Summary: There was service failure and fault in failing to complete an Education, Health and Care needs assessment on time, a failure in the admissions process, and a failure to consider alternative provision when a child was unable to attend school fulltime. This led to loss of education and placed additional pressures on the family. The Council will apologise, make a financial payment and carry out service improvements.

The complaint

1. Ms X complains the Council:
• Delayed in allocating a school place following an in-year transfer application because it used the wrong address. Ms X says as a result her child may have missed out on a place and been late to start in the Autumn term. Ms X says this meant the school was not prepared to meet her child’s special educational needs, as there was no time to plan transition, and her child was immediately subject to a fixed term exclusion.
• Delayed issuing a final Education, Health and Care (EHC) Plan by two months, which delayed support being provided.
• Failed to provide alternative education under s.19 Education Act 1996 when her child was placed on a part-time timetable, even though there was no medical basis to do so. The Council also failed to address this matter in its complaint investigation.
• Failed to provide free school meals when her child was without education.
• Failed to refund costs for play therapy and childcare costs.
2. As a result of the alleged fault Ms X says:
• her mother had to reduce work hours to provide unpaid care and lost income,
• her child missed out on education and became socially isolated.

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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)

Back to top

How I considered this complaint

8. I have considered information provided by Ms X and the Council including:
• Complaint documents
• EHC documents
• Alternative provision documents
• Admission documents.
9. I have spoken to Ms X by telephone.
10. I have considered relevant law and guidance.
11. I have considered our Focus Report “Out of school…out of mind?”.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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 found

EHC Plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out 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 following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).

Alternative education

16. Councils must “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))
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 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. 

19. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

20. 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)
21. Section 437(3) of the Act relates to whether the council considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (Paragraph 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019) 

Free school meals

22. The basic position regarding free school meals is set out in Section 512 Education Act 1996. Section 512ZB sets out the eligibility criteria.
23. Section 512(3) engages obligations of the Council to provide school meals only where a pupil is registered at a maintained school or in receipt of relevant funded early years education. This does not include Academies.

Parent carers

24. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
25. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Factual background

26. In early 2022 Ms X applied for her child’s special educational needs to be assessed to see whether an EHC Plan was required. The Council refused the application.
27. After Easter 2022 Ms X’s child was placed on a part-time timetable by School X with three days in school and two days at alternative provision.
28. Ms X applied for an in-year transfer in Summer 2022. A place was refused at Ms X’s preferred school (School Y). Ms X appealed. A place was then offered before the appeal was heard. The letter offering a place referenced Ms X’s address and the address of her child’s other parent. Ms X assumed this meant the reason a place was initially refused in the Summer was because the Council had used the wrong address for allocation.
29. The offer letter is dated a few days before the start of term, but the place was not made available for a month. Ms X’s child was then started on a part-time timetable. Within a few days School Y issued a 5 day fixed term exclusion.
30. Some evidence says Ms X’s child then returned to school on a part-time timetable of 30, then 45 minutes then 75 minutes per day. Ms X says this is not correct and her child never attended for more than 45 minutes per day.
31. A month later the part-time timetable continued. Specialist support was provided to Ms X’s child. It was considered Ms X’s child could not access lessons with peers.
32. A second request for an EHC needs assessment was submitted in Autumn 2022; this time the Council agreed to assess.
33. In late 2022, School Y requested funding for Ms X’s child for 2:1 adult support. It said it was essential Ms X’s child had more social interaction and specialist support including play therapy while an EHC needs assessment was completed.
34. The Council says School Y provided it with details of the part-time attendance every two weeks.
35. Ms X complained to the Council in Summer 2023 about delay in completing the EHC needs assessment beyond twenty weeks and in failing to provide full-time education for ten months (from Autumn 2022), which was ongoing. Ms X also complained her child was unable to stay for lunch at school so missed out on free school meals.
36. The Council accepted the EHC needs assessment was delayed. The maximum timescale was exceeded by two months, so a final EHC Plan was not in place until Summer 2022.
37. The Council’s response to the complaint said it was not its policy to provide additional funding to schools while the EHC needs assessment was ongoing. The Council says the delegated funding provided to schools for pupils without EHC Plans includes some funding for alternative provision.
38. The application form used by School Y in Autumn 2022 to request extra funding however referred to additional top-up funding being available for children who do not require an EHC Plan but where existing delegated funding is not sufficient to meet need.
39. The final EHC Plan included thirty hours per week support and named a specialist placement from September 2023.
40. Enquiries were also made to social care about providing funding for play therapy or alternative provision. Ms X’s child was known to social care. Social care said it was unable to provide therapy or education funding. It did not offer assessment for short breaks provision or a Parent Carer Needs Assessment. The Council said short breaks was not a matter which came up during social care’s involvement. There was a family plan, but the social worker does not recall there being requests for help with care or a suggestion a Parent Carer Needs Assessment was required.
41. The Council has confirmed that after further investigation it has concluded that on the balance of probabilities there was a mistake in the admissions process based on the address used. This meant that a place was wrongly offered to a child with lower priority to Ms X’s child at the end of the Summer term, and Ms X’s child was not offered a place until just before the start of the Autumn term. The Council acknowledges this meant School Y had very little time to prepare for Ms X’s child’s admission. The Council says while a short delay in starting school might be reasonable it cannot explain why Ms X’s child was not placed on roll until October and that “an error does appear to have occurred” causing delay.

Analysis

42. The Council has now acknowledged Ms X’s child should have been offered the place in late July that was offered to a pupil with lower priority. This was fault. A month of education at the start of term was lost.
43. I cannot investigate the Council’s refusal of the first EHC needs assessment request. This decision had a right of appeal which we would expect a family to use.
44. The second EHC needs assessment request was agreed but the process was delayed by two months. This was service failure and fault. Twenty weeks is the maximum period allowed, but in urgent cases, such as where a child cannot attend school for more than an hour per day, we would expect councils to progress cases more quickly if possible.
45. The Council says it has a policy not to offer schools additional funding during an EHC needs assessment. Councils cannot have blanket polices and must consider on a case-by-case basis whether it is necessary to make an exception. Here there was enough evidence early in the Autumn term in 2022 that Ms X’s child could not access school without extra support. The Council should have considered intervening. This could have been through the provision of extra funding to enable Ms X’s child to attend school more hours or through the provision of alternative education under s.19 Education Act 1996 to supplement the provision in school. Failure to consider duties under s.19 was fault. Councils have a duty to consider provision under s.19 even where a child is on roll where it is aware the provision being offered is not suitable or not fulltime.
46. The Council told Ms X it would consider her request for a refund for play therapy she paid for herself, but then did not do so. This was fault.
47. Ms X’s child has been able to attend a specialist school since September 2023 and was accessing five-day provision (albeit two days in alternative provision) in Summer 2022. I am not persuaded there is enough evidence to support Ms X’s child could only access an hour or less of education per day. I acknowledge mainstream class-based lessons were not appropriate in the 2022/23 academic year, but there is no evidence to support alternative education would not have been suitable if provided. I do acknowledge even without the admission delay there may have been problems with transition in Autumn 2022, as problems with attending class emerged quickly. However, when the part-time timetable continued without improvement after a few weeks the Council should have intervened to make more suitable arrangements.
48. School Y was a mainstream primary school not an Academy. The responsibility to provide free school meals lay with the Council, not the school. The Council should have considered providing support once it became aware Ms X’s child was not permitted to stay at school for lunch.
49. There is not enough evidence for me to say whether the Council should have offered a Parent Carer’s Needs Assessment on the appearance of need. Social care was involved, and a family plan was in place.

Injustice

50. The opportunity for a planned transition was lost due to the failure in the admission process. This meant instead of receiving information about Ms X’s child in July the school was only aware of the new admission in September. This delayed Ms X’s child starting school by a month. However, as Ms X’s child would have had a long break from education over the summer holidays in any event it is not possible to say the problems that emerged in Autumn 2022 with behaviour and attendance would not have arisen if the place had been offered earlier.
51. I consider that alternative provision should have been considered and in place by the second half term of Autumn 2022.
52. I find Ms X’s child missed out on education in September 2022 and from November 2022 to July 2023.
53. I find Ms X’s child missed out on free school meals during the 2022/23 academic year.
54. I consider the Council should have refunded the play therapy costs.
55. I find if the EHC Plan had been finalised sooner that specialist provision may have been available earlier.
56. The Ombudsman does not usually recommend loss of earnings are refunded. There is also some uncertainty here what level of provision Ms X’s child would have been able to engage in and whether this would have required the family to be present in any event, leading to lost earnings and childcare costs. However additional support with education would have reduced the pressure on the family to provide care.

Back to top

Agreed action

Within four weeks of my final decision:

57. The Council will apologise to Ms X for the faults identified in this decision statement.
58. The Council will pay Ms X:
• £787.50 to refund play therapy costs
• £350 to acknowledge the loss of education in September 2022.
• £2500 to acknowledge the loss of education from late Autumn 2022 to July 2023. This takes into account that some education was provided, and that Ms X’s child may have struggled to engage with fulltime education in any event.
• £500 to acknowledge the loss of free school meal provision.
• £1000 to acknowledge the impact on Ms X and her mother of providing additional care and for their time, trouble and inconvenience.

Within three months of my final decision I recommend:

59. The Council review its approach to free school meals taking into account recent Government Guidance that addresses children unable to attend school. Free school meals: guidance for schools and local authorities - GOV.UK (www.gov.uk)
60. The Council ensure officers have sufficient training and guidance to intervene when they become aware a child is receiving less than fulltime education and understand their s.19 Education Act duty.
61. The Council review whether it has robust processes to complete EHC needs applications on time and how to deal with cases where delay may lead a child to miss education. Where a disabled child will be out of school for an extended period the Council should also consider the holistic needs of the family and consider signposting parents to other sources of advice, for example a Parent Carer Needs Assessment via social care.
62. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

63. I have completed my investigation. There was service failure and fault in failing to complete an EHC needs assessment on time, a failure in the admissions process and a failure to consider alternative provision when a child was unable to attend school fulltime. This led to loss of education and placed additional pressures on the family. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman