SEN) and an Education, Health and Care (EHC) plan. Y moved to live in the Council’s area to stay with his father, Mr X, in late May/ early June 2021. It was unclear at the time whether Y would remain living with Mr X or would move back to live with his mother, Ms Z. Y was attending a mainstream school in Council A’s area, but section I in his EHC plan finalised June 2021 stated he would begin attending a specialist school from September 2021.
24. In mid-July 2021 the Council wrote to Mr X and informed him it had received a notification from Y’s school in Council A’s area as a child missing education (CME). Mr X told the Council that it had been agreed that Y would live with him permanently and requested the Council seek a mainstream school placement for Y. The Council spoke with Mr X about Y’s needs and requested Y’s EHC plan from Council A.
25. In early September 2021 Council A sent Y’s EHC plan to the Council. The Council accepted responsibility for Y’s EHC plan and the provision outlined within it. It wrote to Mr X to inform him it would begin consulting mainstream schools in line with his wishes. It provided the contact details of a casework officer.
26. The Council initially consulted one school, and then two further schools in September 2021 at the request of Mr X. All three declined to offer Y a placement as they did not feel able to meet his needs in line with his EHC plan. One school, school A, rejected a mainstream placement for Y, but said it may be able to offer a placement in its enhanced resource base provision.
27. In October 2021 Mr X and Y visited school A. After the visit, school A agreed they could meet Y’s needs in its enhanced resource base setting and offered Y a placement. The Council agreed to fund the placement and informed Mr X he could contact school A directly to organise enrolment.
28. In November 2021, before he could start at school A, Y became unwell and was admitted to hospital due to his mental health affecting his physical health. He remained in hospital for five days and was discharged to his maternal grandparents’ house in Council A’s area where he stayed for several weeks.
29. In early December 2021, Y moved back to the Council’s area and became an in-patient at the hospital. Y received education from a provider arranged by school B within the hospital. Whilst in hospital, Y’s mother, Ms Z, informed the Council that Y would likely be in hospital for some time, and that upon discharge it was her intention to return him to live with her. Mr X disagreed and wished for Y to remain with him.
30. Between January and April 2022 Y remained in hospital, receiving educational provision which was reviewed as part of a Care Programme Approach (CPA) multi-disciplinary meeting.
31. In April 2022 Mr X wrote to the Council and informed them Y was to be discharged from hospital imminently. Mr X repeated his view that upon discharge Y should be in a mainstream school placement with additional provision to meet his needs, and that this was echoed by professionals in the CPA meetings. Ms Z wrote to the Council and asked them to seek a specialist school. The Council consulted specialist school C.
32. In late April 2022 Y was discharged from the hospital and school B and was living full time with Mr X.
33. In May 2022 Y’s EHC plan was reviewed and specialist school C offered Y a placement starting in September 2022.
34. In early June 22 the Council wrote to Mr X and informed him it had arranged a package of tuition for Y including dog therapy, equine therapy and 15 hours of tutoring starting later that month. Two hours of “forest school” a week was also organised with school C.
35. In June 2022 Mr X wrote to the Council and complained it:
• Failed to secure educational provision for Y between September – October 2021.
• Failed to provide any alternative provision for Y whilst a school placement was sought.
• Should have challenged school A’s view that it could not meet Y’s educational provision after the CPA in April 2022.
• Should have kept him informed of the decision to pursue school C.
• Had only provided Y with 1.5 hours of dog therapy since he was discharged from hospital, and 2 hours of forest school per week at school C.
36. The Council responded in early July 2022. It explained:
• It had maintained contact with Mr X about finding an appropriate school placement for Y and provided a chronology of action it took.
• Apologised that no alternative tuition had been secured between September 2021 and November 2021.
• It had consulted and offered specialist school C after Ms Z had requested a specialist placement and after consultation with medical professionals at the hospital who also recommended a specialist placement.
• It would name school C in Y’s EHC plan and acknowledged Mr X had said he would challenge the decision at the SEND tribunal.
• It had attempted to obtain tutoring for the summer term 2022 but had received two rejection notifications from providers due to staffing issues. It said it had organised canine and equine therapy, and that school C was offering forest school to provide some input to Y.
37. In July 2022 Y visited school C. Following the visit, Mr X agreed to specialist school C being named in the EHC plan to start September 2022. The final EHC plan was issued shortly after.
38. In July 2022 Mr X was dissatisfied with the Council’s stage 1 response and asked the escalate to stage 2 of its complaints process.
39. The Council responded at stage 2 in mid-July 2022. It told Mr X:
• It apologised for Y receiving no formal education for the school year September 2021 – July 2022 when Y was not in hospital.
• It reiterated Y was receiving dog therapy, equine therapy and attended sessions at school B for “Farm Club” (forest school) once per week.
• It repeated no tuition was available for Y. It said it approached two services who were unable to provide staff. Two other services were consulted and offered input, but the Council decided these were unsuitable. The Council apologised that this meant Y received no tutoring.
• It accepted more should have been done to proactively ensure Y received his educational entitlement and apologised this had not been secured. It said further training and development would be put in place to ensure this did not reoccur.
• It would issue the final EHC plan naming school C.
• School B did not feel they could provide a placement for Y because his needs had changed during his time in hospital.
• It offered £320 in recognition of Y’s loss of educational provision for times during the academic year September 2021 – July 2022 when Y was not receiving his education for a total of 18 weeks.
40. Mr X remained dissatisfied with the Council’s response, and requested the Council consider the matter at the final stage of its complaints process.
41. The Council responded at stage 3 in early August 2022. It told Mr X:
• It apologised for the consultation process for seeking a school placement was driven by Mr X and not the casework officer.
• It apologised that its communication with Mr X about Y’s education when Y was to be discharged from the hospital was not to the standard it expected.
• It said it had recruited more staff for its Statutory Assessment Team to ensure school placements and alternative provision could be found more quickly in the future.
• It had reconsidered its remedy payment and offered an increased remedy of £1,000 in recognition of the loss of educational provision and socialisation for Y for the school year September 2021-July 2022.
42. Mr X remained unhappy with the Council’s response and brought his complaint to us.
43. In response to our enquiries, the Council said it had a programme of continuous professional development for its casework officers and had provided training and tuition about alternative provision. It had also allocated a senior officer to monitor the transfer-in process to ensure school placements are sought and alternative provision is provided where necessary.

Analysis

Educational provision

44. The Council was informed Y was out of education in its area in mid-July 2021. It requested details from Mr X and the previous authority and sent consultations to schools in line with its duties. The Council apologised to Mr X for his time and trouble when trying to secure a school placement in early September 2021 and this is appropriate to remedy the frustration caused.
45. However, the Council failed to secure any alternative provision and provide provision in line with Y’s EHC plan between September 2021 and December 2021 when Y was admitted to hospital for the second time. This is fault.
46. Once Y was admitted to hospital in December 2021, he was provided with a package of support and education from the hospital school. The evidence shows Y received an education in consideration of his health and needs at the time. This is not fault.
47. When Y was discharged from hospital in April 2022, he received no education until June 2022. This is fault.
48. In June 2022, the Council organised some educational provision such as canine therapy for 1.5 hours per week, and forest school weekly for two hours. It also attempted to secure 15 hours of tuition per week, however, two providers consulted returned to say they were unable to provide a service, and the Council considered two other providers to be unsuitable.
49. As the Council attempted to secure 15 hours of tuition and Y was receiving daily schooling whilst at the hospital, it is likely, on balance, that the Council believed he could have managed more educational input than he received. The Council attempted to secure provision but was unable to do so. This is service failure. The fault resulted in Y receiving some educational provision, but this was not equivalent to a full timetable and was not in line with his EHC plan. This does not comply with the law and statutory guidance and is fault.
50. In total, the above faults resulted in Y missing 17 weeks of educational provision where no input was given, and 7 weeks where some provision was provided, but was not equivalent to a full-time education and was not in line with his EHC plan. The faults also caused Mr X frustration and uncertainty about Y’s educational provision.

Named school

51. Mr X told the Council his preference was for a mainstream school for Y. Ms Z requested a specialist school. Mr X ultimately agreed to specialist school C being named. If Mr X had remained dissatisfied with the named provision, he could have taken the matter to the SEND tribunal, and it was reasonable to have expected him to do so. Therefore, I will not investigate this matter further.

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Agreed action

52. Within one month of the final decision the Council will:
• Pay Mr X £2,250 for the benefit of Y’s education and socialisation. This represents a loss of 17 weeks of education where no educational provision in line with his EHC plan was provided taking into account school holidays, and a further 7 weeks where some provision was provided but not a full timetable.
• Pay Mr X £300 to recognise the frustration and uncertainty caused when it failed to organise Y’s educational provision.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I completed my investigation. I have found fault and have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman