Summary: The Council delayed reaching a decision to not issue an Education, Health and Care plan for Mr and Mrs B’s son, failed to ensure he was receiving suitable education while he was absent from school and included inaccurate information in a safeguarding referral and social care assessment. When the Council investigated Mr and Mrs B’s complaint, it did not include all relevant information in its report which gave a misleading impression. The Council has agreed to apologise and make payments to Mr and Mrs B and their son, and to take action to prevent similar failings in future.

The complaint

1. Mr and Mrs B complain about the action the Council took when their son, J, was absent from school due to severe anxiety. In particular, they complain that the Council:
• delayed determining their application for an Education, Health and Care Plan for J;
• failed to provide J with full-time education when he was absent from school for medical reasons;
• made a safeguarding referral which included concerns about them which the Council knew to be false;
• made inaccurate and false statements in a social care assessment; and
• has information on its records which wrongly suggests they abused or neglected J and has shared this information with other professionals.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Overview

6. Mr and Mrs B’s son, J, is eleven years old. He has been diagnosed with Autism Spectrum Disorder with marked ‘demand avoidance’, Attention Deficit Disorder, Dyspraxia and Avoidant/Restricted Food Intake Disorder.
7. In February 2015, when J was nearly 6 years old, he stopped going to school. J’s GP wrote a letter stating that J was refusing to go to school due to extreme anxiety symptoms linked with autism spectrum disorder and demand avoidant behaviours. The letter stated that it was felt that it may be harmful to try to force J to attend school.
8. In March, the Council received a request for J to have an Education, Health and Care (EHC) needs assessment, which is the first step to getting an EHC plan. An EHC plan is for children with special educational needs and sets out their needs and what arrangements should be made to meet them.
9. The Council carried out the EHC assessment and in October, it decided that it would not issue an EHC plan. This was because the professionals who had made recommendations for J had not seen him or had only seen him for a few minutes.
10. On 12 October, Mr and Mrs B made a formal complaint about delays in the EHC process and the Council’s failure to provide any alternative education for J. In the Council’s response, it said that the school was responsible for ensuring J received appropriate education. The Council accepted that there had been delays in the EHC process and it should have provided its decision to not issue an EHC plan in writing.
11. After Mr and Mrs B received the Council’s decision in writing, they lodged an appeal with the Special Educational Needs and Disability (SEND) Tribunal.
12. A Child and Adolescent Psychiatrist saw J in October and decided that J should not return to school until a plan had been developed to gradually reintroduce him to education. The Psychiatrist then carried out a joint assessment with an Education Psychologist the following month. The joint report stated that “there was no identifiable benefit of any unnecessary further delay but that any student who has been out of the school system for some time will require a gradual re-introduction to the school environment and the demands of the school day, especially if anxiety is a major barrier to school success.”
13. At a meeting held on 15 December, it was agreed for a transition plan to be drawn up by the Council, the school and the hospital school and that everyone involved would work towards getting J back at school by the end of the half term following the Christmas break, which was 22 February 2016.
14. In early January 2016, Mr and Mrs B emailed the Council with various concerns, including inaccuracies within the meeting minutes, a home tutor having no knowledge of J’s diagnoses or schooling history and the Psychiatrist not turning up to meet J the previous day after agreeing to do so.
15. Mr and Mrs B said that they had taken J to school before Christmas to collect a gift and letters from the children but for various reasons, this had caused J great stress and anxiety and had ruined the family Christmas. They described changes in J’s behaviours that they were very concerned about.
16. Council officers then met with several professionals who had been involved with J and decided to make a safeguarding referral. The Council wrote to Mr and Mrs B explaining that they made the referral because they were concerned that parental issues may be impacting on J remaining out of school for nearly 12 months.
17. The Council recorded the referral under the category of abuse or neglect and decided that it met the threshold for a safeguarding assessment.
18. A child in need meeting was held on 11 February. It was agreed that J would begin attending school on 22 February, for weekly meetings to be held at the school until J was attending full time and for Mr and Mrs B to consider engaging with a family support worker.
19. J returned to school on 22 February 2016.
20. The social care assessment was completed in March. It provided the reasons for the referral, details of J’s needs and Mr and Mrs B’s parenting capacity, along with an analysis of concerns, risks and protective factors. It was decided that there was no role for Children’s Services.
21. Mr and Mrs B made a formal complaint to the Council in July 2017. They complained about several matters, including the way they had been treated, the EHC process, the decision to make the safeguarding referral and the content of the social care assessment. The complaint was considered at stage two of the statutory complaints procedure and in April 2018, the Investigating Officer issued her report. The Council did not uphold most of Mr and Mrs B’s complaints.
22. Mr and Mrs B asked to escalate their complaint to the third stage of the complaints procedure. However, they decided in January 2019 that they did not want to proceed to stage three because they did not consider it would be independent, fair or reflective of their complaints.

Analysis

EHC plan

23. The SEND Code of Practice says that the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks. If a council decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for an EHC needs assessment.
24. In this case, the Council received the request for an EHC needs assessment on 31 March 2015. It should have provided its decision in writing to Mr and Mrs B within 16 weeks, by 21 July. The Council told Mrs B verbally that a plan had not been agreed on 5 October. It then confirmed the decision during a meeting on 13 October and in writing on 26 October. After Mr and Mrs B told the Council they had not received the written decision, the Council emailed it to them on 25 November. The Council delayed making and issuing its decision; this was fault. The Council apologised for the delay in its response to Mr and Mrs B’s stage one complaint.
25. Mr and Mrs B were unable to lodge an appeal until they received the Council’s decision in writing. In May 2016, the SEND Tribunal dismissed their appeal. If there had been no delays by the Council, the appeals process would have ended sooner. I consider this delay caused Mr and Mrs B some distress.

Alternative education

26. Under section 19 of the Education Act 1996 local authorities have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
27. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
28. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
29. ‘Suitable’ education means efficient education which is suitable to the child's age, ability and aptitude and to any special educational needs he may have. The education to be arranged should be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable for reasons relating to the child's physical or mental health.
30. When J was first absent from school, the Council and school accepted that he was absent for medical reasons. The Council therefore had a duty to arrange for J to receive alternative suitable education.
31. The school made a referral to a hospital school which provides education on behalf of the Council for children who are not in school for medical reasons. However, the hospital school rejected the referral because it did not consider sufficient medical evidence had been provided. The school says it provided some work for J to complete at home, but Mr and Mrs B say this was not until November, after J had already been absent for around 9 months.
32. In November 2015, the school hospital accepted a third referral. It was agreed that initially it would provide 2 and a half hours of education per week to J in his home.
33. I consider the Council delayed taking action to ensure J was receiving a suitable education, either by ensuring the hospital school accepted the earlier referrals, or by checking that J's school was providing him with a suitable education. This was fault.
34. I have not seen evidence of the school providing J with work to complete at home before November 2015. The headteacher has stated that while work was sent home for J, she did not know if it had been completed. In the Council’s stage one response to Mr and Mrs B’s complaint, dated 26 October 2015, it said that J not receiving any educational provision since February was unacceptable. Apart from the period when the hospital school provided J with some education between November 2015 and January 2016, I consider the Council failed to make arrangements for J to be provided with suitable education. This was fault.

Safeguarding referral

35. Statutory guidance ‘Working Together to Safeguard Children’ says, "Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care and should do so immediately if there is a concern that the child is suffering significant harm or is likely to do so.”
36. The initial verbal referral was made by the headteacher of J's school. She mentioned professionals who had been involved in J's application for an EHC plan and absence from school and said that they had all agreed for her to make the referral on their behalf. A written referral was then made jointly by the headteacher and SEND Manager. The Ombudsman cannot investigate decisions made jointly with other professionals who we do not have jurisdiction to investigate, such as medical professionals and school headteachers. We are therefore unable to investigate the joint decision to make the referral.
37. The referral lists many concerns which Mr and Mrs B consider to be misleading, and some which they say the Council knew to be false. Mr and Mrs B believe that Children's Services would not have carried out an assessment if the referral had contained accurate information.
38. Most of the matters which Mr and Mrs B are disputing were clearly made by the school headteacher. As explained previously, the Ombudsman cannot investigate the headteacher’s actions. However, as a Council officer jointly made the referral, I have considered whether it contains anything which the officer would have known was not correct.
39. I do not consider it was accurate for the referral to say that Mr and Mrs B were refusing to engage in the process of J returning to school. At the time the referral was made, J’s absence was authorised, and the Council and schools had not yet drawn up a transition plan to gradually reintroduce J to education. I have seen no evidence which shows that Mr and Mrs B were refusing to engage in the process, as claimed in the referral. I consider the Council officer should have ensured this statement was corrected before the referral was submitted. However, I have considered the Council's thresholds guidance and I am satisfied that Children's Services would still have carried out the assessment if this had not been included in the referral.
40. Mr and Mrs B are particularly concerned that the referral states "we believe that we have evidence of emotional neglect/FII [fabricated or induced illness] due to lack of normal social interaction and access to education." I have seen nothing to suggest the SEND Manager would not have believed this to be an accurate representation of professional's concerns.

Social care assessment

41. When the Council receives a referral, it should decide on the next course of action within 24 hours. It should consider whether there are concerns about either the child's health and development, or actual and/or potential harm which justifies further enquiries, assessment and/or intervention. Where it is apparent that emergency action should be taken to safeguard a child, an immediate strategy discussion should be held.
42. The Council’s thresholds guidance shows that where a child is suspected of being subject to FII, the Council will generally follow the Child in Need process, not the immediate safeguarding process.
43. When the Council received the referral, it did not consider the threshold for a strategy discussion was met but decided that an assessment was necessary to explore the issues which had been raised. The records show that the social worker was advised to consider the need for FII procedures. I have found no evidence of fault in the process the Council followed when it received the referral.
44. The Council completed the assessment and provided a copy of it to Mr and Mrs B on 17 March. The next day, Mr and Mrs B told the social worker that it contained some errors. They said they would be in touch the following week and hoped that it could be changed. When Mr and Mrs B tried to make contact again with further details, they found out that the social worker had left the Council.
45. Mr and Mrs B wrote to the social worker’s line manager providing full details of their concerns about the assessment. They did not receive a response.
46. These matters were considered by the Investigating Officer at stage two of the complaints procedure. The Council apologised to Mr and Mrs B for not responding to their email to the social worker’s line manager. It also apologised for the fact that there were some omissions and factual errors in the information recorded in the social care assessment. It sent Mr and Mrs B a document indicating the areas in the assessment which the Investigating Officer had identified could have been better recorded. It proposed to append the document to J's file with a clear message that it should be read alongside the social care assessment.
47. The Investigating Officer did not comment on Mr and Mrs B not being given the opportunity to comment on the assessment before it was completed. The assessment form clearly shows that the parent’s views and analysis of the assessment should have been sought. The Council’s failure to obtain this information from Mr and Mrs B before the assessment was completed has caused them significant distress and put them to avoidable time and trouble pursuing the matter.
48. Mr and Mrs B also complained to the Council that the client category section of the assessment says 'C - Abuse or Neglect'. The Investigating Officer found that the ‘C’ stands for child, and so all referrals it received for children were category C. She was satisfied with the Council’s explanation that all referrals made to the team responsible for safeguarding and child in need assessments were categorised as abuse or neglect. I have considered the Council’s records and I am satisfied that the category was entered at the point the Council received the referral and is not the outcome. Taking into account the concerns raised in the referral, I do not consider it was categorised incorrectly. I have found no evidence of fault here.
49. Mr and Mrs B believe that anyone who reads the assessment may wrongly believe that it has the category of ‘C – Abuse or Neglect’ because the outcome of the assessment was that they had abused or neglected J. This was considered by the Investigating Officer at stage two of the complaints procedure. She spoke to a Social Care Manager who said that he understood why Mr and Mrs B were upset that the category of ‘abuse or neglect’ remained, especially as the case was closed relatively quickly. He considered there should be somewhere at the end of the assessment to revisit the category and perhaps amend it. The Investigating Officer recommended to the Council that it consider reviewing the assessment document to allow a change to the category.
50. The Council is not required to specifically state in the assessment whether any allegations of abuse or neglect are founded or substantiated. The assessment includes a summary and analysis of the concerns and concludes that no further social care involvement is necessary. I have found no evidence of fault here.

Complaint

51. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a review panel to consider the complaint at stage three of the process.
52. Mr and Mrs B consider the stage two investigation was inadequate and the report is misleading and does not give a balanced view. The appropriate route to consider these concerns would have been stage three of the complaints procedure. Mr and Mrs B decided not to progress the complaint to stage three because they believed it would not be independent, fair or reflective of their complaints. This was partly because the Council told Mr and Mrs B that the stage three panel would not be able to consider all the matters they raised. I do not consider the Council was wrong to decide that the panel should not consider any substantively new complaints or matters that were not subject to the statutory complaints procedure. However, I do not consider the Council should have refused to consider Mr and Mrs B’s complaints about the investigation report giving a misleading impression due to the omission of relevant information.
53. I have considered the stage two investigation report. In general, I consider the Investigating Officer carried out a thorough investigation. However, I found it failed to include some information which would have given a more balanced view of the issues. The report states several times that the letter provided by the GP was not a medical certificate as claimed by Mr and Mrs B. This implies the parents were wrong to keep J off school on the basis of this letter. The report does not make it clear that J’s absence from school was authorised on the basis of the letter.
54. The report also cited several professionals’ concerns about J still being out of school, despite him being ready to go back to school in November. This gave the misleading impression that J remained out of school between November and February solely because of Mr and Mrs B’s actions. However, the evidence shows that it was agreed for a transition plan to be drawn up before J returned to school, and one was not drafted until February. It was then agreed at a Child in Need meeting held on 11 February that J would return to school on 22 February, which he did.
55. I consider the report failed to include relevant information which resulted in a misleading impression of events. This was fault and caused Mr and Mrs B avoidable distress.

Agreed action

56. Within four weeks, the Council will:
• apologise to Mr and Mrs B for any failings identified in this case, for which it has not already apologised;
• make a payment of £400 to Mr and Mrs B to recognise the distress they suffered as a result of these failings, and the time and trouble they were put to pursuing their complaints; and
• make a payment of £1600 to J for his lost education. This money should be used for something which will benefit J’s education.
57. Within eight weeks, the Council will:
• issue guidance to its SEN team on the timescales for issuing decisions on EHC plans;
• review its processes to ensure it can meet these timescales;
• issue guidance to its Education Welfare team on the Council’s duty to arrange alternative education when a child is absent from school;
• remind its social care team that parent’s views of an assessment should be sought and included in assessments before they are completed;
• provide a copy of my final decision statement to the stage two Investigating Officer;
• append a document to the social care assessment detailing the errors and omissions which were identified at stage two of the complaints procedure;
• ensure that anyone reading the safeguarding referral, social care assessment or stage two investigation will be directed to also read Mr and Mrs B’s comments on them, as well as my final decision statement on their complaint.

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Final decision

58. I have completed my investigation and uphold Mr and Mrs B’s complaint. There was fault by the Council which caused injustice to Mr and Mrs B and J. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman