Devon County Council (19 008 360)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 17 Aug 2020

The Ombudsman's final decision:

Summary: There was fault by the Council in failing to ensure a child received suitable full-time education when she was medically unfit to attend school. Recommendations for an apology, financial payment and service improvements are made.

The complaint

  1. Mr X complains on his own behalf and on behalf of his daughter, whom I shall refer to as Y. His complaints relate to the Council’s handling of Y’s Education, Health and Care (EHC) assessment and Plan and to a lack of alternative provision provided while Y was unable to attend school for medical reasons.
  2. In particular, Mr X complains that:
    • The Council says it sent him a copy of the final EHC plan, but he did not receive this. This left him only a short time to appeal and the Council is unable to prove it was posted when stated.
    • The Council failed to check his daughter was receiving appropriate alternative education when she was signed off as medically unfit to attend mainstream school in November 2017 and did not follow this up until June 2018.
    • The alternative provision was not of the quality or quantity to meet Government guidance. Initial provision was online and not manageable for his daughter due to her special educational needs. Tutors did not have the right experience to teach all subjects and did not provide the number of hours promised.
    • Tutors insisted his daughter be taught in the local library when due to anxiety and a recent incident of internet grooming his daughter did not wish to leave the house.
    • The views of parents and the child were not taken into account in planning the alternative provision.
    • The tuition was wrongly stopped.
    • His daughter lost out on education for an extended period.
    • The Council did not consider putting in place an EHC plan or specialist provision when it received advice mainstream school was unsuitable (an EHC plan and specialist schooling was only accessed by twice taking the Council to Tribunal).
    • The Council failed to follow an agreement made during tribunal proceedings that his daughter should retake Year 9 and be placed in the year group below her chronological age. This required Mr X to seek legal advice to prevent the Council departing from the previous agreement.
    • The Council failed to provide a response to the complaint about moving his daughter out of the year group within a reasonable timeframe.

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What I have investigated

  1. I have investigated the above complaint issues except for those which fall outside the jurisdiction of the Ombudsman because they relate to the conduct of a school or were appealed, or inextricably linked to an appeal, to the special educational needs tribunal.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act sets out what we can and cannot investigate:
    • We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
    • 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)
    • We cannot investigate a complaint if someone has used their right of appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
    • We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
    • 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)
  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)

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How I considered this complaint

  1. I have considered information provided by Mr X and the Council including information from the Inclusion Team and Special Educational Needs team. I have also spoken to Mr X by telephone.
  2. I have considered relevant law and guidance including:
    • The Education Act 1996
    • The Children and Families Act 2014
    • Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’
    • Statutory guidance ‘Alternative Provision’.
    • Local Government and Social Care Ombudsman Focus Report ‘Out of school…out of mind? How Councils can do more to give children out of school a good education’
    • Local Government and Social Care Ombudsman Guidance on Remedies.
  3. I have considered the Council’s policy for Pupils with Medical Needs.
  4. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  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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What I found

Relevant law and guidance

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  2. Section 19 of the Education Act 1996 (as amended) says councils are responsible for the provision of suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
  3. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ and ‘Alternative Provision’ say councils should:
    • provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education
    • while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school
    • provide part-time education only where full-time is not in the best interests of a particular child due to the nature of their illness
    • have a named officer responsible for children with medical needs and for parents to know who that person is
    • have a publicly accessible written policy for children with additional health needs
    • review the provision offered regularly to ensure that it continues to be appropriate for the child and it is providing suitable education
    • the use of electronic media such as ‘virtual classrooms’ and learning platforms should generally be used to complement face to face education rather than as sole provision (unless health needs dictate otherwise)
    • evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school
    • the pattern of complex and long-term health illnesses can be unpredictable. Councils should discuss the child’s needs and how these may best be met with the school, relevant clinician and parents, and where appropriate the child.
  4. Government guidance does not currently define full-time education by way of a number of hours. The Ombudsman’s Focus Report ‘Out of school…out of mind?’, originally issued in 2011, set out the assumptions that applied at that time (which were taken from a now withdrawn Government circular). For pupils in years 7 to 10 the assumption of what constituted a full-time education was 24 hours per week.

Council’s policy

  1. The Council has a policy ‘Education for children with medical needs’ available on its website. This includes a Named Officer whose role is to establish procedures to monitor and record cases where education is disrupted by medical conditions and to regularly review the education offered to those children to ensure they receive suitable education. The policy says the Education Welfare Service will compile a list of such children termly and these ‘lists and cases brought to the attention of the LA…will be reviewed by officers…and if appropriate referred to a panel of senior officers…the Missing Monday Panel’.
  2. The policy says that the Council will first aim to support schools to meet their duty to children with medical conditions and this support will be provided by Inclusion and Education Welfare Officers, Area Learning Advocates and officers from the 0-25 SEN team.

Chronology of events

  1. Y transferred to mainstream secondary school in September 2015.
  2. In Year 8 it was apparent Y was struggling with anxiety and sensory difficulties when attending school. Y had a diagnosis of attention deficit hyperactive disorder (ADHD) and was being investigated for autism.
  3. In or about March 2017, the Council agreed to conduct a statutory assessment of Y’s education, health and care needs. It obtained reports from a paediatrician, psychologist, educational psychologist (EP) and Y’s school. A team around the child meeting was held on 25 July 2017.
  4. In July 2017 the psychologist wrote a letter to Y’s School stating that Y was medically unfit to attend mainstream school due to her anxiety and sensory overload. The psychologist noted a specialist placement was being looked into and that Y would do well in such a setting.
  5. There is no evidence this letter was shared with the Council and the Council told me it did not receive a copy at that time. Documents provided by the Council in support of the EHC plan later issued do not reference this letter which tends to suggest it was not shared with the Council in July.
  6. An EP produced a report in August 2017 which concluded Y’s needs could be met in mainstream school with additional support. There was therefore a difference of opinion between professionals about the type of school Y should attend.
  7. In September 2017 Mr X contacted the Council by telephone. Mr X advised Y was at home and parents were unsure Y should stay at her current school. Mr X asked the SEN team to call him back.
  8. The SEN officer appears to have written an email rather than returned the call to Mr X on 22 September. The email said the SEN team could not advise from an educational perspective as it relied on advice from others. The Council was due to decide whether to issue an EHC plan by 24 October. The SEN team said that in the interim (and draft plan) period Y’s school remained responsible for her education and should seek advice from involved professionals as well as seeking advice from the Council’s Inclusion team on interim options.
  9. The Council did decide to issue an EHC plan and sent a draft to Mr X on 11 October which it says Mr X responded to on 14 October. There was correspondence about schools consulted to be named on the EHC plan. None of the special schools felt able to meet Y’s needs as she was considered too cognitively able.
  10. Mr X and the SEN team met on 10 November to go through the draft plan.
  11. On 15 November Mr X informed the SEN team Y’s paediatrician had now signed her off school as medically unfit.
  12. On 20 November the SEN officer confirmed Y’s current school had stated it could not meet Y’s needs due to availability of adult support that would be required. The Council explained it had advice that Y required provision that could normally be delivered in a mainstream setting and said the Council would need to consider if additional funding could support a mainstream school to meet need. Mr X replied that Y would not return to her current school due to anxiety and distress during her time there. Mr X emphasised that regardless of the advice provided to the Council Y was currently signed off as medically unfit to attend any mainstream school.
  13. The SEN team replied on 21 November that:
    • Further discussion was required within the Council before a school could be identified for Y
    • Y would remain on roll at her current school until an alternative school was found
    • The final plan would be issued so as not to delay Mr X’s right of appeal and would name a type of school (mainstream)
    • As Mr X identified Y as medically unfit to attend there is a separate educational offer for pupils in this situation and the Council ‘will make sure…that this situation is factored in’. The Officer said he would email Y’s school for an update on support while Y was medically unfit.
  14. Documents provided to me show Y’s last day of attendance at school was on 8 November.
  15. There is no further correspondence until 13 January when Mr X contacted the SEN team enquiring about the final plan, his right of appeal and about sourcing tutors for Y. The SEN team replied the final Plan had been issued in November and it would contact the school and Health about the current medical situation. The Council replied in response to a further email from Mr X about tutors that the SEN team understood Y was accessing online learning provided by school and that the school may be considering a referral to access the Council’s medical offer. It would be for Health to determine when Y could return to more formal schooling. The SEN team indicated it did not intend to change the EHC plan unless Mr X appealed or requested an alternative mainstream school.
  16. Mr X confirmed he had not received the final plan in November leaving him only a few days left to appeal before the deadline. Mr X said Y was not doing well with online learning and she needed a tutor. The SEN team said alternative medical provision was not a SEN process and had to go via the Council’s medical offer process.
  17. A report for stage two of the complaint process stated that the SEN team was aware Y was receiving three hours per day online learning but blamed Y’s school for not completing a form notifying the Council about the part-time timetable. As a result the Council’s Inclusion team was not notified about Y and reviews not triggered.
  18. The Council said Y’s school did not make a medical referral for alternative provision until 28 January. The referral did not include medical evidence and so was not actioned until evidence was available on 7 February.
  19. The Council says Y’s school was able to provide on site support in January, but Mr X refused as the relationship between the school and family had broken down. The Council told me it was not aware of medical advice signing Y off as unfit to attend until January 2018.
  20. Once medical evidence was available the Council ‘s panel approved tuition for six hours per week for a period of four weeks with a phased transfer back into Y’s mainstream school. The Council told me Mr X refused the medical tuition offered because it was only for six hours per week so Y did not receive this. The panel advised the Inclusion team should attend a forthcoming Team Around the Family meeting on 16 March. The Council said this was cancelled and Y’s school failed to re-arrange the meeting.
  21. Mr X complained on 30 January that he had not received the final EHC plan in November so had little time to appeal and also complained the SEN officer had been obstructive about the appeal process. The Council’s stage one response on 22 February 2018 found the Plan had been sent on 22 November (although not received) and found no evidence the SEN officer been obstructive.
  22. On 22 February 2018 Mr X asked for his complaint to go to stage two of the complaint process. Mr X also complained that Y had not received full-time education since November 2017. He complained about the process of consulting schools but, as he had appealed to the tribunal about placement, the Council declined to investigate this via the complaint process.
  23. Documents from the Council show that its provider of medical tuition contacted Mr X in May 2018, but Mr X said he was arranging home tutoring himself.
  24. In May 2018, at a directions hearing, the SEND tribunal was concerned Y had no tuition in place and advised the Council to remedy this and seek to put 15 hours per week in place by 14 May. The SEN arranged tuition to start on 11 June (although said this was not usually their role). The Council told me that tuition ended on 4 July because the relationship between Mr X and the tutors broke down.
  25. The Council’s stage two decision and report in November 2018 did not uphold Mr X’s complaint on the basis that:
    • On the balance of probabilities the plan was sent in November
    • It was not the SEN team’s role to follow up on Y’s education while she was medically unfit to attend school. This was the role of the Council’s Inclusion Team. It was the responsibility of Y’s school to complete forms alerting the Council’s Inclusion team to the situation and arrange review meetings.
    • When the school referred Y for medical tuition the Council had not delayed in agreeing this.
    • Provision was available to Y, but Mr X had refused for Y to attend her school and refused a tutor request for tutoring to take place in the local library or other venues outside the home, which was unreasonable.
  26. The stage two report identified service improvements including:
    • Reminding schools to complete the required paperwork when children are medically unfit to attend
    • Recommending both SEN and Inclusion Teams are notified when a child is signed off as medically unfit from school
    • Recommending when alternative provision is refused by parents the Education Welfare Officer is notified.
  27. During the appeal proceedings Mr X requested the EHC plan state that Y be educated one chronological year below her age. He raised this as a new complaint issue when the Plan issued after a Tribunal order did not include this. The Council told me that this stipulation only applied if Y was educated in a mainstream school, which was not the case as the Council had conceded mainstream school was not suitable during the appeal process.
  28. When I spoke to Mr X by telephone he explained that Y had been a victim of grooming and the police had been involved. Y was extremely anxious about leaving the home and refused to attend tutor sessions outside the home. Mr X told me there were problems with the tutors who had originally come to the house as:
    • One was vegetarian and refused to attend the home due to the kitchen containing meat
    • One went off sick
    • One taught only English and could not teach Maths or Science
    • Tutors were not experienced in Y’s SEN.
  29. Mr X said he had seen the tutors invoices and the Council had funded 150 hours of tuition but Y received only 35 hours.

Analysis

Non-receipt of EHC Plan

  1. There is evidence on the Council’s file that the final EHC plan was sent to Mr X in November 2017. It named a type of school (mainstream) and Y’s current school that she had ceased attending.
  2. There is no evidence of fault by the Council, it would seem the Plan was most likely lost by the postal service.
  3. The Plan did arrive in time for Mr X to appeal, although he only had a few days to do so. However, if Mr X felt he needed more time to draft his appeal he could have sought permission from the tribunal to extend the timeframe.

Type of school named in Plan

  1. Mr X complained to the Ombudsman that the Council did not consider specialist schooling when it received evidence that mainstream schooling was unsuitable in July 2017.
  2. The evidence provided during the EHC assessment included a range of views about the type of school Y should attend. Professionals did not agree. The Children and Families Act allows Councils to issue a final Plan naming a type of school and provides a right of appeal if parents do not agree. The SEND tribunal is the appropriate forum to challenge a placement. As Mr X has used his right of appeal to challenge the placement the Ombudsman has no jurisdiction to investigate. We cannot comment on any disagreements relating to the parts of the EHC plan that were appealed. (Local Government Act 1974, section 26(6)(a), as amended)

Education below chronological age

  1. This is again a matter that arose and was resolved through the appeal process and so is outside our jurisdiction to consider.

Failure provide s.19 Education

  1. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness the Council must intervene and make such arrangements itself.
  2. The Council was on notice in September 2017 that Y was at home and struggling to attend school due to anxiety. While I have not found evidence the Council was aware of the medical advice provided to school in July 2017, the SEN team has acknowledged in correspondence with Mr X in November that Y was deemed to be medically unfit to attend school. I find that the Council was incorrect to tell me it was not aware of medical evidence to this effect until late January 2018. I am satisfied the Council had knowledge of the situation from when it met Mr X on 10 November and in the emails it exchanged with Mr X over the following two weeks.
  3. Attendance records show Y continued to attend school sporadically between September and early November 2017. I am not critical that the Council did not intervene to provide alternative education for medical needs before November. The statutory guidance indicates councils should consider intervening after it is clear a child will be absent for fifteen days.
  4. The Government expects Councils to intervene and provide education under their s.19 Education Act duty only if no suitable provision has been made for the child, for example by their school. The SEN team has acknowledged it was aware Y was only receiving part-time education via an online learning programme. This does not meet the criteria of suitable full-time education set out in statutory guidance. It was not full-time and did not include any face to face tuition. The Council should therefore have intervened to ensure that suitable full-time education was provided to Y as the school had not done so. Failure to do so was fault.
  5. There was no medical advice stating that Y could not manage a full-time timetable of home tuition, the presumption should therefore have been that a full-time programme of direct or blended direct and internet tuition should have been put in place. Y was entitled to an education equivalent to 24 hours per week of school-based education. As one to one tuition is more intense then it is accepted fewer hours of tuition can be deemed to equate to more hours of group learning. It is for this reason the SEN tribunal advised a programme of at least 15 hours one to one tutoring per week.
  6. The Ombudsman considers the Council to be one corporate body. That it chooses to organise its medical tuition offer and SEN services into different departments does not alter that we would deem the Council to have knowledge of Y’s situation in November 2017. The SEN team should itself have alerted the Inclusion team or Named Officer for children with medical needs to Y’s situation in November 2017. Failure to do so was fault. While the Council may have processes for schools to make notifications to its Inclusion Team, it should not rely on schools to do so when this information comes to its attention via other means. The SEN team did not signpost Mr X to its policy and it did not advise Mr X that it had a dedicated officer responsible for children with medical needs. There does not appear to be any mechanism for parents to contact the Inclusion Team directly.
  7. Further, the SEN team told Mr X in November 2017 that it would follow up with the school about Y’s educational needs while she was unfit to attend. There is no evidence the SEN team did so until Mr X chased the matter in mid-January. This was fault. The Council’s responsibility under its s.19 duty was to ensure educational provision was in place as soon as possible, it should not have allowed two months to go by without receiving satisfactory confirmation from the school that Y was receiving ‘full-time suitable’ education or that a referral to the Inclusion Team had been made. The s.19 duty lay with the Council not with the school.
  8. The Council says suitable provision was available throughout at Y’s school where she remained on roll but the family refused for Y to attend. I am not persuaded this offer discharged the s.19 duty because:
    • Y’s School had responded to the EHC consultation in November 2017 stating it could not meet Y’s needs due to the need for a high level of adult support
    • Medical advice in November 2017 stated Y was medically unfit to attend mainstream school.

It was not therefore a realistic offer of education to expect Y to attend her previous mainstream school while she remained medically unfit to do so.

  1. The Council says that home tuition broke down due to disagreements between Mr X and tutors and Mr X’s refusal for Y to attend tuition at outside venues. Given the nature of Y’s SEN, the incident of grooming and her anxiety about leaving the home I am not persuaded that it was unreasonable for Mr X to refuse tuition in the local library with a tutor unknown to Y. There is no evidence to show the Council discussed this issue with Mr X and Y or took into account their views, as is required by statutory guidance. I cannot see that there was evidence to support the stage two investigator’s decision that refusal of tuition outside the home was ‘unreasonable’. I would have expected the stage two investigator to have spoken to Mr X about the complaint and for the investigation to have covered the problems with the tutors and Y’s feelings about attending outside venues before reaching such a conclusion.
  2. I acknowledge that Mr X was offered six hours of medical tuition in February which he did not accept. As I understand it the offer was based on the expectation Y would transition back into her mainstream school. Again, I cannot see why the Council’s panel reached a decision that this was suitable when it had medical evidence stating that Y was medically unfit to attend mainstream school.
  3. While I would agree with Mr X that six hours for four weeks fell short of what the statutory guidance required, we would expect complainants to mitigate their loss and Mr X should have accepted the six hours on offer. Sometimes when home tutors work with children with SEN and medical needs within the home they are able to provide useful advice to councils about whether a return to formal education in a mainstream school is realistic.
  4. In summary, I find that the Council was on notice that Y was not receiving suitable full-time education from mid-November 2017 when she was absent due to medical needs. It failed to discharge its duty under s.19 Education Act 1996 by either providing alternative education itself or ensuring that this was commissioned by Ys school. I have seen no evidence the Council took into account Y’s SEN or that she had been a victim of grooming in deciding the type of alternative provision to offer her. This was fault. As a result:
    • Y missed out on receiving suitable full-time education for seven months. While she received some tuition and online learning this fell short of the quality and quantity of education she could expect to receive;
    • Mr X was put to unnecessary time and trouble pursuing his complaint and seeking to get Y’s needs met.

Agreed action

  1. Within four weeks of my final decision:
    • The Council will apologise to Mr X and Y for the faults identified
    • The Council will pay Y £2800 (£400 per month for seven months) to acknowledge that the education provided to her was not suitable or full-time and that the Council did not take into account Y’s views or that of the family about the type of education that would be suitable. This money should be held in an account in Y’s name but supervised by parents and used for her educational or social benefit.
  2. With eight weeks of my final decision, the Council will review its procedures for children missing education due to medical needs to ensure:
    • That cases of children absent from school due to medical needs brought to the attention of officers in other teams are always notified to the Named Officer or Inclusion team so they can ensure appropriate provision is in place without delay.
    • That when the SEN team receives information from parents that a child cannot access full-time school for medical reasons that it provides parents with the details of the Named Officer and signposts them to the Council’s policy for medical needs.
    • That the Council consider whether it should have a process so parents can self-refer to the Inclusion team / Named Officer so cases where schools have not remembered to make the necessary notification do not slip through the net.

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Final decision

  1. I have completed my investigation. There was fault by the Council in failing to ensure a child received suitable full-time education when she was medically unfit to attend school. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman

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