A council has paid out nearly £1,000 to the mother of a child with special needs after an Ombudsman ruled it had delayed fulfilling its statutory duty of providing alternative education provision.
The mother, ‘Ms D’, complained that Trafford council failed to provide her son, E, with full-time education when he stopped attending school.
The Local Government and Social Care Ombudsman said the council’s failures caused Ms D ‘distress, frustration and upset’ and had a ‘detrimental impact’ on E and the wider family.
Their report underlines that local authorities have a duty under the Education Act 1996 to make arrangements for the provision of suitable education for children who, because of illness or other reasons, cannot attend school.
It said that E has special needs and has an Education and Health Care Plan (EHCP). He began attending school ‘less regularly’ in the autumn term of 2022 because of his anxiety. It was his last year of primary school.
Ms D contacted the council in November to say E was struggling to attend school and that she was working part-time hours.
The council arranged an annual review of his EHCP in December with the school saying E was suffering from high levels of anxiety.
Ms D emailed the school in February 2023 to say E’s anxiety was getting worse.
The council issued E’s final plan and named two schools – the primary school he was attending and then a secondary school from September onwards.
Ms D continued to raise concerns about E’s attendance at school and the council said it needed to hold an emergency annual review so the school could show it could not meet E’s needs before it made a referral for medical provision.
The mother sent the council a formal complaint in early March about its failure to provide E with alternative provision. Ms D’s MP also contacted the council about the situation.
The council officer who had been dealing with E’s case emailed Ms D at the beginning of April, saying she had been away from work for a few weeks.
She said she had received supporting documentation from the school and would make a referral to the council’s medical education service for E to receive alternative provision.
The council responded to Ms D’s MP, saying it had been in regular communication with the school about E’s attendance. It said the school had put strategies in place and some online support, but that they were ‘no longer working’.
E began receiving four hours per week of home tuition in May. The council said it would review the matter after a few weeks to increase this to 10 hours a week. E also attended online sessions at his school and some induction sessions at his new secondary school. He started secondary school in September.
The Ombudsman said that by February 2023, it was clear the school’s strategies were not working. E was only attending school for a few hours a week and he received limited online support.
“The council should have considered its duties under the Education Act,” they said. “The council told Ms D it had to hold an annual review before it could make a referral for medical provision.
“The law does not state councils must hold an annual review before they can provide alternative provision. The council did eventually make a referral, but there was delay in doing so.
“This meant that E did not receive any home tuition until May. The council’s delay caused Ms D distress, frustration and upset. It also caused Ms D a significant injustice as he did not have access to the education he was entitled to. Children have a right to an effective education and time they miss is difficult to replace later.”
Ms D said when the council eventually intervened, it only provided E with a part-time education.
The Ombudsman said: “The Education Act says education provided by a council must be full-time unless they determine it would not be in the child’s best interests.”
They said they had read a copy of the report from D’s home tuition provider. It said that E struggled to process lengthy instructions and needed regular breaks.
“This evidence shows it is unlikely E could have coped with a full-time education and therefore I do not consider the council was at fault for providing him with a part-time education,” they added.
The Ombudsman ordered the council to apologise to Ms D and pay her £150 for the frustration, distress and upset, in addition to £700 to remedy E’s missed education from February to May 2023.
By April 23 2024, the council has agreed to write to relevant members of staff to ensure they are aware of their duties to arrange alternative provision for children who are unable to attend school as quickly as possible with ‘minimal delay’.
A spokesperson for Trafford Council said: “The council has apologised to Ms D for the frustration and upset caused by the delay to arranging alternative provision for her child, and has put measures in place to ensure that delays of this nature are avoided in the future.
"We are pleased that the Ombudsman agreed with the council's assessment that full time alternative provision would not have been appropriate for this child at this time.”
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