Summary: Mrs X complains that the Council failed to provide the special educational provision for her daughter, as set out in her Education, Health and Care plan, for two years. Mrs X says this has impacted on her and her daughter’s health. She says she had to give up work and has been trying to educate her child herself. The Ombudsman finds the Council at fault for failing to provide supplementary educational provision for two months. This caused injustice. The Council will apologise to Mrs X and her daughter, and make a payment to reflect the impact of missed education.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council failed to provide the special educational provision for her daughter, as set out in her Education, Health and Care plan, for two years.
2. Mrs X says this has impacted on her and her daughter’s health. She says she had to give up work and has been trying to educate her child herself, and that she also had to find a new school herself.

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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. 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)
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.

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation and guidance, below. I also considered the Ombudsman’s position on the impact of COVID-19 on children with Education, Health and Care plans and their education during lockdown.

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What I found

What should have happened

Education, Health and Care plans

8. Section F of an Education, Health and Care (EHC) plan sets out the special educational provision required to meet a child’s special educational needs.
9. Councils have a legal duty to provide the special educational provision specified in an EHC plan. A council cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

Duty to provide alternative education

10. The Education Act 1996 (Section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
11. In 2013, the government published statutory guidance for councils about alternative provision. This says that, 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.
12. The Courts have said that if a council has arranged suitable education which it is ‘reasonably practicable for the child to enjoy’, the council is not under a duty to provide alternative suitable education simply because, for whatever reason, the child is not attending school.
13. The Courts have said that it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.

What happened

14. Mrs X’s daughter, D, has special education needs and has had an Education, Health and Care (EHC) plan since 2016. The EHC plans outlines the special education provision D should receive and named her school (School A).
15. In July 2019, the Council completed its annual review of D’s EHC plan. The Council decided to maintain the EHC plan and make no amendments to it. The Council sent Mrs X the outcome letter about this review in October.
16. On 18 November 2019, D stopped attending School A (a mainstream school). This was because D was struggling to cope with certain changes at the school.
17. In January 2020, the Council reviewed D’s EHC plan because it was not working. It was noted that D had refused to attend lessons and complete work when in school. All parties agreed that a special school would better meet D’s needs. A week later, a doctor told the Council D would not be able to return to a mainstream setting.
18. The Council’s Special Educational Needs panel met in February. It considered the recommendation from D’s EHC plan review. The panel decided to amend the EHC plan to reflect a move to a special school. The Council said it would consult with School B to devise a bespoke package to support D to engage with education.
19. In February, Mrs X complained to the Ombudsman. This complaint was passed to the Council to respond in the first instance.
20. In March, School B told the Council it was not suitable for D and could not meet her needs. Also in March, schools closed due to COVID-19.
21. In May, the Council issued an amended EHC plan for D. This named School C which is a special school.
22. On the same day, the Council sent Mrs X its response to her complaint. This outlined what had happened since October 2018. It said School B was not suitable for D. It said Mrs X had identified her choice of school, which was School C. The Council said it consulted with School C and secured a place for D. It said it amended D’s EHC plan to reflect her new school placement. It did not uphold Mrs X’s complaint.
23. The Ombudsman then took up Mrs X’s complaint.

Analysis

24. Mrs X complains that the Council failed to provide the special educational provision for D, as set out in her Education, Health and Care (EHC) plan, for two years. The period of time I have investigated is from September 2018, when D started a new academic year at School A, to July 2020, when the Council sent its stage two complaint response.
25. D stopped attending School A on 18 November 2019. For this reason, I have separated my analysis of this complaint into two sections. The first section is from September 2018 to 18 November 2019. This is when D attended School A. The second section is from 18 November 2019 to July 2020. This is the period when D was not in school.

September 2018 to 18 November 2019

26. The EHC plan sets out what special educational provision D should have received while at School A. This includes support from a teaching assistant, a speech and language programme, input from a speech and language therapist, and a key worker to meet with D each week.
27. From the evidence I have seen, I am satisfied that the special educational provision set out in D’s EHC plan was available for D at School A. It is clear that D was having difficulties, and refused to attend lessons and complete work. This is not evidence of fault by the Council.
28. The Council has a duty to provide the educational provision set out in an EHC plan. I find that the Council made the provision available. For this reason, I do not find the Council at fault.

18 November 2019 to July 2020

29. The Council says when D stopped attending School A, the school adjusted its provision for D. The Council says the school offered additional support, including a bespoke timetable, and later start and earlier finish times. The Council felt this adjusted provision with extra flexibility was suitable for D.
30. As I have said in paragraph 13, the Courts have said that it is for the Council to determine what is ‘suitable education’. So, I do not find the Council at fault for the provision it made available for D after she left School A. I find, at that stage, the Council appropriately considered its duties under section 19 (see paragraph 10).
31. However, in January 2020 the Council reviewed D’s EHC plan. It was agreed by all parties that a special school would better meet D’s needs. A week later, a doctor told the Council that D would not be able to return to a mainstream setting.
32. There was explicit consensus and medical evidence in January that D could not attend a mainstream school. Therefore, I find that it was not reasonably practicable for D to access the provision provided by School A after January 2020 (see paragraphs 12 and 13). At this time, the Council should have looked to provide supplementary educational provision while D was out of school. There is no evidence the Council did this. This is fault.
33. This fault caused D injustice because she missed out on education she was entitled to receive under section 19 of the Education Act 1996.

Agreed action

34. Within four weeks of this decision, the Council has agreed to apologise to Mrs X for failing to provide supplementary educational provision for D between January 2020 (when it became clear D could not attend School A) and March 2020 (referred to below).
35. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £900. In arriving at this figure, I considered the Ombudsman’s published guidance on remedies. This outlines that a payment for failing to provide education should be between £200 and £600 per month.
36. I have considered additional factors such as D’s age and place in her academic career, and her special educational needs. I consider that a payment of £450 per month is appropriate, for each month where the Council failed to make educational provision.
37. I have taken into account the spring term dates (including half term) and the fact that COVID-19 meant all schools were closed in mid-March 2020. The Ombudsman’s position is that the aim of children with special needs attending school during lockdown was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements. For this reason, after mid-March, the injustice to D is limited.
38. I conclude that D missed out on two months of educational provision. Two months multiplied by £450 (per month) is £900.

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Final decision

39. I have completed my investigation. I uphold Mrs X’s complaint because I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman