The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to arrange suitable alternative education for her son, Y, after he stopped attending school due to ill health. She also complained the Council allocated insufficient funding towards Y’s education. Mrs X said this situation caused her stress and negatively affected Y’s educational and social development. The Council was at fault when it delayed arranging alternative education for Y and failed to issue a final EHC Plan within statutory timescales. However, this did not cause Y an injustice.
- Mrs X complained the Council failed to arrange suitable alternative education when Y stopped attending school in late 2017.
- She also complained the Council did not ensure his school allocated sufficient funding towards Y’s education.
- She said this caused her stress and financial loss and caused Y to lose out on social and educational development for over two years.
The Ombudsman’s role and powers
- 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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- 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.
How I considered this complaint
- I contacted Mrs X and discussed her view of the complaint.
- I made enquiries of the Council and considered the information it provided.
This included Y’s Education, Health and Care (EHC) Plan and complaint correspondence shared between Mrs X and the Council.
- I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before I made a final decision.
What I found
Education, Health and Care Plans
- The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated regulations and statutory guidance, the SEND Code of Practice 2015 (The Code).
- A child with SEN 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 responsibility for ensuring the child receives the provision in an EHC Plan lies with councils.
- An EHC needs assessment is an assessment of a child or young person’s education, health and care needs. It is the first step to getting an EHC Plan. An EHC needs assessment must consider whether there are additional health or social care needs, as well as education needs.
- The whole process of issuing an EHC Plan, from the point when an assessment is requested to the issuing of the final EHC Plan, must take no more than 20 weeks.
- Councils are responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
- Councils must review a child’s EHC Plan every 12 months as a minimum. Councils should also complete interim reviews if a child’s educational needs change throughout the year. This is to make sure any provision continues to meet the needs of the child.
- Following a review, councils must send parents a decision notice within four weeks confirming if the EHC plan is to continue, be amended or if it is to end.
Alternative provision and law
- The Education Act 1996 states councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
- Statutory guidance, “Ensuring a good education for children who cannot attend school because of health needs,” states that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
- There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the child is thought to be unable to cope with full-time provision, the council may decide to arrange part-time provision but there must be a clear medical reason for this.
Special educational needs funding
- The SEND Code of Practice says schools must use their best endeavours to make sure that a chid with SEN gets the support they need.
- All mainstream schools receive money for SEN support and resources. Schools can decide how to spend this money. This is called “delegated” funding because it is given to schools by local authorities.
- Government guidance says schools should provide up to the first £6000 of additional support for children who need it, including those with an EHC Plan.
- This does not mean that the school will spend £6000 on every child with SEN. Some children will need less help and some children may need more.
- Mrs X’s son Y is secondary school aged and has been diagnosed with autism.
He also suffers with anxiety.
- In November 2017, Y stopped attending school regularly due to his anxiety.
Y’s school told the Council about this in January 2018. At the time, the Council was conducting an EHC needs assessment for Y and was due to provide a final EHC Plan in June 2018.
- Mrs X complained to the Council in April 2018 that Y was not receiving adequate alternative education. The Council met with Mrs X and discussed the procedures for monitoring the attendance of children with SEN.
- In May 2018, the Council arranged for Y to receive a mixture of online and 1:1 tuition for twenty-five hours a week whilst the EHC needs assessment was ongoing.
- The Council issued Y’s final EHC Plan in October 2018. The Plan described Y’s difficulties with literacy and numeracy and his resistance to attending school or engaging with adults.
- The EHC Plan stated he needed 1:1 tuition and to be slowly introduced to home learning. It also said he required a bespoke package of support, the contents of which would need to be agreed through several consultations between the Council, Y’s school, and Y’s parents.
- In March 2019, the Council held an annual review with Y’s parents and Y’s school to discuss Y’s progress. It was noted that Y was refusing to engage with the online and 1:1 tuition he was receiving and had refused interventions from the Child and Adolescent Mental Health service (CAMHS). The Council has confirmed it did not amend Y’s EHC Plan at this point.
- The Council held an interim review in July 2019 with Y’s school and Mrs X.
The Council recorded the following, “Mrs X is happy with the support Y is currently receiving. We discussed plans for after Year 11 and Mrs X feels Y will not reengage with education.”
Mrs X’s complaint
- In September 2019, Y’s school stopped Y’s 1:1 tuition because he was still unable to engage with his tutor. Y’s school informed the Council that Mrs X would not allow anyone to visit Y and Y was not willing to leave the house. Mrs X disputes this and says she did not tell the school this.
- Mrs X contacted the Council in October 2019 and asked for an interim review meeting. Mrs X then complained to the Council in November 2019. She said Y’s school had only spent £320 on Y’s education that year. She was also unhappy with staff changes that had taken place at the Council because she felt this was impacting negatively on Y. She asked the Council to compel Y’s school to provide a lump payment for her son’s education between 2017 and 2019.
- The Council responded to Mrs X at Stage 1 of its complaints process.
The Council acknowledged it should have arranged an annual review once Y’s tuition stopped and confirmed that an interim review meeting was scheduled for late November 2019. The Council told Mrs X it would discuss her complaint regarding the school’s allocation of funds at the annual review and apologised for the negative impact caused by recent staff changes.
- The Council held an interim review meeting with Y’s school and parents in late November 2019. The Council noted that Y would not attend the meeting and would “pull the shutters down,” at the mention of education. The Council also noted it had offered Y the benefit of youth support services and work experience, but he was unable to engage with this. The Council concluded the meeting after deciding to trial a work placement with Y, which would slowly introduce him to English and Maths.
- Mrs X escalated her complaint to the Council in December 2019 and reiterated her previous complaint points.
- The Council investigated Mrs X’s complaint and responded at Stage 2 of its complaints process in January 2020. The Council acknowledged it should have acted sooner to ensure Y received alternative education after he left school.
The Council explained it had met with Y’s school to discuss how his funding had been allocated and provided a summary of how the funding had been used to benefit Y. The Council said the funding allocated to Y was still available to him and the school and the Council would decide how this funding should be used.
- Mrs X referred her complaint to the Ombudsman as she was not satisfied with the Council’s response.
- During the investigation, the Council confirmed it held an annual review of Y’s EHC Plan in February 2020 but did not amend Y’s Plan. The Council recognises it should have amended Y’s EHC Plan to reflect the outcome of the review meetings and has recently updated its annual review process and increased staff in its SEND department to ensure this happens more promptly in future.
- The Council has confirmed it will hold an annual review of Y’s Plan in October 2020 and it intends to amend the Plan at this point. The Council also said Y has begun to engage with the provision and is currently attending a work experience placement.
Delay in arranging suitable alternative education
- The law requires a council to arrange suitable education for a child it knows cannot attend school due to medical reasons. The evidence shows the Council became aware Y was not attending school in January 2018 but did not arrange alternative education for Y until May 2018. This was a delay of approximately 16 weeks, and this is fault. However, the evidence indicates Y was not willing to engage with either online or in person tuition once this was put in place. There is no evidence that Y would have behaved differently if the Council had acted earlier. Y did not experience an injustice due to these delays.
Y’s EHC Plan
- The law requires the Councill to issue a finalised EHC Plan within 20 weeks of receiving the request for a needs assessment. The Council did not finalise Y’s EHC Plan until October 2019, a delay of approximately four months. This is fault. However, Y was receiving interim support from May 2018 and was not engaging with it. There is no evidence Y would have behaved differently had the Council finalised the Plan sooner. Therefore, Y did not experience an injustice because of the delays.
- The law requires the Council to hold interim reviews to ensure the provision specified in the EHC Plan is still addressing the child’s needs. Y stopped receiving 1:1 tuition in September 2019 because he would not engage with it.
The evidence shows Mrs X asked for a review at this point. The Council went on to hold an interim review with Mrs X approximately five weeks after she requested it, and an annual review several months later. The law requires the Council to issue a decision on whether to amend the Plan within four weeks of the annual review. The Council did not issue a decision notice following the annual review and has yet to amend Y’s EHC Plan to reflect the meetings it has held to address Y’s development. This is fault. The Council has acknowledged it should have arranged an interim review of Y’s EHC Plan sooner and its failure to amend the Plan constitutes fault. The Council has confirmed it has reviewed its annual review process prior to the complaint being referred to the Ombudsman and is taking action to ensure it acts within a timely manner in future. I am satisfied the Council has already remedied any injustice caused by this part of the complaint.
- One of Mrs X’s complaints concerns the allocation of funding towards Y’s education. Whilst it is the Council who provides the school with the funding, it is the school who decides how it is used. The Council is not required by statutory guidance to ensure the school allocates the entirety of the annual budget towards Y’s educational benefit. After Mrs X raised her complaint, the Council met with Y’s school and reviewed the school’s policy on funding allocation. The Council satisfied itself the school had utilised the funding meant for Y correctly. There was no fault in the Council’s actions.
- The Council was at fault when it delayed arranging suitable alternative education for Y when he left school. However, Y did not experience an injustice because of this. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman