The Ombudsman's final decision:
Summary: The Council failed to properly manage the educational provision for a child with special educational needs resulting in him missing three years education. The Council agrees to pay £8,250 and offer support to catch up on missed provision.
- In brief the complaint is when managing provision for a pupil with a statement of special educational needs the Council failed to:
- Maintain the provision named in a statement of special educational needs (SEN);
- Offer alternative education to a child out of school;
- Regularly review progress and delivery of the educational provision set out in the statement and introduce an action plan;
- Honour a commitment to transfer a child to a named school.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- A child with special educational needs may have a statement. The statement sets out the child’s needs and what arrangements should be made to meet them. The Ombudsman cannot change a statement; only the appeal tribunal can do that.
- The Council is responsible for making sure that all the arrangements named in the statement are put in place. The Ombudsman cannot look at complaints about what is in the statement but can look at other matters, such as where support set out in a statement has not been provided or where there have been delays in the process.
How I considered this complaint
- In considering this complaint I have:
- Spoken to Mrs X and reviewed the information presented with the complaint;
- Studied and shared with the Council the Ombudsman’s focus report “Out of School...out of Mind” issued in September 2011;
- Put to the Council enquiries and reviewed its responses;
- Shared with Mrs X and the Council my draft decision with recommendations for a remedy and reflected on responses received.
What I found
- Councils have a legal duty to tell parents when they decide not to amend a statement of special educational needs following a review or change in circumstances. The parent has a right of appeal to a tribunal against such a decision.
- Councils should keep special educational provision under review and consider if the named school is meeting a child’s needs. If not it should consider amending the statement and naming another school. Again this results in a right of appeal.
- Where a council believes provision in a statement is no longer needed to meet the needs of a child it should tell the parent it intends to amend the statement to remove the provision. If the parent disagrees with the new statement a right of appeal arises.
- Councils are under a legal duty to provide or ensure provision of the education provision set out in the statement.
- Where a child is out of school councils should provide full time educational support from between 21 hours (children up to age 7) to 25 hours (children between 15 and 16). It can give less hours if because of the child’s physical or mental health it is not in the interests of the child to provide this full time equivalent education.
- In September 2012 AB moved to a new school following an attack at his previous school which left him fearful. His new school catered for young people with special educational needs. His move allowed the Council to assess his needs in a new environment and decide what provision he needed. AB’s attendance was poor from the outset and the Council referred him to the Educational Welfare Service on 27 September 2012. AB stopped attending the school in January 2013 and the Council met with Mrs X in February 2013. The Council referred AB to the local Children and Adolescent Mental Health Service (CAMHS). AB’s school suggested the Council refer AB to the ‘hospital school’ which is an education service run by the local hospital in another school’s property. The Council says this needs ‘dual’ registration: i.e. AB would continue on the roll at his named school and on the roll of the hospital school.
- A consultant who saw AB in February 2013 decided AB could not return to school until he had further assessments and the consultant asked the school to allow him further time off.
- In April 2013 the Council issued a proposed statement of special educational needs for AB. It shared that with AB’s current school because it intended to name that school in the statement. The School confirmed in May 2013 it could meet AB’s needs. The Council issued a final statement naming that school as the named school. Mrs X appealed to the tribunal to name the hospital school as the named school. She later withdrew the appeal.
- AB had not attended school and so in September 2013 the school arranged a home visit. Mrs X asked for a re-assessment of AB’s needs. The Council declined saying it had only recently completed an assessment and issued a statement and so could not reassess him. However, the Council decided to carry out a Common Assessment Framework (CAF) assessment to help it consider whether to refer AB to the hospital school.
- In January 2014 the Council issued a proposal to amend AB’s statement. It proposed that in Part 3 (special educational provision) that it refer AB to the hospital school. The hospital school would liaise with his current school. In Part 4 (special educational need placement) AB would continue at his current school supported by the hospital school.
- In response the hospital school said it could not be named in a statement without first having worked with AB for some time and having made progress.
- The Council issued a statement in February 2014 in which the Council said provision for AB’s needs would be:
“...continued attendance at [his current school] with close liaison with [the hospital school]”
- CAMHS meanwhile continued to assess AB’s mental health and in May 2014 issued a report saying that AB possibly had Asperger’s syndrome and Post Traumatic Stress Disorder. The service referred AB for therapy to address the conditions. Although referred in May 2014 AB remained on the waiting list for a service and was unlikely to get an appointment before December 2014. AB also went on the waiting list for assessment under the Autistic Spectrum Disorder Pathway.
- In May 2015 the Council met to carry out its annual special educational needs review having invited Mrs X to attend a meeting in March 2015 which she did not attend.
- In July 2015 the Social and Communication Assessment Panel agreed that AB met the criteria for an Autistic Spectrum Disorder and recommended use of specialist resources in his education. Mrs X asked the Council to remove AB from the school roll. The Council told Mrs X AB cannot leave formal education until July 2016. The Council recognised he had not been in school.
- At a multiagency meeting held at the school in September 2015 the head teacher expressed concerns AB had not been in school for three years. The Home Based Treatment Team and CAMHS had discharged AB from their services. The Council needed to draft an action plan because the Council had introduced the new Educational Health Care Plan procedure. All pupils with a statement will need to move to the EHCP by September 2016. The plan included AB remaining on the school roll because he had to be registered with a school. The Council would not pursue his non attendance because he is seeking mental health support. The meeting did not formally review AB’s statement. Therefore the Council did not send Mrs X a letter saying it had completed its annual review, and whether it intended to amend or continue with the statement as it is.
Monitoring of delivery of educational provision in AB’s statement
- In response to my enquiries the Council says it failed to monitor the delivery of educational provision in AB’s statement. It also accepts it failed to comply with its legal duty under the Education Act 1996 to carry our yearly reviews of the statement. The Council accepts after three years since the original statement it is necessary to carry out a full reassessment of AB’s educational needs depending on AB’s medical fitness to participate.
Provision of alternative education
- The Council did not offer alternative educational provision over three years. It says AB may not have engaged fully with it given his conditions but we can never know.
- In response to my enquiries the Council says its failings can be attributed to “...its failure to understand and appreciate the nature and extent of its duties under Section 19 and Part 4 of the Education Act 1996.”
Duty to provide a minimum hours per week for a child out of school
- The Council says it did not meet its duty to provide the minimum required hours of alternative educational provision for a child out of school. It says however, that AB’s poor health and difficulty engaging make it unlikely he could cope with the set minimum hours. It is likely therefore AB’s provision would be on much reduced hours. Section 19 of the Education Act 1996 allows councils to offer less hours in these circumstances.
Referral to the hospital school
- The Council referred AB to the hospital school and proposed naming it as the school in the revised statement. That reflected Mrs X’s parental preference. However, the hospital school said it is not a separate school but a resource within another school to which referrals are made. It could not therefore provide or act as the named school or provider of AB’s full-time education. It could only offer support via his current school named in the earlier statement.
- If accepted by the hospital school AB would receive (after a period on the waiting list) two hours per week teaching at home for 8 weeks with a review thereafter. The Council says AB may not have engaged with the provision given the experience the CAMHS team had when trying to engage with him. It accepts, however, that we will never know. It did not identify any other provision for AB to cover the period AB spent on the waiting list.
- The Council says it is reviewing the matter and taking advice from professionals on how best to help AB catch up on three years education he has missed.
Analysis – is there fault leading to injustice?
- There is fault in the Council’s failure to understand and comply with its legal duties under the Education Act 1996 leading to a lack of any educational provision for AB for three years.
- Given AB’s mental health less than the full time education hours may be permissible but the Council failed to give appropriate consideration to the need to provide alternative education.
- There is fault in the Council’s lack of understanding of the nature of the hospital school and its referral system. And fault in its seeming failure to seek expert legal advice on whether the hospital school could refuse to be named in the statement. Seeking such advice would show it tried to do all it could to encourage specialist help for AB. However, the hospital school said it could not offer all the provision but only assistance to the named school and the Council had to take note of that. The hospital school had not offered a full time equivalent although some pupils do attend full time.
- With no alternative sought and the hospital school unable to offer a permanent solution the Council should have been much more pro-active in deciding what even limited educational support it could give to AB. It is right to say that in some medical circumstances it can offer below the legal minimum. It needed to have done more to show it provided the most AB could cope with.
- The results of the faults identified and accepted by the Council is AB’s lack of educational provision for three years and the anxiety and stress that caused to him and Mrs X. To remedy that I have recommended actions below.
Recommended and agreed action
- To remedy the injustice arising from the faults identified I recommend and the Council agrees to:
- Apologise to AB and Mrs X;
- Within one month of the final decision arrange to meet with Mrs X to discuss what assessments must be completed and alternative provision and what post 16 education and training may be available;
- Within six weeks of the meeting with Mrs X to complete AB’s assessment and to act upon the results of that assessment within one month of completion. The assessment to include considering what, if any, provision the hospital school can provide in school or at home;
- Ensure during the assessment it considers Mrs X’s parental preference for provision;
- Pay to Mrs X on AB’s behalf £8000 to be used for his benefit in purchasing equipment, computer programmes, private tuition etc to enable AB to catch up on lost provision and to be used in recognition of the impact on AB and his family of the lack of education;
- Pays to Mrs X £250 in recognition of the time, inconvenience and stress caused by the failures and having to make a complaint;
- Reports the findings on this complaint to the Cabinet Member responsible for Education and to Cabinet (with due anonymity given) to tell councillors about the issue;
- Reviews its records to identify any other similar cases where provision has not been provided and to take action to remedy those cases reporting to the Ombudsman any it identifies.
- The Council failed to properly manage the educational provision for AB’s needs resulting in him missing three years education.
Investigator's decision on behalf of the Ombudsman