The Ombudsman's final decision:
Summary: There is fault by the Council in that it has failed to provide appropriate educational provision for the complainant’s son who suffers from significant difficulties. This has caused injustice to him and to his parents. The Council has accepted the Ombudsman’s recommended settlement of this complaint.
- The complainant, who I shall refer to as Mrs X, has a long standing complaint against the Council concerning her son’s education. I shall refer to her son as Child B.
What I have investigated
- I am investigating Mrs X’s complaints about the Council’s dealings with Child B and the efforts it made to provide education and support to him and to the parents, Mr and Mrs X. The issues I am not investigating are explained in the last paragraph of this statement.
The Ombudsman’s role and powers
- The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
- The law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a tribunal. However, she may decide to investigate if she considers it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a))
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- 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))
How I considered this complaint
- I have made enquiries of the Council and I have sent its comments to Mrs X. Mrs X has provided further information in response to those comments.
- I have decided to exercise the Ombudsman’s discretion to consider Mrs X’s complaint as from September 2012. I issued a first draft statement in early December 2016. As a result the Council and the complainant provided some additional information. I issued a second draft in February 2017. I have taken into account the Council and the complainant’s additional comments when reaching my final decision.
- The final statement will be sent to the Office for Standards in Education, Children Services and Skills (OFSTED) in accordance with the arrangement the Ombudsman has to share findings with this organisation.
What I found
- 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”.
- The Children, Schools and Families Act 2010 clarified that this should be full time or part time education if considered in the child’s best interests. This duty came into force in September 2011. The only exception to this was where the physical or mental health of the child is such that full time education would not be in his or her interests.
- Full time education is not defined but is commonly held to be equivalent to between 22 and 25 hours, depending on the child’s age. The law also allows councils to view one to one provision as worth more than provision delivered to groups.
- The Government’s statutory Guidance ‘Access to education for children and young people with medical needs 2001’ was replaced by new Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ which came into effect in January 2013 during the events complained about.
- Both Guidance documents set out clearly what the Council should do when a child cannot attend school due to illness. Both are relevant to the events of this complaint.
- The 2001 Guidance says that the council should ensure that: Pupils are not at home without access to education for more than 15 working days: that those who have an illness/diagnosis which indicates prolonged or recurring periods of absence from school, whether at home or in hospital, have access to education, so far as possible, from day one: pupils to receive an education of similar quality to that available in school, including a broad and balanced curriculum and pupils educated at home receive a minimum of 5 hours teaching per week.
- Whether the child or young person is able to access education will depend on medical advice. The right balance must be struck between encouraging pupils to study and recognising when they are not well enough to benefit from teaching. This must be kept under regular review.
- The 2013 Guidance says that 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. Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.
- Both Guidance documents stress the need for medical information to inform the decisions about what education a child or young person may be able to manage. They also stress the need to include the young person, when age appropriate to do so, in the discussions and decisions reached about his or her educational provision.
- Councils must have a written, publicly accessible policy statement on their arrangements to comply with their legal duty towards children with additional health needs.
- Councils are responsible for arranging suitable full time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
Special educational needs
- Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need a Statement or, since September 2014, an Education, Health and Care Plan (EHCP).
- Part 4 of the final Statement sets out the type of school and any particular school which the Council considers suitable for the child; or the council’s arrangements for the provision for education, otherwise than at school, which the council considers appropriate.
- A well written and accurate Statement/Plan provides the foundation for the provision of suitable education. The governing body and the Head of a school are primarily responsible for what happens in a school. But the council retains the legal responsibility for ensuring the Statement/Plan is properly carried out. There should be annual reviews of the Statement/Plan.
- Where a school identifies a pupil, with a Statement/Plan, may be at serious risk of disaffection or exclusion, an interim or early review should be called. It will then be possible to consider the pupil’s changing needs and recommend amendments as an alternative to the pupil being excluded.
- Reviews should be completed within eight weeks. Parents can appeal to the Special Educational Needs and Disability (SEND) Tribunal if they consider there should be amendments to the Statement/Plan and the council refuses to do this.
- Councils should complete an EHCP within 20 weeks of receiving a request for a statutory assessment. Councils should aim to transfer children and young people with a Statement to an EHCP during 2014/2015 when moving from a mainstream school to a special school.
- The Autism Act 1999 and subsequent Guidance in 2010 recommended staff should have an awareness and training in working with those with a diagnosis of autism or Aspergers.
- The Local Government Ombudsman issued guidance to councils in September 2011, and amended in June 2016, on how he expects them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
- The Ombudsman made six recommendations. Councils should:
- consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
- consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
- choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
- keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
- adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
- put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
The Council’s policy regarding supporting children unable to attend school because of health needs
- The Council says it is unable to locate copies of the Council’s previous policies in relation to pupils with medical needs. The Council has sent me its April 2016 policy.
- In September 2015 the Council launched a new Education Inclusion Service. This Service incorporates a broad range of professionals targeted to support children and young people to access suitable education.
- In September 2010 Child B was attending a mainstream secondary school which I shall refer to as School C. In November 2011 Child B was formally diagnosed as suffering from Aspergers and Mrs X says she told the Council this (although the Council say otherwise). In January 2012 School B provided an Individual Education Plan to Child B but he did not have a Statement.
- School C had a Fast Track School Attendance Panel and in January 2012 School C raised a concern with the Council that Child B’s attendance had fallen below 65%. At this stage the Council was considering prosecuting Mrs X for failing to ensure Child B attend School C. Mrs X explained that Child B had medical needs which made it difficult for him to attend school.
- In March 2012 the Council agreed that School C should refer Child B to a specialist outreach provision at an Autism Resource Base (ASB). Mrs X says that the ASB officer did not visit her or Child B until May 2012. She says no provision was made available to Child B by School C. Mrs X also says that the Council’s Attendance Officer had stated that Child B had needs that were above what School C could provide.
- In March 2012 School C converted to an Academy. This meant it was its own admission authority and the Council had no direct control. Further the Fast Track School Attendance Panel was only available to Council’s maintained schools.
- In May 2012 Mrs X asked for a statutory assessment of Child B’s SEN. She sent this request to the wrong department so she repeated the request in July 2012. Mrs X also wrote to a number of people at the Council and at School C explaining that Child B was very isolated and spent most of his time in his bedroom. She explained that, although there had been meetings, nothing of a practical nature had been delivered. She asked for help.
- In a report of July 2012 the ASB officer stated that School C had failed to provide a Teaching Assistant. So, in effect, no outreach work had been provided to Child B.
- The Council refused Mrs X’s request for a statutory assessment.
Facts of this complaint
- At the end of August 2012 Mrs X arranged for Child B to be seen by a Paediatrician. The Paediatrician was very concerned about him and referred Child B to the local Children and Mental Health Services (CAMHS).
- Mrs X appealed to the SEND Tribunal in September 2012 against the Council’s refusal to assess Child B. By this stage Child B was still not attending school.
- Mrs X gave the medical evidence to the Council about Child B’s significant difficulties. The Council arranged a tutor for Child B for one hour a day for three days in September 2012. Mrs X says the Council was still refusing to assess Child B to see if he had special educational needs even though it was clear he did.
- Child B remained on the school roll at School C although he did not attend. The Council told her it was for School C to provide education.
- Mrs X says an Educational Psychologist from the Council visited Child B between October 2012 and early 2013. By this stage, Child B was under the Neuro- Development Team as from 2013, transferring from the general CAMHS service. Child B was diagnosed with significant anxiety and as a selective mute. Selective mutism is a communication disorder associated with high levels of anxiety.
- A few weeks before the SEND Tribunal hearing in January 2013, the Council agreed to assess Child B and it conceded Mrs X’s appeal to SEND. During this assessment period, before the Tribunal hearing, Child B was at home without receiving any education.
- In May 2013 a Child and Adolescent Psychiatrist reported that Child B might be at risk of developing psychosis. Mrs X had also arranged for an Occupational Therapist (OT) report. The OT reported in May 2013 that Child B had a range of difficulties which was causing a complete withdrawal from school, social activities and limited personal care.
- In June 2013 the Council completed its statutory assessment and it issued a Statement. It named School C with a transfer to another mainstream school. Mrs X appealed to the SEND Tribunal because she did not consider School C or mainstream education were appropriate. In the meantime the Council still provided no interim education. In effect Child B was without education or services between September 2012 and September 2013. Mrs X says that during this period Child B’s difficulties became more entrenched.
- In September 2013 the Council agreed a trial period at a specialist independent school for children with autism which I shall refer to as School D. The tutor from School D visited Child B at home between 30 September and then weekly, for an hour, until 9 October 2013. Child B started visiting School D in November 2013, beginning with very short visits. Initially this placement went reasonably well although Child B’s attendance was still limited.
- In June 2014 Mrs X wrote to the Council raising a number of concerns about its approach to pupils with significant health needs. Child B’s Psychiatrist also wrote asking for Child B to be provided with educational support. The Council says that this resulted in meetings with Children Services. Mrs X says the tutor from School D was meant to visit Child B at home, when he was not at school, but he only did so for two hours per week.
- In July 2014 the SEND appeal heard Mrs X’s appeal. It was agreed at the appeal that there should be a ‘wrap around package’ and that the Council needed to look at clinical psychological support to assist Child B at School D. Mrs X says a comprehensive transition package was agreed that Child B would also be assessed by a Psychologist, a Speech and Language Therapist (SALT) and by an Occupational Therapist (OT) in the school.
- Mrs X says that the SEND Tribunal also stated Child B was entitled to some two and a half years of extra education to make up for the education he had lost. This was to start once he was settled at School D.
- In September 2014, when Child B returned to School D after the summer break, there were six pupils in his classroom whereas previously he had been in a class on his own. Child B became very defensive and hid under the table. He continued, however, to attend School D, albeit for one and a half hours per week. It is not clear how the Council ensured that the ‘wrap around service’ ordered by the Tribunal was provided.
Events of 2015
- Mrs X says Child B started to refuse to attend School D as from January 2015. Mrs X said the school had no plan in place about how to increase his school attendance or how to address his underlying SEN or to ensure the ‘wrap around’ service.
- School D did seek advice from a Clinical Psychologist (CP). Mrs X says the CP did not refer to the previous OT report she had obtained or to the CAMHS information. The CP recommended a multi agency and a systemic approach. Mrs X says this did not occur.
- Mrs X approached her Member of Parliament (MP). The MP raised concerns with the Council about the lack of education and other services to Child B.
- In January 2015 the National Health Service (NHS) assessment by the Neuro- Development Team confirmed that Child B was medically unfit to attend school. On 22 January 2015 Mrs X wrote to the interim Director of Children Services complaining that the special educational provision for Child B was not being provided by School D and that the Council had a duty to ensure it was.
- Mrs X listed the provision, which had been specified should be provided in his Statement, but which Mrs X stated was not being provided. She was particularly concerned that in September 2014 School D had placed Child B in a busy, noisy room with six other children whereas prior to this he had been working on a one to one basis.
- In January 2015 the Council held a meeting where it was decided that the placement at School D would end. Mrs X says she and Child B were not consulted. The Council wrote a factually inaccurate letter to the solicitors who she had found to act for Child B. This frustrated the application for legal aid for Child B for the purposes of making a claim via judicial review.
- The interim Director wrote to Mrs X on 13 February 2015 stating that there would be a multi agency meeting to help draw up an effective EHCP and that this will “provide a good opportunity to pull together the right support for [Child B] across the agencies. The local SEN team are exploring a bespoke package of provision for [Child B] to be captured within his EHCP with a graduated approach to support his transition and they should already have made contact with you regarding this”.
- The Director also stated a referral would be made to Adult Social Care.
- In February 2015 the Council formally ended Child B’s placement at School D. The Council say Mrs X agreed to the end of this placement but, as stated, Mrs X says that she was not consulted and she did not agree this decision. She said she would have preferred to have continued to work with School D with the Council providing the necessary support.
- After the Council ended the placement at School D, Mrs X says the Council provided no alternative provision. She incurred extensive expenditure on legal advice and assessments to ensure the Council properly considered Child B’s needs for his EHCP.
- In February 2015 the MP wrote to the Council again. A Clinical Psychologist identified that Child B’s mental health represented the main barrier and obstacle to progress and that education could not be accessed unless there was improvement in his mood and anxiety difficulties. The Clinical Psychologist recommended a multi agency specialist support to centre on short term targets.
- In April 2015 the Council stated it would be arrange a tutor from a National Teaching Advisory Service for Child B to deliver education at home for two hour and a half hours twice per week. Social care also assessed Child B and he was made the subject of a Child in Need plan until June 2015. The Council told the MP it would be updating its medical needs policy which it accepted was out of date.
- Mrs X says the tutor started in September 2015 visiting for one hour twice a week. There were problems with Child B being unwilling to come out of his bedroom and the tutor not being allowed upstairs to his bedroom. In September/October 2015 there was a discussion about Child B attending a special independent residential school and the Council arranged transport for Child B to visit this school. But Child B refused to get into the taxi.
- The Principal of the independent school offered advice about a way forward which Mrs X says the Council ignored. Mrs X says that the Council did not undertake any assessments for the transfer of Child B’s Statement to an EHCP.
- The Council did liaise with CAMHS, believing it should provide specialist mental health support in hospital because it felt that Child B’s mental health was the main barrier to education and this needed to be addressed. Mrs X says that this suggestion was inappropriate because Child B needed intensive OT and SALT provision to help him leave the house. Provision in a hospital was not appropriate.
- Mrs X was concerned by the Council’s delays in completing the EHCP. She therefore asked for the EHCP to be completed by 4 November 2015. When the Council failed to do so, she approached solicitors again who agreed to act for Child B. They asked the Council to finalise Child B’s EHCP by 3 December 2015. The Council issued a draft EHCP on 18 December 2015.
Events of 2016
- On 29 January 2016 the Council issued a final EHCP for Child B. The Plan set out short, medium and long term outcomes. It was also agreed there would be termly reviews. Mrs X appealed the EHCP. (The final outcome of this appeal was made known in January 2017).
- In early February 2016 the Council agreed a tutor to visit Child B starting in late February 2016 and building up Child B’s trust and engagement. It also agreed an assessment by a Sensory Integration Occupational Therapist. The long term plan was for Child B to be able to attend a specialist school/ College for those with autism.
- Mrs X was hopeful that the Tribunal process would result in agreement from the Council in respect of Child B’s EHCP and provision. Mrs X says that there should be in place a home tutor five times per week for one hour and a CP and key worker to be involved building up to fulltime. An OT visited Child B. But there were delays in appointing a key worker.
- Mrs X commissioned a private assessment by a Clinical Psychologist. The CP reported in May 2016 that Child B, based on his Year 7 school report, is an intelligent boy. The CP also noted the recent home tutoring service had tried to engage him but that Child B remained in his room most of the time and was reluctant even to engage with family members. The CP stated that Child B was severely impaired by his anxiety levels.
The Council’s views
- The Council says it took 41 weeks from April 2015 to 29 January 2016 for it to finalise the transfer to an EHCP. This is because of a number of requests made for changes and explorations of suitable provision.
- The Council says that School D said it would provide the necessary provision but the School had difficulty in employing certain professionals which impacted on provision. The Council says that it is unclear to what extent Child B would have engaged with those professionals had they been available.
- The Council has calculated how much education it considers Child B has lost out on. It gave a figure of 9.5 months and it offered a financial remedy which I have now considered.
- Child B has significant and complex needs. The recent Clinical Psychologist’s (CP’s) report sets out why Child B has the difficulties he does have. Child B now spends most of his time in his bedroom communicating mainly with his mother.
- Mrs X told the Council in September 2012 that Child B had significant difficulties. The Council knew that Child B’s medical difficulties may well affect his school attendance and performance. I consider that the Council has been very slow to pick up on the implications of Child B’s difficulties and it has meant Mrs X has had to use the SEND Tribunal, solicitors and private assessments to try to ensure Child B received appropriate help.
- Over the years Child B’s difficulties have become more pronounced and intractable. It is hoped that the current SEND Tribunal will help the Council and Mrs X to devise a programme of support which will recognise the full extent of Child B’s current difficulties and provide appropriate and consistent solutions. As SEND is involved, it is not for the Ombudsman to comment on the merits of any educational package.
- I recognise more recent services have tried to help Child B and that the solution rests in different agencies working together consistently, and with the family, to help bring about some positive change for Child B.
- I consider that the Council’s failure to recognise the extent of Child B’s difficulties, or to take positive action to provide education early on, has served to consolidate a pattern of behaviour for Child B which is now very difficult for agencies to resolve.
- I find fault in the following ways:
- When the new statutory Guidance was issued in 2013, the Council did not amend its policy for children unable to attend school because of health needs until April 2016;
- In September 2012 the Council was informed of Child B’s medical difficulties but it took no action even though it knew Child B was not attending School C. It should have sought medical information then to inform its decision making at this stage;
- The Council’s Educational Psychologist was involved as from October 2012 and the Council also knew Child B had been referred to the Neuro Development Team. Again the Council missed an opportunity to intervene or to provide assistance and education. In effect Child B was without education between September 2012 and September 2013;
- In October 2013 Child B started at School D. At first the placement went well. But Mrs X was concerned that School D was not providing all the support to Child B as set out in his Statement and she therefore appealed to SEND. I cannot see evidence that the Council gave proper thought to whether the educational provision required was being provided by School D. The Council should have capitalized on Child B’s early progress at this school;
- The SEND appeal of July 2014 agreed with the Council and with Mrs X a ‘wrap around service’ to be provided to Child B. I cannot see the evidence that the Council ensured School D provided this ‘wrap around service’ to Child B in the way agreed;
- In January 2015 Child B stopped attending School D. The Council ended the placement without discussion with Mrs X and without giving thought to the interim educational provision which it should provide. Child B was again left without educational provision and a tutor did not start working with Child B until September 2015;
- There was a significant delay by the Council in completing the EHCP between February 2015 and January 2016. This has resulted in Mrs X having to seek legal help and a delay in her being able to exercise Child B’s appeal rights;
- The Council sought no fresh assessments of Child B since ending his placement at School D and when transferring his Statement to an EHCP;
- Overall it appears there are prolonged periods when Child B was not receiving any education and periods when the education was insufficient.
- Mrs X has been raising her concerns about the educational provision to meet Child B’s needs for the some years now. I am only looking at events since September 2012. In June 2014 the SEND Tribunal determined that Child B had missed out on appropriate educational provision for two and a half years.
- I accept that calculation but it is difficult to be precise about the exact amount of education which Child B has lost. Further, while there is no doubt that the Council has failed over a number of years to provide education to Child B, I also have to take into account that Child B had difficulties in engaging with provision and that might have limited what could be provided.
- However it is clear that Child B has had significant periods without education or without sufficient education. Over time Child B has become more and more socially isolated and difficult to engage and the absence of educational and other services to him have contributed to an exacerbation of his difficulties.
- The Council’s significant failure was not to recognise the extent of Child B’s difficulties early on or to take robust action to provide education and support services at this point. Had it done so it may have prevented some of the subsequent entrenchment of Child B’s difficulties which are now very difficult for agencies to resolve.
- More careful and planned interventions by the Council early on may have made a significant difference to the outcome for Child B. The evidence for this is that, when Child B started at School D in September 2013, he made some progress. So he was capable of learning and wanted to learn. But he needed very intensive support and a specialised approach.
- As a result of the Council’s failings which I have listed, Child B, who is an intelligent child, has not been able to achieve his full potential. He has also been socially isolated. These are significant injustices to him.
- Mr and Mrs X have struggled for many years now trying to ensure an appropriate multi agency response for their son. They have also spent about £1,500 on independent assessments or legal costs. They have watched their son’s well being become worse over the years and they have worked tirelessly to try to ensure he received the appropriate help and education.
The Ombudsman’s guidance on remedies
- The Ombudsman will usually recommend a payment of £200 to £600 per month for lost education. He will take account of the impact of the lost education on the child’s life chances and whether any additional provision can remedy some or all of the loss. The Ombudsman will also make payments for complainants’ avoidable distress and frustration and for unnecessary expenditure.
Recent Tribunal Decision
- On 6 February 2017 the Tribunal issued its decision. It set out a detailed programme of educational and other necessary support for Child B. The aim is for professionals to build a rapport with Child B with a long term aim of a specialist residential placement for Child B, capable of dealing with his ASD and sensory issues as well as the associated emotional effects such as anxiety and low mood.
- The Tribunal Order is binding on the Council. Mrs X has the option of making a fresh complaint to the Ombudsman if the Council do not abide by the Order.
- The Tribunal has devised an educational plan for Child B which the Council must provide. I have considered the lost opportunities by the Council’s failures to act sooner to deal with Child B’s difficulties and the resulting lost education to him as a result.
- The Council has now agreed to:
- reimburse Mr and Mrs X’s costs in obtaining private reports/legal assistance, estimated to be in the region of £1,500, but Mr and Mrs X should provide receipts;
- pay Mr and Mrs X £500 for their avoidable distress caused by the Council’s faults;
- pay Mr and Mrs X £5000 for Child B’s lost opportunities for education and support which they can use, in consultation with the professionals now involved, to buy in additional services/therapy to help Child B, if considered appropriate and necessary. Alternatively, if what the Tribunal has ordered is sufficient and all that Child B can cope with at the present time, this sum should be set aside for Child B for when he is older.
- There is fault by the Council causing significant injustice to Child B and to the complainants. The Council has now agreed an appropriate remedy and I do not consider the Ombudsman could obtain more by pursuing the complaint.
- I have therefore completed my investigation and I am closing the complaint. However, if the Council do not make the provision ordered by the Tribunal, the Ombudsman would be willing to consider a further complaint from Mrs X without her having to go through the Council’s complaints procedure. Time is now running out for Child B and the Council must therefore make a concerted effort, and provide the resources, to ensure the Tribunal decision is implemented.
- I cannot investigate matters considered by the SEND Tribunal, in particular the merits of the educational plan and provision. I also cannot investigate the actions within schools.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman