Summary: Mrs X complained the Council failed to ensure her son, C, received the provision outlined in his education, health and care plan and received full-time education. The Council failed to check whether C was receiving the provision outlined in his plan and failed to ensure he received full-time equivalent education when he was placed at an alternative provision school. The Council will apologise, make payment for the loss of education and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council failed to ensure:

• Her son, C, received the provision outlined in his Education, health and care (EHC) plan.
• He received a full-time education when he was in school.
• He received a full-time equivalent education when he was receiving alternative provision.

2. She says that C has not received the educational provision he needed which has impacted his learning, confidence, his friendships and mental health. She says they have found the whole experience stressful and frustrating.

Back to top

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. 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)
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).

Back to top

What I have and have not investigated

7. I am investigating matters from March 2020 when C began attending an alternative provision placement. This is an ongoing issue and there is good reason to exercise discretion. I have not investigated Mrs X’s complaints from before March 2020.

Back to top

How I considered this complaint

8. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
9. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

10. A child with special educational needs 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.
11. 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). 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)
12. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

13. 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.
14. 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)
15. 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))

Key events

16. C has autism and attention deficit hyperactivity disorder (ADHD). He has an EHC plan to aid him in school. The Council issued C’s first EHC plan in May 2020.

EHC plan provision

17. C’s EHC plan stated that he needed:
• Preparation for, and help with, new situations.
• Support with peer interaction.
• Classroom support to check understanding and support with seeking help.
• Structured timetables with tasks broken into short steps.
• A quiet area when needed with a key worker to support.
• Additional one to one provision where catch up is required.
• Sessions with a key worker to informally discuss the school day.
• Behaviour management strategies.
• Sensory support, such as classroom positioning.
18. C started at an alternative provision school (school A) in March 2020 following an exclusion.
19. In November 2021 C moved to another alternative provision school (school B).
20. In April 2022 the Council reviewed C’s EHC plan. It agreed to amend C’s EHC plan and find a long-term placement. C’s amended EHC plan included:
• Education otherwise than at school provision.
• Behaviour management strategies.
• Preparation for, and help with, new situations and transitions.
• Classroom support to check understanding and support with seeking help.
• Adults working with him to have an understanding of autism and ADHD.
• A quiet area when needed with a key worker to support.
• Resources that are easily transferable between areas of the school.
• Career and transition planning.
• Sessions with a key worker to informally discuss the school day.
• Sensory support, such as classroom positioning.
21. Mrs X raised a complaint about the lack of education and EHC provision C had received in April 2022. The Council arranged for an independent person to review the complaint and issued a response in June 2023. It upheld the complaint the Council had not ensured C had received his EHC provision.
22. The review also noted the Council had offered the school the assistance of its autism team in summer 2021. It noted the school had declined this offer. The review decided the Council had done all it could to ensure C received the provision outlined in his EHC plan.

Reduced timetables

23. When C started at the alternative provision school in March 2020 he started on a reduced timetable with the aim for reintegration. His timetable provided him with time in school and time at a mentoring service. His timetable was not increased for the rest of the school year or in the next school year.
24. In June 2021 an inspection judged school A to be inadequate. The inspection raised concerns that learning was not well matched to pupils needs and students were often excluded or placed on reduced timetables without cause. It stated many students were missing their right to full time education and there were issues with the lack of clear plans for reintegration.
25. Concerns were raised by professionals working with C and Mrs X from July 2021. They told the Council of concerns C had been out of education for a significant period. They also told it that schooling was being provided at home not school and that C did not want to cooperate with any tuition provided at home.
26. The Council looked into these concerns and gained confirmation that provision would be provided in school going forward and that it would provide six hours of provision onsite and nine hours offsite from September 2021 onwards. However, in September the school told the Council it would be providing a reduced timetable of 11 hours which included two hours offsite with the mentoring service.
27. In late September the inspectors told the Council that following the inspection in June it had decided to issue a termination warning notice to the school.
28. In early October 2021 the School offered a new timetable for C following an exclusion. This included six hours of home teaching from the alternative provision provider and six hours with the mentoring service. Mrs X did not agree with the provision and C returned to school. The school contacted the Council to explain it could not provide C’s education at home. The Council responded asking why C needed to be educated offsite and asked about increasing C’s provision as it did not consider it enough. The school explained concerns about C’s behaviour. It explained that it did not consider he could be educated at the school due to this and indicated a likelihood it would give notice.
29. In late October the Council and school discussed increasing C’s provision and the school source providers to do this. The school said that C would now be receiving two and half hours of teaching from the alternative provision provider every morning and six hours from the mentoring service. It confirmed this would include English, maths, science, and humanities. It explained it hoped to introduce support from other providers within the next couple of weeks but that this was yet to be confirmed.
30. C moved to school B in November 2021.
31. In late March school B sent the Council a copy of C’s intended timetable of 16.25 hours per week. It stated it was meeting C’s needs.
32. In late April 2022 the Council sought details of C’s attendance and his timetable. The school confirmed he was attending school for six hours a week and two sessions with the mentoring service and a session at a recording studio.
33. In mid to late May the school discussed with the Council its plan not to allow C into school during exams. It explained that this would be for core exam days only and C would receive online learning when he could not come in. However, the school did not allow C to attend school at any point in June 2022. Mrs X contacted the Council to tell it that C was not being allowed into school during the entire exam period. She also raised concerns that he could not attend some lessons held online as he did not have the resources to allow him to do so.
34. In mid-June 2022 the Council’s child protection team raised concerns with the school about the lack of educational support. It noted the lack of staff was not an acceptable reason for not providing appropriate education and stated there should be alternative support plans in place. It also stated that online learning was not appropriate.
35. The Council acknowledged in response to Mrs X’s complaint that C was still receiving less than a full timetable in 2023. It stated that this was the fault of the school. It explained that as the school is an academy it had limited control over the schools actions.

Findings

EHC Plan provision

36. C’s first EHC Plan was issued in May 2020, two months after he began at school A. The Council had a duty to ensure the school provided the provision detailed in the plan. I have seen no evidence the Council contacted the school following introducing the plan to check the provision was in place. This is fault.
37. The evidence shows that professionals began raising concerns about the schooling C was receiving in July 2021. Again, there is no evidence, despite these concerns, the Council took steps to confirm that C was receiving the provision outlined in his EHC plan.
38. I appreciate the Council did offer help from the autism team to the school which was declined. However, the Council remained responsible for ensuring C received the provision outlined in his EHC plan and the school’s refusal of this offer does not free the Council of its responsibilities.
39. In November 2021 C moved to a new alternative provision school. I would have expected the Council to have taken steps to ensure the special educational provision was in place at the new school shortly after the transfer. I have seen no evidence the Council carried out a review.
40. The Council is at fault for failing to ensure C had the provision outlined in his EHC plan when it was introduced, when he moved school and when individuals raised concerns. I cannot be certain that C received any of the provision detailed in his plan since it began because of the Council’s actions.
41. The Council has accepted this fault, but it did not take any steps to address the injustice caused to C by the loss of his EHC provision between May 2020 and June 2023. The loss of EHC provision warrants recognition.

Reduced timetables

42. C was excluded from school in March 2020. The Council had a duty under section 19 to ensure that C received a suitable education at school or elsewhere following this exclusion. The Council arranged alternative provision by placed C at school A. We would expect this provision to be equivalent to fulltime unless there was a reason this would not be in C’s best interests.
43. C at first started attending part-time. Concerns had been raised about C’s ability to adjust to a new school. The Council confirmed the school intended on increasing the time C spent in school as he got used to the school. This is reasonable given the concerns raised and C’s EHC provision around new situations.
44. Despite intending for C to increase the time he spent at school A the evidence shows he did not attend a full school day during his time there. The Council has provided no expert report or evidence which outlines C could not attend full time. C therefore should have had a clear plan to build up his time at school to the point he was receiving a full-time education from March 2020 onwards. The Council’s failure to ensure the alternative provision it was providing was full time is fault.
45. When C began attending school B, he was not provided with a timetable that allowed him to be in school all day. It’s clear the Council were aware of this. It received details of his timetable from the school which confirmed the hours he was attending, and these were less than full time for his age. Mrs X also raised concerns during this time about the hours the school was allowing C to attend for.
46. In addition to this there were times the school did not allow C to attend school at all. For instance, it did not allow C to attend school in June 2022 as the school was insufficiently staffed during exams. The school did not allow C to return to school for the rest of the school year. Mrs X and other professionals raised concerns about this. Especially as C could not access any online work set due to the lack of laptop. However, the Council took no action to ensure C received a suitable full-time education. This is fault.
47. The Council has failed in its duty to ensure that C received a full-time education as required by law and this is fault. The timetables show the most amount of time he was allowed to spend in school was 18 hours a week. C has missed a significant amount of school hours since March 2020. This covers the period of starting in year 7 up to the beginning of his GCSE’s. Mrs X worries about the impact this loss of education will have on his future.

Back to top

Agreed action

48. Within one month of the final decision the Council will:
• Apologise to Mrs X and C for the injustice caused by the failure to ensure C received his EHC provision and an education equivalent to fulltime.
• Carry out a review of the provision C is receiving to ensure he is receiving the support outlined in his EHC plan. If it is not sufficient the Council should take steps to put the provision in place.
• Review the suitability of C’s school placement in ensuring he receives full time equivalent education.
• Pay Mrs X, for the benefit of C, £12,600 for the loss of EHC and school provision. This is equivalent to £1,800 per term.
• Remind staff they should check to ensure a child is receiving the EHC provision they are entitled to when there is a new or substantially different EHC plan or a change of placement.

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

Back to top

Final decision

50. I have completed my investigation. I have found fault leading to injustice. The Council will take action to prevent reoccurrence and address the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman