Summary: Mr and Mrs B complained that the Council failed to make appropriate educational provision for their daughter when she was unable to attend school because of ill-health. They also say there were failings in the way the Council dealt with her education, health and care plan (EHCP). We found the Council delayed in issuing the EHCP and failed to properly explain the procedure to Mr and Mrs B. There is also uncertainty about whether the Council told them they could cancel the online tuition program they had arranged. These failings caused the family distress and anxiety. In recognition of this, the Council has agreed to apologise to Mr and Mrs B and make a payment to them.

The complaint

1. Mr and Mrs B complain that the Council:
• failed to make appropriate educational provision for their daughter when she was unable to attend school because of ill-health with the result that they had to source tuition themselves;
• has no clear policy on children unable to attend school for medical reasons;
• delayed in issuing the final education, health and care plan (EHCP); and
• misled them into believing the EHCP would identify educational provision for their daughter other than the school she was currently attending.
2. Mr and Mrs B also complain that a Council officer threatened them with legal action rather than helping when they contacted the Council for advice.
3. Mr and Mrs B say the Council’s failings caused them and their daughter stress and anxiety and they incurred the cost of providing tuition.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I have considered all the information provided by Mr and Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
8. Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Children with special educational needs (SEN)

9. A child with special educational needs may have an education, health and care plan (EHCP). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.

Alternative education

10. The Education Act 1996 (Section 19) says councils must make arrangements for the provision of suitable education for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
11. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education and should enable the child to achieve good educational attainment on par with their mainstream peers. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
12. There is no legal deadline by which local authorities must have started to provide education for children with additional health needs. But Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils should arrange provision as soon as it is clear the child will be away from school for 15 days or more and should do so “at the latest by the sixth day of the absence”.
13. We issued a focus report in 2016, “Out of sight…. out of mind?”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations including that councils:
• consider the individual circumstances of each case and be aware that they may need to act whatever the reason for absence, even when a child is on a school roll;
• consult all professionals involved in a child's education and welfare;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• act without delay to ensure the child is back in education as soon as possible.

The Council’s Education Support for Medical Absence (ESMA)

14. ESMA provides teaching, mainly in the three core subjects of maths, English and science, to support reintegration back into school. Pupils remain on the role of their school and ESMA teachers work in partnership with the school to ensure continuity and progression for the pupil, taking account of medical advice. An hour’s one-to-one tuition with ESMA is equivalent to 3 hours in a mainstream classroom because the teaching is more intense.

Key facts

15. Mr and Mrs B’s daughter, C, was in year nine at school. Her mental health deteriorated and she began self-harming and talking about taking her own life. Mr and Mrs B met with the school in December 2018. It had implemented various strategies aimed at reducing C’s anxiety and maintaining her attendance but these were not working.
16. In January 2019 the school asked Mr and Mrs B to stop sending C to school because of her extreme emotional distress.
17. On 1 March 2019 the school contacted the Council saying C was medically unable to attend because of her mental health difficulties. It requested help to improve her mental health and develop strategies so she could return to school. It provided medical evidence from the Child and Adolescent Mental Health Service (CAMHS) which stated that C should work from home for the next few weeks while a full psychiatric assessment was completed.
18. The request was considered by the Council’s Education Support for Medical Absence (ESMA) panel on 7 March 2019. A letter confirming ESMA was offering support to C was sent to Mr and Mrs B on 19 March 2019. Meantime, Mr and Mrs B arranged an online tuition programme for C.
19. On 28 March 2019 ESMA met with Mrs B and the special educational needs coordinator (SENCO) to plan a package of support to help C return to school. It was agreed there would be a joint package of support provided by ESMA and the school. ESMA would initially provide one hour of English and one hour of maths one-to-one teaching support away from school per week and the school would provide schemes of work and teaching material for the ESMA teachers.
20. The first ESMA lesson was on 3 April 2019. The school also sent C some work for a short period under ESMA’s direction but Mr and Mrs B asked for this to be stopped as it was making C more anxious.
21. On 7 June 2019 there was a review. Mr and Mrs B, C, the school, CAMHS and ESMA were present. They discussed the logistics of fitting ESMA lessons in with Mr and Mrs B’s work commitments and C’s online learning timetable.
22. C’s health improved over the summer and she agreed to return to school in September 2019. Shortly afterwards C attempted to take her own life and Mr and Mrs B informed ESMA that she would not be returning to the school.
23. On 10 October 2019 there was another review and it was agreed the ESMA support teacher would visit C at home to see if she would engage in a science lesson in a neutral venue as a short-term target to help her leave the home. This could then be increased to two lessons. Shortly afterwards ESMA started providing science lessons to C.
24. In November 2019 C was admitted to hospital following another overdose. She was discharged with high level medical care at home. ESMA put lessons on hold and awaited feedback from CAMHS about when it would be appropriate to restart.
25. On 17 December 2019 ESMA made a home visit to discuss next steps regarding their input. They recommended Mr and Mrs B request an EHC needs assessment for C but they felt unable to do so at the time because of all the stress they were under. They discussed possible weekly lessons for C starting in the spring term. C was still under daily medical supervision so it was agreed this would be reviewed. In the meantime, Mr and Mrs B re-started the online tuition programme.
26. On 10 January 2020 ESMA requested medical advice regarding next steps. A few days later ESMA provided a science lesson for C at home and booked weekly one and half hour lessons.
27. C’s mental health was more stable by February 2020 and Mr and Mrs B submitted a request for an EHC needs assessment on 24 February 2020.
28. In March 2020 ESMA lessons were moved online because of COVID-19 restrictions. ESMA recorded that between March and April C struggled to engage and often did not manage to join the online lessons or attended short sessions using only audio and not video.
29. On 23 April 2020 the Council decided an EHC assessment was not required but requested further information from ESMA. It then reconsidered the request on 6 May 2020 and agreed to complete an assessment.
30. C accessed some lessons with ESMA in May but this was inconsistent because she had various hospital admissions and was still struggling to engage with online lessons.
31. On 19 May 2020 a virtual meeting took place between ESMA, CAHMS and the SENCO. It was agreed ESMA would continue with one hour’s tuition in maths and English per week.
32. At the beginning of June 2020 ESMA recorded C was spending longer on the online sessions but still not using video. She missed the lesson on 15 June and delayed the 22 June lesson because of anxiety. ESMA began socially distanced lessons in C’s garden which she engaged well with.
33. On 14 July 2020 Council sent Mr and Mrs B the draft EHCP and asked them to express a preference for a school. Mr and Mrs B returned the form expressing a preference for a specialist school, School X.
34. The Council’s process is to submit all requests for specialist provision to the Provision Panel. It wrote to Mr and Mrs B on 14 August explaining that their request would be submitted to the next panel.
35. The final EHCP was issued on 10 August 2020 and named C’s current school. Mr and Mrs B were appalled because C had experienced such difficulties with her peers at the school that she had attempted to take her own life and needed a school with experience of teaching pupils with severe mental health issues. They wrote to the Council explaining their concerns. The SEND officer responded further explaining that School X had not been named because specialist provision had to be approved by the Panel.
36. The Council sent a consultation letter to School X and, on 7 September 2020, it confirmed C would transfer there. The Council issued an amended final EHCP naming School X on 15 September 2020.

Analysis

Educational provision

37. Mr and Mrs B say the education provided by the Council was inadequate as it was not full-time and only covered core subjects.
38. The Council was under a duty to provide C with a suitable education from March 2019 when it first became aware that she was out of school. The Council was informed of C’s absence on 1 March 2019 when she had already been out of school for more than 15 days. Government guidance states councils should arrange provision as soon as it is clear the child will be absent for more than 15 days and should do so at the latest by the sixth day of the absence. In this case the absence was not planned, so it would not be reasonable to expect the Council to have arrangements in place within six days of being notified that C was out of school. But, although alternative provision was approved by the Panel on 7 March 2019, the Council did not put any provision in place until 3 April 2019. This was fault.
39. ESMA contacted Mr and Mrs B shortly after receiving the referral from the school. It is clear from the minutes of the initial meeting in March 2019 that the purpose of the ESMA tuition was to help with C’s reintegration to her mainstream school by September 2019. It was agreed that a graded support plan commencing with maths and English would be the starting point and this would be increased as C’s coping skills improved. A joint package of support was to be provided by ESMA and the school. ESMA’s support focused on English and maths tuition whilst the school led on access to learning in non-core subjects.
40. I am satisfied that ESMA acted appropriately by liaising with the school and Mr and Mrs B to agree a package of support to reintegrate C back into school and by regularly reviewing the provision with Mr and Mrs B and the SENCO. It is for the Council to decide what is ‘suitable’ education and what the child can cope with. Provision does not have to be full-time because one-to-one tuition is much more intensive than a classroom environment so it is accepted that fewer hours can be provided and C was already engaged in an online tuition package arranged by Mr and Mrs B.
41. Mr and Mrs B say they only arranged the online provision because they were unaware the Council had a duty to provide full-time education. They say the information they were given by ESMA was that they were solely a reintegration service and not replacement education and there was never any suggestion they would provide full-time education if they did not do so themselves. The Council says it was Mr and Mrs B’s choice to source an online tuition programme and this had been arranged before it received the referral, so ESMA offered one-to-one lessons to fit around this. It says there were some logistical issues in fitting in the ESMA lessons because of Mr and Mrs B’s work commitments and C’s online learning timetable. It says ESMA would have increased its tuition if the online tuition was stopped, and this was explained to Mr and Mrs B.
42. There is conflicting evidence on this issue. It is clear from the notes of the review meetings that there were discussions about the difficulty of fitting ESMA tuition around C’s online timetable. But the notes do not record that ESMA told Mr and Mrs B it would increase the one-to-one lessons if they cancelled the online tuition programme. So, I cannot say for certain whether Mr and Mrs B were informed of this.
43. ESMA continued to provide some support when C decided to return to school in September 2019. But this provision was put on hold in September 2019 when C was admitted to hospital. Following this, she was not able to engage with any education. ESMA liaised with medical professionals about re-starting one-to-one tuition and, in December, it made a home visit to plan next steps regarding its import. ESMA recorded that C would not be ready for teaching until January 2020. Once medical professionals confirmed C was ready to re-engage with lessons in mid-January 2020, it began providing 1 ½ hours one-to-one tuition per week to see how she coped.
44. Mr and Mrs B restarted the online tuition before this. They say they did so in the absence of any assurance that ESMA would provide anything more than previously despite knowing they did not want to fund the online tuition. This was their choice. They could have asked ESMA how much tuition they would provide before re-starting the online tuition.
45. The provision must be tailored to meet the needs of the child and what they can cope with. It seems unlikely C could have coped with more one-to-one provision during this period as she was restarting education after a lengthy absence and when ESMA lessons were moved online because of COVID-19 in March 2020 C struggled to engage. Between May and July 2020 she was still struggling to engage because of anxiety and also missed sessions because of medical appointments.
46. I am satisfied that, between September 2019 and July 2020 ESMA considered how much education C could cope with and consulted with medical professionals about this. It also considered how the provision would fit around her online tuition. I am satisfied ESMA reviewed the support regularly with Mr and Mrs B and the SENCO.

Conclusion

47. I find there was a lack of clarity from the Council regarding alternative provision and whose responsibility this was, particularly at the outset and again after C’s suicide attempt in the autumn. However, in the autumn there is evidence that ESMA were liaising with medical professionals regarding how much education was appropriate so there are no grounds to question the amount of tuition provided during this period.

The Council’s policy

48. Mr and Mrs B say the Council’s policy documents and its ‘local offer’ (which provides information on its website about its services for pupils with special educational needs) lack clarity and do not mention key statutory requirements or explain how the Council will meet its responsibilities for educating children who are unable to attend school due to illness. They say the documents suggest schools retain the responsibility to provide a suitable education for pupils even though legal responsibility rests with the Council. They say that, had this information been clearer, they would not have felt compelled to arrange and fund online education for C. Mr and Mrs B say the special educational needs coordinator (SENCO) told them he had accessed the Council’s website and local offer but could only find limited information.
49. The Council says its local offer is frequently updated. Hert’s Parent Carer’s Involvement, a parent/carer forum, was involved in shaping the information available in the local offer. The forum regularly engages with the Council and reviews all content changes and updates. The Council also has a parent/carer group called ‘SEND online feedback group’ which helps devise new content. The Council says Mr and Mrs B’s suggestions have been forwarded for discussion and consideration by this group. It also confirmed that the web team would consider whether any further improvements were required to the webpage.
50. I have considered the Council’s policy documents and the local offer. I am satisfied that they do set out the Council’s responsibility to provide education for children who are out of school for medical reasons for more than 15 days. The documents also refer to the relevant legislation. However, the school is responsible for the provision of education for the first 15 days of absence. I would have expected the SENCO to be fully conversant on which body is responsible for providing education for a child out of school and how and when to approach the Council for assistance with this and to have explained the position to Mr and Mrs B at the outset.

Delay in issuing the EHCP

51. The Council received Mr and Mrs B’s request for an EHC needs assessment on 24 February 2020. It was required to issue a decision as to whether it intended to carry out an assessment or not by 7 April 2020. The Council informed Mr and Mrs B of its decision on 23 April 2020. This was a two-week delay.
52. The Council should have issued the final EHCP 20 weeks from the initial request date, that is by 30 May 2020. The Council did not issue the final EHCP until 10 August.
53. The Council accepts this was fault but says the delay did not cause C a significant injustice because she continued to receive ESMA support over this period and arrangements were made for her to start at School X at the start of the autumn term.
54. I do not consider it would have been possible for C to start at School X any sooner but for the Council’s delay. However, if the Council had issued the final EHCP on time, it would have been able to consult with School X before the summer holidays and C would have known she was going to start there in September.
55. The delay caused C distress and anxiety in not knowing whether she would be able to attend her preferred school and, if so, whether she would be able to start with her peers in September. The ESMA teacher recorded in early July 2020 that C “is struggling with not knowing where she can go to school for year 11”. The situation also caused additional uncertainty and worry for Mr and Mrs B as they were concerned that C would miss the opportunity to start afresh at her new school at the same time as her peers.

Misleading information

56. On 14 August 2020 the SEND officer wrote to Mr and Mrs B noting their preference for a specialist school. She explained the SEND team could not name the preferred school because requests for specialist provision had to be taken to a Provision Panel where the case would be discussed by professionals including an educational psychologist, specialist advisory teacher, SEN professionals, specialist and mainstream head teachers and any other relevant professionals. She explained the first available panel would be in September but there were currently no confirmed dates. She explained that, in the meantime, a final EHCP would be issued as Mr and Mrs B were happy with the content.
57. It is normal procedure for the provision to be considered by the panel. But the process should have been explained more clearly to Mr and Mrs B and they should have been given more information about timescales. The Council accepts it should have explained that schools were about to start their summer holidays and it would not be able to consult with them during this period. Failure to do so was fault and caused Mr and Mrs B uncertainty and anxiety.
58. To prevent this situation happening again, the Council will in future inform parents of the stages of the EHC needs assessment process at the outset. If parts of the process fall within the summer holidays, this will be highlighted to parents at the outset to manage their expectations.

Threat of legal action

59. Mr and Mrs B say that when they telephoned the Council for advice, they were told by a member of staff that they could be prosecuted for failing to ensure their child attended school. Mr and Mrs B were understandably very upset by this as they had spent months working with C’s school, CAMHS and ESMA trying to improve C’s mental health and get her back to school.
60. At stage 2 of its complaints procedure, the Council apologised for the way in which Mr and Mrs B’s request for information regarding support for C was handled by the inclusion team. It agreed to arrange training to address customer care and information regarding children absent from school.
61. I am satisfied the Council’s apology and its agreement to complete staff training is an appropriate remedy for the injustice caused to Mr and Mrs B by the way their request for information was handled.

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Agreed action

62. The Council has agreed that, within one month, it will:
• send a formal apology to Mr and Mrs B for the distress and anxiety caused by the faults identified above;
• pay Mr and Mrs B £600 for the uncertainty about whether it explained to them that, if they cancelled the online tuition programme, ESMA would provide full-time education for C and for the delay in starting alternative provision;
• pay Mr and Mrs B £300 in recognition of the distress and anxiety C suffered because of the delay in issuing the EHCP to be used for the benefit of her education/mental health; and
• pay Mr and Mrs B £300 in recognition of the uncertainty and anxiety they suffered because of the delay in issuing the EHCP and the failure to properly explain about the special provision panel.

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Final decision

63. I find there was fault by the Council causing injustice to Mr and Mrs B.
64. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman