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Walsall Metropolitan Borough Council (19 015 983)

Category : Children's care services > Other

Decision : Upheld

Decision date : 29 Apr 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complain that the Council failed to provide support when their daughter Y could not attend school due to anxiety and failed to provide education while she was out of school. The Council is at fault as it had an unbalanced focus on Mrs X, its early help team delayed in contacting her, delayed in carrying out a needs assessment for Y’s EHC plan, failed to ensure the provision in Y’s EHC plan was delivered, failed to carry out an interim review of the EHC plan and failed to provide education to Y for 18 months. This meant Y missed the opportunity to gradually increase her tolerance to education which will have disadvantaged her. The faults also caused distress and avoidable time and trouble to Mr and Mrs X. The Council has agreed to remedy the injustice to Mr and Mrs X and Y.

The complaint

  1. Mr and Mrs X complain:
      1. The Early Help Team did not provide an impartial service, accepted the views of the school and misrepresented Mrs X’s character. Mr and Mrs X consider this was detrimental to their daughter Y as the Council focussed on Mrs X rather than on Y’s needs so her needs were not recognised or met.
  2. Mr and Mrs X also complain that the Council:
      1. Failed to provide early help support between April to October 2017 when Y was struggling to attend school due to severe anxiety.
      2. Failed to provide home tuition between November 2017 and April 2018. Mr and Mrs X consider the Council should have provided home tuition for Y in accordance with the statutory guidance on ensuring a good education for children who cannot attend school because of health needs.
      3. Failed to provide a robust transition plan to support Y with moving from primary to secondary school. As a result the transition failed and Y has been out of school since September 2018.
      4. Failed to ensure Y received sufficient home education between September 2018 and January 2019.

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What I have investigated

  1. I have investigated events from February 2017 to July 2019. I have not investigated how the Council reviewed Y’s Education, Health and Care Plan (EHC plan) in 2019 or the provision of education from September 2019 as Mrs X had not made a complaint to the Council about these matters at the time I commenced my investigation.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. However, we can investigate late complaints if there are good reasons to do so and we are satisfied we can carry out an effective investigation. I have exercised discretion to investigate events from January 2017 to July 2019 as I am satisfied Mrs X was unable to complain to us earlier due to the difficulties in managing Y’s anxiety and absence from school and she was not aware of comments about her in the Council’s records until 2019. Furthermore, the events from 2017 onwards are inextricably linked so I could not carry out a meaningful investigation of later events without considering the events of 2017/18.
  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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. 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)
  6. 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

  1. I have:
  • Considered the complaint and the information provided by Mrs X;
  • Discussed the issues with Mrs X;
  • Made enquiries of the Council and considered the information provided;
  • Interviewed a Council officer;
  • Invited Mr and Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Guidance and legislation

Early help

  1. The Government’s Guidance ‘Working together to safeguard children’ states early help is support given to a family when problems emerge at any point of a child’s life. It relies on agencies working together to provide targeted early help services to address the assessed needs of a child and their family which focuses on activity to improve the outcomes for the child. The lead professional in an early help plan should co-ordinate services from different agencies and ensure the child receives appropriate interventions when needed.

Education

  1. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide suitable education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
  2. The statutory guidance, ensuring a good education for children who cannot attend school because of health needs provides that local authorities must arrange suitable full time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive a suitable education. It also provides that local authorities should provide education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative.

Education, Health and Care Plan

  1. Councils are responsible for a child or young person if they are in the local authority’s area and identified by the authority or brought to the authority’s attention as someone who may have special educational needs.
  2. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. A parent, education provider or the young person can ask for an EHC needs assessment.
  3. The Special Educational Needs and Disability Code (the code) provides the Council must complete an EHC assessment and issue an EHC Plan within 20 weeks of receiving a request for an EHC needs assessment.
  4. Councils may hold an interim review of the EHC plan or carry out a reassessment and amend the existing plan if there are changes to a child’s or young person’s circumstances but where a full review or re-assessment is not necessary.

What happened

  1. Mr and Mrs X’s daughter Y was subject to a child in need plan to support Mr and Mrs X with managing Y’s anxiety and school attendance. Child and Adolescent Mental Health Services (CAMHS) assessed Y to determine if her difficulties were caused by autism spectrum disorder (ASD) and pathological demand avoidance (PDA). Y received a diagnosis of ASD with PDA in June 2017 and was due to transition from her primary to a secondary school in September 2018. Y suffers from high levels of anxiety and disrupted sleep.

Stepped down to Early Help

  1. In early 2017 the Council stepped Y down from child in need to early help. Y’s school attendance had improved at this time. The Council drew up an early help plan. The outcomes included Y to continue to be encouraged to attend school and for review meetings to be held as required. It was intended that a member of staff at Y’s school to be the lead professional for the family. The school subsequently asked the Council to allocate another lead professional. The Council’s records show the school made the request as it considered the school’s relationship with Mr and Mrs X had broken down. The school also felt Mrs X was not engaging with the school as she considered it was not supportive or the appropriate school for Y.
  2. The Council’s locality panel considered the request in March 2017. The record of the meeting sets out the panel’s discussion and notes the panel’s discussion. This included the panel’s view that Mrs X was contributing to Y’s anxieties, may have mental health issues of her own and was possibly suffering from fabricated illness. The panel agreed for officer 1, early help support, to take the role of lead professional.
  3. The Council’s records show officer 1 tried unsuccessfully to contact Mrs X in April 2017 ahead of an early help review. She also contacted the school. The record of officer 1’s call note the school considered Mrs X was a barrier to working with Y and had a negative attitude towards the school.
  4. Officer 1 attended an early help review with Mrs X and the school. The Council’s records note the purpose of the review was to provide officer 1 with a history of the family, the interventions put in place and to meet Mr and Mrs X.
  5. Officer 1 arranged to visit Mrs X at home in May 2017. However, the Council cancelled this visit and an early help review as officer 1 was on sick leave. The Council’s records note Mrs X contacted the Council in mid May 2017 as she considered she’d not had much contact with officer 1 and was seeking some direction. Mrs X agreed to wait for officer 1 to return.
  6. Mrs X called the Council in June 2017. The record of the call notes Mrs X considered Y needed a EHC plan as she was struggling to cope in school. Officer 1 said they could discuss this and look at ways the school could start the plan. Officer 1 visited Mrs X in June 2017 and held an early help review with Mrs X and the school later that month. The record of the review noted the support put in place by the school. It also noted Y still suffered from high anxiety when going to school and the school would support her with a EHC plan for her transition to secondary school.
  7. The Council also held a supervision meeting with the school to review the previous actions and progress.
  8. The Council’s records show Mrs X telephoned in early October 2017. The record of the call notes Mrs X felt let down by a lack of support from officer 1. The Council agreed to reallocate Y to officer 2, early help support. The record of the call also notes the Council considered the school should have started the application for a EHC plan but there is no evidence the Council chased progress with the school.
  9. Officer 2 contacted Mrs X in early October 2017, carried out a home visit and an early help review which considered the support put in place for Y by the school. The review noted concerns about Y’s anxiety and that the school would apply for a EHC plan for Y.

November 2017 to September 2018

  1. In early November 2017 Y stopped attending school. The Council held an early help review on 8 November 2017. The review did not refer to Y being out of school or any strategies to support her return. The review noted the school needed to apply for the EHC plan. The school submitted the request for a statutory assessment of Y for an EHC plan on 22 November 2017.
  2. A professionals meeting was held in November 2017 which Mrs X attended. CAMHS sent a to Mrs X which outlined the discussion. The meeting reviewed the strategies in place at the school to manage Y’s anxiety. It notes Mrs X was concerned about Y’s non-attendance and it was suggested an attendance officer contact her to discuss the implications. I understand the Council’s attendance service later decided not to take any action as Y could not attend due to medical reasons.
  3. Officer 2 contacted Mrs X and the school to discuss the issues and support in school for Y. Mrs X considered Y was not managing in the school. A record on 29 November 2017 notes officer 2 contacted Mrs X to ask which school she would like to transition for Y to access home tutoring. Officer 2 also asked Mrs X to provide a GP letter for medical reasons why Y was off school. As I understand it no home tuition was provided. A record of officer 2’s visit to Mrs X in January 2018 notes the school had sent revision work for Y but she had been unable to complete it. The Council’s records show Mrs X told officer 2 in February 2018 that Y could manage some work at home. No work was provided.
  4. Between January and March 2018 officer 2 liaised with Mrs X, the school and CAMHS and held an early help review to consider support for Y returning to education. This included an early transition to secondary school which was found not to be possible due to funding issues. The records note Y was suffering with significant anxiety, was taking medication and could not attend school.
  5. In late March 2018 the Council agreed to fund a youth worker for one to one support for Y. I understand this was not education provision. The funding was up to a maximum of £1800. The youth worker started working with Y in April 2018.
  6. The Council issued Y’s final EHC plan on 23 May 2018. This was six weeks longer than the 20 weeks limit provided by the code. The EHC plan named a secondary school.
  7. Officer 2 also contacted the Children’s Disabilities Team for advice. The team advised Y would not meet the criteria for its service as she was high functioning and her EHC plan did not identify social care needs. The team noted a number of professionals were involved with Y and Mrs X was proactive.
  8. The Council held further early help reviews in April and June 2018. It was agreed Y would transition to secondary school. The Council subsequently agreed to extend the funding for the youth worker to support Y when she transitioned to secondary school due to officer 2 and the head teacher’s concerns the placement could break down without that support.
  9. Prior to Y starting secondary school, officer 2 delivered training to the staff on PDA to ensure they were aware of Y’s conditions and could put strategies in place. In September 2018 Y started secondary school on a gradual basis and with support from the youth worker. Mrs X has said the transition was too quick which caused Y significant anxiety.

October 2018 to July 2019

  1. In October 2018 Mrs X contacted officer 2 to advise she was struggling to get Y to attend school. Mrs X had contacted CAMHS and she and the youth worker discussed the issues with the school. She was concerned the school did not understand Y’s needs. Mr and Mrs X continued to take Y to school but she could not consistently attend school due to her anxiety.
  2. The Council’s locality panel considered Y’s case in October 2018. The record of the meeting notes its concern about Mrs X mental health and that she did not have a good support network. The record also notes the school should support Y with home education. The panel decided to refer Y to multi agency safeguarding hub (MASH) to step up the case to children’s disability team.
  3. The Council’s records show Mrs X sent an email to the school in mid December 2018 raising a number of issues about Y’s anxiety and disrupted sleep pattern and seeking advice on Y accessing education. Officer 2 had telephone contact with Mrs X but there is no evidence her concerns about Y’s access to education were addressed. Miss X also raised concerns that aspects of Y’s EHC plan had not been delivered and she requested a review of the sections B and F EHC plan. In response to my enquiries the Council has said it was not aware of Mrs X’s request for a review and there is no evidence she followed it up. Mrs X has provided emails showing the disability team raised the need for an annual review in March 2019.
  4. Y’s case was transferred to the disability team who carried out a child and family assessment in February 2019. The assessment recommended Y be placed on an intensive child in need plan
  5. Y has not regularly attended school since October 2018. From September 2019 the secondary school provided six and half hours per week of home tuition.

Complaint

  1. In January 2019 Mr and Mrs X made a complaint to the Council. They raised a number of issues including that the family had been misrepresented at the locality panel and to CAMHS and that the Council had not provided home tuition for Y. They requested inaccurate data rectification. The Council did not uphold their complaint. Mr and Mrs X then escalated their complaint. In doing so, they raised a number of further issues including that the early help service did not provide an impartial service as it accepted the negative view of the primary school of Mrs X. The Council acknowledged the discussions had, at times, an unbalanced focus on Mrs X. The Council agreed to send a letter, to be approved by Mrs X, to the locality panel to correct this. The Council has said Mrs X has not approved the letter as yet. The locality panels are no longer in existence but the Council is willing to add a note to Y’s files to correct the in balance if Mrs X requires.
  2. Mrs X considers the unbalanced focus on her caused the Council to overlook Y’s needs. She also considers a lack of support from early help in 2017 directly contributed to Y being unable to attend school and access a full time education from 2017 onwards as the support offered by the school did not meet Y’s needs which caused significant anxiety to Y. Mrs X also considers the Council has failed to provide education to Y since she could not attend school in November 2017.
  3. In response to my enquiries, the Council has said:
  • The unbalanced focus was not to the detriment of recognising or supporting Y’s needs. Early help is a family led service and Mrs X was involved in all the reviews of Y’s Early Help plan. Mrs X attended the reviews and did not object to the support or suggest other interventions. The Council has since adopted a different way of working, the locality panels no longer exist and all parties, including the family, meet to review the early help plan
  • It acknowledges there was some delay in Early Help contacting Mrs X at times during 2017 and asking all parties for updates due to lack of resources. However, the Council does not consider the delays resulted in a lack of support for Y. Early help is a multi agency response so the school was supporting Y at the time.
  • Y’s EHC plan informed the direction of the transition plan for Y to move between primary and secondary school. It was the schools’ responsibility to draw up the transition plans and implement them.
  • Home tutoring may have been considered but it was not appropriate for Y as her anxieties revolved around education as well as the school setting. Y’s secondary school has been carrying out safe and well checks but these are not education based.

Analysis

Focus on Mrs X

  1. The Council has acknowledged that its discussion had, at times, an unbalanced focus on Mrs X. Having considered the Council’s records, I agree this is the case. The Council appears to have accepted the school’s views of Mrs X and concluded there were concerns about Mrs X’s mental health, possible fabricated illness and Mrs X contributing to Y’s anxiety without any evidence to support this position. The Council’s own social care records of June 2016 state there is no evidence of fabricated illness so it is questionable why the Council continued to refer to this.
  2. The Council has also acknowledged there was delay at times by the Early Help team in contacting Mrs X and the school for updates between April and October 2017.
  3. Mrs X considers the unbalanced focus on her and the delays by the Early Help team caused the Council to overlook Y’s needs and fail to recognise the cause of her anxiety. I consider these faults will have contributed to Mrs X’s view that Early Help was not impartial and not supporting her. It will have also caused distress to her which the Council should remedy.
  4. The evidence shows the Council was aware of Y’s anxiety and held a number of Early Help reviews during 2017 to review the Y’s needs and the support provided by the school. There is no evidence in the Council’s records, including the Early Help reviews, to show Mrs X raised concerns about the support in place for Y. So, on balance, I cannot conclude the unbalanced focus on Mrs X and the delays between April and October 2017 caused a lack of support for Y.
  5. In response to my draft decision Mrs X has said she considers the unbalanced focus and delays caused Early Help to miss opportunities to support Y. In particular she considers Early Help:
  • Failed to follow recommendations of an educational psychologist;
  • Failed to carry out a health assessment for Y;
  • Failed to note Y was attending school but spent the majority of the time outside the classroom environment;
  • Failed to record a My Star completed by Y and the school in June 2017 so were not aware of her views;
  • Failed to engage with the school when it raised concerns about Y’s attendance.
  1. I do not consider further investigation of these points will establish, on balance, that the imbalanced focus and delays caused a lack of support for Y, particularly so long after the events. As explained above, the Council was aware of Y’s anxiety and the school was providing support which was reviewed by the Council.

EHC plan and transition plan

  1. My investigation has shown there were delays in assessing Y for an EHC plan. The Council’s records show Mrs X first requested a EHC plan in June 2017. It is not clear why the Council did not start the assessment process at this time. The Council would have to consult the school as part of the assessment but it did not need to wait for the school to trigger the assessment process. Had the Council started the assessment process in June 2017 it would have avoided a delay of four months in starting that process. This is fault.
  2. The school did not make the application until November 2017. The Council’s records show that in October 2017 it considered the school was delaying in starting the EHC plan process but it did not chase the school to encourage the request for the statutory assessment. I find the Council let matters drift and this is fault.
  3. The SEND code provides the Council must issue a EHC plan within 20 weeks of a request for an assessment. The Council took 26 weeks. This is fault. These delays will have caused uncertainty and frustration to Mrs X as Y’s final EHC plan should have been in place sooner.
  4. The Council has an overall duty to ensure the provision set out in a EHC plan is delivered. Section F of the EHC plan provided Y should have a gradual increase in exposure to educational materials in the home for the remainder of the academic year which was July 2018. There is no evidence Y received this provision and this is fault. On balance, I consider the failure to make this provision before Y transitioned to secondary school could have undermined the transition plan but I cannot say this alone caused the transition to fail.
  5. Mrs X considers the transition plan for Y’s transition to secondary school was inadequate and Y did not receive the provision in section F of the EHC plan. Section F of the EHC plan sets out the transition plan for Y. It was open to Mrs X to have appealed to the SEND Tribunal if she disagreed with the provision set out at Section F.
  6. The detailed transition plan made by the secondary school is outside our jurisdiction as that was a matter for the school. But the Council has an overall duty to ensure the provision set out in section F was delivered. The Council’s records show it was aware Y had stopped attending the secondary school in October 2018 and the provision in section F was not working as intended. It would also have been aware Y could not be receiving the provision. It should therefore have considered holding an interim review at this time. However, I cannot know what the outcome would have been if the Council had held an interim review at this time.
  7. Mrs X requested a review of sections B and F of Y’s EHC plan in an email to the secondary school in December 2018. The Council has a record of this email but did not refer it to the SEN team to consider if it should hold an interim review of Y’s EHC plan. This was another missed opportunity to review Y’s EHC plan and address Mrs X’s concerns. However, I cannot know if the Council would have amended Y’s plan and Mrs X did not pursue the review at that time.

Failure to provide education between November 2017 and April 2018 and September 2018 and January 2019.

  1. Councils have a statutory duty to provide suitable education to children who cannot attend school due to medical reasons. The statutory guidance provides councils should arrange suitable education as soon as it is clear the child will be away from school for 15 days or more.
  2. Y stopped attending school in early November 2017 due to severe anxiety. Once Y had been absent for a cumulative or consecutive 15 days, the Council should have considered if Y could not attend school due to medical reasons and whether it should provide suitable education. The Council was aware by 29 November 2017 that Y could not attend school due to her anxiety as officer 2 discussed home tuition with Mrs X. But there is no evidence to show the Council pursued home tuition or considered other suitable education for Y at this time or subsequently.
  3. The Council has said Y could not cope with any education as it contributed to her anxiety together with attending school. Correspondence between Mrs X and officer 2 in January 2018 show Y was struggling to complete work sent by her school but Mrs X later told the Council Y could manage some work. There is no evidence to show the Council gave any consideration to how it could meet its statutory duty to provide Y with education, including whether she could undertake some learning. The Council should have assessed what learning Y could manage, how this could be fitted in with her erratic sleep pattern and kept this under review. The Council’s focus was understandably on trying to support Y into school but the Council appears to have overlooked its duty to provide suitable education to Y while she was out of school from November 2017 to July 2018. This is fault.
  4. Similarly, the Council also appears to have overlooked its statutory duty to provide education to Y between October 2018 when she stopped regularly attending secondary school and July 2019. Again, the Council should have assessed what learning Y could tolerate and kept this under review. This is fault.
  5. Mrs X considers the Council’s failure to provide education between November 2017 and July 2018 and October 2018 and July 2019 contributed to Y not being able to attend full time education since this time. I cannot, on balance, conclude this to be the case given Y’s significant needs. I also cannot say Y would have been able to access full time education from November 2017 if that had been provided. Y’s EHC plan was about gradually building up her tolerance of education which evidences Y could not manage full time education. But the Council’s failure to provide education from November 2017 to July 2018 and October 2018 to July 2019 meant Y did not receive any education and missed the opportunity to increase her tolerance for learning for a period of 18 months which will have disadvantaged her. It also meant the provision set out in Y’s EHC plan for a gradual increase in exposure to educational materials was not delivered. The Council has agreed to remedy this injustice.
  6. The failure to provide education will have also caused distress to Mr and Mrs X which the Council has agreed to remedy.

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Agreed action

  1. That the Council will:
      1. Send a written apology to Mr and Mrs X for the distress, frustration and avoidable time and trouble caused by the Council’s unbalanced focus on Mrs X, the delays by the early help team in contacting Mrs X, the delays in starting a statutory assessment of Y for an EHC plan and delay in carrying out that assessment and issuing the final EHC plan, the failure to ensure the provision set out in the EHC plan was delivered, the failure to carry out an interim review of the EHC plan and the failure to provide education to Y for 18 months.
      2. Make a payment of £5400 to Y to acknowledge she did not receive education and missed the opportunity to increase her tolerance for learning for a period of 18 months which will have disadvantaged her. The payment of £300 per month reflects Y is unlikely to have been able to access full time education if it had been provided and is in accordance with our guidance on remedies.
      3. Make a payment of £1000 to Mr and Mrs X to acknowledge the distress, frustration and avoidable time and trouble caused to them by the faults outlined above. This payment is in accordance with our guidance on remedies.
      4. Place a note on the Council’s records to state it had an unbalanced focus on Mrs X, in particular with regards to its concerns about her mental health and fabricated illness.
      5. Review its EHC plan procedures to ensure:
            1. it does not place barriers in the way of parents/guardians requesting a needs assessment, such as requiring or unnecessarily inviting the school to request the assessment, to prevent the delays experienced by Mrs X from recurring.
            2. it considers carrying out an interim review of a EHC plan in the event of a change of circumstances, such as a child out of school, to ensure the provision still meets the child’s needs.
      6. Reviews its procedures to ensure the Council meets its responsibilities under the statutory guidance ‘ensuring a good education for children who cannot attend school because of health needs’ to arrange full time education (or as much education as a child’s health condition will allow) when it is clear a child will be out of school for more than 15 consecutive or cumulative days and ensures officers are aware of the Council’s responsibilities in this area.
  2. The Council should take the action at a) to d) within one month of my final decision. It should take the action at e) and f) within three months of my final decision and provide evidence to show how the Council has improved its practice in these areas.

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Final decision

  1. The Council is at fault as it had an unbalanced focus on Mrs X, its early help team delayed in contacting her, delayed in carrying out a needs assessment for Y’s EHC plan, failed to ensure the provision in Y’s EHC plan was delivered, failed to carry out an interim review of the EHC plan and failed to provide education to Y for 18 months. This meant Y missed the opportunity to gradually increase her tolerance to education which will have disadvantaged her. The faults also caused distress and avoidable time and trouble to Mr and Mrs X. The Council has agreed to remedy this injustice so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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