The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to provide suitable alternative education for her daughter after she became unable to attend school. Mrs X also complained the Council took too long to issue an Education, Health and Care plan. She said her daughter had missed out on education and was socially isolated. The Council has agreed to pay Mrs X’s daughter £3,500 for missed education and to pay Mrs X £400 for the avoidable time and trouble caused in raising this complaint.
- Mrs X complained the Council:
- failed to provide suitable alternative education for her daughter, Y, after she became unable to attend school in December 2018 because of selective mutism and anxiety; and
- took too long to issue Y an Education, Health and Care plan (EHC plan).
- She said Y had missed out on education since December 2018 leaving her socially isolated, lowering her self-esteem and feeling anxious.
- She said her own health had been impacted through stress and that the circumstances affected her husband’s ability to work.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
- 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)
- 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.
How I considered this complaint
- I have considered the information Mrs X provided and discussed this complaint with her. I have asked the Council questions and considered its response.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Alternative provision of education
- Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
- The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. 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.
- The Government’s statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It says that where medical evidence is not quickly available “LA’s 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”.
- The Guidance also outlines that there is no legal deadline to start provision. But Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. It recommends this education should be in place by the sixth day of absence.
The Council’s policy
- This says that as soon as the school is aware a child will be off school, a teacher will make work available. If the child will be absent for more than 15 days, the school should make a referral to the Council’s named person and the parents should provide medical evidence confirming why a child is unable to attend school. The Council will “draw up a plan to provide education” for a child who will be off school for a protracted period of time.
- The Council provides education for children who cannot attend school because of social anxiety through TRACKS. The head of TRACKS is the Council’s named person for the provision of education for children out of school.
Education, Health and Care plan
- An EHC plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
- The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request, to the Council issuing the final EHC plan must take no more than 20 weeks.
- Where there are exceptional circumstances it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
- If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents ask for, but it should be able to explain why the EHC plan meets the needs of the child.
- Before deciding to issue an EHC plan, the Council holds an EHC panel. That determines who will lead the assessment and take the matter forwards.
- The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within the plan.
- Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
The Council’s complaints procedure
- The Council has a two stage complaints procedure. At stage one, the Council investigates and responds within 20 days. If the complainant is unhappy with the Council’s response, they can ask for the Council to investigate it at stage two. That is a formal investigation completed by the complaint’s unit. Its policy says the Council completes these investigations within 65 working days.
- Y has a history of anxiety associated with attending school. This became worse on moving to secondary school, (School A) in September 2018. Y stopped attending school in December 2018 following a period of panic attacks that caused sporadic attendance. School A referred Y to the Council’s home tutoring service at TRACKS on 14 January 2019.
- TRACKS met with Y on 15 February 2019. Y took part in four home tutoring sessions from 27 February 2019 to 11 March 2019. Mr and Mrs X stopped the home tutoring sessions because of a deterioration in Y’s mental health. School A said it sent work home from 21 March 2019, Mrs X said this did not happen. On 27 March 2019, School A advised it would not send work home and referred Y to the Council to arrange alternative education for Y. Mrs X contacted the Council on 28 March 2019 to follow up this referral.
- Alongside this, on 28 February 2019, Mrs X applied to the Council for an EHC Plan for Y. Child and Adolescent Mental Health Services (CAMHS) sent a report to the Council on 28 March 2019 confirming Y was not accessing any education. This assessment provided details of Y’s anxiety and panic attacks which resulted in the referral to TRACKS for home tuition in January 2019.
- Y’s doctor referred her to see a Consultant Speech and Language Therapist (SaLT). The SaLT met with Y, Mrs X and Mr X at their home. The SaLT completed a report diagnosing Y with selective mutism and severe anxiety.
- On 16 April 2019, the Council agreed to complete an EHC needs assessment. Mrs X provided the SaLT report to the Council the following day.
- Mrs X regularly contacted the Council to follow up the EHC plan and to attempt to arrange online learning whilst Y was out of school. The Council held a multi-agency meeting in May 2019 where it agreed to provide a laptop and said it would arrange for six-weeks education through online learning. Despite this, the Council did not provide the laptop or put in place online learning. Y began to attend TRACKS once per week in June for 20-30-minute Art lessons.
- In June 2019, Mrs X complained to the Council. She said her daughter had not been in school since December 2018 and the Council had failed to provide alternative education. Mrs X said it was 15 weeks since she had applied for an EHC Plan from the Council and it did not appear the plan would be completed within the 20-week timescales allowed.
- The Council provided its stage 1 response on 25 July 2019. That said:
- Y did not meet the criteria under Section 19 of the Education Act for the provision of education for children who are medically unfit to attend school.
- Since Y did not have an EHC Plan, the responsibility for the education was School A’s and it should have the funds to arrange the online learning.
- School A was an academy, therefore the Council would not look into this matter further.
- The EHC assessment had not been completed within the timescales allowed but the draft EHC Plan was “being written this week and would be sent to you early next week”.
- An interactive, online programme of study: initially for Maths, English, History and ICT.
- A laptop.
- Art sessions, in line with Y’s long-term aspirations (weekly, around 30 to 40 minutes).
- Five hours of education at TRACKS weekly. The Council would review hours in line with her progress.
- Two visits each term with a speech and language therapist experienced with selective mutism.
- An annual language/communication reassessment.
- a payment of £2,000 for the loss of educational provision.
- a payment of £200 for her time and trouble in pursuing the complaint.
- Section 19 of the Education Act 1996 states councils have a duty to make suitable educational provision for children of compulsory school age who are absent from school because of exclusion, illness or otherwise. The Council’s policy confirms this responsibility lies with the Council.
- After Y stopped attending School A in December 2018, it arranged alternative education through the home tuition service (TRACKS), making the referral on 14 January 2019. The Ombudsman cannot investigate the actions of a school or the time it took to make the referral.
- As the Council’s named person in its policy for children out of education is also the head of TRACKS, the Council became aware that Y was not in education as of 14 January 2019.
- It took TRACKS six weeks to arrange alternative education for Y. The Ombudsman cannot expect the Council to put education in place immediately, but a delay of six weeks was fault.
- Y stopped attending TRACKS in March 2019. In the Council’s stage two response it has accepted that it should have provided alternative education from March 2019 to December 2019.
- The Council’s stage one and two complaint responses indicate the Council did not provide alternative education to Y between these dates because Mrs X had failed to provide medical evidence saying Y was unfit for school. However, the Council received information from CAMHS in March 2019, that described Y having panic attacks. Mrs X provided the SaLT report in April 2019 that outlined Y’s diagnosis of selective mutism.
- The statutory guidance says “LA’s 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”. The Council should have considered the information provided by CAMHS and the SaLT. If it needed further information, it should have contacted these specialists. Failure to do so was fault. That fault has meant Y went without suitable education for just under 8 months.
- The Council offered Y online provision and a laptop in May 2019. However, it could not agree with school A who should pay for that provision and failed to put the provision in place. Disagreements about funding alternative provision should not prevent alternative provision from being put in place. That caused Mrs X additional frustration, as she thought the Council was putting provision in place. The Council was at fault.
- The Ombudsman’s guidance for fault resulting in a loss of educational provision recommends a payment of between £200 and £600 per month to acknowledge the impact of that loss. Y has been out of education for significant parts of her first and second years in secondary school. Y has demonstrated that with the appropriate provision she can access suitable education. She has attendance upwards of 90% since 17 January 2020 through the NISAI online learning. We therefore feel a remedy of £3,500 (at £450 per academic month) is sufficient to remedy the injustice caused to Y.
- Whilst Y has been out of education, Mrs X and her partner have had to change their lives to help support Y which has caused inconvenience and stress.
- The Council has 20 weeks to issue a final EHC plan from the date a person makes an application. Mrs X made an application for Y’s EHC plan on 28 February 2019. The Council should have produced the final EHC plan by 18 July 2019. This was completed on 5 December 2019. That delay of five months was fault.
- As Y was out of education, we would have expected the Council to have expedited the assessment in order to identify her needs as quickly as possible in order to put suitable education in place.
- Mrs X complained the Council issued a draft EHC plan, before the EHC panel had agreed to issue a plan. The Council sent Mrs X an indicative plan; in its stage two complaint response it said these were not usually shared prior to the panel. It issued a draft plan after the panel. We appreciate Mrs X may have found this confusing, but the Council is entitled to use a panel as part of its process. It is also entitled to write an indicative plan before confirming whether to issue an EHC plan. The Council was not at fault in its use of a panel.
- The EHC plan said Y needed an “interactive, online programme of study”. Therefore, the delay in producing the EHC plan has contributed towards the injustice Y has experienced through the lack of suitable alternative education.
The Council’s complaints process
- The Council issued its stage 1 response five days outside of timescales. That is not so significant to be considered fault causing injustice.
- The Council issued its stage 2 response 53 working days outside of timescales. It failed to keep Mrs X informed about the delays in providing its response to her complaint. The delay and lack of contact was fault. That caused Mrs X avoidable stress and anxiety.
- Within three months of the date of our final decision the Council has agreed to:
- Pay Y £3,500 to remedy the Council’s failure to assess her needs and provide education between the end of March 2019 and middle of January 2020, which once offered, she engaged in. Y may use this as she sees fit for educational, social and mental health needs.
- Pay Mrs X £400 to acknowledge her avoidable time and trouble in trying to get the Council to fulfil its statutory duty.
- Apologise to both Mrs X and Y for the loss of education, delay and distress experienced.
- Share this decision with staff who have the responsibility for arranging section 19 provision and remind them of the need to consider medical evidence from a range of professionals and to make contact with professionals where necessary.
- I have found there was fault leading to injustice. As the Council has agreed to my recommendations I have completed my investigation.
Investigator's decision on behalf of the Ombudsman