Norfolk County Council at fault for the second time as a school-aged boy was left without suitable education

Decision Date: 13th March 2020

What Happened

Ms X complained on behalf of her school-aged son, Y.

Previous investigation

This was the second time the LGO had been asked to investigate the support provided by the Council to Y. The previous decision (October 2018) decided that:

  • The Council failed to provide Y with a suitable education between November 2017 and July 2018. This impacted on the content of his Education, Health and Care (EHC) plan
  • The LGO recommended the Council pay the family £3,500 for the injustice caused, and a further £400 for the dyslexia report Ms X had had to commission herself.

Second investigation

Y had ‘emotional and behavioural difficulties which presented a significant barrier to progress with learning.’

In September 2018 Y began attending a new school (School A). However, by October he was struggling, and only attended school for 2 hours a day. He received 1:1 support from a teacher’s assistant.

The Council’s educational psychologist completed a report on 24 December 2018, which highlighted that Y “would benefit from placement in a relatively small setting that can offer a calm and consistent environment where teaching and other staff are experienced in supporting children who have the emotional and behavioural difficulties associated with a diagnosis of autistic spectrum disorder”

Ms X requested the Council look into another placement for Y. The Council identified School B, but on the 31st January 2019 it stated it could not meet Y’s needs.

An OT report was completed on 11th February which highlighted that Y was not attending school, as it was “not able to meet his needs”. Y’s GP also stated that it “felt [not attending] was probably for [Y’s] best interest”.

Ms X emailed the Council on the 14th February requesting support, and told them she was paying £30 an hour for Y to receive home tutoring. The Council replied the next day stating that they would respond to her request after half term.

Ms X had to chase the Council, until it contacted a third school, on the 25th March.

Eventually, on the 12th April the Council agreed to fund a home-based learning package for Y. This did not include any OT provision, as the Council said this was designed for a “school setting” and not home-based learning.

On the 25th April the Council contacted 7 schools to ask if they could meet Y’s needs, then in mid-May consulted with its OT to ask for suggestions of how support could be provided as part of the home-based learning package.

The OT originally told the Council Y would need to be reassessed, but then agreed that the previous recommendations could be delivered at home, on the 8th July.

The Council said it would be delivered by an “EPSS” OT, which needed to be agreed by its “Needs Assessment Panel”. The case was put to the panel on 11 September 2019.

The Council reviewed Y’s EHC plan on 28th June which found that Y remained enrolled with School A because he “is not able to access mainstream placement”. The review stated Y was receiving “a bespoke package of education funded by [the Council]” (we can only assume this was referencing the funding he received for his home based learning).

In September 2019 Y began attending one of the schools the Council had consulted on 25 April. The Council said it was also funding weekly sessions with an educational psychologist to help Y transition to the new setting.

The Council issued a new EHC plan for Y on 2 October 2019.

What was found

The LGO highlighted that the Council was aware of Y’s position with School A at the end of December 2018. The report from the Council’s educational psychologist said how he was struggling to manage, and even that he was at ‘high risk’ of exclusion. The LGO stated that there was “no evidence the Council considered the educational psychologist’s report or took action to prevent the breakdown of Y’s placement at School A.” This was fault.

Although the Council contacted School B in January, this was at the request of Ms X. After School B declined a placement for Y, the Council took no further action to secure alternative education provision for Y until the end of March 2019. This was fault.

The February OT report made it clear that School A could not meet Y’s needs, so the Council should have taken proper steps to secure alternative suitable education for Y. Failure to do this at the earliest opportunity was fault.

Furthermore, Ms X was paying for home tutoring out of her own pocket. The Council was aware of this but still failed to make alternative arrangements. This was also fault.

When the Council finally did make home arrangements for Y, it did not include provisions recommendations made by its OT. Then there was a further delay of almost two months in receiving advice from the OT on how those recommended strategies could be implemented at home. The delay in contacting the OT and delay in implementing their recommendations was fault. By the time the matter was passed to the panel Y was no longer receiving an education at home.

Finally, Y’s EHC plan should have been reassessed by early May 2019. However, the Council did not produce a final plan until October 2019. This was fault.

The LGO concluded that as a result of the faults identified, Y was without suitable education between 1st January 2019 and 12th April 2019, and Ms X should not have had to privately fund home tutors. Furthermore, the education provided between April and July was not suitable as it did not take account of recommendations made by the Council’s OT.

The LGO emphasised that it had already issued a report about the Council’s failure to provide Y with suitable education, and that it was concerned that the Council had “once again failed in its duties to provide Y with an education suitable to his needs”. It stated that it was “clear [the Council] needs to take further action to prevent other children and families being similarly affected”.

Recommended action

  • Reimburse Ms X for the cost of paying for education for Y between January 2019 and 12 April 2019 – this is a remedy called restitution, that can be sought in legal proceedings, please note. The LGO is merely following the law here, but in a new field.
  • Pay Ms X £1400 for the seven months Y was without a suitable education including provision recommended by the occupational therapist. This was towards the lower end of what we was usually recommended to reflect the fact that education was provided in this period,
  • Pay Ms X £250 for the distress and time and trouble she was caused pursuing the Council to provide her son with a suitable education.
  • Review its decision-making processes to make sure that it is able to respond quickly and flexibly to changing needs of children with Special Educational Needs.
  • Make sure that officers are able to put in any recommended provision without delay and, if necessary, before an EHC plan is finalised
  • Review internal communication and information sharing processes to make sure information is shared between teams and departments about children who may be out of education or where education being provided is not suitable or at risk of breaking down. If necessary, the Council should introduce a process where officers can highlight situations where a child is out of education or where a placement or education arrangement is at risk of breaking down.
  • The Council should provide its People and Communities Select Committee with regular updates on its performance for two full financial years in terms of the following:
    • number of children out of education;
    • average time for arranging alternative education provision for children who have been out of education;
    • average time taken to produce final EHC plans and EHC plan reviews compared with statutory timescales; and
    • number of upheld complaints about EHC plans and education provision from both the Council’s own complaints process and the LGO

Points for the Public, parents, advisers, etc.

The facts of this report were drawn from the pre-Covid period, during which the obligation to deliver on an SEN plan in an EHCP, was modified.

The LGSCO report effectively uses a principle called restitution to put a person back into the position they would have been in had a council not failed in its duties; it’s not damages for breach of statutory duty, but disgorging of money saved by a council, where a third party has spent money or delivered, other than as an informal contribution, what has not been organised by the council.

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The full Local Government Ombudsman report of Norfolk County Council’s actions can be found here