Summary: The complainant (Miss X) said the Council failed to provide full-time suitable education to her son (Y), who for many months was on a part-time timetable at school and failed to ensure delivery of his special educational provisions (SEP). Miss X also complained about Y’s school exclusions and the way the Council handled her complaint. We found fault with the Council for its failure to provide full-time suitable education to Y from March 2022 till July 2022 and failure to ensure delivery of his SEP in September and October 2022. We did not find fault with the Council for its complaint-handling. We could not investigate school exclusions as these matters are outside our jurisdiction. The Council agreed to make symbolic payments to remedy injustice caused by its failings and review its part-time timetable monitoring.

The complaint

1. Miss X complains about the Council’s failing to:
• Provide full-time suitable education for Y;
• Ensure delivery of all SEP specified in Y’s Education Health and Care Plan (EHCP);
• Prevent unlawful exclusions from the school;
• Properly consider her complaint.
2. Miss X says the Council’s failings had negative effect on Y’s education and mental health. They caused her distress, impacted her work as she had to combine full-time employment with looking after Y when he attended school only two hours a day for many months. Miss X claims she spent much time complaining and chasing up the Council’s responses.

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What I have and have not investigated

3. I have not investigated any actions of Y’s school, including the way it addressed Y’s special educational needs (SEN) before his final EHCP was issued and any matters relating to his exclusions. As explained under paragraph six of this decision these are excluded from our jurisdiction.
4. I have not investigated whether Y received full-time suitable education after Miss X appealed to the Special Educational Needs and Disabilities (SEND) Tribunal as this is too closely linked with Miss X’s appeal.

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The Ombudsman’s role and powers

5. 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)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
9. 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)
10. 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

11. I spoke with Miss X and considered the information she provided.
12. I made enquiries with the Council and considered the information it provided.
13. I reviewed the Council’s ‘Reduced Educational Provision Guidance’ and ‘The Council’s Customer Feedback Procedure’. I referred to our focus report ‘Out of school… out of mind? How councils can do more to give children out of school a good education’, published in 2016.
14. Miss 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

Legal and administrative background

Full-time suitable education

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 courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
18. 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)
19. 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. 

Delivery of SEP

20. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Section 42 Children and Families Act)
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)

What happened

Background

22. Y is now 11 and has special educational needs, including considerable anxiety and difficulties with behaviour, social interactions, self-esteem as well as hypermobility.
23. In the school year 2021/2022 Y was on roll of middle deemed secondary academy (School 1).
24. In the beginning of November the Council received a request for Y’s EHC needs assessment.

From January till June 2022

25. Y struggled with accessing education at School 1 and from January 2022 was on a part-time timetable, attending School 1 for two hours a day.
26. In the beginning of February Miss X asked the Council’s support over informal exclusions for Y. The Council provided advice to School 1.
27. Miss X discussed with School 1 what can be put in place to support Y’s attendance at school and participation in learning. School 1 created a safe space for Y outside the classroom to access when he could not join his peers in the class. If needed, Miss X would be called to take him home.
28. Miss X considered the arrangements proposed by School 1 unsatisfactory and contacted the Council’s Access and Inclusion team.
29. In the beginning of March Y’s general practitioner (GP) issued a letter signing Y off from the school due to his anxiety. School 1 contacted a service supporting emotional development of vulnerable pupils to help them re-engage with education (Provider 1). School 1 noted Y’s high anxiety and not accessing school as the reasons for the referral.
30. In the second week of March the Council advised School 1 on part-time timetables, alternative provision, sensory support and support needed from the school when waiting for Provider 1’s advice.
31. At the meeting in the fourth week of March School 1’s Special Educational Needs and Disabilities Coordinator (SENDCo) told Provider 1 Y was attending School 1 for two hours a day. The focus was on developing relationships with adults in school. Provider 1 reminded SENDCo of the need to complete reduced provision paperwork.
32. After the Council’s reminder, in the third week of April School 1 sent to the Council a Provision Monitoring form about Y’s reduced timetable with the risk assessment attached. The form mentioned Y was on a behaviour support plan.
33. At the same time the Council issued Y’s draft EHCP. Version two followed a month later.
34. School 1 carried out a review of Y’s part-time timetable in the beginning of May. No change of provisions followed.
35. At the end of May Miss X contacted the Council expressing her concerns about the lack of mental health support for Y. Although School 1 referred him to the Mental Health team back in February this was not followed up.
36. The Council consulted with the special school (School 2) which was Miss X’s preference for Y’s placement. Two weeks later School 2 refused to offer Y a place.
37. In June Miss X communicated with the Council expressing her dissatisfaction with the educational arrangements for Y and asking for a review of his part-time timetable.

From July till October 2022

38. The Council issued a final EHCP for Y in the beginning of July 2022, naming School 1 in Section I.
39. At the end of July Miss X lodged her appeal against Sections F and I of Y’s EHCP.
40. At the end of September the discussions between Miss X and School 1 resulted in the try for Y to attend School 1 full-time. This try was unsuccessful and after one day Y returned to the part-time timetable.
41. Following Miss X’s appeal, in the beginning of October School 2 re-considered its position and offered Y a place from the end of October. School 1 stated it could not meet Y’s SEN.

Complaint

42. At the end of September Miss X complained to the Council about School 1’s failure to deliver all SEP to Y.
43. The Council upheld Miss X’s complaint at the end of October. It explained after receiving Miss X’s complaint, the SEND Advisory Teacher carried out an audit, which found some provisions included in Section F of Y’s EHCP were not in place. The Council undertook contacting relevant professionals to ensure the delivery of all Y’s SEP and advised School 1 what they should do. The intention of holding a follow-up meeting at School 1 was recorded.
44. Meanwhile the Council agreed to name School 2 in Y’s EHCP and there were plans for Y to start attending School 2 immediately after the autumn half-term.
45. Miss X was dissatisfied with the Council’s stage 1 response. The Council carried out further investigation and responded still at stage 1 at the end of November. Although the Council confirmed its position on non-delivery of SEP for Y, it recognised it failed to offer a remedy. Addressing another issue raised by Miss X, the Council accepted it failed to provide Y with full-time suitable education from March 2022 till October 2022. The Council offered £1000 as a remedy for Y missing education and special educational provisions when on roll at School 1. The Council told Miss X it undertook some service improvements, including:
• implementing a more robust process when monitoring part-time timetables with the Access and Inclusion Service carrying out regular register checks to pick up children who are not attending or attending part-time;
• robust training delivered to School 1’s SENCo to ensure improved practice.
46. Miss X remained dissatisfied with the Council’s response. A day after receiving correspondence from Miss X in the second week of December, the Council recognised its receipt and said it would respond in the second week of January. After four chasing up emails, the Council provided its further response, signed by the Assistant Director for SEND, in the fourth week of January 2023. This response confirmed the Council’s position of upholding the complaint. The Council reiterated it did not advocate for the use of part-time timetables and would review the process.

Analysis

Full-time suitable education

47. We have issued guidance 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)
48. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school 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.

49. The Council’s website states its commitment to full-time education for pupils: “We do not promote the use of part-timetables unless they are essential, in the best interests of the child and agreed by the parents or carers. The guidance on the use of these has been updated and is available on the website. This guidance is to ensure the application of a reduced-educational provision is time-limited and that re-integration to full-time education occurs swiftly and is appropriate to the pupil’s personal needs, abilities and circumstances. The guidance relates to pupils of statutory school age.”
50. In its response to Miss X’s complaint of the end of November 2022 and its stage two response from the end of January the Council accepted its failing to provide full-time suitable education for Y from March 2022 till the end of October 2022. The referral to Provider 1 did not seem to help in increasing Y’s attendance at School 1 and there is no record of any alternative provision offered to supplement the education Y received during two hours at School 1.
51. The Council’s failings to provide full-time education since March till the end of July 2022 is fault, which caused injustice to Y and Miss X.
• Y missed much education;
• The lack of full-time education for Y impacted Miss X’s work as she had to be available to collect him early from School 1 and supervise him at home. She experienced distress and spent much time contacting the Council.
52. As explained under paragraph four of this decision I did not investigate how the Council complied with its section 19 duty from the beginning of September 2022, as this was after Miss X appealed to the SEND Tribunal.

Non-delivery of SEP

53. The Council’s duty to ensure delivery of SEP for Y started from the beginning of July 2022, when the Council issued Y’s final EHCP. In its response to Miss X’s complaint of the end of November the Council accepted it failed to ensure delivery of SEP for Y from the beginning of September.
54. It is reasonable to allow a few weeks to arrange delivery of SEP but the Council’s failure to secure them for Y from the beginning of September till the end of October 2022, when Y was offered a place in School 2 is fault, which caused Y and Miss X injustice:
• Y missed out on support which professionals considered he needed to access education and develop;
• Miss X was increasingly distressed by the lack of support for Y and all the strain of the continuing communication with the Council and School 1.

Complaint handling

55. The Council’s policy sets up a process for considering complaints:
• Stage 1 – assessment of the complaint and progressing it either to conciliation or local resolution. Local resolution involves investigation by an appropriate manager followed by the written response to the complainant within ten or 20 working days, depending on the complexity;
• If the complainant is not satisfied with the resolution of their complaint, they can ask for further consideration. If there is new information, the investigation can be further considered at stage one;
• Stage 2 – stage two response should be sent within 20 working days of the escalation. The complainant should be kept informed, as far as practicable, as to the progress of the complaint including any need to extend timescales.
56. Looking at the way the Council considered Miss X’s complaint, I found it followed its complaint procedure. Although there was a delay in providing stage two response by two weeks and some delays in providing updates, these were not significant enough to be considered as maladministration. I did not find fault with the Council’s complaint-handling.

Remedies

57. When considering Miss X’s complaint the Council accepted its fault of not providing suitable full-time education for Y and non-delivery of SEP, once his EHCP was finalised. It offered apology, payment of £1000 and undertook some service improvements.
58. The Council’s response to Miss X’s complaint is commendable as it demonstrates willingness to recognise its failings and learn lessons. It shows the Council seeks continuous improvement, which is one of the principles of good administrative practice identified in our guide 'Principles of good administrative practice’ published in December 2018.
59. I consider the Council’s apology sufficient however, having reviewed our Guidance on Remedies, the payment for injustice caused to Y and Miss X by the Council’s failings should be higher.

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Agreed action

60. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• pay Miss X £1,500 for the injustice caused to Y and Miss X by not providing Y with full-time suitable education from the beginning of March till July 2022;
• pay Miss X £600 for the injustice caused to Y and Miss X by not ensuring delivery of special educational provisions to him in September and October 2022;
• pay Miss X £500 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

61. We also recommend the Council within three months of the final decision review its monitoring of part-time timetables process introducing consideration at every review of the child’s part-time timetable whether the Council needs to supplement education provided by the school with alternative education.

The Council will provide the evidence that this has happened.

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Final decision

62. I partly uphold this complaint. I found fault with the Council for its failings to provide full-time suitable education for Y from March till July 2022 and to provide special educational provisions to Y in September and October 2022. I did not find fault in the way the Council considered Miss X’s complaint. I could not investigate some issues raised by Miss X as they are outside our jurisdiction. The Council has accepted my recommendations to remedy injustice caused to Y and Miss X by the fault identified, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman