The Ombudsman's final decision:
Summary: Mr X complained the Council took too long to issue his daughter’s, Miss Y’s, Education Health and Care plans and failed to arrange alternative education for her after she could not attend school because of health problems. We find the Council was at fault causing Miss Y to miss 25 weeks of education and causing avoidable distress for Mr X and his family. The Council has agreed to pay Mr X £250 to remedy this distress and review its policy on pupils unable to attend school because of ill health.
- Mr X complained the Council:
- took too long to issue a final Education Health and Care plan (EHC plan) for his daughter, Miss Y, after he asked for an assessment in January 2018;
- took too long to issue a final amended EHC plan after a review in October 2018;
- failed to arrange alternative education for Miss Y when she could not attend school due to health problems.
What I have investigated
- I have investigated matters from February 2018 to August 2018 and from November 2018 to April 2019.
- The final section of this statement contains my reasons for not investigating the rest of the complaint.
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)
- 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)
- The law says 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
- I considered the information provided by Mr X in his complaint and discussed his complaint with him.
- I considered the Council’s comments about the complaint and the supporting documents it provided.
- I considered the relevant law and guidance.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
Education health and care plans
- An Education Health and Care (EHC) plan 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.
- The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC plan must take no more than 20 weeks.
- The Special educational needs and disability code of practice: 0 to 25 years (the Code) says:
- When issuing a draft EHC plan, councils must give parents 15 days to comment on the draft and ask for a specific school.
- 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.
- If the EHC plan needs amendments, the Code states councils should “start the process of amendment without delay”. The council must send the parents a copy of the existing plan with a notice explaining the proposed amendments and the evidence for these. It must then issue the amended EHC plan within eight weeks of the amendment notice.
- Councils must consult the parent’s preferred school and consider its comments before deciding whether to name the school in the EHC plan. Schools consulted should respond within 15 days.
Provision of suitable education
- Section 19 of the Education Act 1996 states councils have a duty to make arrangements to ensure the provision of suitable education at school or otherwise for each child of compulsory school age who for reasons of illness, exclusion or otherwise may not for any period receive suitable education unless arrangements are made for them. The education must be provided from the 6th school day after a child is excluded.
- Statutory guidance ‘Alternative Provision 2013’ and ‘Ensuring a good education for children who cannot attend school because of health needs 2013’ advises councils on how to carry out this duty. The guidance says:
- the duty means “that where a child cannot attend school because of health problems and would not otherwise receive a suitable full-time education, the local authority is responsible for arranging provision and must have regard to this guidance”;
- local authorities should also liaise with appropriate medical professionals to ensure minimal delay in such provision;
- the duty 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 not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
- 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;
- choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
- put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
- not assume that schools shoulder the entire responsibility for a child’s education;
- be mindful of unofficial exclusions by schools;
- provide alternative education if a child cannot reintegrate into school or the school is unsuitable, and the council decides not to take legal proceedings.
- Unofficial exclusions are when a school asks parents to keep a child at home without the child being formally excluded. Even if the parents agree to this, unofficial exclusions are illegal.
- Where a council becomes aware of an unofficial exclusion, we would expect it to raise this with the school and point out that the exclusion is illegal.
The Council’s policy on pupils with medical needs
- The Council’s policy for children unable to attend school due to medical needs says:
- it applies to children who are prevented from attending school for 15 days or more over a school year;
- health needs must be verified, in writing, by a consultant before alternative education will be arranged;
- arrangements for alternative provision are made in agreement with the local hospital needs school;
- the Council expects schools to refer children to the hospital needs school;
- the Council will only intervene in disputes about provision for children medically unfit to attend school “if it has reason to believe that the education provision is unsuitable or insufficient”.
The Council’s Reintegration Service
- The Council has Exclusion and Reintegration Officers who work with schools to prevent exclusions and monitor the use of reintegration or reduced timetables.
- The Council has guidance on the use of reduced timetables in schools. It says schools should:
- only use reduced timetables in exceptional circumstances and for a time-limited period;
- agree the use of reduced timetables with parents;
- notify the Council if a reduced timetable is being used.
- ensure reduced timetables are recorded and monitored;
- raise with schools where a reduced timetable is used for more than one half term.
- Miss Y started at School A, a mainstream college in September 2017. Before this she attended two different secondary schools.
- School A struggled to support Miss Y and manage her behaviour. Her attendance at school was sporadic and she had several fixed term exclusions in late 2017. Because of her difficulties in accessing education, School A put in place additional support including lessons in a small nurture group and a reduced timetable.
- It identified Miss Y might have special educational needs and agreed with Mr X that Miss Y should be referred to the Council for an EHC needs assessment.
- On 24 January 2018, Mr X and School A asked the Council to carry out an EHC needs assessment for Miss Y.
- Shortly after this, School A told Mr X that Miss Y “should stay at home until we have a plan” because she was “highly vulnerable to a permanent exclusion” and Mr X should consider “withdraw[ing] Miss Y from School A” while trying to find a placement at a specialist school. The School also suggested Miss Y be referred to child and adolescent mental health services (CAMHS). Mr X sent a copy of this email to the Council.
- At the same time, School A told the Council that Miss Y was at risk of permanent exclusion and requested support from the Council’s Exclusion and Reintegration Service.
- The Council agreed to complete an EHC needs assessment and started it promptly. At the same time, Mr X privately arranged support for Miss Y from a specialist autism support agency. Mr X says this support was focused on helping Miss Y with her behaviour and emotions, and to help understand her needs better, but did not include any academic content.
- On 13 March, an officer from the Council’s Exclusion and Reintegration Service contacted School A to see what support the Council could provide. The officer and School A decided not to try to find an alternative school because the EHC needs assessment was ongoing.
- The following week Mr X told the Council Miss Y was not attending School A because it still did not have plan to support her and it said she should stay at home. He told the Council Miss Y was not receiving a suitable education and this was affecting her mental health. Mr X also told the Council he would like Miss Y to attend School B, an independent special school. The Council told Mr X it was School A’s responsibility to arrange education for Miss Y, that it could not get involved because Miss Y did not have an EHC plan yet and that Mr X should complain to the School. School A’s attendance records show it recorded Miss Y as absent for medical reasons on 12 of the last 15 school days.
- School A contacted Mr X with a proposed reintegration plan, including a reduced timetable, just before the Easter school holidays. Mr X told the Council and School A he thought the plan was not suitable and discriminated against Miss Y. He told the Council this was the third part-time timetable School A had put in place for Miss Y and the others had not worked. He referred to the Council’s guidance that schools should not implement a part-time timetable without the parents’ consent. He told the Council he would not send Miss Y to School A until the plan was suitable for her. The Council told Mr X it could not get involved with the dispute and he should complain to the School.
- Attendance records from School A show Miss Y attended school sporadically until the end of May 2018 when she was given another fixed term exclusion. Miss Y did not return to School A after the May school holiday for more than a few hours in total. Mr X says this was because of her anxiety and that School A could not meet her needs.
- On 1 June, the Council sent Mr X a draft EHC plan and asked him to provide his comments and his preference of school within 15 days. At the same time, it consulted with several mainstream schools, including School A. All schools which responded, including School A, said they could not meet Miss Y’s needs.
- The Council held a ‘Team Around the Family’ meeting in mid-June to discuss support for Miss Y and her family. At this meeting Mr X told the Council Miss Y had been signed off school due to severe anxiety and had been urgently referred to CAMHS by her GP. Mr X also asked for more time to send his comments on the draft EHC plan.
- At the same time, the autism support agency helping Miss Y sent a proposal for a package of alternative education for the rest of the term to School A. School A sent the proposal to the Council and said it would need Council funding to commission it. The Council asked School A to explain why it could not afford the suggested package of support and how it would educate Miss Y for the rest of the term and from September 2018. It told School A “we must not delay intervention and strategies to support her emotionally and academically”.
- On 18 June, Mr X provided a letter from Miss Y’s GP which stated, “[Miss Y] has ASD and severe anxiety and is having great difficulty staying at school.” and the GP was “referring [Miss Y] to CAMHS for urgent re-assessment as she may need medication for her anxiety”. It asked those concerned to “be lenient in considering her absences until the end of term”.
- School A referred Miss Y to the hospital needs school based on the letter from her GP. It also applied to the Council for funding for:
- the alternative education package proposed by the autism support agency;
- tuition through the hospital needs school; and
- a six-week behavioural intervention program.
The Council’s response to Mr X’s complaint
- In the Council’s final response to Mr X’s complaint, it apologised for the lack of communication from the Council and that Miss Y missed out on education.
- The Council apologised to Mr X and Miss Y for the distress they had suffered and it offered to pay them each £250 as part of the apology. The Council also paid Mr X the £1,900 he had spent on the specialist autism support agency between February and October 2018.
- Mr X complained to the Ombudsman because he said the Council did not properly acknowledge the effect on Miss Y of the education she missed out on.
The Council’s response to my enquiries
- In its response to my enquiries the Council agreed it issued the first EHC plan late. It has apologised to Mr X and to Miss Y for these delays and has paid £250 to both Mr X and Miss Y to recognise these failings.
- It said the delays were due to the complexity of Miss Y’s needs, difficulty in finding a suitable school place and because Mr X asked for more time to comment on the first plan.
- While the Council recognised Miss Y was struggling at School A and had health problems, it said it was never provided with medical evidence to say she was too ill to attend school.
- It said it had extensive discussions with School A about supporting Miss Y while she was still on the school roll, including asking School A to refer Miss Y to the hospital needs school. School A said it did not have the resources to put in place suitable alternative provision, but it could not prove this to the Council. The Council said its expectation was that School A would provide Miss Y’s alternative provision.
a) Delays in issuing Miss Y’s EHC plan
- If a council decides to make an EHC plan, it must issue the final plan within 20 weeks of receiving the application. Before finalising the EHC plan, councils must give parents 15 days to comment on a draft EHC plan.
- The Council received the EHC application for Miss Y on 24 January 2018, therefore it should have issued the final plan by 13 June 2018. It did not issue the final EHC plan until 22 August 2018. That was ten weeks late. As the Council did not issue the draft plan until 1 June 2018, that meant it did not allow enough time for Mr X to provide his comments and for the Council to consider those comments before the final plan was due.
- Although Mr X asked the Council for more time to comment on the draft plan, he only took an extra week to provide his comments. It took the Council a further eight weeks to consider his comments and issued the final EHC plan. That delay was fault.
- However, I do not consider the delay has caused Miss Y injustice. The final EHC plan named School A, which she was already attending. And, although his right to appeal to the SEND tribunal was delayed, Mr X did not appeal to the tribunal.
- The Council has already accepted fault for delays in the EHC plan process and offered Mr X and Miss Y a financial payment of £250 each. I am satisfied that remedies any injustice caused by the delay in issuing the final plan.
b) Delays in amending the EHC plan after review
- School A reviewed Miss Y’s EHC plan on 30 October 2018. The Council said it received the review report on 20 November 2018. I cannot comment on the School’s delay in sending the report to the Council.
- The Council agreed to amend the EHC plan so it should have sent a decision notice to Mr X within four weeks of receiving the review report, stating that. The Council failed to do so; that was fault.
- The Council started the amendment process without delay after it received the review report. It consulted Mr X’s preferred and other schools to find a place for Miss Y.
- The Council did not send an amendment notice and draft amended EHC plan until mid-March 2019. This was due to delays in finding a suitable school place for Miss Y and Mr X’s preferred school changing during the amendment process.
- The Council issued the amended EHC plan on 14 May, four days over the eight-week time limit from the issuing of the amendment notice.
- Although the Council failed to send Mr X a decision notice following the review meeting, I do not consider this caused Mr X or Miss Y an injustice, since the Council had decided to amend the plan and the evidence shows it did this without delay after it received the review report. Delays in the amendment process were mostly outside the Council’s control and Miss Y was ultimately placed at Mr X’s preferred school.
c) Failure to arrange alternative education
February 2018 – April 2018
- The Council was aware in early February 2018 that School A had advised Mr X not to send Miss Y to school. This amounted to an unofficial exclusion.
- The Council did not challenge the unofficial exclusion or take any action to ensure Miss Y was receiving suitable education until the unofficial exclusion ended in mid-April 2018.This was fault, resulting in Miss Y missing out on six weeks of education while unofficially excluded. The Council had a duty to arrange suitable education from the 6th school day of the exclusion, so it is responsible for five weeks of this missed education.
- From mid-April to late May 2018, Miss Y was on a reduced timetable at School A. The Council’s policy says these should only be used with the agreement of parents, for a fixed period and should be monitored by the Council. The Council failed to monitor the use of the reduced timetable in line with its policy. This was fault.
- Although Mr X objected to the part-time timetable, I do not consider this to have caused Miss Y a significant injustice, since attendance records show she did attend school between mid-April and late May 2018, so she was receiving education during that time.
June 2018 – July 2018
- In early June 2018 Mr X and School A told the Council Miss Y was no longer attending school and that her mental health was significantly affected. School A referred Miss Y to the hospital school for alternative provision, but that application was rejected. School A requested additional funding for specialist support, which the Council refused to fund.
- The Council said it did not provide education because:
- it did not have medical evidence to say Miss Y was unfit to attend school therefore, it did not have a responsibility to educate her; and
- School A was responsible for providing Miss Y’s alternative provision.
September 2018 – October 2018
- The Council issued the final EHC plan in August 2018, naming School A. I have not considered any loss of education during this time because Mr X had the right to appeal to the SEND tribunal. We cannot normally consider matters where someone could appeal to a tribunal and I have seen no good reason why Mr X could not have appealed.
November 2018 – March 2019
- From 20 November, the Council knew Miss Y was not attending School A or receiving the provision set out in her EHC plan. The Council should have considered whether it had a duty under section 19 to provide alternative education for Miss Y while it was amending her EHC plan and finding a suitable school. The Council failed to do this, which was fault.
- As a result, Miss Y went without education between 20 November and late April 2019; a total of 16 school weeks. The evidence again suggests Miss Y would have been unlikely to take part in full time education at the time, so the education she missed out on during this period would not have been full-time.
- While the Council went to significant efforts to find a suitable school place for Miss Y, it lost sight of Miss Y’s education in the interim.
- 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.
- Considering Miss Y’s age at the time she missed education and her special educational needs, a remedy of £400 per month of missed education would be appropriate for the period Miss Y was unofficially excluded by School A and the Council failed to organise alternative education for her.
- During the periods where Miss Y was unlikely to be able to take part in full-time education, a remedy of £250 per month of missed education would be appropriate.
- The Council has already paid Mr X £1,900 to reimburse him for the autism support service fees he has paid. I would not, as part of this complaint, have suggested such a payment. Employing this service was a choice he made as a parent and it was not to replace the education Miss Y was missing out on. I would however have made a recommendation for Miss Y’s missed education which would have been for a similar amount. Because the Council has already paid £1,900, I have not recommended a further payment for the lost education.
- However, the time Miss Y spent at home throughout the periods she was missing education caused avoidable stress and inconvenience for Mr X and his family. I suggest an additional payment of £250 in recognition of this additional distress.
- Within one month of my final decision the Council has agreed to pay Mr X £250 for the avoidable distress and inconvenience caused by having Miss Y at home for an extended period when she should have been in education.
- Within three months of my final decision the Council has agreed to:
- remind relevant staff that unofficial exclusions are unlawful, and provide guidance on actions to take if they become aware a school has unofficially excluded a pupil;
- review how it identifies children to whom its section 19 duty may apply, especially where children are ‘otherwise’ not accessing education, and ensure relevant staff are trained on the actions to take if they become aware a child is not accessing education; and
- review its policy on children unable to attend school due to medical needs, particularly around the standard of evidence required, to ensure the policy has full regard to current guidance and legislation.
- I uphold Mr X’s complaint and have completed my investigation. The Council took too long to issue Miss Y’s EHC plan and failed to ensure Miss Y was provided with alternative education when she was not attending school. The Council has agreed to pay Mr X £250 for the distress caused by Miss Y having to spend time at home when she was out of education and review its policy on children unable to attend school because of ill health.
Parts of the complaint that I did not investigate
- I have not investigated the period between 22 August 2018, when the Council issued the final EHC plan, and 20 November 2018 when it became aware Miss Y was not attending school.
- The law says we cannot normally investigate matters where someone could appeal to a tribunal unless we believe it would be unreasonable to expect them to appeal. Mr X could have appealed the naming of School A in the EHC plan to the SEND tribunal. I have seen no good reasons why Mr X could not have appealed.
Investigator's decision on behalf of the Ombudsman