Summary: the complainant says the Council failed to provide her son with enough out of school support and act quickly to reintegrate him into school resulting in him missing a year’s support. The Council accepted delay and offered an apology. The Council identified a suitable placement where the child thrives. The Ombudsman finds the Council at fault for the delay and recommends a remedy.

The complaint

1. The complainant whom I shall refer to as Miss X complains the Council failed to:
• Provide alternative educational support while her two school age children remained out of school leading to Miss X funding educational support for them;
• Provide enough support once the Council accepted it should support the children;
• Properly manage support and communications with Miss X.
2. Miss X says this left her supporting her two children at home between January 2018 and February 2019, unable to gain employment and funding their education. Miss X wants the Council to learn lessons from its failures and offer a financial remedy for the missed education and impact on the family’s life. Miss X says she has no complaints about the support she received, only the limited amount received. Miss X says her children especially her son Y now have suitable placements.

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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. If 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.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. 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)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

10. In considering this complaint I have:
• Contacted Miss X and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy
• Shared with Miss X and the Council my draft decision giving them an opportunity to comment on it and I have reflected on comments received.

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What I found

Law, guidance, and Ombudsman’s focus report

11. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for pupils who, because of illness or other reasons would not receive suitable education without the Council arranging support.
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. The Government’s statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states councils should:
• have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with added health needs. This policy should make links with related services in the area, such as the Special Educational Needs and Disability Service and Children and Adolescent Mental Health Service (CAMHS);
• have a named officer responsible for the education of children with added health needs, and parents should know who that person is; and
• not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
14. 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.
15. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
16. The statutory guidance ‘Alternative Provision’ says the duty to provide a suitable education applies:

“to all children of compulsory school age resident in the local authority area, whether… they are on the roll of a school, and whatever type of school they attend”.

17. We issued a focus report in September 2011, amended in January 2016, “Out of school…. out of mind?”. This provides guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report recommends councils:
• consider the individual circumstances of each case;
• recognise action may be needed whatever the child’s reason for absence even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they can do so; and
• put whatever action they decide the child needs into practice without delay to ensure the child is back in education as soon as possible.
18. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

19. Y has Autism Spectrum Disorder and Pathological Demand Avoidance. In July 2017 Miss X contacted the SEND Social Care team. Miss X said Y had become resistant to going to school and she felt the family had reached crisis point. Miss X suggested Y may need a psychological assessment and support.
20. By October 2017 Y’s attendance at school had decreased rapidly. The Council called a Child in Need (CIN) meeting on 21 November 2017. The meeting noted Y’s reduced school timetable and the impact that had on Y’s opportunities to learn and engage with his peers. The minutes note that professionals had conducted assessments and recommended support, however, the Council had not yet provided all of it. The minutes say the current reduced timetable “…is not planned in a way that provides [Y] with intervention and support in school…there are a number of sensory recommendations that are yet to be consistently implemented”.
21. The CIN meeting noted the Council had not referred Y to the Council’s specialist teaching service which could offer advice and guidance for parents and staff. The service could offer help in planning Y’s reintegration to school. The Council referred Y to its specialist teaching service (STS) in November 2017. The STS asked the school for information about the reduced timetable and the plans to reintegrate Y into school.
22. On 4 December 2017 Y stopped attending school. Y’s specialist teacher began researching whether the Flexible Learning Team (FLT) could help Y.
23. At a multi-disciplinary team meeting on 21 December 2017 the School reported it did not know if Y’s reduced timetable had helped reduce his anxiety. The School had no other plans for intervention other than bi-weekly counselling. The meeting agreed to meet on 11 January 2018 to discuss Y’s reintegration into school.
24. At the CIN meeting on 11 January 2018 the meeting noted Miss X wanted an assessment leading to an Education and Health Care Plan (EHC Plan). Miss X did not believe interventions so far had succeeded in helping Y. The Council referred Y to its FLT in January 2018. The SEND social care worker also signposted Miss X to other support services such as Autism West Midlands.
25. Y’s GP sent in information about his conditions on 25 January 2018. The GP confirmed he had referred Y for a psychologist’s assessment and review by the Children and Adolescent Mental Health Service (CAMHS).
26. The FLT visited Miss X and Y on 8 February 2018. At a multi discipline meeting on the same day the school advised it could not recommend Y for an EHC Plan assessment until the educational psychologist’s recommendations had been in place for two months. The FLT officer took a different view saying Y is out of school and needed assessing for an EHC Plan immediately. The meeting agreed.
27. On 12 February 2018, the FLT began two-hour weekly sessions with a mentor for Y. The mentor engaged with Y and set homework for him. Miss X expressed concern at the limited provision saying the Council had a duty to provide an equivalent to full time education adapted to the child’s needs and ability to engage. Miss X did not believe the time with mentors and homework met that duty. Miss X says the mentors delivered excellent support, just not enough.
28. In March 2018, the school referred Y for an EHC Plan assessment.
29. In April 2018, the FLT increased Y’s support by giving Y three hours a week delivered between two mentors who set homework for Y to complete between sessions. In June 2018, the FLT changed the support to two hours a week at home with the mentors and two hours a week at a support hub. The hub provided Y with opportunities to mix with other children.
30. The Council issued a draft EHC Plan in July 2018. It issued the final EHC Plan in August 2018.
31. Y’s support changed in September 2018 to one hour a week at home with mentors and two hours a week at the hub. The Council arranged for Y to attend school three mornings and one afternoon in his first week to reintegrate.
32. At a review on 19 October 2018 the meeting noted Miss X found it more difficult to get Y to go to school.
33. Y began a new placement in February 2019 where he has thrived. The Council issued an amended EHC Plan in March 2019. By this time Y had spent from December 2017 until February 2019 out of school with no more than four hours educational provision per week.
34. The Council says in its professional officers’ opinions the mentors provided one to one education and the equivalent of as much full-time education as Y could engage with. The tutors reviewed his progress. The Council says having considered these reviews of progress it met its duty under Section 19 of the Education Act.
35. The Council says it provided Y with support to the level Y could successfully engage. Mrs X says none of Y’s medical professionals ever said Y needed less educational provision because of his anxiety. Rather, in Mrs X’s view, the evidence pointed to the problem being the environment and teaching style Y struggled with.

The complaint to the Council

36. Miss X complained to the Council about its handling of support for Y. In response the Council wrote to Miss X on 9 July 2018 saying it did not have enough staff to provide Y with the educational provision he needed.
37. In this letter the Council accepted it had not referred Y for support within 15 days of his absence. The Council apologised for that and what it described as “excessive delays in responding to [Miss X]…” and for not returning telephone calls as promised.
38. In November 2018 Miss X complained to the Council about the time taken to provide support for Y who she said had waited five years for any support. Miss X highlighted the lack of support from December 2017. In Miss X’s view this had a severe impact on Y’s physical and mental health and well-being This resulted in Y showing a phobia of any school setting. Miss X feared Y had lost his passion and curiosity for learning.
39. The Council issued a response in February 2019 and apologised for:

“…delays in responding to your concerns…and the lack of clarity provided…”

40. The Council commissioned an independent investigator to examine the complaint. The investigator issued a report on 10 April 2019. The investigation upheld Mrs X’s complaints that:
• The Council delayed providing suitable support for Y since 2013;
• The Council’s SENDAR team had failed to communicate properly with Miss X;
• The stage 1 investigation failed to refer to learning outcomes or explain its view on accountability;
• The Council’s customer relations unit failed to communicate effectively with Miss X;
• The Council took too long to consider the complaint.
41. The investigation did not uphold Miss X’s other complaints that:
• The Council’s lack of resources and the family’s location resulted in the Council not providing alternative support equivalent to a full-time education;
• The Council delayed referring Y for assessment for an EHC Plan;
• The Council failed to provide educational support equivalent to full time education as set out in guidance;
• The Council kept Y on the roll of his school even though he had not attended since December 2017 and had not made any academic progress.

Analysis – was there fault leading to injustice?

42. My role is to examine how the Council responded to Y’s absence from school and meeting his educational needs. If I find fault I must consider if this caused an injustice.
43. I note the findings of the independent investigation and I find the Council at fault for the faults identified in that investigation.
44. In its letter of 9 July 2018, the Council apologised for not providing alternative provision within the timescale recommended in the guidance. It said a lack of resources caused this failure. I find the Council at fault for the delay.
45. From the information I have seen it should have been clear that Y may need an EHC Plan in 2017. The CIN meeting in November 2017 noted the impact on Y’s learning. The School’s refusal to refer him is an issue about the internal management of school’s and therefore outside my jurisdiction.
46. The Council accepts it did not offer the support Y needed from 2013. Miss X told the Council in July 2017 the family had reached crisis point. Given the lack of support from 2013 that should have prompted the Council to review whether Y may need a Statement of Educational Need or EHC Plan. The test is whether a child ‘may need’ an EHC Plan. That is not a high bar and the Council should have considered it in July or September 2017. It recognised the need to assess Y in February 2018 but relied on a referral from the School.
47. With Y struggling before he stopped going to school and with him being out of school from December 2017, I would expect the Council to have considered:

1. Whether the school placement met Y’s educational needs or if he may need extra support through an EHC Plan;
2. What alternative provision Y needed to support him before he stopped attending school and during his absence;
3. Regular reviews of the success of the flexible learning and how to increase it to bring it nearer to full time equivalent;
4. Discussing with Miss X how much learning Y could engage with during his absence and explaining to her why professionals believed Y could not cope with more provision;
5. Planning for recruiting more staff to cope with the transition between Statements of Educational Needs to EHC Plans.

48. The Council has provided documents showing it reviewed Y’s progress. In the view of the Council’s professional officers they offered Y alternative educational provision equivalent to full time education. That is, when judged against how far Y could engage with full-time education and in line with his capabilities.
49. Following the issue of the EHC Plan the Council delayed some of the provision. That has significant implications for Y because the Council had already accepted it had failed to provide him with suitable support since 2013. I find the Council at fault for failing to quickly fulfil the EHC Plan.
50. I have concerns about Y missing provision from 2013. Mindful of the limits on our powers I have concentrated on what the Council did from 2017 onwards. However, I must reflect on whether the Council then did enough to address what Y had missed from 2013. By February 2019, the Council had issued and amended an EHC Plan placing Y at a placement in which he has thrived. I find that but for the delays and failings identified in the Council’s investigation and mine, the Council would have:
• Provided Y with support earlier in his school career which may have helped him progress further by 2017;
• Identified and offered a placement at Y’s current placement earlier;
• Prevented Y and Miss X experiencing avoidable distress and inconvenience.
51. I note Miss X does not criticise the standard of support given, only the delay and failure to provide more of that support.
52. Y stopped attending school on 4 December 2017. Allowing for the fifteen days in which the Council should consider alternative provision, and the school’s Christmas holidays, the Council should provide alternative provision from 8 January 2018. The Council began the alternative provision on 12 February 2018. I find therefore the Council delayed provision beyond the guidelines.
53. I must consider the impact on Y’s abilities arising from the failure to provide Y with support from 2013. The lack of support may have influenced Y’s ability in 2017 and in the following years. The Ombudsman’s guidance suggests paying a sum in recognition of a lack of support. Having considered the alternative provision and planning for reintegration and applying our guidance I recommend a payment of £750 for the likely impact of the lack of support from 2013. It is impossible to say now what that support should have been or the likely impact it may have had. We shall never know which is a great concern to Miss X and Y and an injustice to them.
54. Miss X funded provision and equipment to help Y continue to learn. The Council should not have placed Miss X in that position. The Council offered to refund Miss X’s costs. I recommend it does so now.
55. Parents must expect some inconvenience and to spend time discussing their children’s needs and provision with schools and councils. However, where the Council puts them to avoidable added inconvenience it should provide a remedy to recognise the impact on them and their family.

Recommended and agreed action

56. I recommend and the Council agrees to within four weeks of my final decision:
• Apologise to Miss X for the failings identified;
• Pay Miss X £750 for Y’s benefit in recognition of the impact of the lack of support between 2013 and 2017, and the delay in assessing his needs;
• Pay Miss X for the provision and equipment bought while Y remained out of school;
• Pay Miss X £200 in recognition of the avoidable distress, time and inconvenience caused by the failings identified in this investigation.

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Final decision

57. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman