Summary: Mrs X complains about the Council’s handling of her requests for support since her child (Child Y) has been absent or unable to attend school. The Council’s delay in completing the Education, Health and Care Plan assessment and response to Mrs X’s stage two complaint was fault. The Council was also at fault for not providing appropriate alternative education to Child Y since November 2019. These faults caused avoidable and significant distress to Child Y and their family. The Council has agreed to our recommendation to improve its offer to remedy the injustice caused. The Council will also review and amend its procedures to ensure it takes appropriate action sooner when a child is absent from school because of health, exclusion or otherwise.

The complaint

1. Mrs X complains about the Council’s handling of her requests for support since her child (Child Y) has been absent or unable to attend school. Mrs X complains the Council provided incorrect information her child would not receive support without an Education, Health and Care Plan (EHCP). This led to Mrs X forcing her child into school, which caused extreme mental distress. Mrs X is unhappy the Council is not providing education outside of school that best meets her child’s needs and that she is having to pay for additional provision. Mrs X wants the Council to acknowledge it could have done more to support Child Y sooner and to reimburse the costs she has incurred to secure additional tuition and provision for Child Y.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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. 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

7. I have spoken to Mrs X and considered the information she has provided in support of her complaint.
8. I have considered the information the Council has provided in response to my enquiries.
9. 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.
10. Mrs X 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

Relevant guidance

11. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
13. 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 EHCPs. 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 EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

14. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. 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)
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. 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)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

21. Child Y received diagnoses of Social Communication Disorder and Generalised Anxiety Disorder in February 2020. Prior to this, Child Y had been struggling with attending school due to their anxiety and incidents where Mrs X and her husband felt teachers at the school had failed to accommodate Child Y’s needs.
22. Mrs X says she first approached the Council in Summer 2019, when she met with Officers from the Family Services Team on two occasions. Mrs X says she was told during one of these meetings that Child Y would not receive any meaningful support unless they had an Education, Health and Care Plan (EHCP).
23. Concerns about Child Y’s reduced attendance came to a head on 13 November 2019, when the School and Council’s Education Welfare Officer confirmed that Child Y’s absences were authorised. The Council’s County Inclusion Support Service became involved in late November 2019, to support the school and Child Y’s parents with getting Child Y back to school full-time.
24. During the rest of 2019 and 2020, Mrs X and her husband continued to have meetings with the school and the Council’s County Inclusion Support Service (CISS) to try and improve Child Y’s attendance. Mrs X started to pay for Child Y to receive private tuition to help fill the gaps in their school attendance during this time.
25. On 19 November 2020, Mrs X made a request for Child Y to be assessed by the Council for an EHCP. The Council decided on 15 February 2021 to refuse Mrs X’s request for an EHCP. Mrs X initially sought to challenge the Council’s decision through mediation but felt she could not continue with this as she suffered a mental health breakdown from the stress of the situation.
26. The Council made a referral for Child Y to receive support from its Alternative Tuition Service (ATS) in March 2021. Child Y was offered a mixture of education through accessing online classes with other students and two 45-minute sessions per week of one-to-one time with a tutor. Mrs X and her husband continued to pay for additional private tuition for Child Y during this time. ATS undertook half-termly reviews to assess Child Y’s progress.
27. Mrs X eventually removed Child Y from the school roll in September 2021 because she felt the additional support offered was not meeting Child Y's needs. Mrs X enrolled Child Y on a course with another local provider to help them with achieving their GCSEs in Maths and English.

Mrs X’s complaints

28. Mrs X says her queries to the Council about Child Y’s transition to ATS in June 2021 were turned into a stage one complaint. The Council responded to the complaint on 1 July 2021. The Council explained that any complaints about the school would need to be made to it as it is an academy. The Council also suggested the school took advantage of the multi-agency support offered to help Child Y.
29. We asked the Council to complete its final response when Mrs X brought her complaints about its handling to us in October 2021. The Council sent its final complaint response to Mrs X on 12 January 2022.
30. The Council’s response explained it had no records of Mrs X’s meetings at Council offices in 2019. The Council apologised for the delay in sending its final response and in making the decision following Mrs X’s request for an EHCP for Child Y. The Council also acknowledged that this delayed its referral to ATS.
31. The Council offered Mrs X £1,000 in recognition of the trouble she had in making her complaint, delay in the EHCP assessment process and resulting delay in Child Y receiving support from ATS.

Analysis

32. Mrs X accepts that she has no evidence to prove what was discussed in her meetings with Council Officers in 2019. In the absence of any evidence, I am unable to reach any findings on what happened or whether there was any fault by the Council on this aspect of Mrs X’s complaint.
33. I agree with Mrs X that the Council’s inaction when first alerted to Child Y’s absence from school meant Mrs X and her husband felt they had no choice but to force Child Y to attend school. This caused Child Y significant distress, including at least two hospital admissions. The Council has known about Child Y’s reduced school attendance since at least November 2019. Its failure to act on this or to consider what alternative education may be necessary was fault, which the Council should remedy.
34. The Council took double the amount of time (12 weeks instead of six) to make its decision to refuse Mrs X’s EHCP request. This was fault as it delayed Mrs X’s appeal rights to the SEND Tribunal. While I note the Council has already offered to remedy this delay, I do not feel its offer goes far enough to recognise the impact this fault had on Child Y or their family.
35. When the Council started providing alternative education support to Child Y in March 2021, this was limited to online classes and one and half hours of one-to-one tutor time per week. Child Y’s social anxiety meant they were unable to attend online classes. The Council was at fault for not seeking a professional opinion on what type of education would best meet Child Y’s needs. More importantly, the Council does not appear to have considered the amount of alternative education Child Y could cope with. As a result, Mrs X has had to supplement the education Child Y received through ATS with privately funded tuition.
36. In response to my enquiries, the Council has offered to refund Mrs X’s costs for private tuition. I commend the Council making this offer early in my investigation and have included this in my recommended action below.
37. The Council took 135 working days to provide its stage two complaint response to Mrs X. The Council’s complaint procedure states it should take a maximum of 65 working days to stage two complaints. Mrs X spent time chasing the Council’s response. The Council’s offer of £400 to remedy the impact of the delay was in my view sufficient to recognise the time, trouble and frustration caused to Mrs X.

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Agreed action

38. Within one month of my final decision, the Council has agreed to:

• make a written apology to Mrs X and to Child Y for the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs;
• pay £300 to Mrs X for the benefit of Child Y for the delay in completing the EHCP assessment decision and resulting delayed appeal rights;
• pay £400 to Mrs X for the frustration, time and trouble caused by the Council’s delayed stage two complaint response; and,
• pay £3,200 (£200 per month) to Mrs X for the benefit of Child Y’s education for not making a referral to ATS for support from November 2019 to March 2021, when it knew Child Y’s attendance at school was significantly low.

39. The Council has agreed to reimburse the costs Mrs X incurred for Child Y’s additional private tuition sessions from November 2019 to March 2021. This is subject to Mrs X providing the Council with copies of sufficiently detailed invoices/receipts from the tuition providers within one month of my final decision. The Council agrees to make the reimbursement to Mrs X within two weeks of receiving these invoices/receipts.
40. Within three months of my final decision, the Council has agreed to review its procedures to ensure it considers an ATS referral as soon as a child is reported absent from school for 15 days and seeks a professional opinion on the amount and type of alternative education a child can cope with while out of school, to best meet their needs.
41. The Council should provide us with evidence to show it has completed the above actions.

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Final decision

42. I have completed my investigation and uphold Mrs X’s complaint. Mrs X and Child Y were caused injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman