Summary: The Council was at fault for failing to provide Y a suitable education when his anxiety meant he could not go to school. The Council has agreed to pay Miss X a financial remedy for the education that Y has missed. It will also remind staff of the responsibility to assess the academic needs of children unable to access education and where necessary provide alternative education.

The complaint

1. Miss X complained the Council has failed to provide her son Y, a suitable education since September 2018. She said it also delayed in issuing the Education Health and Care Plan and did not have the occupational therapist’s assessment in place before finalising the plan.
2. Miss X said she had to give up work to look after Y while he was not in education. She said the loss of education has had a significant impact on Y socially and academically.

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The Ombudsman’s role and powers

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. 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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). Miss X appealed against the Council’s decisions on two occasions. I cannot investigate the periods in which Miss X exercised her appeal rights.
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

7. I discussed the complaint with Miss X and considered the Council’s response to her complaint.
8. I read case records from Y’s school and the Council.
9. I referred to the Council’s policy on education for children with medical needs and referred to the relevant legislation.
10. Miss X and the Council both had the opportunity to comment on my draft decision.

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What I found

11. 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.
12. 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.
13. 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.
14. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

How the Council supports children out of education

15. The Council allocates an Education Welfare Officer (EWO) to all maintained schools to provide support to schools and parents with pupil attendance. If it receives a referral for support, the EWO contacts the school and will then arrange a meeting at school to find out why the child is not attending. The EWO is responsible for “working with all parties to devise an action plan to support full-time attendance at school or any agreed alternative provision”.
16. 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 it 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 and Care Plans

17. 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 (when aged over 16) can ask for an EHC needs assessment. Following that request, the Council has six weeks to decide if an assessment is necessary and tell the parents.
18. If the Council agrees to complete an EHC assessment and decides to issue an EHC Plan, 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 in the EHC plan, but it should be able to explain why the EHC plan meets the needs of the child.
19. The Ombudsman cannot investigate complaints about the Council’s decision whether to conduct an assessment, or about the content of the EHC plan. These are appealable to the Special Educational Needs and Disability Tribunal

What happened

20. In July 2018 Y was diagnosed with Autistic Spectrum Disorder. Alongside this, his attendance at school began to deteriorate as he began to experience anxiety towards his schooling. Y started back at school in the Autumn term, but he stopped attending after three days. Miss X reported that Y’s levels of distress and anxiety meant he could not attend. This was Y’s final year at primary school.
21. Miss X asked the school for an EHC needs assessment for Y. The school refused but referred Y to an Autism Outreach Service who completed an observation of Y, which Y went into school for, on 20 September 2018. The school’s records show that assessment said the school had the necessary strategies in place to provide the support that Y needed.
22. On 26 September 2018, after 11 days of absence, the school referred Y to the Council’s EWO. At the same time, Y’s doctor wrote a letter to the EWO explaining that Y had a recent diagnosis of Autistic Spectrum Disorder and that they had referred him to the Children’s Adolescent Mental Health Service (CAMHS) twice for high anxiety and sensory processing issues. He said Y was refusing to go to school because of “his anxiety and sensory issues”. The doctor asked the EWO to consider the case urgently.
23. The EWO wrote to Miss X and invited her to attend a meeting at the school the following week. There are no minutes for that meeting, but information provided by the EWO indicates it was agreed that Y would have daily contact with an Emotional Literacy Support Assistant (ELSA) before school; the plan being to reintegrate him back into the classroom.
24. In October 2018 Y started to access support from CAMHS. He also attended a couple of ELSA sessions but did not return to school. The school referred Y to the educational psychology service for advice. They also referred Y to the Council’s Early Help Service for support around school attendance; they met with Miss X at the start of November 2018. Miss X also enlisted a private tutor who gave Y two hours of educational support a week.
25. On 12 November 2018 there was a review meeting with Miss X, the EWO and the school. There are no minutes of that meeting. At that meeting Miss X provided a letter from Y’s doctor saying “[Y] is unable to attend school due to heightened anxiety and sensory processing issues which stem from his autistic spectrum disorder”. Y’s doctor said he would benefit from access to an educational psychologist and home tuition. Miss X also provided a letter from an autism specialist who was supporting Y with his education at home. That said he had significant sensory needs and needed to be taught in small groups or individually.
26. Miss X asked for an EHC needs assessment however, the school said it could meet Y’s educational needs. The EWO agreed to consult with Access to Education (A2E) to see if it could provide alternative education.
27. Following that meeting, Miss X applied for an EHC assessment of needs for Y. At the start of December, the Council wrote to Miss X and said it would not assess Y. Miss X lodged an appeal.
28. The EWO referred Y to A2E in January 2019. The referral listed the support the school had offered Y; it said Y needed education as soon as possible.
29. In February 2019, the Tribunal directed the Council to complete an EHC needs assessment for Y. The Council requested assessments from educational psychology; occupational therapy; speech and language; medical advice and social care.
30. In March 2019, the Council received a letter from CAMHS. That said “[Y] would certainly struggle to attend school at present and an adapted education would be beneficial to work towards [Y] reaching his potential”. CAMHS also noted that Y managed his anxiety through avoidance, and he needed to be offered opportunities to leave the home for activities in the community and social interaction with others.
31. The Council held an Early Help Meeting in March 2019. That was attended by the school, A2E, the special educational need and disability (SEND) case officer and Miss X. The meeting minutes show they discussed A2E support but that was a “short term service whose purpose was to support children going back into school”. Miss X wanted Y to receive a personal budget for education at home- that would need to be agreed through the EHC Plan. Therefore, the A2E officer advised they were unclear whether A2E could “fill the gap” until the Council issued the Plan. The Council closed the case following the meeting.
32. In an undated internal email between A2E and the EWO, A2E said that because Y’s anxiety stemmed from his diagnosis of Autistic Spectrum Disorder, they were unsure if he met the criteria for statutory medical support, but that “A2E appreciate the different levels of support that school and the family have already tried to undertake to help [Y] access school. Therefore, l may suggest that A2E offers a time bonded intervention in an effort to support a return to school”.
33. The EWO notes state the referral to A2E was closed on 3 April 2019 because Y did not meet its criteria. The EWO contacted the school and asked it to contact Miss X and send work home for Y and to arrange a meeting.
34. On 18 April 2019 the Council contacted Miss X and said it had agreed to an EHC Plan and that Y would receive 16 hours of support a week based in a mainstream school. It acknowledged that Miss X wanted a personal budget for Y’s education and explained she would receive information about how to respond formally once she received the draft EHC Plan. The occupational therapist’s service had not yet completed its assessment of Y for the EHC Plan.
35. On 23 April 2019, Miss X complained to the Council about the lack of education for Y since he stopped attending school in September 2018.
36. On 25 April 2019, the Council sent Miss X the draft EHC Plan and gave her the opportunity to respond. The Council told Miss X that Y was still on the waiting list for an occupational therapist’s assessment.
37. In May 2019, the Council responded to Miss X’s complaint. That response did not address the Council’s responsibilities about providing a suitable education. Miss X escalated her complaint to stage two and raised additional concerns about the content of the EHC Plan.
38. On 24 May 2019 the Council issued Y’s final EHC Plan.
39. The Council issued a final response to Miss X’s complaint at the start of June 2019. It explained that as she had said she was intending to appeal to Tribunal about the content of the EHC Plan it was not appropriate for it to consider the complaint through the complaint process. It did not comment on Y’s lack of education.
40. In July 2019 Miss X brought her complaint to the Ombudsman. At the end of July 2019, the occupational therapist completed their report.
41. In the Council’s response to enquiries it said that its view was that mainstream education was appropriate for Y and his primary school provided a ‘can meet needs’ report.

My findings

42. As Y’s health needs and absence at school is inextricably linked to his special educational needs and EHC Plan, I have not investigated or made findings during the periods that Miss X had a right to appeal. These are from:
• 6 December 2018 until 18 February 2019; and
• 24 May 2019 onwards.

Y’s lack of education from 26 September 2018 – 6 December 2018 and from 18 February 2019 until 24 May 2019

43. 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’.
44. The Council’s website says A2E provides education to children out of school because of exceptional circumstances including medical reasons and permanent exclusion.
45. The school told the Council that Y stopped attending school on 26 September 2018. The Council also received a doctor’s letter that explained Y was refusing to go to school because of his sensory difficulties and anxieties.
46. The EWO held a meeting in October to try and resolve Y’s attendance difficulties. That meeting was in line with the Council’s guidance and an appropriate response to reintegrate Y back into education. The decision to not provide alternative education at that point was not fault. However, there were no minutes of that October meeting and no action plan. That was fault.
47. The EWO arranged a review meeting in November 2018 after Y had still not returned to education. As the plan was not working the meeting agreed the EWO would refer Y to A2E. The Council did not refer Y to A2E until mid-January 2019. A2E did not assess Y or provide educational support because he did not meet the services criteria.
48. The case records indicate the Council focussed on Y’s assessment of special educational need and Miss X’s request for a personal budget for home education; not its responsibility to ensure he received a suitable education while he was to unwell to attend school. That is also reinforced through the Council’s complaint responses and its response to enquiries, that the school met his needs.
49. Miss X provided the Council with medical evidence that Y was not able to access mainstream education. In line with its policy, the Council should have assessed whether Y was receiving a suitable education and developed an education plan until medical professionals assessed Y as being able to return to a school environment. It failed to do that, that was fault. Any disagreements about Y’s special educational needs and educational provision specified in the EHC Plan could be considered through Tribunal.
50. The Council’s faults have caused both Miss X and Y an injustice. Miss X said she has had to stop work and it has caused her a great deal of stress and emotional upset. Miss X says the lack of education for Y has affected him academically and emotionally.
51. It is not for the Ombudsman to say the amount of education that would have been suitable for Y. Our recommendations for financial remedy are usually a payment between £200 and £600 per school term month based on the child’s SEN; any provision in place and whether the period affected was a significant one in a child’s career. Y did receive two hours of education a week arranged by Miss X. Given he was in his final year at primary school and had special education needs, a symbolic payment of £400 each school month he was without education is recommended. That equates to £600 per half term.

Failure to get an occupational therapist’s assessment and the delays in the EHC Plan

52. The Council requested an occupational therapist’s assessment for Y however it was aware that service would not complete the assessment within the required timeframe. We expect councils, as the lead agency in the EHC process, to have appropriate commissioning and partnership arrangements to allow SEND officers to obtain advice for EHC plans in a timely way and to have mechanisms to address problems that arise. In these circumstances, we would expect the Council to make alternative arrangements for the assessment. The Council’s failure to do so was fault.
53. That fault caused Miss X avoidable worry that the final EHC Plan would not fully reflect Y’s needs.

Delays in the EHC assessment process

54. Following the request for an EHC assessment of needs, the Council has six weeks to decide whether to assess. If it does and agrees to issue an EHC Plan the process must take no more than 20 weeks.
55. Following the tribunal about the Council’s decision to assess, the Council had 14 weeks to issue the complete EHC Plan. It started the assessment for Y’s EHC Plan on 18 February 2019 and issued the final plan on 24 May 2019. That was within the required 14 weeks. The Council was not at fault.

Agreed action

56. Within one month of my final decision the Council has agreed to:
• Pay Miss X £400 for the period between November 2018 and December 2018 that Y was without a suitable education.
• Pay Miss X £1200 for the period between February 2019 and May 2019 that Y was without a suitable education. That is a payment of £600 per half term of missed education. Both these payments are for the educational benefit of Y.
• Apologise to Miss X for its failure to provide Y with alternative education during the periods above and pay her £200 to remedy the injustice caused.
• Remind all staff in the Education Welfare Service and A2E of the need to maintain contemporaneous case records
• Remind the Education Welfare Service of the need to minute all meetings and ensure action plans are completed following these meetings for children out of education.
• Remind A2E of its responsibility to complete assessments for all children who are absent from education because of exclusion, medical reasons, or ‘otherwise’, even when a parent does not want a child to reintegrate into school.

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Investigator's decision on behalf of the Ombudsman