Summary: There was fault by the Council. There was delay in reviewing, finalising and specifying a suitable school in an Education, Health and Care plan after a child was excluded from school. The Council provided alternative educational provision but this was online and did not provide all specified in the Education, Health and Care plan. A payment to Mr X for loss of educational provision and the impact on the family remedies the injustice, along with a recommendation to improve the service to prevent delays in future.

The complaint

1. The complainant, who I shall call Mr X, complains his son, Y, has not received suitable full time education.
2. Mr X also complains there have been delays in reviewing and finalizing his son’s EHC plan.

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What I have investigated

3. I have investigated Mr X’s complaint from March 2020 until September 2021. The final paragraph contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The SEND tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. Complaints about EHC plans may be within our jurisdiction depending on the complaint. We can investigate a complaint about an EHC plan if:
• The action relates to an administrative function of the council
• The action is taken by or on behalf of the council
• The action is not excluded by the provisions in paragraphs 4 or 6.
9. If we are satisfied with a council’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)
10. 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.

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How I considered this complaint

11. I read the papers put in by Mr X and discussed the complaint with him.
12. I considered the Council’s comments about the complaint and any supporting documents it provided.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal information and guidelines

14. Councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19) Statutory guidance ‘Alternative Provision’ says this duty applies “to all children of compulsory school age resident in the local authority area, whether they are on the roll of a school, and whatever type of school they attend”.
15. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says while there is no legal deadline to start provision it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one to one), which is intensive, need not be full-time. It also says provision offered must be similar to what is offered in school.
16. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance for local authorities 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 six recommendations based on good practice. It said councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance 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;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they can do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

17. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
18. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
19. The Council is responsible for making sure that arrangements named in the EHC plan are in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Key facts

20. Y had an EHC plan and was permanently excluded from primary school in March 2020. Y remained on roll at his primary school till the exclusion was final in October 2020. The exclusion was subsequently ruled to be unlawful by a SEND tribunal. The Council enrolled Y at another academy, an alternative provision, within 6 days of the exclusion.
21. The alternative provision provided online tuition, due to COVID 19. In response to an EHC plan information request the provision during lockdown was recorded as:
• At least three 40 minutes lessons a day by video conference or alternatives (1 to 1 sessions by video or paper based resources delivered to home);
• Morning and afternoon pastoral drop in sessions via video;
• Y’s attendance to the online provision from March to July 2020 was 36%. He attended on site on 6 days for 3 hours. Due to incidents onsite, he was provided with online education until the Council found a more appropriate provision.
22. In August 2020 the Council began a reassessment of Y’s needs to revise his EHC plan.
23. The Council sent the draft EHC plan to Mr X on 11 December 2020. This draft plan did not identify a type or name a school. The Council consulted with 6 schools, 5 of which said they could not meet need and one was full.
24. There are notes of a Team around the Family (TAF) meeting from January 2021. These record that school said that Y was settled and enjoying his work, but it was a temporary measure. The minutes record Y’s parents were happy with the home learning but wanted a provision found for him that met his needs.
25. The Council sent a final EHC plan on 22 February 2021. This named specialist school as the educational placement. I can see from the Council’s files there was a large amount of correspondence while it was trying to find a suitable placement.
26. A final plan of 12 August 2021 named a specific independent specialist school. Y started full time at this independent specialist school in September 2021.

My analysis

27. The Council started reassessing Y’s needs on 25 August 2020. The SEND code of practice says that after a reassessment it should decide whether to issue an EHC plan within 10 weeks and finalise the EHC plan within 14 weeks.
28. The Council has said that due to a delay in getting an Educational Psychology report there was a delay of 41 days in issuing the draft EHC plan. There was also a delay of 83 days in issuing the final plan, which named a school type. The Council has said the previous EHC plan remained in place during the reassessment period and that Y had access to the alternative provision. The Council says ‘it is of the view that the delay did not cause Y to miss any educational provision’.
29. It took over a year from Y’s exclusion for the Council to alter the EHC plan to include a specialist school. During this time, his education was disrupted and so I can understand Mr X’s concerns. However, Y did have some alternative provision available to him during this time and I can see that throughout this time the Council was actively seeking a suitable placement for him.
30. My view is there is evidence of delay by the Council. This was fault. It took from March to August 2020 for the Council to begin the reassessment process. This was 5 months. Then, there was a delay of 3 months issuing the final EHC plan and it took a further 6 months to identify a suitable specialist school.
31. I recognise the impact the delays had on Mr X and his family, as he was uncertain that Y had a full time school placement until a month before the new school year was due to start. Y had alternative educational provision available to him from March 2020 until July 2021, but it was not full time or suitable to meet his needs. This is evidenced by the school asking that from July 2020 Y remained doing home learning rather than attending the provision in person and an agreement at the TAF meeting that school felt the placement was a temporary measure.
32. I do consider that Mr X is due a remedy for the impact on him and his son while Y was not provided with all the provisions in his EHC plan. Our guidance suggests a remedy of £200-600 per month to acknowledge the impact of the loss of education.
33. The Council offered Y home learning so I do consider the remedy should be at the lower end of the scale of £200 a month. I propose a remedy for 4 months from March to July 2020 and then 9 months from September to July 2021, which does not include school holidays. This makes a total of £2600.
34. The delays also meant a delay to Mr X’s opportunity to appeal. It did not cause an injustice as Mr X did not choose to appeal the fact a specific placement wasn’t named, but had that not been the case, there would be further injustice.

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Agreed action

35. The Council pays Mr X £2600 within one month of the date of the decision.
36. Within 2 months of the decision the Council should review its existing arrangements for issuing draft and final plans and evidence the steps it is taking to ensure it meets statutory timescales.

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Final decision

37. I have completed my investigation of this complaint. This complaint is upheld as there was delay by the Council which caused injustice to Mr X and Y. The payment and review of procedures is a satisfactory remedy to this complaint.

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Parts of the complaint that I did not investigate

38. I cannot investigate events that occurred before March 2020. 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). Mr X explained that problems getting a suitable education go back 5 years. I do consider that it was reasonable for him to complain to the Council and then the Ombudsman about events that occurred before now. Details of the Council’s complaints procedure and the Ombudsman service are widely available. I have exercised discretion to go back to March 2020, as this was the point Mr X’s son was excluded, however, I do not intend to go back further as Mr X could have complained about earlier events at the time.

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Investigator's decision on behalf of the Ombudsman