Summary: Mr C complained his daughter, D, had been without appropriate education since December 2014. There is evidence of Council fault from October to November 2017 and the Council has been asked to consider approaching D’s specialists to identify what education and support it should now put in place.

The complaint

1. The complainant, whom I shall call Mr C, says the Council has failed to provide his daughter (D) with appropriate full-time education since she has had periods of ill health and been out of school from December 2014.

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What I have investigated

2. I am looking at the complaint from September 2017. I explain why I have not considered the rest of the time period complained of at the end of this statement.
3. Although we would normally ask the Council to investigate first, I have exercised discretion to look at the complaint up until December 2018 given D is expected to sit GCSEs in June 2019 (and wishes to proceed into education post-16). Mr C suggests she is not being provided with sufficient education to enable her to achieve her potential.

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The Ombudsman’s role and powers

4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) Further, we have no jurisdiction to investigate any actions from the date each SEND appeal right arises (i.e. from the date a letter is received from the Council setting out appeal rights) until that appeal is completed. This applies even where a tribunal is adjourned. All of the period covered by a tribunal, including any adjournments is outside our jurisdiction.
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. 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.
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

10. I spoke to Mr C on the telephone and considered the information he submitted with his complaint and subsequent to my enquiries. I made enquiries of the Council and assessed its response. I accessed relevant law and guidance to inform the analysis. I sent Mr C and the Council copies of draft decisions and took their comments into account before issuing a decision.

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What I found

11. D suffers from migraines every day, which vary in severity. When I spoke to Mr C, at the start of my investigation, he told me that D goes through phases where she cannot get out of bed at all so cannot access any education. Most of the time, however, he felt she could only access school by 3.00 or 3.30pm for a couple of hours, which would be once school lessons were over. D’s condition is not constant (for example, she has previously been in school for at least part of a half term).

What the law says

12. Section 19 of the Education Act 1996 says: ‘Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness…may not for any period receive suitable education unless such arrangements are made for them’. The Council has accepted a Section 19 duty to D.
13. The statutory guidance called ‘Ensuring a good education for children who cannot attend school because of health needs’ from January 2013, builds on this. Part of the summary says; ‘There will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the Local Authority (LA) – for example, where the child can still attend school with some support (or) where the school has made arrangements to deliver suitable education outside of school for the child. We would not expect the LA to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently’.
14. The guidance acknowledges full time education might not be appropriate for all children. Councils are told they should ensure that children receive ‘as much education as (their) health condition allows for’.
15. Children, with educational and health needs, often have an Education, Health and Care Plan (EHCP), which is a legal document that sets out what support they need in school. EHCPs consider the views of the parents and the child and include advice from medical practitioners and education specialists about the way education would need to be delivered. If the Council rejects a request for a child to have an EHCP, this is appealable to SEND.

D’s education for the academic year starting September 2017

16. Given the history to the case, which I am not specifically considering here, the Council was aware that D’s attendance was not continuous and had not been since D was in Year 7. The Council told me the school had previously sought to issue a Penalty Notice for non-attendance.
17. The relevant medical advice for September 2017 is partly contained in a specialist’s letter dated 6 April 2017. This said D was ‘medically unfit to attend normal lessons in school. She needs flexible support to be available if she develops a headache. She may need reduced or flexible hours of attendance, access to a dark room and to be allowed to go home if the pain is particularly severe. I understand that this is disruptive to the regular education in the school setting but I do feel that she is particularly disabled by her headaches and (this) warrants the inputting of teaching support to minimise the impact on her studies and to reduce her anxiety about attending’.
18. A later piece of advice from the Child and Adolescent Mental Health Service (CAMHS) received by the Council in October 2017 said D ‘has reported positive experience of returning to school on (a) full timetable and having had no problems in adjusting. She is returning to her peer group and social support and she reported improved confidence and much less social anxiety’. Because D had been attending school, the school (and the Council) would have expected her to make a full return in September.
19. As a result of the April 2017 advice, D’s school had offered D a reduced timetable (for afternoons), an exit card, a quiet and dark room to work in and appointments with the school counsellor to address her anxiety (although the school counsellor was not seeing D at the time). The information from the consultant does not say, explicitly, that education outside school would be appropriate but it acknowledges D was ‘medically unfit to attend normal lessons’. Mr C points out that, at certain times, D was not regularly attending school at all. Therefore, although adjustments had been made by the school, once she stopped attending, D was unable to not take advantage of them. Mr C also says these arrangements had been in place some time prior to April 2017 although clearly it was still felt appropriate by professionals.
20. D did initially start back at school in September 2017. Schools are meant to alert the Council if a child’s absence will be (cumulatively) 15 days in accordance with the 2013 statutory guidance ‘Ensuring a good education for children who cannot attend school due to health needs’. D’s absence from September to October 2017 was 11 days; it is not fault the Council did not take action to resolve problems at that point. The school told the Council it served a penalty notice on the family on 17 October 2017 for unauthorised absence although the family did not receive it. I consider, on the balance of probabilities, this was when the Council became aware of D missing school.
21. As the Council was already aware of D’s attendance issues historically, it had a duty to consider putting in place alternative provision once it knew in the middle of October that D was now not attending school regularly. Although the Council says it did not have up to date medical evidence to support D’s declining attendance, nevertheless, it discussed D with the school, and provided educational psychology advice in November 2017. I consider it was appropriate for it to think about whether it could provide more educational support for D from October.
22. I cannot say what other provision might have been appropriate, or how much the Council could have provided from 17 October until approximately a month later when the Council gave Mr C appeal rights to SEND. I consider Mr C is caused uncertainty and distress because of this. The Council should make a payment of £200 for D for missed provision and a payment of £100 for distress for Mr C. As D could not attend school, on the balance of probabilities, she would not have been able to benefit from full time education over this time.

Education, Health and Care Plan

23. From July 2017, Mr C had been trying to achieve an EHCP for D and had written to the Council, through his solicitors, asking them to begin an assessment. The Council began its assessment in October 2017. It concluded an EHCP was unnecessary in November 2017. A mediation meeting was held but Mr C remained dissatisfied and pursued a SEND tribunal hearing. Mr C subsequently withdrew from the tribunal process on the day of the hearing. The judge issued a Withdrawal Order in July 2018.
24. Mr C said he withdrew from the tribunal process as the Council said it would put online tutoring in place as well as 1:1 education. He told me the judge suggested it might be a good idea to see how this arrangement worked in practice. Going to a tribunal and finalising the EHCP, however, would have formalised the education necessary for D and given a baseline for support, including post-16 support, for D. Although the judge may have suggested that Mr C should withdraw, it was Mr C’s decision to do so.
25. I have no jurisdiction to consider the period from when Mr C was able to appeal (i.e. from November 2017) to the date of the order in July 2018. If Mr C disagreed with the provision offered, after he had withdrawn from the tribunal, he could have re-approached the tribunal and explained the circumstances. Mr C says that might have taken a long time but this was the route to pursue if Mr C thought the provision was inappropriate.
26. Mr C said he did think it might be appropriate for D to have an EHCP. It is over a year since he asked for an assessment by the Council. He can now ask again and receive tribunal rights if the Council either does not assess D or if it says an EHCP is unnecessary.

D’s education for the academic year starting September 2018

27. On 9 August 2018, D’s specialist noted: ‘Currently the arrangements in place are 2 days a week (D) goes into school and 3 days a week she goes to an education support centre for an hour and a half. She may have on-line tutoring too’. The specialist did not express any concern about this arrangement in the letter. There is no evidence the specialist wrote to the Council with any specific requirements for managing D’s educational needs.
28. On 28 September 2018, an update meeting was held to consider D’s education. It confirmed she was receiving 7.5 hours of teaching from the Council’s integrated services for education support (ESMA) in the form of small group teaching, 5 hours from an online tutor service and lessons at school that D said she was happy to try to attend. This was education totalling from around twelve and a half hours (without going to timetabled lessons) to fourteen hours (including timetabled lessons) each week. This is in line with what Mr C said he originally wanted from an EHCP. There is no evidence of Council fault.
29. Although the online sessions were not with qualified teachers, they were primarily to address skills necessary to succeed in the subject (according to a tutor report I have had access to). I accept Mr C believes D would have made more progress by having qualified teachers for these subjects but the flexibility of the provision, on the balance of probabilities, outweighs that. Given D had fluctuating needs (where sometimes she could not access any education at all) the online provision would be most responsive; this is acknowledged in statutory guidance. Mr C commented that the sessions could not be changed quickly if D happened not to be able to attend on one occasion. Nevertheless, given she appears to have preferred to work in the evenings, when her migraines receded, sessions could be scheduled then. Further, D had access to qualified teachers at school, as she was asked to complete work and submit it for marking and could have asked for more support. D was able to ask for advice and guidance in the update meetings if she had any concerns, too. As I said earlier, Mr C could have returned to SEND. Mr C says the education offered over this time was not ‘suitable’ or ‘flexible’ but I disagree. It was in line with what he had wanted as an outcome to the SEND tribunal process and it was able to be delivered, flexibly, up to 10pm at night.
30. The Council told me in its response to enquiries that the examination board had agreed D’s GCSE exams could take place at a later start time of 13:30 in a light adjustable room. This is not a decision that could be influenced by the school or the Council. It was appropriate for the school and Council to provide support for D to be able to get into school for the afternoons.
31. At the September update meeting, D identified she wanted to go on to do A levels post-16 and said she was ‘hoping she will be able to attend all her exams at the scheduled times alongside her peers’ as well as her mock exams. This shows the school’s and Council’s emphasis on supporting D to attend in the afternoons is not fault.
32. Unfortunately, D could not attend any mock exams in November 2018 and, since October 2018, had accessed no online learning or school support. The Council says she did not return any work for the school to mark over this period although she had accessed four ESMA sessions (it is not clear if these were 1:1 or group lessons). The online tutoring is flexible, up to 10pm, but D was not attending; the Council said it did not want to put in place tuition too late in the evening because it might make D more fatigued and less able to attend in the afternoons. It had good reason to say this given when the GCSE exams were timetabled and because D had said this was what she was aiming for. Mr C was paying privately for out of school education that D could access in the evenings but it would need a specialist to decide whether this was the best option for D or whether it was having a negative impact on her ability to attend other scheduled classes. This was not mentioned in the September or November 2018 update meetings so no professionals had an opportunity to say whether they felt this was positive for D at this point. As there is no evidence of Council agreement before D accessed these courses; I have no grounds to ask the Council to pay for them now.
33. The update meetings suggest D was benefitting from the amount of education she could access at the time. On some occasions, she appears to have been unable to benefit from any education. In November, the minutes say ‘from education (parents) feel no more support is needed as when D is able to attend her ESMA programme she is fine and that at present is it just getting her to these lessons, which is proving difficult’. The focus needed to be on D and helping her to re-engage. The update meeting on 14 December said that D had not accessed ESMA classes since October. She had returned no work to school or ESMA to mark. It was agreed ESMA would offer some 1:1 lessons the following week to try to help her return to her programme of study. Because there is no evidence, from the update meetings, that more 1:1 support would be beneficial (until December) I have no grounds to say D could be accessing more education than she was at the time.
34. The Ombudsman cannot say what support is appropriate for a child. The significant fluctuation of D’s needs (to the extent that at times, over the matters complained of, she was at school and at others unable to access any education at all) made it extremely difficult for the Council to have been able to provide more support. The extent of and timing for education for D, needs specialist medical and educational input. The Council should consider asking D’s specialists what education D would benefit from and when it should best be timetabled with the aim of supporting D to attend in the afternoons so she can sit her GCSE exams (and, later, A levels, which could be timetabled at around the same time, if that is the route she wishes to pursue). D is competent to say what support she wants or does not want. Her views need to be given weight even if she disagrees with professionals. Nevertheless, getting professional views at this stage seems imperative given the need for post-16 support to be put in place.

Agreed action

35. For the Council to make a payment of £200 for missed education for D and £100 for distress for Mr C for the education missed between September and November 2017. It should do this within a month of the date of my decision.
36. For the Council to consider approaching D’s specialists to ask for specific advice and guidance about how her education should be structured going forward. This could input to (or professionals could be invited to attend) Update Meetings. The Council should tell me what action it intends to take within two months of the date of my decision.

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Final decision

37. Subject to further comments by Mr C and the Council, I intend to find evidence of fault. Action has been recommended to resolve this fault.

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Parts of the complaint that I did not investigate

38. I have not exercised discretion to look at the historical aspects of this complaint from 2014. I have considered the complaint from September 2017; just over a year before Mr C came to us. I was not persuaded by Mr C’s arguments that he could not have come to us earlier. He was also legally represented over some, if not all, of this time so could have taken advice as to how to pursue complaints further. The time considered ends in December 2018.

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Investigator's decision on behalf of the Ombudsman