Summary: Mrs B says the Council failed to identify a school placement for her son or ensure he received education from March 2022 onwards. The Council made provision available for Mrs B’s son but failed to take action when he did not engage with the provision. An apology, payment to Mrs B and a meeting with Mrs B and her son is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council failed to identify a school placement for her son or ensure he received full-time education.
2. Mrs B says the Council’s failures have had a financial impact on her as she has had her son at home all the time and it has left him at a disadvantage as he has not received appropriate education.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)

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What I have and have not investigated

6. I have investigated the Council’s actions since March 2022. I have not investigated any failure to provide education before that as I see no reason why Mrs B could not have complained to the Ombudsman at the time.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

What should have happened

10. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age (ages 5-16) who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.
11. The Education and Skills Act 2008 (ESA 2008) says for those who cease to be of compulsory school age but are not yet 18 and have not attained a level 3 qualification they must:
• (a)be participating in appropriate full-time education or training,
• (b)be participating in training in accordance with a contract of apprenticeship, or
• (c)both:
• (i)be in full-time occupation, and
• (ii)participate in sufficient relevant training or education in each relevant period.
12. A person who is in full-time occupation is to be taken to be participating in sufficient relevant training or education at any particular time if:
• (a)arrangements have been made (whether by means of enrolment on a course or courses, or otherwise) for the person to receive sufficient relevant training or education during the current relevant period, and
• (b)where the arrangements call for the person to be participating in training or education at the time, the person is so participating.
13. The Government introduced statutory guidance (the guidance) in 2016 relating to ESA 2008. This says local authorities have broad duties to encourage, enable and assist young people to participate in education or training.
14. The guidance says ESA 2008 placed two duties on local authorities with regard to 16 and 17 year olds:
• Local authorities must promote the effective participation in education and training of 16 and 17 year olds in their area with a view to ensuring that those persons fulfil the duty to participate in education or training. A key element of this is identifying the young people in their area who are covered by the duty to participate and encouraging them to find a suitable education or training place.
• Local authorities must make arrangements – i.e. maintain a tracking system – to identify 16 and 17 year olds who are not participating in education or training. Putting in place robust arrangements to identify young people who are not engaged in education or training or who have left provision enables local authorities to offer support as soon as possible.
15. The guidance says local authorities are expected to act on any information they receive about a young person who has dropped out; contacting them at the earliest opportunity and supporting them to find an alternative place in education, training or employment with training that leads to relevant regulated qualifications.
16. The special educational needs code of practice says young people entering post-16 education and training should be accessing provision which supports them to build on their achievements at school and which helps them progress towards adulthood. Young people with EHCPs are likely to need more tailored post-16 pathways.

What happened

17. Mrs B’s son has special educational needs and an education, health and care plan (EHCP). He has attended various education establishments but has struggled to manage in those environments due to his behavioural issues. As a result Mrs B’s son was receiving education other than at school. That involved 1:1 provision by tutors in a local venue, rather than a school. That was taking place until the end of March 2022. Face-to-face provision stopped at that point when an incident occurred at the venue where the tutoring was taking place which involved damage, allegedly caused by Mrs B’s son who was 15 at the time.
18. The Council arranged online tuition by the same tutors which Mrs B agreed to as she was concerned about her son’s behaviour if he attended a new venue. The tutoring service arranged for the provision to start at the beginning of May 2022. As part of that books were delivered to Mrs B’s son for his lessons in GCSE english and maths.
19. By July 2022 the Council noted Mrs B’s son had disengaged and was not taking part in the online tutoring. In September the Council said it would consider a new placement. I have no further detail about what happened with that.
20. In November 2022 the Council noted Mrs B’s son was not attending the online sessions. The Council said it would arrange a professionals meeting.
21. A meeting took place in December 2022. The notes from that meeting show Mrs B said she wanted her son to engage. The Council said it would look at post-16 options such as part-time courses at college. The Council noted though it would struggle to get Mrs B’s son on a course due to his lack of engagement. The Council raised the possibility of bringing in the Project Challenge team.
22. In January 2023 the Council again noted Mrs B’s son had failed to engage with provisions put in place for him. The Council provided careers advice.
23. In March 2023, following a complaint to the Ombudsman, the Council contacted Mrs B. Mrs B told the Council her son was interested in joinery. The Council said it would get back to her to identify an appropriate setting. The Council also agreed to arrange an annual review meeting for the EHCP.
24. Following a meeting in May 2023 the Council agreed to contact Mrs B to arrange the annual review and establish what her son wanted to do next.
25. The annual review meeting took place in June 2023. Mrs B’s son did not attend as he was working. The Council decided to maintain the plan and hold another professionals meeting in early September to discuss next steps. The Council noted Mrs B’s son wanted to work rather than remain in education or training and it was noted there was a potential place at ACE training. The Council said it would see where things were in early September and either consult on an amended plan or move to cease.

Analysis

26. Mrs B says the Council failed to identify a school placement for her son and ensure he received full-time education from March 2022. Having considered the documentary evidence in this case there is a lengthy background leading up to Mrs B's son receiving education other than at school from March 2022. That had involved, as I understand it, various school placements for Mrs B's son which had broken down due to behaviour issues.
27. I am satisfied the Council put in place alternative provision from March 2022 which involved 1:1 tuition which took place in a local venue, rather than a school. I am also satisfied the reason that 1:1 in person tuition stopped in March 2022 is because there was an incident at the venue where the tuition was taking place where Mrs B's son allegedly damaged a bathroom. As a result of that the venue banned Mrs B's son from attending. I am satisfied the Council took action on that by putting in place online tuition. So, I have no evidence of fault in the Council’s actions before the end of April 2022.
28. It is clear though Mrs B's son has failed to engage with the online tuition. That was clear to the Council at least as early as July 2022. The documentary evidence I have seen shows the Council was intending to take the following action:
• For the SEN team to urgently follow up on a new placement;
• the education welfare officer to get partner agencies around the table;
• to arrange a professionals meeting;
• to review all 14-16 college courses to see what could be put in place for hard to reach young people;
• to consider involving the Project Challenge team;
• for the SEN team to contact Mrs B and her son to discuss current and future options, noting that ensuring he is educated in an appropriate educational provision is of high priority (in response to her complaint).
29. Despite those discussions the Council has provided no evidence of any attempts to try and engage Mrs B's son in education when he disengaged in 2022. I note though Mrs B herself raised concerns about whether her son would be able to access education in a school or college environment due to behavioural issues. I also note Mrs B's son had been clear he did not want to engage in education and instead wanted to pursue work opportunities. Given that, plus the previous difficulties identifying education Mrs B son would engage with, it is possible even if the Council had carried out the actions it intended to take Mrs B son would still not have engaged. However, given Mrs B's son had an EHCP and the Council knew he was not accessing the education it had put into place I would have expected the Council to pursue the actions it had identified to try and engage Mrs B's son. Failure to do that is fault.
30. I accept though that Mrs B's son would likely not have engaged with those attempts given he had not engaged previously and had expressed a wish to work rather than pursue education. In those circumstances I do not consider it likely Mrs B's son missed out on education provision because of fault by the Council, particularly as education provision was available to him throughout via online tutors. I consider though Mrs B has suffered an injustice as there is no evidence of any communication with her about the issues or any explanation to her about why the Council had not made further attempts to engage her son in education. She is therefore left with some uncertainty about whether the situation could have been different if the Council had taken the action it had said it would do.
31. To remedy that I recommended the Council apologise to Mrs B and pay her £300. I also recommended the Council arrange a meeting with Mrs B and her son to discuss education and vocational options to see whether there is something it could put in place Mrs B son would engage with. In addition the Council should provide to the Ombudsman evidence it has in place a procedure to track children with EHCP’s who are not engaging in education or training to ensure those cases are followed up on. If the Council does not have such a procedure it should introduce one. The Council has agreed to my recommendations.

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Agreed action

32. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £300; and
• arrange a meeting with Mrs B and her son to discuss the options for education and training to see whether it can engage Mrs B’s son; and
• provide evidence to the Ombudsman that it has in place a procedure to track children with EHCP’s who are not engaging in education or training to ensure those cases are followed up on.

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Final decision

33. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman