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Surrey County Council (19 001 885)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 25 Mar 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council failed to provide suitable educational provision for her son and to find him a suitable placement at a specialist school. She also says it took too long to issue him with an Education Health Care Plan. We found fault with the Council and it agreed to our recommendations to remedy the injustice caused.

The complaint

  1. The complainant, who I shall call Mrs X, complains that her son, Y, has not had suitable education since November 2017. She says the Council has failed to provide him with alternative provision and to find him a suitable placement at a specialist school. Mrs X also says the Council took too long to issue Y’s Education Health Care Plan (EHCP) and in consulting with alternative establishments.

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What I have investigated

  1. I have investigated Mrs X’s concerns about events between December 2017 and August 2019. I have not investigated matters after August 2019 and the latter parts of my statement explain my reasons for not doing so.

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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. 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. 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. The Special Educational Needs and Disability Tribunal (SEND) is a tribunal that considers special educational needs appeals.
  4. 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)
  5. 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 discussed the complaint with Mrs X and considered information she provided. I made enquiries of the Council and considered its response and documents it provided. I also had regard to the Council’s policy on education for children with medical needs and the relevant legislation. I set out my initial thoughts on the complaint in a draft decision statement and invited Mrs X and the Council to comment.

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What I found

Legislative background

  1. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time 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 Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
  3. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
  4. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

Surrey County Council Access to Education for Children and Young People with Medical Needs

  1. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called Access to Education (A2E). Once A2E receives a referral and agrees to provide education, it completes an academic assessment and formulates a plan for education. Its policy emphasises the importance of reintegrating pupils back into school at the earliest opportunity.

Education Health Care Plans

  1. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. A parent, education provider or the young person (when aged over 16) can ask for a needs assessment. The council then has six weeks to decide if an assessment is necessary and tell the parents.
  2. If the council agrees to complete an assessment and decides to issue an EHCP, it must complete that process within 20 weeks of the initial request. The council does not have to provide exactly what the parents ask for but it should be able to explain why the EHCP meets the needs of the child.
  3. The Ombudsman cannot investigate complaints about a council’s decision whether to conduct an assessment, or about the content of the EHCP. These are appealable to SEND.

What happened

  1. From 2015 Y was a pupil at a specialist school, School A. He had an EHCP which recognised he had a diagnosis of disruptive mood dysregulation disorder and autistic traits.
  2. In 2017 Y’s anxiety increased resulting in concerns about his behaviour and difficulties in him attending school.
  3. Y stopped attending School A in November because he was too anxious to do so and Mrs X gave up work so she could look after him. However, Y was not being electively home educated and remained on the school roll.
  4. An interim review conducted in December found School A felt it could no longer meet Y’s needs and that he was no longer attending. School A felt a more therapeutic setting would benefit him.
  5. The review also said that finding a new suitable placement for Y was a matter of urgency and suggested a referral be made to Academy B.
  6. In February 2018 a letter from the Child and Adolescent Mental Health Service (CAMHS) said Y was medically unfit to attend School A.
  7. In March a referral was made to the Council’s A2E service. However, concerns were raised that its intervention might exacerbate Y’s anxiety and was not appropriate given that the service’s primarily aim is to help students back to their original school.
  8. In April Y’s case was referred to a Partnership Resource Forum to discuss a change of placement for Y. While the forum acknowledged a new placement was required it concluded there was insufficient evidence to conclude what provision was needed.
  9. In May CAMHS advised the Council that it was not providing any therapeutic intervention for Y as he had been taking medication and had been engaged in drama therapy while attending School A.
  10. In June a multi-agency meeting was held to decide what provision Y required. It was agreed that Y’s ECHP would be amended to reflect that a change of placement was required. I also understand A2E confirmed it could not assist Y and that Mrs X also asked for a referral to be made to Academy B.
  11. As a change of placement for Y was now agreed, the Council began looking for alternative placements. It approached School B, a Social Emotional Mental Health school but it was not able to meet Y’s needs.
  12. In October Y had a three-day assessment at School C which Y found challenging resulting in the school deciding that it could not meet his needs.
  13. Y remained on the roll at School A. I understand the headteacher raised concerns with the Council about Y not receiving education for nearly a year and that he and his family were becoming increasingly isolated.
  14. Mrs X also sought a fresh reassessment of Y’s needs from CAMHS as his previous assessment had not clearly defined them. She also sought help for Y’s mental health which was deteriorating. A reassessment was carried out however Mrs X was told that Y did not meet the criteria for mental health assistance.
  15. The Council suggested referring Y to a tuition service that could offer tuition outside the home thereby helping to address his anxieties. Mrs X agreed to this and again asked for Y to be referred to Academy B.
  16. Mrs X also asked for Y’s EHCP to be updated as it had not been updated since 2015. The Council agreed to do so and to take account of the details of the CAHMS reassessment once it had been completed.
  17. In November Mrs X asked the Council for a personal budget so that she could take Y out for educational activities. This was refused as the A2E service could take Y to a trampoline park once a week. Mrs X’s request for OT equipment for Y was also refused as equipment could be loaned to Y if his reassessment confirmed a need. Mrs X complained about its decision.
  18. In December Y began receiving tuition from the tuition service. He was scheduled to receive 3 hours however Y was anxious and initial sessions only lasted 20 minutes.
  19. Unhappy with its responses to her requests, Mrs X complained to the Council. It said it did not receive her initial complaint and so Mrs X made further complaint.
  20. On 3 January 2019 the Council began a reassessment of Y’s EHCP.
  21. Mrs X received a response to her complaint and was advised, following an OT assessment, the Council would provide OT equipment and allocate a budget of £118.50 per month for education activities.
  22. Also in January Y’s key worker from the tuition service left which was a setback for him. Mrs X had not been told the key worker would only be temporary.
  23. Assessments from an Educational Psychologist and Occupational Therapist were carried out in late January and February and forwarded for consideration as part of the EHCP reassessment.
  24. Meanwhile Mrs X raised concerns about the new tuition key worker who was not taking Y out of the home as agreed and was providing work that was too simplistic for him. However, no action was taken by either the Council or the tuition service resulting in Y’s tuition stopping.
  25. In March Mrs X complained to the Council as she was unhappy with the tuition service. She also reiterated her request for a referral to be made to Academy B. The Council acted on her request in April but was told Academy B was full until September.
  26. Mrs X suggested two other establishments on the basis that Y’s EHCP would be updated. The Council contacted one but not the second as it was not accepting new students.
  27. In May Y was given a diagnosis of autistic spectrum disorder and pathological demand avoidance. This was sent with his CAHMS report to the Council for Y’s EHCP reassessment to be completed.
  28. Attempts continued to find Y a suitable placement. Mrs X also pursued a referral to her suggestion of School D but it had no spaces. She requested Y be placed on the waiting list which she learned about following a call she made to the school. Another suggested school said it was not accepting new pupils.
  29. The Council suggested placements at two further schools. However Mrs X was unhappy with one of proposed schools and the other was withdrawn as it was in special measures. Academy B also refused to offer Y a place as it considered it was too far away from his home.
  30. In August Mrs X received Y’s new EHCP but was unhappy with its contents. She has appealed to SEND regarding this matter.
  31. Mrs X remained unhappy with the Council’s handling of Y’s education. She complained to the Council about the failure to provide Y with education since November 2017, delay in contacting schools and in completing his EHCP.
  32. The Council accepted that it had taken too long to complete Y’s EHCP assessment and that it had not put in place alternative education while it was doing so. In recognition the Council offered £250 per month for the period from January 2019 to August 2019. It also offered £225 in acknowledgment of the time and trouble caused to Mrs X in pursuing her complaint. This made a total payment of £2250.
  33. However, the Council said it did not have any duty to provide education prior to the ECHP reassessment beginning. This is because it says Mrs X took Y out of school in November 2017 and so its Section 19 duty was not triggered. It did recognise that Mrs X was not told about the implications of taking Y out of school and offered a further payment of £225 in recognition of this.
  34. Mrs X remains unhappy. She says she did not remove Y from school in November 2017 but it was accepted he was not fit to attend. She also points out he remained on the roll at the school during the disputed period. For this reason, she asked us to consider her concerns.

Analysis

  1. I have decided to exercise discretion and consider matters from December 2017 despite them occurring more than 12 months before Mrs X approached us. This is because Mrs X has been trying to resolve matters with the Council throughout this period and the injustice caused to Y by the alleged fault would be significant.

Failure to provide alternative education

  1. The Council has said the Section 19 duty was not triggered because Mrs X took Y out of school. I disagree as Mrs X did not choose to take him out of school and he remained on the roll at School A. This is clearly set out in the interim review of December 2017 and the CAMHS letter of February 2018.
  2. The Council failed to provide Y with education provision for most of the period from December 2017 to August 2019. This is fault.
  3. I note a referral was made to the A2E service in March 2018 however it was agreed it was not appropriate for Y. I have seen no evidence the Council sought other provision for Y. Instead, it focused solely on finding him a suitable placement.
  4. I also note the Council offered home tuition in September 2018. I recognise Mrs X did not a agree to a referral until October, once the outcome of the referral to School C was known. I therefore do not see Mrs X was responsible for any significant delay in pursuing the offer of home tuition. Her reasons for not agreeing to this earlier are understandable.
  5. The Council has already accepted that it did not provide Y with education for the period January 2019 to August 2019 when it was reassessing his EHCP.

Education provided was inadequate

  1. Mrs X raised concerns with the Council about the tuition provided for Y between December 2018 to March 2019. She says the placement broke down because the Council did not respond to these concerns. I have seen nothing to suggest the Council investigated Mrs X’s concerns or made any attempt to assess if the tuition was suitable for Y needs. I have also seen nothing to suggest that it offered any alternative provision once the placement broke down.
  2. Mrs X was provided with a budget to take Y out for activities in January 2019 and for some OT equipment. While the budget helped to provide some activities such as trampolining and other activity-based pursuits, it did not address the lack of education that Y was receiving, especially after the tuition ended.
  3. For the above reasons I consider that, even when the Council was attempting to provide some education provision for Y, it was not adequate.

Failed to find a suitable placement for Y

  1. The Council was unable to find an alternative suitable placement for Y in the period I have investigated. While I understand he has complex needs it is my view that the following delayed the process:
  • The length of time taken for the Council to agree a change of placement was necessary for Y. This was not done until June 2018, some six months after the interim review identified a new placement was required. While I acknowledge the Council was waiting for information from other bodies I have seen nothing to show it was actively pursuing these bodies for this.
  • The lack of an EHCP clearly setting out Y’s needs contributed to placements being sought at schools that could not meet his needs.

I consider both issues also delayed the Council pursuing placements including Academy B which was first suggested in December 2017 but was not approached until April 2019.

Delay in Issuing an EHCP

  1. The Council accepts it took too long to issue Y’s EHCP and failed to provide alternative educational provision for Y during the period it was considering this. This is fault and I consider the remedy it proposed suitably addresses the injustice for this period.

Agreed action

  1. Where we find fault by the Council we must consider the injustice caused to the complainant and whether a remedy is warranted. In addition to the remedy the Council has already proposed for the period January 2019 to August 2019, I recommended it should also:
  • pay £250 per month for Y’s lost educational provision for the period December 2017 to January 2019;
  • apologise to Mrs X and pay her an additional £250 in recognition of the time and trouble she has been put to in challenging the Council’s view that she took Y out of school in November 2017.

The Council agreed. It should carry out the above actions within four weeks of my decision.

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Final decision

  1. I have ended my investigation of this complaint as the Council has agreed to my recommendations which address the injustice caused to Y and Mrs X.

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Parts of the complaint that I did not investigate

  1. We cannot investigate a Council’s alleged failure to provide alternative education with special educational needs when the alleged failure is subject to an appeal.
  2. Mrs X has appealed to SEND regarding the EHCP issued by the Council. For this reason I cannot investigate Mrs X concerns about either the EHCP or whether it has provided alternative education provision since it issued the EHCP.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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