Summary: The complainant alleges that the Council has failed to provide suitable education to her son, who has extensive mental health and special needs, since he started secondary school. The Ombudsman has found fault by the Council. But he cannot assess the level of injustice to the complainant’s son until the newly agreed home tuition has had sufficient time to take effect. The Ombudsman will therefore close the complaint. But the Council and the complainant should report back to him, after four months, on the success of the home tuition. The Ombudsman will then assess the son’s injustice.

The complaint

1. The complainant, who I refer to as Ms X, says that the Council has failed to provide suitable and appropriate education to her son, Child B, since early 2016. Child B has special educational needs and has had an Education, Health and Care (EHC) Plan since attending primary school.
2. Child B is now in Year 10 at secondary school. Ms X says that, because of the Council’s alleged faults, Child B is undertaking Year 4 work. He currently is not attending the named school in his EHC Plan.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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. Normally the Ombudsman will not investigate complaints unless they were made to him within 12 months of when the complainant realised something had gone wrong. However, the Ombudsman has some discretion on this time limit.
5. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs.
6. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
7. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
8. 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)

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How I considered this complaint

9. I have spoken to the complainant on the telephone and I have received written comments from the Council and complainant.
10. Ms X has complained about matters since 2015 when Child B was in primary school. She has not complained to the Ombudsman within the required timescale. I decided to exercise discretion to look at Ms X’s events since September 2016 when arrangements were being made to place Child B at the special, secondary maintained school (referred to as School Y). This was because Ms X has her own difficulties.
11. However, during this period, Ms X had, in September 2018, a right of appeal to the SEND Tribunal and this has affected what the Ombudsman can consider.
12. I have issued two draft decision statements and have considered the Council and the complainant’s further comments when reaching my final decision.
13. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

Legal and administrative

Special educational needs

14. Councils and Clinical Commissioning Groups (CCGs) must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs. They must agree how they will work together to achieve this.
15. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.

Provision and Appeals

16. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan. Appeals must be made within two months of the disputed decision.

Annual reviews and reassessments

17. An EHC Plan sets out the child's educational needs and what arrangements there should be to meet them. The council is responsible for making sure that arrangements specified in the EHC Plan happen and are reviewed each year.
18. Councils normally oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 says reviews must be undertaken in partnership with the child and their parent.
19. Where the council is considering amending an EHC plan, following a review, it must send the child’s parent or the young person a copy of the EHC plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments. The review process should take 12 weeks to complete.
20. Parents can ask for a reassessment of their child’s needs where they have changed, or councils can recommend this. Councils have 15 days to decide whether to agree to the reassessment. If refused, parents can appeal to SEND Tribunal. If a council agrees to reassess, this must be completed within 14 weeks.

Children out of school because of medical needs

21. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
22. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that 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”. ,
23. The guidance also says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority 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.”
24. Further, the guidance says that the law does not specify the point during a child’s illness when it becomes the council’s responsibility to secure suitable education. But, generally, the guidance says that “councils should be ready to take responsibility for any child whose illness prevents them attending school for 15 days or more”.
25. In addition, the guidance requires councils to work closely with medical professionals.

Kent County Council’s procedures for pupils with medical needs

26. There is a Kent Health Needs Education Service (KHNES) for pupils with health needs who are unable to attend school. The Service is funded by Kent County Council. It is managed by a Management Committee on behalf of Kent County Council, which comprises of representatives from Kent County Council, community representatives and senior leaders of schools.
27. The purpose of KHNES is to provide educational support for pupils that are unable to attend their own school owing to health conditions. The primary need must be a health need. Recently the criteria specified that pupils must have an Individual Healthcare Plan (arranged by the school). Where there is a perceived mental health need, KHNES will consult its local Health Trust to ensure decisions about provision are appropriate

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What I found

Background events

28. Child B’s EHC Plan was issued in October 2015. He was supported to attend primary school. Ms X appealed against the school named on the EHC Plan.
29. The Council should have issued an amended final Plan by 15 February 2016 in preparation for Child B’s transfer to secondary school. The Council says it could not issue an amended Plan by this date because there was an ongoing Tribunal appeal.
30. However, in April 2016 the Council issued an amended EHC Plan and Ms X withdrew her appeal because she was content with the Plan. She says that the Council had also agreed to place Child B at a special school, School Y, in September 2016.
31. There was an Annual Review in June 2016 during which no significant amendments were identified. The Council failed to notify Ms X of this decision. It has apologised for this error.

Key events of this complaint

32. The Council says that it did not issue an amended Plan in September 2016, formally naming School Y as Child B’s secondary school placement. It should have done so because this denied Ms X her right of appeal to the Tribunal. However, it seems that the placement at School Y was not in doubt.
33. The Council says that it was unaware that Child B was not attending School Y until January 2017. However, it says that School Y was providing support to Child B and to Ms X during this period.
34. Ms X questions the Council’s assertion that it was only aware of Child B’s school absence in January 2017 because she was told by School Y that it was in contact with a Council officer about this. I asked the Council to check this with the officer. But the Council says that it has been unable to do so.
35. In October 2017, the Pastoral Manager from School Y advised the Council that Child B had now been diagnosed with Obsessive Compulsive Disorder (OCD). According to the National Health Service (NHS) England, OCD is a distressing illness and can significantly interfere with a person’s life.
36. The Council was told that Child B would be receiving expert help from a neighbouring Trust to treat his OCD, in addition to the support he received from his local Children and Adolescent Mental Health Service (CAMHS).
37. The Council says that it was decided that, for a short term, School Y would offer weekly support alongside the delivery of learning resources. The Council also recommended that School Y made a referral to its KHNES, which it did. The Council says that there was tuition provided by School Y between September 2017 and March 2018. Ms X disagrees that there was a structured learning programme at this stage. She says that a member of School Y’s pastoral team visited but little education was provided.
38. KHNES rejected the referral from School Y for reasons which are unclear in that no rationale was given except that Child B did not meet the criteria.
39. In March 2018 there was an Annual Review. Ms X requested a change of school placement. The Council did not receive the Annual Review papers, within the required time, until 23 May 2018. The Council remained of the view that School Y was a suitable placement and that this school could support Child B’s educational needs once he was ready to return to school. The Council thought that there had been a positive impact on Child B by his specialist mental health support. The Council also offered additional funding to School Y for a staff member to work with Child B, first at home and then with careful planning at school.
40. Ms X says that Child B’s needs had always been wider than his OCD and it was unrealistic of the Council to conclude that the sessions of OCD support would solve all his difficulties. Ms X says that she was looking for ‘Education Otherwise Than At School’ (EOTAS) and had requested this. Ms X says that the Council said it would fund a tutor specifically for Child B for home tuition. But it did not.
41. The Council says that the plan was then changed in that, because the Council was already providing a support worker for another young person at School Y, it decided that this worker could be shared between Child B and the other young person. Ms X says that this was not explained to her at the time.
42. In July 2018, the Council held a child protection conference because of concerns about the family and its impact on Child B. The Council says that this delayed the making of amendments to Child B’s EHC Plan because the Education department wanted to incorporate any social care needs within the Plan.
43. The Council says that the child protection report had indicated Child B was not engaging with formal education offered by School Y’s support worker. The Council says that, in the child protection plan, there were targets to help Child B overcome this barrier with help from the Early Help Team. The Council considered it was working within a multi-agency framework to engage Child B in formal education, taking advice from the other partner agencies involved.
44. The Council says it was ready to issue an amended Plan by the end of August  2018. But Ms X was unhappy with some aspects and there was a meeting with her on 6 September. The Council and Ms X then agreed a transition plan to help Child B back into School Y, with home tuition initially, leading to Child B returning to School Y. The Council issued a final amended Plan in mid‑September 2018.
45. Ms X had a right of appeal to the SEND Tribunal at this point, if dissatisfied with the Plan. But she did not pursue her right because she thought the Council would provide home tuition, as she had requested. That is why she did not appeal.

Events of 2019

46. In January 2019, School Y made a further referral to KHNES. KHNES again refused the referral. School Y pursued an appeal with KHNES.
47. Ms X says that she told the Council that Child B wanted a tutor to start work with him at home initially and then to move to a charity for education, which Child B had attended before. Ms X says that Child B has consistently stated he wanted a home tutor rather than attend school.
48. Early Help from Children Services also remained involved. The Council say that School Y made a referral to a tuition service, but it could not assist because it did not provide tuition at home, which is what Ms X and Child B were requesting.
49. In early May 2019, KHNES said (in response to School Y’s appeal) that Child B was not suitable for its service. The Council and School Y therefore agreed that, as a final attempt to re-engage Child B back into School Y, it would fund tuition for two days, twice a week, along with the pastoral support the school provided at home.
50. In May 2019, Ms X again requested a change of school placement for Child B and she said that she would be visiting a specialist independent school. There was an Annual Review (this should have taken place in March 2019). The Council decided to make no amendments to the Plan and that School Y remained a suitable school placement. The Council says that support from School Y continued with better success.
51. In September 2019, Ms X asked for an early Annual Review. She explained that Child B had recently been diagnosed with Pathological Demand Avoidance (PDA) and therefore his needs were not accurately identified in his Plan.
52. The Council had to consider whether it was appropriate to have an early review when one had taken place in May. There was a meeting on 24 September, which Ms X thought would be the Annual Review. But it was not. The Council accept that both Ms X and School Y thought this meeting was an Annual Review.
53. Ms X then requested a reassessment which the Council agreed. The Council has sought updated advice from an Educational Psychologist, a specialist Speech and Language Therapist and from an Occupational Therapist.
54. The Council issued a final amended EHC Plan in July 2020. Ms X has continued to ask for home tuition for Child B to help him get back into education and to be able to reintegrate to school.
55. The Council says that Child B does not meet the criteria for a referral to its Health Needs Team (KHNES).

Analysis

56. If Ms X does not agree the recent final EHC Plan, she has a right of appeal to the SEND Tribunal and now has support in doing so. The Ombudsman will not consider any complaint about the final Plan because Ms X can appeal to the SEND Tribunal.
57. Child B has had a fractured experience of education and it looks as if he has not attended school much since the start of secondary education. This is mainly because of his extensive mental health needs, primarily his OCD, combined with his other diagnosed difficulties, which would have significantly impeded his ability to attend school or tuition, however suitable that provision might have been for him.
58. Ms X’s concern is that the Council failed to provide an individual tutor for Child B, despite his and her request for this and which she thought was the best way to provide education for Child B given his extensive medical needs. The Council has stated that it was for School Y to provide the home tuition. But the Council is unable to provide evidence of what was provided to Child B by School Y.
59. Ms X wanted ‘Education Otherwise’ and, since 2018, she explained that she felt School Y was not a suitable placement. In September 2018, Ms X could have appealed Child B’s EHC Plan, which maintained that School Y was a suitable placement.
60. The Ombudsman has to consider whether it was reasonable for Ms X not to exercise her right of appeal to a SEND Tribunal in September 2018. She says that she did not because the Council agreed to provide individual tuition for Child B at home.
61. Having looked at what Ms X was requesting, namely a change of school placement, preferring instead ‘Education Otherwise’ which, if agreed, would have removed School Y as a suitable school placement, I have concluded that a SEND appeal was an appropriate remedy available to Ms X at this time. Therefore, the Ombudsman is not permitted to consider Ms X’s complaints about the Council’s actions up to September 2018 because Ms X could have challenged the Council’s decision that Child B should remain at School Y.
62. At any appeal, she could also have pursued her request for ‘Education Otherwise’ and, if successful, this would have enabled Child B to have a specific education package as she had requested. It would also have resolved the issues around the suitability of the home tuition which was allegedly being provided.
63. However, despite this restriction on what the Ombudsman can investigate, I consider it is appropriate for the Ombudsman to look at the complaints of 2018/2019 in respect of:

(a) the referrals to KHNES;

(b) the tuition provided by School Y during 2019 and whether the Council had sufficient oversight of this; and

(c) the delays in the annual review process, both in 2018 and 2019.

Complaint (a)

64. Referrals to KHNES were pursued by School Y and it appealed the decision to refuse to accept Child B. The Council says that it is for schools to make these referrals, but its policy does allow it to do so when a child is not at school.
65. It is not clear why the referrals were rejected. On the face of it, Child B had/has medical needs which were/are preventing attendance at School Y or engagement in the tuition provided. It also seems that School Y thought that assistance from KHNES would be helpful and hence it made repeated referrals. Given all this, I consider the Council’s failure to provide a clear explanation for KHNES rejecting the referral for Child B is fault. However, the Council says that recently it has updated KHNES’ referral criteria so that there is a better understanding of the type of cases it will accept.
66. There were also delays by KHNES in reaching its decisions and the Council should have been more proactive in ensuring prompt responses from KHNES to the referrals from School Y.
67. The Council has overall responsibility for the work of KHNES. Accordingly, I consider there is some fault by the Council as described above. But, I cannot say whether their involvement would have resulted in a different and better educational outcome for Child B.

Complaint (b)

68. It is difficult to assess exactly what tuition was provided to Child B by School Y. In May 2019, there is evidence that some limited home tuition was provided but the rationale for the limited hours is not clear.
69. The Council had a duty to ensure that alternative educational provision was appropriate and to step in if it considered that School Y was not ensuring Child B was receiving this, taking account of his medical needs. The fact that the Council cannot comment on what tuition was provided demonstrates that it has not had sufficient oversight. Therefore, my view is that the Council is at fault in not properly exercising its oversight duty here, as required in the statutory guidance.

Complaint (c)

70. There have been delays in completing the annual review process in both 2018 and 2019. While School Y had some responsibility to meet the required timescales, overall the Council remains responsible for the annual review process. The Council has now written to its schools to remind them of the importance of meeting the annual review timescales in respect of another complaint.
71. There is therefore fault by the Council because the timescales for annual reviews were not met.

Injustice

72. I am mindful that Child B’s mental health needs are extensive, and it was appropriate for the Council to allow the OCD therapy to run its course because, unless Child B could manage this better, his ability to receive education, either at a school or at home, would have been diminished.
73. I also consider that it would be difficult for the Ombudsman to say that, but for the identified faults, there might have been a better educational outcome. However, there were lost opportunities to help Child B because of the faults which I have identified.
74. The Council has now agreed a package of home tuition for Child B, starting in September 2020. I have decided that, to assess properly the injustice and educational disadvantage to Child B by the Council’s faults, this tuition should be allowed to take place over the next four months.
75. In respect of Ms X’s injustice, there has been avoidable distress and missed opportunities to provide Child B with an education.

Final decision

76. My view is that the Council has been at fault in that:

• the reasons for refusing the referrals to KHNES are unclear and there were delays in giving School Y its decisions;
• the Council has not had sufficient oversight of the home tuition provided by School Y and this is demonstrated by the fact that it cannot comment on the tuition offered to Child B by School Y; and
• there were delays in the annual review process.

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Agreed action

77. To remedy Ms X’s injustice, the Council has agreed that, within two months from the date of the final statement, to pay £500 for Ms X to use on providing Child B with any educational equipment, which she and the Council considers might help Child B for the forthcoming tuition.
78. In addition, the Council will pay £300 to Ms X for her avoidable distress and time and trouble caused by the faults in the annual review process and by not having more oversight of the tuition being provided by School Y.
79. The Council has reviewed the referral system to KHNES to ensure that its schools and parents/pupils are clear about the criteria used to decide whether a pupil is eligible. In respect of other complaints, it has also reminded schools of the importance of telling the Council promptly whether a child, with an EHC Plan, is not attending school. And it has reminded schools of the importance of adhering to the annual review timescales.
80. In respect of Child B’s injustice, the Council and the complainant will report back on the success or otherwise of the home tuition package so that the Ombudsman can better assess whether this might have been successful had it been provided earlier.

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Final decision

81. There is fault causing injustice, although the educational disadvantage to Child B cannot be assessed properly at the moment.
82. The Council has accepted the findings and recommendations. I am therefore able to close the complaint.

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Investigator's decision on behalf of the Ombudsman