Summary: Miss X complained about how the Council has managed her son’s special educational needs provision. She said her son had not been receiving full time education and said his needs had not been met. We find the Council was at fault. This caused significant stress to Miss X and her son was out of education. The Council has agreed to several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains about how the Council has managed her son’s special educational needs provision. She said her son had not been receiving full time education and said his needs had not been met. Miss X said this has had a significant impact on her and her son who she said has been isolated at home.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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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How I considered this complaint

9. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care plans

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
12. 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).
13. 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.
14. The Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

16. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age 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.
17. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
18. 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.

The Council’s guidance on the use of reduced timetables for pupils

19. The Council has a requirement to collect part-time timetable information from all schools. The guidance states all pupils are entitled to suitable full-time education and every effort must be made to avoid part-time timetables.
20. Schools must make every effort to provide a full-time education for all children and young people. Where a pupil has been placed on a part-time timetable, the Council needs to consider whether the provision arranged is sufficient to meet this duty. Other considerations may include the duration of the strategy and any representations from the parents or other professionals involved with the family.

The Department for Educations guidance for councils

21. In very exceptional circumstances there may be a need for a temporary part-time timetable. But a part-time timetable must not be treated as a long-term solution. Any pastoral support programme or other agreement must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.

What did happen?

22. This section sets out the key events in this case and is not intended to be a detailed chronology.
23. Miss X’s son, D has an EHC plan. A placement was agreed for him to start at school in October 2020 on a part time basis. This was so D could have a managed transition to school. It was agreed he would be placed in reception instead of year 1.
24. An annual review was held in July 2021. It said D required 1:1 support at all times in school. But it said due to funding limitations D was currently not able to access school for 4.5 hours per week. It said D was making good progress and said his needs could be met in mainstream school. But it said an urgent review of funding was required so that D could have access to the full-time provision.
25. The Council issued its decision to not amend the EHC plan letter to Miss X the following month. It said D received a high level of funding and said it was very concerned that the school was only providing a part-time timetable. It said this formed an illegal exclusion. The Council said it would send part-time education forms to the school to be completed and forwarded to the Council’s inclusion service if this situation continued. It said this was so the Council could monitor it.
26. The school told the Council in September 2021 that D attended part-time due to the funding restrictions. The school said D’s parents and the school were keen for him to attend full-time but said he could not be left without direct 1:1.
27. Miss X asked the Council in September and October 2021 to discuss its decision to not increase the funding. The Council said it would ask the school to provide a provision map to outline what they were currently using the funding for and what additional funding would be used for.
28. In November 2021, the Council contacted the special educational needs co-ordinator (SENCO) at the school. It said the panel had previously agreed to provide level 4 funding. But it said following conversations with the school, it would put this back to panel, but it needed more evidence. The school agreed to send it a GP letter which stated D should not be left alone.
29. In February 2022 the Council’s notes stated as D had started to climb and jump from high things and tried to escape from school, it had completed a risk assessment. It said it had proposed a referral to behavioural support but said D’s parents refused to allow this involvement. The school stated it felt D’s behaviours and possible needs had changed and an early review was agreed. It was also noted that the school had not heard anything back from the Council regarding the request for additional funding.
30. In the same month the Council gave the school tailor made provision (TMP) forms. This is a short term, bespoke programme, offered across all key stages to support children and young people to maintain their engagement in education. It asked the school to make the referral. The Council also agreed to provide the additional funding and amend the EHC plan.
31. The emergency annual review was held in March 2022. It noted that D’s attendance was 66.67%. It was noted that Miss X was happy with the progress D had made. It was also noted that despite the increase in funding, full-time attendance at the school was not considered to be the most appropriate provision at this time.
32. The EHC plan was finalised in the same month naming D’s current school. But the Council issued a decision to amend the plan shortly after as it said it had just received the information from the latest review.
33. Miss X contacted the Council in July 2022 and said the situation with the school had still not improved. She said D was still not receiving full-time education. She said the new teaching assistants (TA’s) at school were untrained and D’s behaviour had deteriorated.
34. An annual review held in the same month stated D’s attendance was 68.54% and the school was now receiving the additional funding. It said D was supported by a TA each morning and three afternoons. The TMP application had not yet been processed. It also said despite the school’s best efforts, the provision at school was not an inclusive environment for D. This was because it said he was not able to access provisions alongside his peers and found it distressing when encouraged to engage with small groups or whole class learning opportunities. Without support from TMP, it said it was not safe to take D out of school to access enhanced provisions.
35. The Councils notes stated TMP had told the school they were only available for permanently excluded students. It stated D was not able to join in anything at school and he was struggling as school was very self-directed. It was also noted that school could not meet D’s needs. But noted the school was to continue making provision for D and to explore TMP whilst D’s EHC plan was amended. It also said the Council would consult with other provision settings.
36. In September 2022, Miss X told the Council the school was still not providing D with a full-time education. She said the school had allocated D’s TA to other children.
37. The Council spoke with the SENCO in the same month. The SENCO said D was on a part-time timetable as he does not cope in the classroom and the amount of sensory time he needed was increasing. The SENCO also said D had a TA for meet and greet each morning. It was also noted that Miss X had refused to send D into school.
38. The Council told Miss X it had consulted with schools and stated the current school was happy to welcome D back. Miss X said she wanted arrangements in place to support D.
39. In October 2022 D’s father told the Council D was only attending school two hours per day. He said this was not enough and stated he wanted to him to stay for lunch and said he was entitled to free school meals. But it was noted that there was no provision for D in the afternoon.
40. In the same month, the Council’s panel decided D would stay on roll at his current school while other options were explored.
41. Miss X told the Council the school had excluded D for two days. She said the school had not adhered to the EHC plan and stated she would educate him at home until a suitable placement was sourced. She asked the Council for advice on how she could implement this. The Council told Miss X that D was entitled to work from the school.
42. The Council contacted a new school who said it felt it could not meet D’s needs. The Council said as this was Miss X’s preferred choice and D was without a suitable provision, it asked for a meeting which the school agreed to.
43. Miss X complained to the Council in October 2022. She said:
• D had been on a part-time timetable for almost three years;
• D had been put with untrained TA’s;
• the school had always stated it could not meet D’s needs and questioned why the Council had decided his needs could be met there with level 5 funding;
• the funding had increased but the situation remained the same.
44. The Council contacted the school in the same month. As D was not in education full-time and was not receiving additional tuition, the Council asked how this was being recorded for attendance purposes. The Council said it had chased the TMP programme who said it had no record of the school’s application.
45. The school responded and said D had returned to school the 2 October 2022 on a part-time basis requested by Miss X to enable him to benefit from a phased return following an extensive period away. The school said D continued to struggle to manage his sensory needs and spend much of the day dysregulated. It said increasing his hours would increase his stress. The school also said:
• support from behavioural support services had been refused by parents previously which impacted provision in place. But consent for this had now been obtained but D was not in school;
• D had not been able to engage in speech and language due to his dysregulated behaviour;
• TMP referral had been completed 7 March 2022 and the school had continued to chase this with no responses;
• the SEND officer said TMP were only accepting referrals for permanently excluded pupils;
• school had made reasonable adjustments and amended D’s start time to 9:15am. But said D was often late to school and his attendance was 21.67%.
46. Miss X asked the Council for an update twice in November 2022 and complained again about the same issues which the Council acknowledged and advised her that TMP wanted to support D out of school. It also responded to Miss X’s complaint at stage one of its complaints process and said:
• D was initially allocated level 4 funding which matched his needs described in the EHC plan;
• the provision map provided by the school noted the school was providing TA support to D for 24.75 hours per week. As teaching hours totalled 25 hours per week and school also had lunch time supervision, it felt like this level of support was appropriate;
• in November 2021 it said it advised the school to seek advice from autism outreach and behaviour support about some of the behaviours D displayed, and then implement that advice;
• it spoke with the school who were concerned the level of support was not adequate. But said Miss X did not want to engage with behavioural support;
• it is the responsibility of the school to put full provision in place unless this is part of a transition plan for a finite period where children have not been in school;
• it had discussions with the head teacher at Miss X’s preferred school choice who now wanted to meet D.
47. Miss X was unhappy with the Council’s response and requested it be escalated. She said:
• the comments regarding her refusing behavioural support were false. She said her signature was obtained by deception and she was not aware a referral had been made;
• she questioned where the funding had gone as she said the provision had never been met and D should have had free school meals;
• D was still not receiving any support or education;
• she had requested direct payments to fund his education but had no response.
48. Miss X’s preferred school choice said it could not meet D’s needs in November 2022 and the Council told the current school it would continue to name this placement on D’s EHC plan which was finalised that month. It also told the school there was a number of inclusion support services available which the school questioned. The school also questioned how naming it in the plan was fulfilling the Council's responsibilities as it said it was not suitable to meet D’s needs and D was still not attending. The school chased the Council for a response twice.
49. In the same month the Council told Miss X there was an electronic tablet and several items of schoolwork now available for D to use at home in the school office which Miss X agreed to collect.
50. Miss X complained to the Council again on 29 November 2022 and said everyone was in agreement that the school could not meet D’s needs. But said he still had no education. She chased a response to her request in December 2022. The Council said it would aim to respond to her complaint by 16 December 2022. This date then changed a further two times.
51. In December 2022, after the school had contacted the Council to discuss a complaint Miss X had made to it, the Council said it was the school’s responsibility to make provision for D until the school was no longer named on the EHC plan. It attached a NTAS referral form which is a provision which has been used by schools.
52. The Council consulted with further schools in December 2022 and January 2023 and provided Miss X with details of this.
53. Miss X appealed to the tribunal in March 2023.
54. In the same month a placement was sourced for D with a September 2023 start date. A tutor from NTAS had been allocated to D to start work with him. The EHC plan was finalised.

Analysis

55. We would not usually investigate events that occurred more than 12 months before a person complains to us unless we decide there are good reasons. I have exercised discretion to investigate from July 2021. This is because the Council became aware in July 2021 that D was on a part-time timetable and there was significant ongoing injustice to D caused by the loss of education provision. We would also not usually investigate complaints when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Whilst I’m aware Miss X did appeal in March 2023, I think it would have been unreasonable to have expected Miss X to have appealed sooner. This is because the Council was taking steps to resolve the disagreement by consulting with schools.
56. The Council became aware in July 2021 that the school had said D required 1:1 support at all times and due to funding limitations, he was not accessing school full time. In response to this, the Council said it felt like the level of funding and support in place was appropriate and in line with D’s EHC plan which did not state he required 1:1. I cannot criticise the Council for this as it has evidenced it did consider the request which is what we would expect. It decided to provide more funding after receiving additional evidence from the GP which said D could not be left alone.
57. Although I do not find fault with the Council for not initially increasing the funding, as stated above the Council was aware in July 2021 that D was on a part-time timetable. It said it would send part-time education forms to the school to be completed and forwarded to the Council’s inclusion service if this situation continued. It said this was so the Council could monitor it. The Council’s guidance states where a pupil has been placed on a part-time timetable, the Council needs to consider whether the provision arranged is sufficient to meet this duty. The Council told us it did not consider the part-time timetable was sufficient. It said it consistently communicated with school to inform them to provide full-time education. Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall. Therefore, the Council is at fault.
58. We recognise that the Council did provide additional funding in February for the school to provide D with full-time education and it also recommended the school made a referral to TMP. But at the review in March 2022, it was noted that full-time attendance at school was not considered to be the most appropriate provision. This was also reiterated in the July 2022 review and the Council’s notes referred to the school not being able to meet D’s needs. The Council was consistent in advising the school it was their responsibility to provide provision for D as it was the named school in the EHC plan. But the guidance clearly states councils are responsible for the provision or suitable education for children who may not for any reason receive suitable education unless such arrangements are made for them. Therefore, this is evidence of further fault as the Council failed to consider other suitable alternative provisions whilst it was trying to find another placement. D went without suitable education and Miss X spent time and trouble in continuing to contact the Council which caused her significant stress.
59. In response to our enquiries the Council has agreed to pay Miss £500 in acknowledgment of the time and trouble she put to, and the distress caused to her. I consider this to be an appropriate remedy. The Council has also offered to remedy the missed free school meal entitlement which I also consider to be appropriate.
60. The Council has agreed to provide a further financial remedy of £900 to acknowledge the loss of education throughout. But I do not consider this to be sufficient. In acknowledgement of missed education, we recommend a payment per school term. I consider an appropriate figure in this case to be £1200 per term between July 2021 and March 2023 when Miss X complained to us. In determining this I have taken into account that D did receive some education.

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Agreed action

61. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• Apologise to Miss X for the faults identified in this statement.
• Pay Miss X £500 to acknowledge the time and trouble she spent contacting the Council which caused her distress.
• Pay Miss X £6000 for the educational benefit of D, to recognise the impact of its failings on D’s education.
• Reimburse Miss X for what D missed out on in regard to his free school meal entitlement.
62. Within three months, the Council should review its working practices and policies so that it retains oversight and responsibility for its duties to children unable to attend school.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice cause by fault.

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Investigator's decision on behalf of the Ombudsman