Summary: Ms X complains the Council failed to make alternative provision for her son, Y and delayed in issuing an Education, Health and Care plan for him. The Council is at fault as it failed to make appropriate education provision for Y for eight months and delayed in issuing his Education, Health and Care Plan for at least six months. The Council has agreed to remedy the injustice to Ms X and Y by making a payment of £2000 to acknowledge Y did not receive education and support for eight months and a payment of £300 to Ms X to acknowledge the distress caused to her.

The complaint

1. Ms X complains that the Council:

• has failed to make alternative education provision for her son, Y, who has been out of school since September 2021.
• has delayed in assessing her son for an Education, Health and Care Plan and issuing the final plan.

2. As a result, Ms X considers Y has not been in an educational placement that meets his needs and he has not received suitable education provision.

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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. 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)
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 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

7. I have:

• considered the complaint and the information provided by Ms X;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

8. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
9. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
10. We have issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
11. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Education, Health and Care plans

12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• the process of assessing needs and developing EHC Plans “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 EHC Plan 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 EHC plan.

What happened

13. The following is a summary of key events relevant to my consideration of the complaint. It does not include everything that happened.

Alternative provision

14. Ms X’s son, Y, has special educational needs. Y started at a primary school in September 2021. Y attended for two weeks but then started to suffer with anxiety and struggled to attend school. The school agreed a reduced timetable for Y. The school’s records show the timetable was reduced to allow Y to come into school at a later time and aimed for him to attend full time before the end of term.
15. Emails between Ms X and the school in January 2022 show Y was again finding it difficult to attend school. The school contacted the Council at the end of January 2022 to ask if it could offer a reduced timetable for Y to help reintegrate him into school. It also made a statutory action referral due to Y’s non attendance. The Council has acknowledged it did not deal with the referral before May 2022 due to capacity issues in its education welfare team. Officers then closed the referral as Y was attending on a reduced timetable.
16. The school’s attendance register shows Y was attending school sporadically up to July 2022 and it was authorising some absences. Ms X has said Y only attended school twice per week for PE and lunch.
17. Ms X requested alternative provision for Y in August 2022. The Council agreed and offered AV1 as alternative provision. This is a robot which allows remote access to classroom teaching. The Council considered it would be suitable as Y would have access at home to live lessons, feel part of the classroom and would not be detached from the classroom community. Ms X could also end the teaching sessions if Y became overwhelmed. Ms X refused the offer as she considered it would not meet Y’s special educational needs. She considered he needed one to one support due to his needs.
18. The Council considered Ms X’s views that the AV1 would not be suitable to meet Y’s needs. It remained of the view that the AV1 would meet his needs. However, in late September 2022, the Council agreed to provide home tuition for Y for four hours per week. The Council’s records show a tutor was appointed in early November 2022. I understand from Ms X that the tuition did not start until late November 2022.
19. In response to my enquiries the Council has said the school was working with Ms X during the 2021/22 academic year to provide Y with full time education. There was a period of unauthorised absence in early 2022. The Council acknowledges it did not respond to the school’s request for statutory action in a timely matter. But the school re-engaged with Y on a reduced timetable until the end of the academic year. The Council therefore does not consider Y was without education.
20. Ms X has said Y only attended school twice per week for PE and lunch. He was not receiving any other education.

Education, Health and Care Plan (EHC plan)

21. In early March 2022, the Council agreed to carry out a needs assessment to see if it should issue a EHC plan for Y. The Council did not start the needs assessment until early September 2022. It competed the assessment in late October 2022 and decided it should issue a EHC plan for Y. The Council issued the final EHC plan in mid December 2022.
22. In response to my enquiries the Council has said the delay in issuing the EHC plan was caused by a national shortage of education psychologists. It was also caused by an officer not actioning the decision to assess.

Analysis

Alternative provision

23. The Council has said Y received education during the 2021/22 academic year. Ms X has said Y only went into school for PE and lunch. On balance, I do not consider the Council took sufficient action to ensure Y was receiving suitable education from the end of January 2022 when the school requested support and statutory action.
24. The Council was on notice that Y was not attending and not receiving education at this time. It delayed in taking action on the school’s statutory action referral and request for support. So, it did not satisfy itself that Y’s absence was caused by truancy or whether it should be offering alternative provision at this time as he could not attend school for other reasons. The Council decided in May 2022 not to take action when it picked up the referral as Y was on a reduced timetable. But there is no evidence to show the Council checked what education Y was receiving, whether he was receiving a satisfactory number of hours and whether the education was meeting his needs. The Council did not consider if it should offer alternative provision despite Y’s sporadic attendance and the fact he had been on a reduced timetable since September 2021. So, on balance, I consider the Council did not take sufficient action to ensure Y received sufficient education.
25. The Council offered AV1 robot as alternative provision in September 2022. The Council explained to Ms X why it considered the this was suitable provision, based on the information it had at that time. It also considered Ms X’s view that it was not suitable. I note the AV1 robot would have provided Y with access to direct teaching. I am therefore satisfied there is no fault in how the Council made its decision that the AV1 robot was suitable alternative provision.
26. The Council has acknowledged it delayed in considering other alternative provision after Ms X rejected the AV1 and that it could have kept her better informed. The Council agreed to offer home tuition to Y but there was a two month delay in providing it. I am mindful the Council had offered suitable alternative provision to Ms X. But it should have provided home tuition to Y without delay once it decided to offer it. I therefore consider the delay to be fault.
27. On balance, I consider Y did not receive suitable education from late January 2022 to late November 2022 as a result of the fault by the Council. Ms X has said Y was only in school for PE and lunch. He did not receive any academic work. The school’s consultation response for Y’s EHC plan also indicated Y was only in school for PE and lunch.

EHC Plan

28. The Council did not issue Y’s EHC plan within the statutory timescale of 20 weeks from the date of request for assessment. I note that the delay, in part, was caused by the national shortage of Educational Psychologists. This was an external factor but this is service failure and the failure to meet the statutory timescales is fault.
29. As a result Y did not have a EHC plan for at least six months longer than he should have done. This caused significant injustice to Y as this delayed the identification of his special educational needs and putting in place support to meet those needs.

Injustice

30. I consider Y did not have suitable education provision for eight months. The delay in issuing the EHC plan delayed the identification of Y’s special educational needs. He also did not receive the provision in his EHC plan to support his special education needs for six months longer than necessary. I am mindful Y could have had alternative provision in September 2022 if Ms X had agreed to the AV1 robot. So, it is appropriate to exclude this month from the recommended remedy. I have also taken into account that Y may not have been able to access full time education due to his anxiety. In line with our guidance on remedies, I consider an appropriate remedy should be a payment £250 per month.
31. Ms X was also caused distress and put to avoidable time and trouble by the failure to make education provision and the delay in issuing Y’s EHC plan. The Council should make a symbolic payment of £300 to acknowledge the injustice caused to her.

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Agreed action

32. That the Council will:
1. send a written apology and make a payment of £300 to Ms X to acknowledge the distress and avoidable time and trouble caused to her by its failure to provide suitable education for Y and the delay in issuing his EHC plan.
2. make a payment of £2000 to Ms X to acknowledge Y did not receive suitable education for eight months and support for his special educational needs.
3. if the Council is continuing to experience a backlog in educational psychology assessments, it should draw up an action plan to set out the steps it will take to address the problems created by the shortage and to reduce the delays. The action plan should include the timescales for taking action.
4. by training or other means, remind officers of the Council’s duty under Section 19 of the Education Act 1996 to provide suitable education where children are unable to attend school and the factors they should consider when deciding if alternative provision should be made.
33. The Council should take the action at a) and b) within one month and the action at c) and d) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman