Summary: Mrs X says the Council failed to provide a full-time education to her son from April 2022. There was no fault in the Council’s provision to Mrs X’s son until January 2023 when the Council failed to provide alternative provision. To remedy the injustice caused to Mrs X and her son, the Council has agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council has failed to provide her son, Y, with:

1. a full-time education and provision in line with his Education Health and Care (EHC) Plan since April 2022. Mrs X said Y was only attending school for 2.5 hours per day and therefore did not receive provision in line with his EHC Plan during this period. She said the Council failed to provide alternative provision;
2. a suitable education in line with Y’s EHC Plan since he has been out of school from April 2023. She says the Council has failed to provide alternative provision; and
3. a placement at a special school as stated in his EHC Plan.

2. Mrs X says failures by the Council have impacted Y’s development and caused significant distress and uncertainty.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 Mrs X and considered the information she provided. I made enquiries of the Council and considered its response.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Law and Guidance

Special Educational Needs

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child/ young person’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Educational provision

10. The Council has a duty to “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.” (Education Act 1996, section 19(1))
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have (Education Act 1996, section 19(6)). The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
12. 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)
13. The Local Government Ombudsman has 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. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for 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. The report made seven recommendations including that councils:
• Consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis)- and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Choose (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.
• Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

Alternative provision

14. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
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 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)
18. 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’)

What happened

19. Y is seven years old. He has special educational needs and has an EHC Plan.
20. In April 2022, Y started attending a mainstream primary school (School A) which had a specialist unit that provided special education needs provision for children with autism and learning difficulties.
21. School A informed the Council that it was implementing a part-time timetable for Y, as he was experiencing significant emotional dysregulation and was showing signs of continuous crisis behaviour. The school said Y was extremely distressed by lunchtime and was showing no signs of purposeful learning from that point. It said Y’s parents noticed a difference in Y when he returned home from a shorter school day. The school said, following a positive conversation with Y’s parents it was reducing Y’s school day for four weeks to mornings only. The focus was to develop a positive school experience for Y.
22. The part-time timetable showed that Y would attend school three days a week for two and a half hours each time. Y would access the school curriculum during this time.
23. In October 2022, School A carried out an annual review of Y’s EHC Plan and said it could not meet Y’s needs. Mr and Mrs X requested that Y attend a specialist school. They expressed preferences for School B and School C.
24. School A had introduced a revised part-time timetable for Y. It said Y had multiple complex medical diagnoses and further medical assessments which made full time attendance not appropriate without clarity of his needs and the additional risks this posed when in school to himself and others. The school said Y presented a concerning level of self-harming behaviours which increased in frequency and persistence during the day and as the week progressed. The school noted that Y’s parents had requested a move to a more sensory/behavioural placement for Y and the part-time timetable formed part of a multi-disciplinary effort to support Y in the interim.
25. The revised part-time timetable showed that Y would attend school every day for two and half hours. Y would access the school curriculum during this time and guidance had been provided to Mrs X for learning at home when not at school. This included:

• allow time to safely rest and reset following lunch at home;
• engage in multi-sensory experiences linked to his personal interests;
• engage in active and outdoor experiences that enable Y to use his strong growth motor skills and to satisfy his sensory need to move;
• upload examples of learning experiences weekly so class teachers can monitor his engagement and to inform their provisions planning;
• websites to support Y develop language and encouraging him to sing and talk along;
• praise often for positive behaviours and attitudes; and
• encourage talk whenever possible, this included words Y was saying at school.

26. In December 2022, the Council consulted with School B. School B responded in January 2023 and said it could not meet Y’s needs. In February 2023, the Council consulted with three more schools. These three schools were considered incompatible.
27. In January 2023, School A wrote to the Council. It said Y urgently required a different and more specialist level of provision. School A said it could not meet Y’s needs, but it was doing everything within its limited capacity to ensure Y was safe. The school also said:

• Y’s needs were severe and complex and he had changing and new needs;
• there were safeguarding concerns with a significant risk of Y harming himself or others;
• Mrs X reported that she did not recognise her son anymore from his changed and violent behaviours; and
• Y’s GP had made a referral to Children and young people Mental Health Services due to the severity of his behaviours and mental health concerns.

28. On 14 February, the Council issued a final EHC Plan. The Plan stated Y required a specialist school placement but would remain at school A until September 2023.
29. On 31 March, School A closed its special educational needs unit and Y had no access to education.
30. In April, the Council agreed to carry out an occupational therapy assessment and educational psychology assessment. It also made a referral for 1:1 tutoring for three days a week for Y. The Council did not receive a response and followed up the request in May.
31. In May, the Council agreed to a personal budget for a climbing frame for Y. Mrs X asked the Council for an update about a specialist placement for Y. The Council told Mrs X that it was working on securing placement for September.

Analysis

32. It is the Council’s duty to arrange provision of a suitable education for every child, where they are not attending school and regardless of whether they on a school roll. We expect the Council to act without delay and keep all cases of part-time education under review.
33. I am satisfied that from April 2022, Y was not able to access a full-time education and had been attending school for two and half hours each day. That is not full-time education. However, paragraph 12 above states that, Government guidance is clear that where a child is unable to take part in a full-time timetable it is acceptable to provide less than full time hours. The evidence I have seen is that Mr and Mrs X agreed to the part-time timetable implemented by School A, as Y could not cope with a full-time timetable. Mr and Mrs X also reported that they noticed a difference in Y when he returned home from a shorter school day. I am satisfied the part-time timetable was in place to reflect the fact Y was not able to access a wider timetable and I do not find fault by the Council here.
34. The Council remains responsible for providing a full-time education to Y. From April 2022 I am satisfied the part-time timetable was based on a shared understanding about what Y could manage. That was not the case from October 2022 though.
35. The evidence is clear that in October 2022, Y was not ready for an increased timetable at school. But School A advised Y’s parents to support his education and SEN provision at home. Therefore, it was considered that Y was able to manage an increase in provision at home. Given that evidence, I consider the Council should have evaluated the provision and arranged alternative provision to support Y at home from that point. Failure to do so was fault.
36. From January 2023, it was clear that School A was still not meeting Y’s needs, and this was having a detrimental impact on Y’s well-being. The evidence I have seen satisfies me the Council agreed a specialist placement should be sought for Y. I am concerned the Council did not start consulting with specialist schools at the time. Instead, it said a specialist placement would be sought for September 2023. It is not clear why the Council did not seek an alternative specialist placement during the annual review process. Failure to do that in this case is fault.
37. In our publication ‘Education, health and care plans: our first 100 investigations,’ issued in October 2017, we expect councils to consult education settings early and concurrently rather than sequentially to avoid unnecessary delay reaching a decision. It is however unlikely; the Council would have sought a specialist school placement for Y before the specialist unit at School A closed at the end of March 2023.
38. The Council carried out consultations of specialist schools in April 2023. I understand the Council has secured a specialist placement for Y for September 2023. I cannot say, on the balance of probability, if the Council had carried out consultations throughout the entire period it would have identified a specialist school placement for Y before September 2023. That is because I cannot speculate about whether earlier consultation with the various potential schools would have resulted in a school place being identified. However, I consider Mrs X has suffered an injustice as she was left with uncertainty about whether the situation could have been resolved earlier. That is a significant injustice in this case because it is clear failing to receive an offer of a suitable placement at a specialist school has had a profound impact on Y.
39. In response to my enquires the Council has accepted that from April 2023 to July 2023, it failed to provide Y with a suitable education and provision in line with his EHC Plan. As the Council has accepted fault, I do not intend to investigate this part of the complaint any further.

Conclusion

40. The Council was aware that Y was not accessing a suitable education from October 2022. As the Council did not put in place any alternative provision between October 2022 and the end of term in July 2023, I consider the Council at fault.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as, the severity of the child’s SEN as set out in their EHC plan, any educational provision that was made during the period, whether additional provision can now remedy some or all the loss and whether the period concerned was a significant one for the child or young person.
42. I have considered that Y has significant needs in relation to his SEN which are clearly identified and accounted for in his EHC Plan and communication from School A. The evidence clearly shows there has been a deterioration in Y’s behaviours and wellbeing and the lack of SEN provision will have impacted this.
43. I recommend the Council apologise and to Mrs X and Y and pay Mrs X £1200 per term where Y received no education or alternative provision. This amount reflects that Y would have been unlikely to be able to access full-time education and the fact Y missed out on his special educational needs provision. That makes a payment of £800 for the first term and £1200 each for the second and third terms. I recommend a total payment of £3200. The Council has agreed to my recommendation.
44. I also recommend the Council pay Mrs X £500 to reflect the uncertainty caused by delay in consulting specialist schools and the distress caused by faults identified in this statement. The Council has agreed to my recommendation.

Our previous service improvement recommendations

45. We have identified recurrent fault by this Council in a number of previous decisions over the last 18 months about arranging educational provision in EHC Plans and arranging alternative provision.
46. The Council has agreed to make service improvement, and these included:
• to ensure it addressed young people or parents concerns about the provision schools provided compared to what was in EHCP’s; and
• to ensure suitable alternative provision was considered and provided without delay;
47. The recommendations we have already made recently are the same as I would have made, I have therefore not made any further service improvement recommendations.

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Agreed action

48. Within one month of my final decision the Council will:

• apologise to Mrs X and Y; and
• pay Mrs X a total of £3700, as set out in paragraphs 43 and 44 above.

49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have found fault by the Council causing an injustice to Mrs X and Y. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman