Summary: Miss X complains the Council did not provide any education and SEN provision for her son, Y, from September 2018 until April 2019, resulting in missed provision and distress. The Ombudsman finds the Council at fault and recommends it provides an apology, pays £3600 for loss of education, pays £150 for distress, pays £100 for time and trouble and takes action to prevent recurrence.

The complaint

1. Miss X complains the Council did not provide any education or (Special Educational Needs (“SEN”) provision for her son, Y, from September 2018 until April 2019. Y suffered this loss, while her and her husband also suffered stress, time and trouble.

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What I have investigated

2. I have investigated the complaint above. I have not investigated other matters arising, for the reasons given at the end of this decision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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.
6. 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)

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How I considered this complaint

7. I spoke to Miss X and I reviewed documents provided by Miss X and the Council. I gave Miss X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Education, Health and Care Plan (“EHCP”) process

8. The Department for Education issues statutory guidance that councils must follow in its SEND Code of Practice (2015).
9. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
10. If the council decides to assess the child it will gather information and then decide if the child needs an EHCP.
11. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
12. The council must consult with any relevant school before naming it in the EHCP.
13. The council should amend the draft plan and issue the final EHCP as quickly as possible. In any event the whole process should not take longer than 20 weeks.
14. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.
15. The Council is responsible for making sure that arrangements specified in the EHCP are put in place.

Right to Education

16. The Education Act 1996 (“the Act”) sets out the law in relation to the education of children.
17. A child must start full-time education once they reach compulsory school age.
18. A child reaches compulsory school age on or after their fifth birthday. If they turn 5 between 1 January and 31 March, then they are of compulsory school age on 31 March; if they turn 5 between 1 April and 31 August, then they are of compulsory school age on 31 August. If they turn 5 between 1 September and 31 December, then they are of compulsory school age on 31 December. A child continues to be of compulsory school age until the last Friday of June in the school year that they reach sixteen.
19. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
20. Sections 436 to 447 cover councils’ duties and powers under the Act. Section 436 of the Act says councils must identify children not receiving an education. The councils’ duties only apply to children of compulsory school age.
21. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
22. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
23. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
24. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
25. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils 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 examples of good practice seen. 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 are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

26. I note Miss X’s son, Y, turned 5 in June 2018. He was therefore of compulsory school age on 31 August and so should have started school in September 2018.
27. Miss X and her family returned to the UK in early 2018. Miss X asked the Council to assess Y as he was autistic with complex needs.
28. The Council told Miss X of its decision to refuse an assessment within six weeks and informed her of her right to appeal.
29. The Council says it was aware Y was out of school and considered he was of compulsory school age. Therefore, it referred the family to the Children Missing Education team for support in finding a school placement through the in-year admissions process.
30. Miss X says they spoke to an Admissions Assistant who clarified Y would not be of compulsory school age until September 2018. She says she consulted with three mainstream schools who felt they could not meet Y’s SEN.
31. In May 2018 the Council decided to assess Y.
32. The Council accepts it should have issued a final EHCP by 15 August 2018.
33. The Council explains it sought advice from an Educational Psychologist (“EP”) on 11 May 2018. However, due to national capacity issues the EP was unable to provide this within the required timeframe. The Council says it could not have issued the EHCP without this advice and it would not have saved any time seeking a private EP.
34. The Council says it received advice from the EP on 3 September 2018. It then consulted with schools including the parental preference, School A. None of the schools were able to offer a place.
35. I note School A said it may be an appropriate setting but it did not currently have space and offering a place would cause detriment to others. Further, that it was unable to make reasonable adjustments to accommodate Y’s needs.
36. The Council issued a final EHCP on 26 September 2018 naming the type of setting; a specialist school.
37. I note the EHCP sets out strategies and resources to support Y’s learning in school. This includes programmes for language, social interaction, movement, literacy and numeracy delivered by a Teaching Assistant and overseen by a teacher.
38. The Council says the family did not take up any school place in mainstream provision. However, following its decision that Y should be educated in a specialist setting it took steps to secure interim tuition until a school place became available.
39. Miss X says they had received professional advice it would not be in Y’s interests to send him to mainstream school and they tried their best to educate him at home pending a suitable school place.
40. The Council explains it referred Y to an Education Programme on 27 September 2018. However, this Programme felt Y’s needs were too complex for it to safely provide support.
41. The Council says it continued to liaise with School A about the adjustments necessary to make the provision suitable. As a result, School A offered a place to Y on 13 March 2019.
42. The Council issued an amended final EHCP on 20 March 2019 naming School A. Y started at School A in April 2019.
43. In response to enquiries the Council said:
• It recognises and is sorry the provision outlined in Y’s EHCP was not provided.
• It regrets the Education Programme could not provide interim education whilst it sought the specialist placement.
• If Y’s parents had accepted a place at a primary school through the normal admissions procedure, once it issued the EHCP it could have supported the mainstream school to provide for his special educational needs until such time as the specialist placement was arranged.
• The Council recognises identification of an alternative education programme has taken longer than it would have liked.
• However, the placement has been agreed by making adjustments at the specialist school which was parental preference. This is not due to delay or casework drift; it is due to the lack of available placements within specialist provisions.
• The Council is focusing on improving its commissioning of special school placements and also in encouraging the inclusivity of its mainstream schools to alleviate the demand on the special schools.
• It did not fail to provide suitable education and SEN provision for Y from March 2018 until he started school in April 2019. It insists that until it issued the EHCP in March 2019 it was not responsible for Y’s education. Following its issue, it was proactive in sourcing the correct and most suitable provision for Y as soon as it was able.

Findings

44. The Council accepts it did not issue a final EHCP within the statutory timescales. While I accept it awaited advice from an EP and I acknowledge there may be issues around capacity, the Council’s statutory duties remain. I therefore find the Council’s delay amounts to fault.
45. The Council knew Y was of compulsory school age in September 2018 but that he was not attending school or otherwise receiving suitable education. The Council should therefore have taken steps to ensure Y received education, whether by taking action against his parents, finding a suitable placement through the EHCP process or arranging alternative provision.
46. The Council did not take any action to ensure Y’s parents took him to school. The Council has not provided any evidence of working with School A to put reasonable adjustments in place or any explanation as to why it could not achieve this sooner. The Council found one tuition programme was unsuitable however it then made no further efforts to arrange any alternative provision. Bearing these points in mind, I consider the Council did not meet its duties to ensure Y received suitable educational provision from September 2018 to April 2019. This is significant fault.
47. Further, the Council took no steps to ensure Y received any SEN provision as set out in his EHCP from 26 September 2018 to April 2019. This too is significant fault.
48. It is concerning the Council did not recognise these failings either during the complaints process with Miss X or in response to enquiries. Especially given recent Ombudsman decisions finding fault by the Council in similar circumstances (19005803; 19004037; 19000955).
49. In deciding a remedy for Y’s missed provision I have considered Y’s age, SEN and that he received no education or SEN provision whatsoever. I consider a payment of £600 per month is appropriate over the six months (term time only) September 2018 to April 2019. I consider Miss X and her family are due a payment for distress and the time and trouble in bringing this complaint. I will also make recommendations to prevent recurrence.

Agreed action

50. To remedy the injustice set out above I recommend the Council carry out the following actions:
51. Within one month:
• Provide Miss X with a written apology for the identified faults;
• Pay Miss X £3600 for Y’s loss of education and SEN provision;
• Pay Miss X £150 for distress to her and her family;
• Pay Miss X £100 for the time and trouble in having to bring this complaint;
52. Within three months:
• Provide training to all staff working in children’s education on the Council’s statutory responsibilities;
• Source additional providers of alternative provision to ensure it can provide education to children with complex needs should the need arise.
53. The Council has accepted my recommendations.

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Final decision

54. I find the Council at fault as it did not meet its statutory duties to ensure Y received education and SEN provision. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

55. I did not investigate the Council’s refusal to assess Y because Miss X had a right to appeal. And because any delay in assessment did not cause Y further injustice beyond that already found.

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Investigator's decision on behalf of the Ombudsman