Summary: Ms X complained the Council failed to provide alternative education for her daughter (Y) when she became too anxious to attend school. She also complained it took too long to issue Y with an Education, Health and Care Plan. We found the Council at fault for not providing alternative education for Y. The Council agreed to apologise, make a payment in recognition of the injustice caused to Y and Ms X and arrange training for its officers.

The complaint

1. The complainant, who I shall call Ms X, complains the Council failed to provide alternative education for her daughter (Y) when she became too anxious to attend school. She also complains it delayed issuing her with an Education, Health and Care (EHC) Plan.
2. Because of the claimed fault Ms X says Y had missed education and they have been caused avoidable distress. Ms X says she has been put to avoidable time and trouble in pursuing this matter.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate complaints about what happened in schools. (Local Government Act 1974. Schedule5, paragraph 5(b))

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How I considered this complaint

6. I considered the information and documents provided by Ms X and the Council. I spoke with Ms X about her complaint. Ms X and the Council had the opportunity to comment on an earlier draft of this statement and I considered the Council’s comments in response.
7. I considered the relevant legislation, statutory guidance, and the Ombudsman’s guidance on remedies.
8. 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

9. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
10. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who, because of illness, would not receive education.
11. The guidance states that:

“In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family and consider the medical evidence.”

12. If medical evidence is not quickly available, the guidance states 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”.
13. The statutory guidance says the duty to provide a suitable education 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….there will be a wide range of circumstances where a child had a health need but will receive suitable education that meets their needs without the intervention of the local authority”.

14. The council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
15. 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)

Education Health Care Plans (EHCP)

16. 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.
17. 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

What happened

18. What follows is a brief chronology of matters related to the issues complained about. It does not contain all the information I reviewed during my investigation.
19. Y is a secondary school pupil. She has a diagnosis of Autism Spectrum Disorder and has historically struggled to attend school because of anxiety.
20. Ms X asked the Council to carry out an Education, Health and Care assessment in 2019 and again in December 2020. It did not assess on either occasion.
21. In March 2021 Y’s anxiety became so severe that she felt unable to go into school.
22. In April 2021 Ms X told the Council that Y had not attended school for 15 days. She asked it to carry out an Early Help Assessment to help bring together the agencies working with Y, so her needs were met. As part of the assessment Ms X provided a letter from Y’s GP and her school counsellor explaining how her anxiety was stopping her attending school.
23. In May Y’s school wrote to Ms X about Y’s attendance. It said it did not have enough evidence that she was medically unfit to attend school and it would consider her absence unauthorised unless more evidence was provided. Its letter said it had discussed the matter with its Education Welfare Officer.
24. After its letter Y’s school offered her a programme of flexi learning. Ms X and Y’s GP supported this. The programme needed funding from Ms X which she could not commit to and so, a reintegration programme was put in place.
25. On 6 May 2021, Ms X asked the Council to carry out an EHC assessment for Y and consider if she should have an EHC plan. The Council agreed. It got information from Y’s school, its Educational Psychologist, Children’s Community Services and Children and Adolescent Mental Health Service (CAMHS).
26. Meanwhile Y continued to struggle to engaged with the reintegration plan and her behaviour became dangerous and erratic when asked to attend school. A Team Around the Child meeting took place but this did not result in any change to the reintegration plan.
27. Y felt unable to go into school when the new academic year began in September 2021. Her school arranged a meeting to discuss her attendance with an Education Welfare Officer in attendance. It resolved that Y would follow a hybrid learning programme with some online learning while an EHC plan assessment took place.
28. The Council issued a draft EHC plan on 15 October. It did not recommend a personal budget for Y’s education. Ms X asked the Council to reconsider. It did so and decided Y needed a bespoke education package.
29. On 23 November the Council issued a final EHC plan. Ms X was unhappy with some parts of the plan and mediation was arranged.
30. On 16 March 2022 the Council withdrew the EHC plan issued in November. It issued a new draft EHC plan in May. It also agreed a personal budget for Y with funds backdated to October 2021.
31. A final EHC plan was issued on 5 August 2022.

Ms X’s complaints to the Council

32. In February 2022 Ms X complained to the Council. She said it should have provided Y with alternative education provision and had taken too long to issue an EHC plan for Y. Ms X explained it had been stressful for her and Y and Y’s mental health had declined. She explained she had accrued debt because of paying for alternative education for Y.
33. The Council replied later that month. It said that it had acted on Ms X’s request for an EHC plan assessment within the approved timescale. It said issues about the provision of alternative education were for Y’s school to address.
34. Ms X escalated her complaint in early March. The Council replied in May. It reiterated that concerns about the provision of education for Y while she could not attend school remained a matter for her school. It said there were no grounds for it to offer alternative education as there was no medical evidence saying Y was unfit to attend school.
35. Unhappy with the Council’s conclusions Ms X approached the Ombudsman.

Finding

36. When a child cannot go to school because of ill health the Council should ensure the child is receiving a suitable education. It should do this once it is clear the child will be away from school for 15 days.
37. The evidence available shows Ms X told the Council in April 2021 that Y had not attended school for 15 days. Ms X also told it about Y’s absence as part of her request for an EHC plan assessment in May 2021 and Y’s school sought advice from its Education Welfare Officer about her attendance.
38. The Council says it was Y’s school’s responsibility to provide her with alternative education and it did so with the reintegration plan. I do not agree. It cannot delegate its responsibility to arrange suitable education for children unable to attend school because of ill health.
39. In its complaint response the Council says no evidence was provided saying Y was medically unfit to attend school. However, I have seen nothing showing the Council made enquiries to find out if there were medical grounds for Y not to attend school. This is despite it knowing Y had received help from a school counsellor, was known to CAHMS and was receiving help from other agencies because of her anxiety about attending school. It’s failure to make enquiries means it did not fully consider Y’s personal circumstances.
40. Furthermore Section 19 also requires the Council to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness or otherwise may not receive a suitable education unless the Council arranges it for them. Therefore, the Council had a duty to provide Y with education even if there was not enough evidence to say she was medically unfit to attend school.
41. I find the Council failed to arrange suitable alternative provision to meet Y’s needs between April 2021 and issuing an EHC plan in August 2022.
42. The Council paid £2350 for Y’s educational provision from October 2021 until the EHC plan was issued. I consider this payment is satisfactory for the costs incurred by Ms X in sourcing education for Y during this period. I consider a payment should also be made for the education provision arrange by Ms X for the period April 2021 to October 2021.

EHC Plan

43. The Council met the statutory timelines for issuing the first draft EHC plan and for issuing the final EHC plan. The time the Council can take to consider and ECH plan assessment can be longer when an educational institution is closed for at least four weeks. This applies here as the EHC assessment period included the school summer holidays.
44. The final EHC plan issued in November 2021 was withdrawn on 16 March. A final EHC plan should therefore have been issued by 3 August. However, this did not happen until two days later, on 5 August. Although outside the statutory timescales I do not consider a delay of two days has caused any significant injustice to Ms X or Y.

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Agreed action

45. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:

• send a written apology to Ms X for the distress caused to her and Y by the faults identified in this statement.
• pay Ms X £1500 on behalf of Y to recognise that she did not receive suitable alternative educational provision between April 2021 and September 2021.
• pay Ms X £500 in recognition of the distress, avoidable time and trouble and impact on her of the Council’s failure to provide Y with suitable alternative education.

46. Within three months of my final decision, the Council will arrange training to ensure officers are aware of:

• the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• the Department of Education statutory guidance which says where medical evidence is not quickly available it 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 provisions for the child.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There is fault by the Council, and it has agreed to remedy the injustice caused and improve its service. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman