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Dudley Metropolitan Borough Council (21 010 140)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 15 Jun 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to meet her child, Y’s special educational needs and to provide them with suitable alternative education. There was fault in how the Council failed to arrange suitable alternative education for Y when she was unable to attend school due to anxiety. It agreed to apologise, pay Mrs X and Y a financial remedy and review its procedures.

The complaint

  1. Mrs X complained the Council failed to meet her child, Y’s special educational needs and to provide suitable alternative education when Y could not attend school between September 2020 and January 2022 due to anxiety. She also said the Council delayed in replying to her complaints.
  2. As a result, Mrs X says Y became isolated and fell behind in their education. Mrs X also had to spend time and money trying to provide an education for Y, which caused Mrs Y significant inconvenience and cost.
  3. She wanted the Council to apologise and properly recognise the education Y missed.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  4. 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)
  5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  7. If we are satisfied with an organisation’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)

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How I considered this complaint

  1. I considered:
    • the information Mrs X provided and discussed the complaint with her;
    • the Council’s comments on the complaint and the supporting information it provided; and
    • relevant law and guidance.
  2. Mrs X and the Council had an opportunity to comment on my draft decisions. I considered their comments before making a final decision.
  3. 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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What I found

Education Health and Care plans

  1. A child with special educational needs 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  2. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
    • the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
    • if a council decides not to make an EHC plan, it must tell the child’s parent within 16 weeks of receiving the request for assessment; and
    • the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
  3. As part of the assessment councils must gather advice from relevant professionals. (SEND Regulation 6(1)). This includes:
    • the child’s education placement;
    • medical advice and information from health care professionals involved with the child;
    • psychological advice and information from an Educational Psychologist (EP);
    • social care advice and information;
    • advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
    • any other advice and information the council considers appropriate for a satisfactory assessment.
  4. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

Alternative provision

  1. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
  2. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
  3. 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)
  4. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says:
    • councils should arrange alternative education provision as soon as it is clear a child will be absent for health reasons for more than 15 days;
    • councils should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision;
    • alternative provision should address the needs of individual children through an appropriately tailored approach;
    • councils should not have inflexible policies which prevent children from getting the right type of provision and a good education; and
    • ‘virtual classrooms’ and learning platforms should generally not be used as the sole provision, though in some cases virtual education may be suitable for some children.

Council’s policy for children unable to attend school due to health needs

  1. In the Council’s policy, it says it delegates the responsibility for providing education to children with health needs which cannot be met in a school setting to a specialist provider, School H.
  2. School H provides a range of services including face-to-face home tuition, hospital teaching and small group teaching in its learning centre.
  3. The Council’s policy says electronic media (such as remote learning) can be used to increase the number of hours of provision, but this will only be used in association with face-to-face contact. It also mentions schools can ask for a ‘telepresence robot’ which allows pupils to take part in classroom lessons while at home.

Council’s complaints procedure

  1. The Council has a two stage complaints procedure:
    • Stage 1 – acknowledgement of complaint within five working days and a response from a manager within 20 working days.
    • Stage 2 – review by a more senior manager and a further response within 20 working days.
  2. For both stages, where a complex complaint needs more investigation, the Council will tell the complainant and keep them informed during the investigation.

What happened

  1. Mrs X’s daughter, Y, has special educational needs (SEN) linked to anxiety and mental health difficulties. Y’s anxiety means that she found attending class, leaving home or speaking with people outside her close family very distressing. While in primary school, Y was on her school’s SEN register and she received some help with her anxiety through school.
  2. When Y transferred from primary to secondary school in September 2020, her new school (School B) was not aware that Y had been on the SEN register at primary school.
  3. Y attended School B for around 5 days before she felt unable to go into school because of her anxiety.
  4. In late September 2020, Mrs X asked the Council to carry out an EHC assessment for Y and consider whether Y should have an EHC plan. The Council agreed, in early November to assess Y. It asked for advice from School B, Y’s primary school, health, social care and an educational psychologist.
  5. Mrs X says the advice from the educational psychologist was based only on a brief conversation with her and was not adequate.
  6. The Council said that in October 2020, School B referred Y to the Council’s alternative provision provider, School H, which offered to arrange home tuition for Y. Mrs X said she did not hear anything about this referral at the time, but that it would not be suitable for Y, because of her anxiety with people with whom she is not familiar and that was supported by advice from the mental health services involved in Y’s care.
  7. In January 2021, the Council decided not to make an EHC plan for Y. It believed Y’s needs were mainly related to her mental health and that an EHC plan was not necessary to access the education available to her.
  8. Mrs X did not appeal the Council’s decision because, she said, the Council and School B assured her it would arrange remote lessons for Y. However, Mrs X said this did not happen.
  9. Between January and March 2021, Y took part in virtual lessons provided by School B during the COVID-19 lockdown. Y’s attendance during this time was above 90%.
  10. Between March and July 2021, Mrs X continued to ask the Council for help with Y’s education, including providing further evidence from Y’s GP.
  11. In July 2021, Mrs X asked the Council again to assess Y’s needs. The Council agreed and issued an EHC plan for Y in February 2022. The Council also provided School B with additional funding to pay for a remote learning package for a six-week period before the EHC plan started, and to continue this after it issued the EHC plan.

My findings

2020 EHC assessment

  1. Although Mrs X had a right to appeal the Council’s decision not to make an EHC plan in 2020, she did not use this because she believed that the Council would provide suitable alternative education. I am satisfied this was a good reason Mrs X did not appeal to the SEND Tribunal and therefore I have considered how the Council assessed Y’s needs and decided not to make an EHC plan in 2020.
  2. The evidence shows the Council sought advice from the required relevant professionals when completing the EHC assessment in September 2020. The educational psychologist was not able to speak to Y due to her anxiety and the COVID-19 pandemic at the time. Instead, the educational psychologist spoke to Mrs X and considered other evidence from professionals involved with Y’s education. I am satisfied the report was based on more than the conversation with Mrs X.
  3. It is not our role to decide if Y should have had an EHC plan; that was the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made, or the professional judgement involved in a decision, if it followed the right steps and considered relevant evidence.
  4. Based on the records from the Council, I am satisfied there was no fault in how the Council decided not to make an EHC plan for Y in 2020. It sought advice from the appropriate professionals and made its decision based on the advice available.

Alternative provision

  1. The Council’s records show that it was aware, in late September 2020, that Y was not attending school. This was referred to by Mrs Y in her request for an EHC assessment and in the Council’s decision to assess Y’s needs.
  2. The Council says School B was responsible for making sure Y received an education and it did so be referring Y to School H. However, the evidence shows that the referral to School H in October 2020 did not progress. The Council was aware, during that time, that Y was not receiving a full-time education because she was unable to attend school.
  3. The Council’s policy says it delegates the responsibility for providing alternative education to School H. However, it cannot delegate its responsibility to arrange suitable education for children unable to attend school because of health problems.
  4. The statutory guidance says that Councils should take a flexible approach to arranging alternative provision and this should be tailored to each child’s individual needs and health problems. It also says that provision should be arranged as soon as it is clear a child will be absent from school for more than 15 days.
  5. I am satisfied the Council was aware:
    • from late September 2020 that Y was unable to attend school; and
    • from early October 2020 that Y was not receiving the education available from School H.
  6. It should, therefore, have taken steps to arrange suitable alternative education for Y from November 2020.
  7. Following remote lessons between January and March 2021 which Y fully engaged with, Mrs X asked several times for a similar service which Y could access. She identified a suitable provider as early as May 2021, which the Council ultimately commissioned through School B from 2022.
  8. However, there is no evidence the Council, or School H on its behalf, explored alternative ways of arranging education accessible to Y. In September 2021, School H told Mrs X that remote lessons were not something it could offer. The Council’s policy also says this is not something it will provide and provision must include face-to-face tuition. However, the statutory guidance says councils should not have inflexible policies such as this.
  9. I am satisfied the Council failed to arrange suitable alternative provision which met Y’s needs between November 2020 and the end of 2021. This was fault which caused Y to miss out on a suitable full-time education during that period, apart from the time she received remote lessons between January and March 2021.
  10. Had Y received education in a suitable way, I am satisfied she would have been able to engage in the equivalent of full-time education. However, Y did receive some education during the times she was out of school. Mrs X arranged and paid for several online resources for Y and supported Y with her learning. Mrs X said she often had to do this during the day, and then complete her own paid work late into the evenings. Mrs X also says that Y was so keen to learn during this time she began teaching herself a foreign language.
  11. Where we identify fault which resulted in a loss of educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss. Considering Y’s age, the stage of her education and the informal education she received with the help of Mrs X, I am satisfied that £300 a month is a suitable amount. The Council should pay this for each month between November and December 2020 and for March to December 2021, a total of 12 months.
  12. I am also satisfied that the lack of education caused both Y and Mrs X significant distress, frustration and inconvenience for which the Council should pay a financial remedy. The Council should also pay Mrs X for the costs she incurred for the educational resources she bought while Y was out of school.

2021 EHC plan

  1. Where they decide to issue an EHC plan, councils should issue the plan within 20 weeks of the request for an assessment, unless specific exceptions apply. There is no evidence to suggest the exceptions applied to Y or Mrs X.
  2. Mrs X asked for an EHC assessment at the end of July 2021, and the Council issued the final EHC plan at the beginning of February 2022. This was 26 weeks later; six weeks more than the maximum timescale. This was fault.
  3. However, the evidence shows the Council arranged for School B to commission the remote learning package for Y, before the final plan was made, so I am satisfied this did not cause a further injustice to Y.

Response to Mrs X’s complaint

  1. Mrs X complained to the Council in early July 2021 and the Council responded by the end of the month.
  2. Mrs X asked the Council to escalate her complaint in September 2021. However, the Council did not do this. Instead, it asked one of its school inclusion officers to respond instead.
  3. While there was a delay of two days in responding to Mrs X’s July 2021 complaint compared with the timescales in the Council’s policy, I do not consider that delay to be unreasonable. However, the Council failed to mention the further stages of its complaints process in its response, and it failed to properly consider Mrs X’s September 2021 email under the further stages of its complaints process.
  4. Although there was fault with how the Council responded to Mrs X’s stage two complaint, this did not cause Mrs X a significant injustice, since she complained to the Ombudsman in October 2021.

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Agreed action

  1. Within one month of my final decision, the Council will:
    • apologise to Mrs X and Y for the delays in arranging suitable alternative education and the impact this had on them; and
    • pay Mrs X:
      1. £3,600, for Y’s future educational benefit, to recognise the education she missed during 2020 and 2021;
      2. £500 to recognise the distress and inconvenience caused to her;
      3. £200 to fund a suitable gift for Y to recognise the personal impact being out of education had on her; and
      4. £335.28 for the costs she incurred in arranging educational opportunities for Y.
  2. Within three months of my final decision the Council should:
    • review how it arranges alternative provision for children unable to attend school because of illness to ensure it takes an individual approach to exploring options for each child, particularly for children with anxiety or school phobia who cannot access face-to-face tuition;
    • remind its staff responsible for responding to complaints they should ensure complaints are properly recorded, responded to within appropriate timescales and tell complainants of any options for complaining further; and
    • remind its SEN staff of the importance of complying with the relevant timescales during the EHC process and in properly monitoring deadlines.

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Final decision

  1. I have completed my investigation. There was fault in how the Council failed to arrange suitable alternative education for Y when she was unable to attend school due to anxiety. It agreed to apologise, pay Mrs X and Y a financial remedy and review its procedures.

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Investigator's decision on behalf of the Ombudsman

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