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Ombudsman criticises council after child left without suitable educational provision for 14 months

An investigation by the Local Government and Social Care Ombudsman has seen Southend-on-Sea City Council agree to pay £9,000 to the mother of a child who was left without suitable schooling for more than a year.

The investigation also found that the council was at fault for keeping the child in a school that a tribunal had previously ruled was unsuitable while it looked for a new placement.

The child, referred to as 'X' in the Ombudsman's report, has several disabilities and special educational needs resulting in the need for an education and health care plan (EHCP).

Following a transition to a new school, X began to struggle before being excluded several times on a fixed-term basis.

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When the annual review of the child's plan was held, the council chose to continue X's placement at the school which had expelled him. However, his mother disagreed.

The mother, 'A', challenged the decision at tribunal and requested a residential placement for her child.

The tribunal did not agree on a residential placement and did not name a specific establishment. Instead, it only named the provision that Child X needed. However, the tribunal ruling also said that X's previous placement was not a suitable placement and should not be named.

Despite the tribunal's ruling, which was made in December 2020, the council told A that the provision needed could be provided to X by the school he had been excluded from and that he would be provided with a specialist outreach package of support.

The mother declined the package, leading the council - between January 2021 and January 2022 - to consult with several specialist providers about whether they could meet his needs. But its search was unsuccessful.

The mother complained to the council in April 2021 about its failure to provide X with an educational placement. The council did not respond to A through its complaints procedure, but it did acknowledge she had complained and continued to communicate with her about the ongoing search for a placement.

She remained unhappy with the council and eventually complained to the Ombudsman.

In January 2022, the council emailed A to propose that X attend two sessions a week at a local social care setting. It also proposed a placement for Child X in an educational establishment from September 2022.

The Ombudsman's investigation found that the tribunal ruling was clear in saying the previous placement was not suitable for X. "Therefore," the Ombudsman said, "it was fault by the council to offer this as provision for Child X whilst it sourced an alternative permanent placement. This has meant that Child X has been without suitable provision to meet his needs since the outcome of the tribunal in December 2020."

He later added: "The Council did not offer to provide Child X with suitable alternative provision until January 2022 when it offered a package of support that was not from the previous school. By that time, Child X had been without suitable provision for 14 months. This is fault by the council resulting in significant injustice to Child X."

The mother also experienced "significant injustice" as she was unable to  work and was managing the stress of X's situation while he was without education provision, the Ombudsman said.

In part, the council said that the delay was caused by staffing pressures from the COVID-19 pandemic. The Ombudsman accepted that the pandemic may have caused some delay "however, Child X would have still be entitled to the provision in his EHCP, which the Council had a duty to provide", he said.

The Ombudsman also found that the council failed to issue a formal response to a stage one complaint made by the mother.

In light of the investigation's findings, the council agreed to fulfil the following recommendations within four weeks:

  • Write to A and apologise for the fault identified above.
  • Pay A £8400 in recognition of the lost provision for X. This was calculated at £600 for every month that X was without suitable alternative provision.
  • Pay A £600 in recognition of the distress caused to her by failing to provide X with provision and for failing to consider her complaint under the complaints process.
  • Urgently put in place alternative provision for X until it can provide a suitable school place in accordance with his EHCP.

Southend has also agreed that, within twelve weeks, it will remind relevant staff of their duties under the Children Act 1996 to provide alternative provision when a child is out of school.

The Ombudsman said the council should consider sharing a copy of its focus report ‘Out of school…. Out of mind?’ and its final decision with the reminder. Relevant staff should include, but not be limited to: SENDIASS; the Council education legal intervention team; and the resolution team within the education and skills directorate.

Adam Carey

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