The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to ensure her granddaughter, D, received appropriate education from October 2019 to December 2019. She also said the Council failed to provide the provision outlined in the EHCP. The Ombudsman has found fault by the Council which has caused D to miss out on special educational provision. The Council will apologise, make a financial payment and service improvements.
- Mrs X complains on behalf of her daughter, Ms Y. Ms Y has given written consent for Mrs X to represent this complaint on her behalf. I consider that Mrs X is a suitable person to represent this complaint on Ms Y’s behalf.
- Mrs X complains that the Council failed to:
- make alternative education provision for her granddaughter, D, when she was out of school between October 2019 and December 2019; and
- ensure D received educational psychology provision as detailed in her Education, Health and Care Plan (EHCP).
- Mrs X says this caused stress and anxiety to D, who has missed out on education, as well as the wider family.
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 considered the information provided by Mrs X and spoke to her on the telephone. I made enquiries of the Council and assessed its response.
- I wrote to Mrs X and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.
What I found
Law and guidance
- The Department for Education issued guidance entitled ‘Alternative Provision’. This guidance says, ‘Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made’.
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)
- Statutory guidance says education should be provided as soon as It is clear the child will be away from school for 15 days or more and should address the needs of the individual child. (Ensuring a good education for children who cannot attend school because of health needs, 2013)
- Children with complex needs may require an Education, Health and Care (EHCP). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
- Councils are responsible for making sure all the arrangements named in the EHCP are put in place.
- Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the EHCP. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.
- The Special Education Needs and Disability Code of Practice (the Code) provides EHCPs must be reviewed as a minimum every 12 months. The Council’s decision following the review must be notified to the parent or carer within four weeks of the review meeting.
Achieving for Children
- The Council has outsourced its children’s services to Achieving for Children (AfC) an independent provider which also provides children’s services to three neighbouring councils.
- I have set out below a chronology of the key events. It is not meant to show everything that happened.
- D has, attention deficit hyperactivity disorder (ADHD), autistic spectrum condition, anxiety disorder, epilepsy, and dyslexia. D attends a maintained mainstream school, and she has had an EHCP for a number of years.
EHCP Annual Review January 2019 and 2020
- The annual review of D’s EHCP should have been carried in January 2019. The Council carried out the review in April 2019 and issued a draft plan in June 2019 and a further two amended drafts were issued in July 2019. A final amended plan was issued in January 2020.
- Mrs X complained to the Council in February 2020.
- The Council, has acknowledged it is at fault for failing to issue an amended EHCP following the annual review. The Council accepts there was considerable delay but said this was the result of repeated attempts to arrive at a consensus as to the content of the final EHCP rather than any failure to fulfil its statutory duty. Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. However, I must consider whether the apology offered by the Council was sufficient to remedy any injustice caused by the delay.
- The annual review of D’s EHCP was due in January 2020 but did not take place until the end of April 2020, some three months later. The Council has accepted fault.
- I appreciate the Council was working with Mrs X and Ms Y to amend the plan. But the Council did not need to wait until Mrs X and Ms Y were happy to issue the plan. The Code and Regulations are clear about when final plans should be issued, this enables parents or guardians to use their appeal rights if they choose to do so. The deadline for issuing the final EHCP was missed and this amounts to fault.
D’s education from October 2019 to December 2019.
- On 11 October 2019 D stopped attending school. Mrs X submitted a letter from Child and Adolescent Mental Health Services (CAMHS). The letter stated that D was unwell and suffering from anxiety.
- On 24 October 2019 a transition meeting was held at the school. It was noted that D’s family did not attend. It was later established that Mrs X did not attend the meeting because she thought it was an annual review meeting for D’s EHCP. Mrs X explained that she had not received a copy of the draft EHCP and therefore would not attend the meeting without the necessary paperwork.
- On 30 October 2019 Mrs X told the Council that D had been absent from school for almost 15 days. Mrs X said she expected the Council to ensure D received the equivalent of a full-time education. Two weeks later Mrs X sent another email to the Council requesting educational provision for D as she remained absent.
- A reintegration meeting was held by the school on 12 December 2019. The purpose of meeting was to discuss the provision and support required for D to return to school full-time. The Council did not attend this meeting but did confirm to the school that a recent letter from CAHMS did not meet the criteria for medical tuition.
- D returned to school on 13 December 2019.
- In its response to Mrs X’s complaint the Council acknowledged “the opportunity for support was subsequently lost to a procedure that was ineffective in addressing the matter of [D’s] education whilst at home”
- The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness of ‘otherwise’ the Council must intervene and make such arrangements itself. The duty arises after a child has missed 15 days of education either consecutively or accumulatively.
- From the evidence I have seen, the Council became aware that D was not attending school on 17 October 2019.
- Mrs X contacted the Council in October and November about provision for D while she was not in school. I have not seen any evidence that the Council responded to Mrs X’s request nor provided her with any advice or guidance. This is fault. During this period, the Council was working on finalising D’s EHCP, following an annual review in January 2019. By doing so the Council was aware that D had health and educational needs that required additional support. The school met with Mrs X in December 2019, the Council did not attend this meeting. As D had already missed well over 15 days, this meeting should have happened sooner and I would have expected the Council to have intervened.
- Despite Mrs X specifically raising a complaint about the Council’s failure to fulfil is section 19 duty, the Council’s response said that the school remained responsible for D’s education as her absence was not related to ill health. It said the CAHMS letter did not stipulate that D’s anxiety meant that she should be exempted from school.
- The Guidance states that a lack of medical evidence should not stop a child from accessing education and that councils should consider “other evidence” to prevent a delay in arranging educational provision. Section 19 also requires councils to make suitable educational arrangements for children who because of exclusion, illness or otherwise may not receive an education. Even without definitive medical evidence, the Council has a duty to consider arranging education under the “otherwise” category. D having been absent from school for more than 15 days contributed significantly to her anxiety about returning to school. It is my view that the Council took an overly restrictive view of D’s individual circumstances. Something that the Guidance is clear that councils should not do.
- There is little evidence that the Council did enough to satisfy itself that the school had arrangements in place for D during this period. In her complaint, Mrs X said D had not been seen by the school or the Council. She said no attempts had been made to, reintegrate D back into full time education, monitor her education provision and maintain social contact with her peers or staff.
- The Council accepts that it should have acted sooner in concluding that the school was unable to make suitable arrangements for D. What I would expect to see is some proof that the Council had satisfied itself that the school was able to provide all the provision and support named in the EHCP, that D so clearly required. I would expect a Council to put provision in place until attendance issues were resolved rather than leave a child without education for long periods.
- The Council’s failure to take timely action to address D’s non-attendance is fault. The Council’s approach contributed to a loss of opportunity for D. Had it not been for the Council’s fault D could have received alternative provision that was suitable for her.
EHCP psycho-education provision from August 2019 to February 2020
- The Council was under a duty to ensure that the school delivered the provision set out in the EHCP. Mrs X says the school did not deliver the psycho-educational support as set out in D’s EHCP.
- The EHCP stated psycho-educational support would be delivered by teaching staff or a qualified learning support assistant as a 1:1 programme. The support would be delivered through weekly sessions lasting 45 minutes to an hour including 30 minutes planning time.
- The Council said the provision had been delivered through occupational therapy and educational psychology services. It explained that psycho-educational provision had been delivered by staff at the school under the oversight of an educational psychologist or mental health professional. The Council said that the support provided by the educational psychologist to staff constituted intervention and therefore complied with the provision as set out in D’s EHCP.
- In its response to Mrs X’s complaint the Council acknowledged that Mrs X had previously been assured to enhanced educational psychology input for D and the school had interpreted this as only applicable if D should need it. The school has accepted this was unsatisfactory. The Council says it was not aware of the approach taken by the school and therefore was not in a position to intervene.
- Councils have a legal duty to ensure the special educational provision in section F of an EHCP is delivered from the date they issue a final EHCP. This duty is non-delegable.
- Mrs X says the school did not deliver the psycho-educational support as set out in the EHCP. It is not the Ombudsman's role to determine the suitability of the education provision, either quality or amount, that D should receive. Our role is to consider whether the Council provided the education and the support set out in D's EHCP.
- In response to my enquiries, the Council sent information from the school about the provision for D. For the period covered by this investigation (August 2019 to February 2020) D received half termly pyscho-educational provision from the educational psychologist. The programme was monitored by the educational psychologist who confirmed that the provision in place for D fulfilled the requirements of her EHCP. Whilst Mrs X disputes the provision in place for D, I have found no fault with the Council actions here. However, provision was missed from 11 October 2019 to 12 December 2019 when D was not attending school. This was fault.
- Further information shows that the school was not providing ‘enhanced educational psychology input’ that had previously been agreed. The Council confirms that the school elected to interpret this provision as “only applicable in the event that [D] should need it”. In its response to Mrs X’s complaint, the school and the Council acknowledged this was unsatisfactory. The Council said it was not aware of the approach adopted by the school. I have seen an email exchange between Mrs X and AfC dated 27 January 2020 confirming discussions that took place at a team around child meeting held, raising concerns about the lack of appropriate psycho-education programme. Therefore, I cannot find fault by the Council for not acting sooner if it was unaware of the approach taken by the school.
Annual review January 2020
- The annual review of D’s EHCP should have been carried in January 2020. The Council carried out the review in April 2020. The Council has acknowledged a delay of three months in completing the review. Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. However, I must consider whether the apology offered by the Council, was sufficient to remedy any injustice caused by the delay.
- We cannot consider the role of the school as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
- The Council’s failure to issue an amended EHCP following the annual review in January 2019 meant that Mrs X was denied the opportunity to appeal against the EHCP. The failure to issue the amended EHCP meant D did not have the benefit of an up-to-date EHCP for 12 months longer than necessary. As a result, the Council and school did not have a up to date understanding of D’s needs and how to meet them.
- I cannot say on balance the failure to issue the amended EHCP in January 2019 and complete the annual review in January 2020 caused D’s anxiety and absence from school. There are too many other factors potentially involved, but it would have placed her at a disadvantage. As recognised by AfC, this was a vital year of transition for D. I recommend a payment of £500 to acknowledge this disadvantage.
- D also missed seven weeks of education as a result of the Council failing to provide alternative provision from October 2019 to December 2019. This loss of provision was an injustice to D. Where a child has not received a suitable education the Ombudsman’s guidance on remedies recommends a payment of between £200 to £600 a month to acknowledge the impact of that loss. We consider the impact on the child, the severity of their special educational needs and the amount of provision that they could have managed.
- Given that D was without any education and special educational needs provision, including psychoeducational provision, for seven weeks (taking into account school holidays) I recommend a payment of £100 per week. This amounts to £700.
- It is particularly disappointing that having acknowledged and apologised previously for the delays and errors in the EHCP process the Council’s service did not improve. The failure to complete the annual review in January 2020 caused Mrs X avoidable frustration. I recommend a payment of £200 to acknowledge the uncertainty and frustration caused by the delay.
- I am satisfied that Mrs X suffered further injustice as result of the Council’s faults. She spent a considerable amount of time and trouble complaining and was frustrated by the Council’s approach. I recommend a payment of £150.
- Within one month of my final decision the Council will:
- Apologise in writing for the faults identified in this statement;
- Pay Mrs X £500 for delay in amending an issuing a final EHCP in January 2019; Mrs X should use the payment for D’s educational benefit as she sees best;
- Pay Mrs X £700 to acknowledge the impact of a loss of education provision for D. The payment should be used for the benefit of D’s education and to obtain support to make up for her lost educational opportunity;
- Pay Mrs X £200 for the delay in completing the annual review in January 2020; and
- Pay Mrs X £150 to recognise her frustration and the time and trouble she spent pursuing her complaint.
- Review its processes to ensure annual review decisions and any draft EHCPs following that decision are issued within the timescales set down by the Code of practice; and
- Consider whether its procedures are robust enough to enable it to take prompt action when it has a duty, under Section 19 of the Education Act 1996.
- I have found fault by the Council causing injustice to Mrs X and D. The Council has agreed to my recommendations and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman