Summary: Mrs C complained the Council failed to provide her son with alternative education when he was unwell and unable to attend school. She also complained the Council delayed issuing her son with an Education, Health and Care plan. The Ombudsman finds the Council was at fault because it failed to provide Mrs C’s son with alternative education when he was out of school. The Council has agreed to our recommendations to address the injustice caused to Mrs C and her son.

The complaint

1. Mrs C complained the Council failed to provide her son, D, with alternative education when he was unwell from October 2017 to June 2019. She also complained the Council delayed issuing an Education, Health and Care (EHC) plan for D. Mrs C says D missed out on a significant amount of education and his mental health suffered. She says her family has also suffered emotional distress.

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What I have investigated

2. I have investigated the Council’s actions from October 2018 onwards. I have not investigated the Council’s actions prior to October 2018 for the reasons set out at the end of this statement.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

6. 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)
7. 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

8. I considered the information Mrs C submitted with her complaint. I made written enquiries of the Council and considered the information it provided in response.
9. I shared a draft version of this statement with Mrs C and the Council and I invited them to comment on it.

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What I found

Relevant law and statutory guidance

10. 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.
11. The Children and Families Act 2014 says councils are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
12. If a council carries out an EHC needs assessment but then refuses to issue an EHC plan, and then later agrees to issue an EHC plan through mediation, it must issue a draft plan within five weeks and a final plan within 11 weeks.
13. Section 19 of the Education Act 1996 says councils are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
14. Councils need to ensure children with health problems are not without education for more than 15 working days. So, if a child cannot attend school because of a health problem, after 15 days a council must intervene and provide suitable education for a minimum of five hours a week.
15. The statutory guidance “Alternative Provision” says while there is no statutory requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
16. The statutory guidance “Ensuring a good education for children who cannot attend school because of health needs” states that where full time education is not possible for a child because of poor mental health or physical health, local authorities have a duty to provide part-time education on a basis that is in the child’s best interests.

What happened

17. Mrs C’s son, D, has complex needs and a diagnosis of autism. In April 2017, the Council decided not to issue D with an EHC plan. Mrs C appealed to the Tribunal and continued to do so until October 2018.
18. In October 2017, D became unwell and began attending school less often.
19. In July 2018, the Council contacted Mrs C as she was concerned about D’s attendance at school because of his anxieties. D was due to start secondary school in September 2018. The Council asked Mrs C to provide it with medical evidence highlighting D’s inability to attend school, which was provided in August 2018. The Council asked Mrs C for further evidence as it was not satisfied from the evidence provided D could not attend his new secondary school.
20. The Council alerted D’s secondary school that he had not been attending his primary school. It also explained the medical evidence provided by Mrs C did not refer to whether he could attend secondary school or not.
21. At the end of September 2018, D’s secondary school informed the Council that D was not coping very well. The Council received a letter from D’s GP in October 2018 confirming he could not attend school. The Council advised the school to make a referral to the Medical Education Team. The Medical Education Team is delivered on behalf of the Council. It ensures suitable arrangements are in place for children who are unable to attend school because of their medical needs so that they can have appropriate and ongoing access to education.
22. The Medical Education Team did not respond to the school’s referral. By this time, the school had also commissioned an autism support service that was designed to help D return to education and reduce his anxieties. The school was also sending work home for D to complete.
23. The Council decided on 8 October 2018 it no longer wished to appeal Mrs C’s request for D to have an EHC plan. It said it had carried out a further review of Mrs C’s appeal and it now had evidence D’s circumstances had significantly changed since his previous EHC assessment.
24. The Council provided Mrs C with a draft EHC plan on 12 November 2018. The Council said it had relied on up to date information Mrs C had presented during the appeal proceedings. It asked her for a response within 15 days.
25. Mrs C asked the Council for an extension to respond to the EHC plan as she was not satisfied with the content. She informed the Council she wished to obtain further assessments before providing her comments.
26. In January 2019, the Council contacted the school and asked for an update on what suitable arrangements it was making for D in line with medical advice. The school responded and said the autism support service was visiting D twice a week at home and he was making small progress.
27. Mrs C contacted the Council in January 2019 and provided it with an update in relation to the draft EHC plan. She said further assessments on D would be available in February 2019 and then she would be able to return the EHC plan.
28. Mrs C returned the draft EHC plan to the Council on 11 March 2019. The Council reviewed Mrs C’s changes and sent her its revised version on 10 April 2019.
29. Mrs C made further changes to the EHC plan. The Council met with Mrs C on 7 May 2019 to consider the proposed changes to the EHC plan. The Council then consulted with D’s proposed new school to ensure it could provide the support named in the revised EHC plan.
30. During this time Mrs C also made a formal complaint to the Council. She said the Council had delayed issuing D with an EHC plan. She also complained the Council had failed to provide D with alternative education.
31. The Council issued the final EHC plan on 21 May 2019. D started his new school on 3 June 2019 and was provided with specialist provision.
32. The Council issued its final response to Mrs C’s complaint in August 2019. She remained dissatisfied with the Council’s response and referred her complaint to the Ombudsman.

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Analysis

Delays with the EHC plan

33. The Council decided on 8 October 2018 it would not oppose Mrs C’s appeal and would issue D with an EHC plan. A draft EHC plan was sent to Mrs C on 12 November 2018.
34. Mrs C asked the Council for an extension because she was not satisfied with the content of the draft EHC plan and wanted to obtain several assessments. Mrs C returned the amended EHC plan to the Council on the 11 March 2019. Mrs C says it took this amount of time because the draft EHC plan was full of inaccuracies. It is not the role of the Ombudsman to look at the content of an EHC plan as that is a matter for the Tribunal but we can look at any delays in the process.
35. From when Mrs C returned the EHC plan, the Council took a further two months until 21 May 2019 to work through Mrs C’s proposals and issue the final EHC plan.
36. The guidance says if a council carries out an EHC needs assessment but refuses to issue an EHC plan, and then later agrees to issue an EHC plan, it must issue a draft plan within five weeks and a final plan within 11 weeks.
37. In Mrs C’s case, the Council issued a draft plan within five weeks from when it agreed D needed an EHC plan. It was unable to issue a final EHC plan within 11 weeks because Mrs C asked for additional time to obtain further assessments. The Council then had to read through every report and check whether D’s needs would be met through the draft EHC plan. It also had to work through Mrs C’s detailed changes. This was a significant amount of work and not something the Council could have completed quickly. I therefore do not consider the time it took to issue a final EHC plan was because of any fault by the Council.

D’s lack of alternative education

38. 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.
39. The Council received a letter from D’s GP at the beginning October 2018 which confirmed he could not attend school due to medical needs. The Council had also received communication from D’s school he was not coping well and was not attending. It was at this point the Council had a duty to intervene and assess what suitable alternative education could be provided for D.
40. The Medical Education Team, which is part of the Council and provides educational support to children who cannot attend school due to medical needs, failed to respond to the school’s referral. This is fault. It was the school, not the Council, who arranged for the autism support service to work with D.
41. Mrs C says the autism support service did not provide any form of education for D. She says the purpose of the service was to assist D with his anxieties and provide him with coping strategies. I have read the report produced by the autism support service. The evidence does not suggest D was provided with education. Instead, it provided D with support to reduce his social anxiety and helped identify the most appropriate educational setting to assist with his needs.
42. The Council says it was not concerned regarding the interim arrangements being made for D and it did not receive any complaints about the arrangements from Mrs C or the school. However, the Council could not know whether the interim arrangements were suitable because it did not conduct its own assessments of D and it was its duty to do so. The Council should have assessed D’s needs and developed an education plan until medical professionals assessed D as being able to return to a school environment. It failed to do that which is fault.
43. I am satisfied this caused a significant injustice to D. He was without education for a significant period. Children have a right to an effective education and any time they miss is difficult to replace later.
44. There was also an injustice to Mrs C. The Council caused her avoidable distress by not making suitable alternative arrangements for D’s education.
45. It is not for the Ombudsman to say the amount of education that would have been suitable for D. Our recommendations for financial remedy are usually a payment between £200 and £600 per month based on the child’s needs; whether any provision was in place and whether the period affected was a significant one in a child’s career.
46. D missed majority of his first year at secondary school. There is no evidence he had any educational provision from October 2018 to May 2019 and he has complex needs. Therefore, a payment towards the top of the scale, £500 for each school month he was without education is recommended.

Agreed action

47. To address the injustice caused by fault, by 21 September 2020 the Council has agreed to:

• Make a payment of £3,500 to Mrs C for the loss of alternative education for D from October 2018 to the end of May 2019. This figure is based on the Ombudsman’s remedies guidance at a rate of £500 per month for the period in question. We would suggest this payment is used for the educational benefit of D.
• Apologise to Mrs C for its failure to provide D with alternative education during the period above.
• Make a further payment of £200 to Mrs C for the distress caused to her.

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Final decision

48. I have found fault by the Council, causing an injustice to Mrs C and her son. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

49. I have not investigated or made findings prior to October 2018. Mrs C was appealing to the Tribunal about the Council’s decision not to issue D with an EHC plan from April 2017 to 8 October 2018. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a 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.
50. So, I cannot investigate Mrs C’s complaint about the lack of educational provision for D between October 2017 and October 2018. I am also unable to investigate Mrs C’s complaint about delays with the EHC plan in this timeframe also.

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Investigator's decision on behalf of the Ombudsman