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Derbyshire County Council (19 001 142)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 17 Jan 2020

The Ombudsman's final decision:

Summary: Ms X complained the Council failed to ensure her daughter, D, received a suitable education from February to July 2019 when she was not in school and failed to carry out her annual review according to the statutory timescales. The Council was at fault for not ensuring a suitable education for D from June to July 2019. It should make a financial payment to remedy the injustice this caused D. I have not investigated Ms X’s complaint that the Council failed to carry out D’s annual review within the statutory timescales.

The complaint

  1. Ms X complained the Council:
    • failed to provide her daughter, D, with alternative educational provision from December 2017 to July 2019; and
    • refused to hold D’s annual review within the statutory timescales.
  2. Mrs X said that as a result D experienced unnecessary distress because she was unable to take her GCSEs and progress to A Levels.

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What I have investigated

  1. I have investigated the period February to July 2019. I explain why I have not investigated the earlier part of this complaint in paragraphs 46 to 49.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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. 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. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as schools. (Local Government Act 1974, sections 25 and 34A, as amended)
  6. SEND is a tribunal that considers special educational needs (The Special Educational Needs and Disability Tribunal (‘SEND’))
  7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  8. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
  9. A court judgement reconfirmed that we cannot investigate a decision because it has been or could reasonably be appealed to a tribunal, and we also cannot consider the consequences of that decision. We are unable to investigate a council's alleged failure to provide alternative education for a child with special educational needs who is out of school, when the alleged failure is or could be subject to appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

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How I considered this complaint

  1. I spoke to Ms X and considered her view of her complaint.
  2. I made enquiries of the Council and Children and Adolescent Mental Health Services (CAMHS) and considered the information provided. This included the Tribunal order, correspondence and emails between the Council, CAMHS and Ms X and D’s Education, Health and Care (EHC Plan).
  3. I wrote to Ms X and the Council with my draft decision and will consider their comments before I make my final decision.

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What I found

Legal and administrative background

  1. Section 19 of the Education Act 1996 states local authorities have a duty to make arrangements to ensure the provision of suitable education at school or otherwise for each child of compulsory school age who for reasons of illness, exclusion or otherwise may not for any period receive suitable education unless arrangements are made for them.
  2. A child with special educational needs may have an Education, Health and Care (EHC) Plan. The EHC Plan sets out the child’s needs and what arrangements should be made to meet them. Section I of an EHC Plan specifies the name or type of the educational establishment the young person should attend. If the parent or young person disagrees with the contents of the EHC plan, including the details in Section I, they can appeal to the Tribunal. We cannot change its contents; only the Tribunal can do that. Tribunal orders are binding on councils.
  3. Councils must keep a young person’s EHC Plan under review. This means it should carry out a review every 12 months.

What happened

  1. Ms X’s daughter, D, has special educational needs. Ms X says D has not been able to attend school since December 2017. The Council issued D with an EHC Plan in March 2018. Mrs X lodged an appeal with the Tribunal in May 2018.
  2. Mrs X complained to the Council in July 2018 about a lack of support for D while she was unable to attend school. The Council accepted it had failed to provide 11 weeks of tuition between January and May 2018. It offered Mrs X a payment of £1,265.
  3. The Tribunal considered Ms X’s appeal on 13 December 2018. It did not support Ms X’s wish that D attend an independent specialist school and found the school (School Z) put forward by the Council could meet D’s needs, and that it should be named in her EHC Plan.
  4. The Tribunal issued its decision on 1 February 2019. This stated “It is common ground there will have to be a transition period of careful planning and gradual introduction if she is to return to school… her anxiety and mental health must be addressed before she will be able to return to her GCSE studies in school… reference to home tutoring [has been removed]. We consider that is appropriate. It is part of the transition and it would be invidious to define the extent of support in the course of transition… it is in effect a part of the placement and it is the responsibility of the school named in [the EHC Plan].”
  5. On the same day the Tribunal issued its decision naming School Z on D’s EHC Plan, Ms X emailed the Council requesting an annual review and asking the Council to invite representatives from the specialist independent school. She said the review process had to be completed within 12 months of D’s EHC Plan being issued, that is to say by 31 March 2019.
  6. At this stage, School Z should have placed D on its school roll. It did not do so.
  7. Mrs X also complained to the Council in February 2019. This included a complaint that the Council had not provided her daughter with home tuition since December 2018. Ms X said CAMHS had already informed the Council that D was unfit to attend school and, therefore, the Council had failed to meet its legal duties to make provision for a child unable to attend school. Mrs X said D was out of school.
  8. The Council contacted CAMHS on 11 February 2019 and asked it to comment on D’s mental health and ability to attend school. CAMHS responded on 12 February and said “[D] and her family continue to report feeling she is unfit to return to school at this present time… the family would like to continue to engage in OOST [out of school tuition] so that [D] can proceed with her education”.
  9. The Council wrote to Ms X on 22 February 2019 with regard to her request for an annual review. It said “[D’s] EHCP has recently been reviewed following your Tribunal appeal. Her EHCP was considered by the Tribunal and in making their decision the Tribunal are expected to consider not just the time left in one phase of education but also the future. Therefore the LA do not consider that it would be appropriate at this stage to conduct a further review when the Tribunal have recently considered her EHCP. If you wish to challenge the decision of the First Tier Tribunal you are entitled to consider an appeal and details of that process were sent to you with the judgement by the Tribunal”.
  10. The Council sent Ms X a copy of D’s final amended EHC Plan on 25 February following the Tribunal’s ruling. It requested Ms X check the EHC Plan and inform the Council of any errors by 8 March 2019.
  11. Ms X complained to the Council on 6 March and said it had failed to abide by the Tribunal’s ruling on the content of D’s EHC Plan. The Council responded and said the appropriate action for Ms X to take if she wished to challenge the Council’s compliance with the Tribunal’s order, was judicial review. The Council suggested she take legal advice first. Ms X did not pursue a judicial review.
  12. The Council wrote again to Ms X on 7 March 2019. It said that “following the Tribunal hearing it is clearly understood that school provision is available to [D] and therefore no further steps are being taken to obtain a new tutor. The allocation of a school means that the ongoing provision of home tuition is no longer required or necessary. You are therefore asked to engage with the appointed school to discuss any transitional arrangements”.
  13. Ms X remained unhappy and asked the Council to consider her complaint at Stage 2 of its procedures.
  14. The Council responded at stage 2 on 12 April 2019 and confirmed its first response. It said:

“the Tribunal made a clear decision in respect of a school for [D] and as a result a school is available for [D] to attend… we cannot investigate into the issue of re-introducing home tuition as this resource is no longer needed in view of the fact that a school has been allocated to [D] and remains available… We have not received any medical evidence to confirm that [D] is unfit to begin transition arrangements with school… the local authority did receive a letter from CAMHS dated 12 February 2019 which stated that ‘[D] and her family continue to report feeling she is unfit to attend school at this present time’. However the letter does not state that CAMHS consider she is unfit to attend school or unfit to begin transition arrangements”.

  1. On 18 April 2019, Ms X emailed the Council. She said “You may or may not be aware that [D] will not ever attend the school named on the EHC Plan stating she would rather die”. Ms X asked the Council to carry out an emergency review and provide home tutors for D.
  2. The Council emailed Ms X and said “The LA needs to receive and consider medical evidence in order to consider whether there is a medical reason why [D] cannot attend school”.
  3. On 2 May 2019, a CAMHS officer visited Ms X. Its notes record Ms X said the Council would not provide D with a tutor because CAMHS had not said D was unfit to attend school.
  4. The CAMHS officer spoke to the Council on 20 May. The Council said the February 2019 letter from CAMHS had referred to the family believing D was unfit to attend school, and not CAMHS. The Council said it required a letter stating CAMHS considered D was unfit to go to school before it would consider providing tuition.
  5. On 21 May 2019, Ms X asked the Council again for a review of D’s EHC Plan. The Council asked Ms X for consent to allow it to discuss D’s medical details with CAMHS. Ms X refused and said the Council must address all queries to CAMHS through herself.
  6. The CAMHS officer emailed the Council on 22 May 2019 and attached a letter. The date on the letter incorrectly stated 11 February 2019. The letter included the following “Given the severity of the anxiety [D] presents as unfit to attend school at this current time and does require OOST to continue so that she can access education”.
  7. CAMHS also posted the letter and the Council date stamped its receipt as 5 June 2019.
  8. On 8 June 2019 a solicitor sent the Council a formal request for a review of D’s EHC Plan on Ms X’s behalf.
  9. On 21 June the Council wrote to Ms X and said it would not review D’s EHC Plan. It said “there has been a recent Tribunal decision and our view is that [School Z] is still an appropriate placement… however, we note that she is currently too anxious to attend any school as detailed by CAMHS and therefore we want to work with you through OOST (or an alternative tutor…) and CAMHS towards accessing [School Z]”.
  10. School Z requested a meeting to discuss ways D could be transitioned back into her educational placement. It emailed Ms X and the Council and said it was “concerned that [D’s] attendance and her lack of engagement with school is having a detrimental effect on her education and wellbeing and we are keen to be able to resolve this for her and her family”.
  11. On 26 June 2019, the Council emailed Ms X and said it would be appropriate to hold an emergency professional meeting about the educational provision for D “and the way this can be supportive for [post-16 provision] as [School Z] will still be the named provider”.
  12. The Council commissioned a tuition service which began work with D in September 2019.
  13. Ms X remained unhappy and complained to the Ombudsman. During our investigation, the Council said that it would increase the payment it had offered Ms X to cover the period to the end of January 2019 because the Tribunal had not issued its decision until the beginning of February. The Council also suggested a payment of £200 for any additional months the Ombudsman decided D should have received alternative educational provision.

My findings

Events from December 2017 to March 2018

  1. The events Ms X complain about prior to her lodging an appeal with the Tribunal took place more than twelve months ago. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem.
  2. We look at each complaint individually, and on its merits, considering the particular circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are clear and compelling reasons to do so. I do not consider that to be the case here. I see no reason why Ms X could not have complained earlier.
  3. Also, I think it is unlikely that if we were to investigate, we would offer a remedy over and above the one already offered by the Council. The exception at paragraph 7 therefore applies to this part of Ms X’s complaint.

Events from March 2018 to February 2019

  1. Where the period out of education coincides with an appeal against the content of an EHC Plan and there is an inextricable link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. So, I cannot investigate Ms X’s complaint about the lack of educational provision for her daughter between March 2018 and February 2019. The restrictions imposed by the legislation and case law described above apply even though the Tribunal has no power to provide a remedy for any lost education.

Events from February to July 2019

  1. The Tribunal made an order for D to attend School Z. Therefore, that school place must be considered suitable under section 19 of the Education Act.
  2. School Z had a place for D. However, the Council made an administrative error when it failed to request School Z place D on its roll after the Tribunal ruling. So technically, D remained at her previous placement. This is fault. However, I do not find this caused Ms X or D a personal injustice because School Z was willing to begin the process following the Tribunal hearing to transition D back to school and, in any event, Ms X would not engage in the transitional process.
  3. The Council was aware from February 2019 when Ms X first complained to it, that D was not in school. The Council asked CAMHS to provide its professional view on whether D was unfit for school. The letter from CAMHS dated 12 February stated Ms X, and not CAMHS, felt D had a health need which meant she was unfit to attend school. At this stage, there was no evidence D was unfit to attend school.
  4. The evidence demonstrates the Council considered whether home tuition was appropriate in February 2019 and again in April 2019, when it responded to Ms X’s stage 2 complaint. It decided further attempts should be made to meet the Tribunal’s order to transition D into school and home tuition was not a suitable alternative education at this stage. Instead it urged Ms X to engage with the school. This decision was in line with the Tribunal’s order. There was no fault in the way the Council made this decision.
  5. The second letter written by CAMHS in May 2019 was dated 11 February 2019. Ms X believes this means it was written and sent in February. I do not agree. The Council has provided sufficient evidence to demonstrate the date was incorrect and the letter was written and sent by CAMHS in May 2019.
  6. This letter stated CAMHS considered D was unfit to attend school. At this stage the Council began the process of hiring tutors to home school her. However, this provision was not put in place until the following school year in September 2019.
  7. Allowing the Council a week to source tutors, the tutoring provision should have been in place by the around the first week of June 2019. The school year finished around 20 July 2019. This means the Council delayed by about six weeks. This is fault.
  8. As a result of this fault, D was without a suitable education during the period when she should have been studying for her GCSEs. The Council should make a financial payment to remedy this injustice.

Annual review

  1. Ms X complained the Council would not carry out D’s annual review in February 2019. The evidence demonstrates that Mrs X wanted the annual review to be held because she did not want D to attend School Z. She therefore saw the annual review as a mechanism to reopen the debate about D’s placement.
  2. The best course of action for Ms X if she considered the Tribunal’s decision was unsound was to appeal to the second-tier Tribunal. In this case, I can see no good reason why she did not. Therefore, I will not investigate this matter further.
  3. And even if I did investigate and find fault, it is unlikely Ms X and D would have experienced a significant personal injustice. The Council had a legal duty to carry out the findings of the Tribunal. School Z would have remained as the named placement. An annual review would not have changed that position.

Agreed action

  1. Within one month of the date of the final decision the Council has agreed to pay Ms X £300 for the education she missed in June and July 2019, to use as she sees best, on the provision of education for D.

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Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendation. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated the period up to January 2019. Paragraphs 46 to 49 give my reasons why.

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Investigator's decision on behalf of the Ombudsman

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