The Ombudsman's final decision:
Summary: The complainant says that the Council failed to provide alternative education to her son who was unable to attend his primary school because of ill health. The Council also delayed in completing the son’s Education, Health and Care Plan. The Ombudsman finds fault causing injustice on both complaints. He has recommended actions to remedy the injustice and to improve future practice. The Council has agreed to these and therefore we have completed our investigation and are closing the complaint.
- The complainant, who I refer to as Ms X, complains that:
- the Council failed to provide alternative education to Child B when he stopped attending school, for medical reasons, in May 2019; and
- the Council delayed in completing her son’s (Child B’s) Education, Health and Care (EHC) Plan.
What I have investigated
- I have considered Ms X’s complaints (a) and (b). Matters which I have not investigated are set out in the final paragraph of this statement.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
- Normally the Ombudsman will not investigate complaints unless they were made to him within 12 months of when the complainant realised something had gone wrong. However, the Ombudsman has some discretion on this time limit.
- The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs.
- The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field  EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
- The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
- 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)
How I considered this complaint
- I have spoken to the complainant on the telephone and I have made enquiries of the Council. Ms X has seen the Council’s response and has provided additional information.
- I issued two draft decision statements and I have taken into account the further comments from Ms X and from the Council when reaching my final decision.
- The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.
What I found
Legal and administrative
Special educational needs
- Councils and Clinical Commissioning Groups (CCGs) must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs. They must agree how they will work together to achieve this.
- Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.
- Councils should complete an EHC Plan within 20 weeks of the first request for a statutory assessment. There are however certain exemptions in terms of this timescale covering primarily school holiday periods. Councils should tell parents/carers that an exemption applies.
- When councils request professional advice about the child’s needs for the purpose of a statutory assessment, professionals have six weeks to provide their advice.
Provision and Appeals
- Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan. Appeals must be made within two months of the disputed decision.
Annual reviews and reassessments
- An EHC Plan sets out the child's educational needs and what arrangements there should be to meet them. The council is responsible for making sure that arrangements specified in the EHC Plan happen and are reviewed each year.
Children out of school because of medical needs
- Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
- Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”. Councils should work closely with medical professionals.
- The guidance also says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
- Further, the guidance says that the law does not specify the point during a child’s illness when it becomes the council’s responsibility to secure suitable education. But, generally, the guidance says that “councils should be ready to take responsibility for any child whose illness prevents them attending school for 15 days or more”.
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
- The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
- In R (R) v Kent County Council  EWHC 2135 (Admin) the Court stated that, “..the question is not whether the parents or [the child] have reasonable objections to attending the school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question…”.
The Local Government Ombudsman’s Focus report
- The Local Government Ombudsman has issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
- Of relevance to this complaint, the Ombudsman made the following recommendations. Councils should:
- consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – 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;
- keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
The Council’s Supporting Pupils at School with Medical Conditions
- I asked the Council for its policy on the provision of s19 alternative education and for home tuition during the period of this complaint. The Council did not provide this. It is not clear whether this is because the Council had no such policy, or not.
- However, the Council says that it has reviewed its practices and, as from September 2020, it has a revised policy: ‘Supporting Pupils at School with Medical Conditions’. Included in this policy, are the procedures for the provision of home tuition.
- From September 2020, the Council will implement a referral and tracking process for pupils who are absent from school for 15 days or more. Schools will be required to notify the Council of absence from school, and the case will be allocated to a designated Educational Welfare Officer.
- Educational Welfare Officers can also give advice to schools to support pupils with long term absence which includes the option to refer a pupil for home tuition.
- In respect of penalty warning and notices for non-school attendance, the Council issued its 5th Code of Conduct on issuing penalty notices dated September 2019. Schools are expected to monitor attendance and they can send a penalty notice referral form to the Educational Welfare Service. Prior to issuing a notice, the Council says that there must be enough evidence to provide a ‘realistic prospect of conviction’.
- The Council says that these notices should act as an early deterrent to parents/carers to ensure school attendance.
Complaint (a) Alternative education for Child B
- Ms X says that she was having difficulties getting Child B to school since late 2018. He started having sensory problems (being distracted by light) and became very distressed because of the abuse allegation. Ms X contacted her local Child and Adolescent Mental Health Service (CAMHS), who agreed to assess Child B.
- In May 2019, Ms X says that there was a meeting at School Y. By this stage, she had obtained an independent Educational Psychologist’s assessment, which confirmed Child B had significant difficulties. Based on that report, School Y said it would provide extra support. But Ms X says that it did not. She also asked School Y to refer Child B to the home tuition service or to another school. But it was unwilling to do so.
- Child B refused to attend School Y and was starting to self-harm. Ms X says that she had no choice but to withdraw him from School Y. It was not a suitable school for him. She contacted the Council’s Learning Support and Special Educational Needs Teams at the Council to explain this. But she says neither department was able to offer advice or assistance.
- In June 2019, School Y requested that Ms X be issued with a fixed penalty warning notice for failing to ensure Child B’s school attendance. Ms X says that she received a warning letter from the Council on 25 June 2019. She then contacted the Educational Welfare Officer to explain the situation.
- The Council says that the Educational Welfare Officer then learnt that Ms X had asked for a statutory SEN needs assessment and that Child B had been diagnosed with specific difficulties. Ms X wonders why the Council had not made enquiries before it issued a fixed penalty warning letter. The Council says that the matter did not proceed to a fixed penalty.
- Ms X says that she had made it clear to School Y and to the Council that the school was not suitable to meet Child B’s needs.
- In October 2019, Ms X complained to the Council about the lack of alternative educational provision for Child B.
- In November 2019, there was a meeting at School Y. In answer to a question from Ms X, she was told ‘it’s the parent’s role to ensure education is gained’. The meeting however agreed to look into funding for alternative educational provision for Child B while he was out of school.
- At Stage 2 of the Council’s complaint response, it said that it should have picked up on Child B’s absence from school for medical reasons in October 2019.
- Ms X found a tutor for Child B. She says that she could only afford one hour per week. The Council subsequently agreed to pay for the private tuition as from November 2019.
- In early January 2020. Ms X had a meeting with the Head of SEN. Afterwards, the Head emailed Ms X to say he was looking to find a way to provide additional educational provision from [Provider Z] until there was a longer-term solution. Ms X says that she had to ‘chase’ this up and it was not until March 2020 that an additional four hours was provided.
- On 31 January, there was a meeting between Ms X and the Assistant Director. This was to discuss Ms X’s complaint. The minutes of the meeting record that she was dissatisfied with the level of support being provided to Child B while he was out of school.
- The Council says that, at this meeting, it was agreed that any transition package for Child B should be built up over time, the support package to be considered and progressed by [the Head of SEN], for Ms X to speak to the [Head] to consider increasing the level of home tuition support working with [Provider Z] funded by the Council.
- The Council says that the provision of one hour tuition was based on what Ms X thought was suitable for Child B. The Council relies on the minutes of the meeting of 31 January as evidence of this and it says that Ms X had not complained about this.
- Ms X says that one hour tuition per week is all she could afford. She disputes that she had told the Council that this was all Child B could manage. She chased up additional tuition/support for Child B, as evidenced by her meeting with the Head of SEN in early January 2020. She made it clear that she was not satisfied with the level of support for Child B.
Complaint (b) The EHC Plan process
- On 25 June, the Council received Ms X and School Y’s request for an EHC assessment. By 17 July, the Council had agreed and sent requests to health services, School Y, CAMHS and social care for professional advice. The professionals had six weeks to respond, ie approximately by 21 August. However, School Y was exempt because of the school holidays.
- Ms X says that School Y had already provided advice when supporting the EHC needs assessment request. The Council says that it always requests further advice, when an assessment is agreed. It does not rely upon the initial advice because it may not be comprehensive.
- On 19 September, the Council’s Special Educational Needs (SEN) Panel decided it could not properly assess the request because it did not have a report from the Educational Psychologist.
- The Educational Psychologist’s report was received at the end of September. The next SEN Panel was on 31 October and it agreed that Child B required an EHC Plan. A draft Plan, with the appendices, was sent to the complainant on 20 November.
- Ms X asked for amendments to the draft Plan and sent her requests on 15 December. The Council issued a final Plan on 8 January 2020.
- The Council says that the exemption in the summer holiday of 2019 and Ms X’s request for further amendments to the Plan (which added 28 days to the time taken), allowed the Council to exceed the 20 weeks statutory timescale.
- Ms X lodged her appeal to the Tribunal concerning the content of the final Plan on 31 January 2020 and she is waiting for a Tribunal hearing.
Complaint (a)-Alternative education
- Ms X alerted School Y to the difficulties for Child B in attending school. School Y supported a referral in June 2019 to the Council for a statutory assessment of Child B’s possible special educational needs. Ms X also told the Council that she could not send Child B to School Y because he had specific difficulties and School Y was unsuitable to meet his needs.
- On 25 June 2019, the Council issued a fixed penalty warning notice because of Child B’s absences from school.
- The Council says that it was not aware of Child B’s non-school attendance until October 2019. But I am satisfied, based on the above evidence, the Council was aware of Child B’s absence from school before October and, on the balance of probabilities, I am satisfied the Council was aware by 25 June 2019.
- At this stage, Ms X also had a private Educational Psychologist’s report, which Ms X had arranged, and Child B was under CAMHS. The Council was therefore also aware of Child B’s medical difficulties in June 2019, which was preventing his attendance at School Y.
- My view is that the Council should have considered the provision of alternative education at this point (late June 2019) because there was sufficient evidence to say that Child B had medical needs preventing school attendance.
- It is also a concern that the Council appeared to have no agreed policy, prior to September 2020, for dealing with absences from school for medical reasons.
- The Council was also at fault in issuing a warning letter to Ms X without the Council first looking into why Child B was out of school.
Alternative educational provision since November 2019
- The Council has paid for one hour per week tuition since November 2019. Ms X’s concern is that this was insufficient, and the Council has provided no evidence about how it assessed Child B’s needs to determine whether this was the appropriate amount of alternative education.
- The Council says that it was guided by Ms X, who had arranged one hour tuition per week. Ms X has explained that this was based on her inability to pay for more tuition.
- It was appropriate for the Council to take account of Ms X, and other professionals’ views, when determining the amount of alternative individual tuition, which should be provided to Child B. But the Council had overall responsibility for determining this and, to do this properly, there should have been some assessment by the Council of what might be appropriate.
- The starting point for alternative education is that it should be fulltime, although for children with medical needs, this may well not be appropriate. The Council, however, has not provided any evidence of how it considered Child B’s educational needs and what level of alternative educational provision it should provide. The minutes of 31 January 2020 refer to future arrangements. It is also clear from the minutes of the meeting that Ms X was unhappy with the level of support being provided.
- My view therefore is that the Council is at fault because it gave little consideration to the level of alternative education being provided to Child B between November 2019 and January 2020. Relying solely on what Ms X had been able to pay for was not appropriate.
- In addition, in early January 2020, the Council said it would make a referral to Provider Z. It was not until March that the Council provided a further four hours support.
- In view of the fact that Child B had been out of school since July 2019, and Provider Z could not provide additional support immediately, the Council should have considered increasing the one hour per week individual tuition, which Child B was already receiving. It was fault not to do so.
Complaint (b)-The EHC Plan process
- The Council received a request for a statutory assessment on 25 June 2019. Working on the 20 week timescale, a final Plan should have been issued by 13 November 2019.
- The Council decided, within the required six weeks, to proceed with a statutory needs assessment of Child B’s special educational needs. The professionals, who were approached for advice, had six weeks to provide this. But the Council’s Educational Psychologist’s advice was not received until the end of September. This meant the Council’s SEN Panel could not decide about how to proceed until 31 October 2019, some two months after the Educational Psychologist’s advice should have been received.
- It was primarily the Educational Psychologist’s delay which prevented the SEN Panel reaching its decision to issue a Plan sooner.
- School Y was exempt from meeting the six weeks timescale. The Council says that it told Ms X this in an email of 12 September.
- I accept that Ms X’s requests for amendments added to the time taken to issue a final Plan. However, my view is that there were some avoidable delays by the Council in completing Child B’s final EHC Plan.
How to remedy the injustice caused by the faults identified?
- Where there has been avoidable distress, the Ombudsman’s recommendation to remedy such injustice is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period.
- In respect of a loss of education, the Ombudsman tries to address the educational disadvantage caused. Where a parent/carer has paid for private tuition, the Ombudsman might seek reimbursement of this cost from the Council. In this case, the Council paid for the tuition from November 2019.
- Where there has been no provision or limited provision, the Ombudsman normally recommends between £200 to £600 for each month of lost education.
- Child B has been without alternative educational provision for the last month of the summer term 2019 (July). He was then without alternative provision in September and October 2019. That equates to three months of missed alternative educational provision. I consider that Child B merits a payment at the high end of the Ombudsman’s tariff.
- In addition, the tuition between November 2019 to January 2020 for Child B was very limited and was not based on any assessment by the Council of what he required and how much alternative educational provision he was capable of receiving.
- In respect of the EHC Plan process, the delays in completing the EHC Plan, on time, has meant that Ms X’s appeal to the SEND Tribunal has been delayed. Even though the Tribunal decision remains unknown, there is still an injustice caused by a delay in Ms X’s ability to pursue an appeal sooner.
- Within one month of the date of the final statement, the Council will:
- pay Ms X £1,800 for the injustice caused by the three months of lost education for Child B. It will be for Ms X to decide how best to use this money to Child B’s benefit;
- Child B received very limited education between November 2019 to January 2020. And there is no evidence that the Council considered whether this was sufficient. For the injustice caused to Child B by this, the Council should pay £400 per month, so in total £1,200, again for Ms X to use for Child B’s educational benefit;
- apologise to Ms X for the faults identified and pay her £500 for the avoidable distress caused by the Council’s failures to act promptly on Child B’s absence from school, for the delays in completing the EHC Plan and for her time and trouble.
- Within three months of the final statement, the Council should:
- devise an action plan so that it can ensure that its requests for professional advice are provided within the required six weeks. The failure in providing advice on time means inevitable delays for the Council in being able to issue final EHC Plans;
- look to see whether its SEN Panels can meet more regularly to prevent delay in making decisions about the need for EHC Plans; and
- provide a case example to the Ombudsman, with names redacted, showing how the Council’s September 2020 policy regarding school absences for medical reasons is operating in practice.
- I have found fault causing an injustice to Child B and to Ms X. The Council has agreed the findings and recommendations. I have therefore completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate
- Ms X has appealed to the Tribunal. Therefore, I have not considered any concern Ms X has about the content of the final Plan. Once the Tribunal decision is known, and if Ms X considers the Tribunal decision means that Child B has missed out on SEN provision (because of the Council’s avoidable delay in issuing the final Plan), she can submit a further complaint to the Ombudsman, having first given the Council an opportunity to consider the matter.
- Further, we do have some discretion to consider periods of non-provision when an appeal is ongoing. For example, where a child with an EHC Plan is out of school for medical reasons, which are accepted by the school and council, the council will still have a duty to provide alternative education (subject to certain conditions), regardless of the appeal process.
Investigator's decision on behalf of the Ombudsman