The Ombudsman's final decision:
Summary: The Council delayed communicating a decision not to issue an EHC Plan for a child (B) following statutory assessment. The Council failed to put in place Alternative Education for B when this was justified. The Ombudsman recommended and the Council agreed to apologise in writing to Mr and Mrs C, pay B £1,500 to acknowledge lost educational provision, pay Mr and Mrs C £500 to acknowledge distress caused by failure to issue a timely decision on whether to make an EHC Plan, and finalise and publish policy on Alternative Education.
- The complainants (Mr and Mrs C) complain that:
- The Council failed to comply with time frames regarding an Education, Health and Care Plan process
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. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- A judicial decision says that the Ombudsman cannot investigate complaints about matters which relate to a period when a SEND tribunal appeal is in progress and there is a close connection between the complained about matter and matters under the tribunal’s consideration. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407)
- In line with a recent memorandum, the Ombudsman notifies Ofsted of the final decision where a complaint about children's services or education is upheld.
How I considered this complaint
- As part of my investigation I have:
- Considered Mrs C’s written statement of complaint and the documents Mrs C provided
- Spoken on the telephone with Mrs C
- Considered the response of the Council to Ombudsman enquiries and documents the Council provided
- Considered Mrs C’s and the Council’s responses to the draft decision
What I found
- Statutory guidance on EHC planning and assessment is provided in ‘Special educational needs and disability code of practice: 0 to 25 years January 2015’ (‘Code’).
- Paragraph 9.41 of the Code says that ‘if a local authority decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or young person within a maximum of 16 weeks from the request for a EHC needs assessment.
- Under s19 of the Education Act 1996 all local authorities are under a duty to arrange suitable education for children of compulsory school age who, by reason of illness, exclusion from school or otherwise, would not receive suitable education unless arrangements are made for them.
- The government has published statutory guidance on alternative provision for children with medical needs in a document called ‘Ensuring a good education for children who cannot attend school because of health needs January 2013’ (EGE).
- Page 4 of EGE says that ‘Councils should address the needs of individual children in arranging provision. ‘Hard and fast’ rules are inappropriate: they may limit the offer of education to children with a given condition and prevent their access to the right level of educational support which they are well enough to receive’.
- Page 6 of EGE says that ‘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, LAs 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.’
- Page 8 of EGE says ‘there is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs (unlike for excluded children, where provision must begin by the sixth day of the exclusion). LAs should, however, arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence.’
- Under section 7 of the Education Act 1996 parents are under a legal duty to make sure that their children of compulsory school age receive efficient full-time education that is suitable to the child’s age, ability and aptitude and to any special educational needs the child may have. This can be by regular attendance at school, alternative provision, or by education otherwise (e.g. the parent can choose to educate their child at home). Councils can take legal measures in relation to securing and enforcing school attendance including the following: issuing fixed penalty fines; issuing a school attendance order; applying to the court for an education supervision order; prosecuting the parent for failure to secure regular school attendance of a registered pupil; prosecuting the parent for failure to comply with a school attendance order.
- The complaint concerns a child (B) whose education the Council currently arranges under an Education Health and Care Plan (EHC Plan). B’s special educational needs lie in the area of social, emotional and mental health
- From late 2014 the Child and Adolescent Mental Health Service (CAMHS) was involved with B due to concern about mental health difficulties. In April 2015 CAMHS placed B on a waiting list for an Autistic Spectrum Disorder (ASD) assessment.
- In the school year 2015-16 B was a Year 4 pupil at a mainstream primary school (school P) which he had attended from Reception. B’s attendance was very poor in Year 4. In the period 7 September 2015 to 6 June 2016 B attended approximately 20% of all possible teaching sessions. In its attendance register School P coded 202 of B’s absences as unauthorised for the period 7 September 2015 to 6 June 2016.
- School P’s view was that B’s non-attendance was avoidable and was related to parental attitude with B’s parents (Mr and Mrs C) failing to ensure that B attended school regularly. School P’s view was that B was academically able and that he did not have special educational needs. School P did not place B on its register of pupils with special educational needs. Mr and Mrs C’s view was that B had significant mental health needs (separation anxiety disorder/social anxiety disorder/school phobia) and learning needs (sensory processing difficulties and autistic spectrum disorder). Mr and Mrs C’s view was that B’s extreme anxiety and special educational needs accounted for B’s poor attendance in Year 4. In Mr and Mrs C’s view school P was failing to recognise and accommodate for B’s special educational needs.
- School P and the Council’s view was that B’s non-attendance was avoidable and that enforcement action against the parents was an appropriate response. The Council’s Education Welfare Service (EWS) invited Mr and Mrs C to attend meetings in December 2015 and January 2016 to discuss B’s poor attendance. EWS told Mr and Mrs C that if B’s attendance did not improve within a certain time frame the Council would take enforcement action which could include prosecution of Mr and Mrs C for failing to ensure B’s regular attendance at school or application to the court for an Education Supervision Order.
- B’s General Practitioner (GP) issued a ‘to whom it may concern’ letter dated 30 November 2015. The letter said that ‘B suffers from severe behavioural difficulties and is due to undergo ASD assessment of a clinical psychologist soon. One aspect of his behaviour that has been of particular concern is his extreme sensitivity to certain stimuli. He requires a specific type of occupational therapy to address this.’
- Mr and Mrs C submitted a formal complaint to school P in the autumn term of 2015. Mr and Mrs C complained amongst other matters about school P’s failure to recognise B’s special educational needs and to make appropriate adjustments. A Council officer investigated the complaint on behalf of the school. School P did not uphold the complaint.
- On 15 December 2015 an officer in the Council’s SEN team provided advice to school P about monitoring B’s attendance and provision of equipment/aids to support B’s education.
- B’s GP sent EWS a letter dated 30 December 2015. The letter said: ‘I can confirm that this boy suffers from severe anxiety and becomes very agitated when subject to any type of stress. He does seem to be particularly sensitive to certain stimuli. It is proving very difficult to establish a definitive diagnosis of his condition and we are seeking help outside (the council area) in order to do this. I have not the slightest doubt that B’s absences from school relate to his severe behavioural problems and I regret to say that until we can achieve a deeper understanding of his condition we are not in a position to deal with it and it is likely his poor attendance at school will continue. ‘
- In the period January to May 2016 EWS pursued enforcement action. EWS began legal proceedings against Mr and Mrs C in relation to B’s non-attendance. Mr and Mrs C instructed a legal representative to challenge the enforcement action.
- An NHS occupational therapist (OT) saw B and carried out an assessment in February 2016. The OT issued an assessment report dated 11 February 2016. The report noted B’s high level of dependence on Mr C when completing tasks. The report recommended provision of equipment including a slope board. The OT also recommended that a physiotherapy assessment and a specialist occupational therapy assessment were completed. The assessment said that ‘it is unclear how B would be able to cope with the demands of schooling within busy classroom environments and extensive sensory input that he would experience. The assessment said ‘discussion is required around whether education feel additional support is required for B to access the curriculum’.
- School P said it would make minor adjustments and provide equipment to support B’s needs including a visual timetable, a time out pass, a pencil grip and slope board.
- Following a professional’s referral, child social care carried out a Child and Family Assessment. Child social care issued an Assessment report dated 4 March 2016. The assessment outcome was to take no further action since Mr and Mrs C were parenting B appropriately; no parenting and safeguarding deficits were identified. The social worker’s professional judgment was that B’s poor school attendance was related to ill health. ‘Referrer suggested that there was no reason why B could not attend school but medical professionals have confirmed that B has multiple health needs which are currently preventing him from attending school’. A social work manager authorised the Assessment and commented: ‘The referral suggested that there was no reason why B could not attend school but medical professionals have confirmed that B has multiple health needs which are currently preventing him from attending school. There are no presenting safeguarding concerns and therefore the case will close to Children’s Services.’
- In April 2016 a CAMHS consultant clinical psychologist assessed B for ASD (Autistic Spectrum Disorder). The Assessment report did not give a firm diagnosis of ASD: ‘At times B shows behaviours that are seen in children with an ASD. However, at other times these difficulties are not evident.’ The Assessment said that B was experiencing significant anxiety and this was preventing him from attending school regularly: ‘B has been out of consistent schooling for an extended period due to a lack of containment regarding these anxieties.’ The Assessment recommended a therapeutic intervention (Cognitive Behaviour Therapy) and a ‘clear transition plan back into full time schooling’ for B followed by a review assessment for ASD. The Assessment said B ‘is likely to benefit from learning strategies to manage his feelings of anxiety and to enhance his emotional resiliency. B is going to be offered a 10 session cognitive behaviour therapy group starting in May specifically aimed at helping children with anxiety difficulties.’ ‘We would also recommend a clear transition plan back into full time schooling whereby both B and his parents feel confident that his emotional needs are going to be met is put in place. Following completion of this programme, and reintegration to school, we will review his presentation with regards to ASD should concerns continue’. Copies of the assessment were sent to various agencies including EWS.
- On 26 April 2016 Mr and Mrs C asked the Council to carry out statutory assessment with a view to issuing an Education Health and Care Plan for B. The Council sent Mr and Mrs C a letter saying it would consider the request and make a decision by 27 May 2016.
- The Council sent Mr and Mrs C a letter dated 12 May 2016 saying that it would carry out statutory assessment. The letter said: ’My aim is to write back to you with a draft education, health and care plan or the reasons why we shall not make an EHC Plan by 27 July 2016.’
- The Council requested information and advice from various agencies and professionals in May to complete statutory assessment.
- In May 2016 EWS decided to stop enforcement action against Mr and Mrs C.
- In the early summer of 2016 the view of the Council (EWS and the Inclusion Team) was that B was capable of being reintegrated into school full time if certain adjustments were made to curriculum delivery/pastoral support and CAMHS therapeutic interventions were in place. The Council considered that the relationship between Mr and Mrs C, B and school P had irretrievably broken down and that a change to another mainstream primary school was appropriate. Mrs C agreed to an in-year transfer of B to a different primary school (school Q).
- B attended CBT sessions between May and July 2016. B struggled to engage with these sessions.
- B started attending school Q on 7 June 2016. B’s attendance was sporadic in the period 7 June to 22 July 2016.
- The SEN team commissioned a report from a local authority educational psychologist as part of statutory assessment. The report was issued on 28 June 2016. The report said the following:
- ‘An ASD diagnosis has not been given as B presents with issues relating to anxiety. B has been offered, and is currently accessing, CBT sessions to address his anxiety issues, with a subsequent review of a possible ASD diagnosis.’
- There was disagreement between school P’s teaching staff and the parents and other professionals as to the existence of behavioural difficulties. School P’s view was that B did not show behavioural and emotional difficulties when in school and could socialise well with peers.
- ‘It is difficult to fully assess how Bs’ difficulties will manifest with regard to special educational needs due to the limited amount of time that he has attended his new school context and prior absences. The school have in place a number of strategies to support B’s integration into their school and to manage any anxieties he is displaying in their setting. However, without fullness of time it is difficult to foresee whether these strategies will be effective and manageable within their resources or whether B will require additional support.’ CAMHS therapeutic interventions (CBT) ‘may also have an impact on how B is able to manage these difficulties in school’.
The educational psychologist in his report made recommendations about adaptations (e.g. meet and greet/access to a designated member of staff) which school P could make to enable B to attend school full time
- A Council officer memorandum dated 6 July 2016 suggests that the Council made a decision not to issue an EHC Plan for B following completion of statutory assessment in early July. The memo says: ‘Officer to talk to parents and school about decision not to issue a plan. Letter drafted.’ However, there is no evidence that a letter communicating any decision which the Council may have made not to issue an EHC Plan was sent to the parents.
- School Q’s attendance register says that B attended 8 out of a possible 378 sessions for the school year September 2016 to July 2017. In its attendance register School Q coded all of B’s 142 absences from 7 September 2016 to 11 January 2017 as unauthorised. School Q coded all of B’s absences from 12 January 2017 to 21 July 2017 as authorised (absent due to illness).
- In a letter to a colleague dated 29 September 2016 the CAMHS clinical psychologist said that she was referring B for a ‘family based intervention to support B’s emotional needs’. The clinical psychologist said that ‘at times B presents with traits of ASD though it is unclear whether this is due to his heightened emotional state and difficulty with regulating his feelings’. The letter referred to B’s difficulty regulating emotions and separation anxiety. The letter said that ‘parents are still optimistic about working with school Q but B has told them he would like to go to a smaller school’. The clinical psychologist would attend a multi-agency meeting on 10 October. The clinical psychologist recommended a further ASD assessment once B was ‘settled in school’.
- In the autumn term 2016 School Q put in place a series of curriculum and pastoral support adjustments to facilitate B’s regular attendance in school. In the event B attended five teaching sessions in the autumn term 2016. With the exception of the five teaching sessions B did not participate in education in the autumn term 2016.
- A multi-agency meeting was held in school Q on 10 October 2016. Outcomes included continuation of school Q’s reintegration plan and arranging a meeting in December 2016 to consider further reports and assessments.
- Following a telephone conversation on 2 November between a EWS council officer and Mrs C in which elective home education was discussed, the EWS council officer and a specialist Council officer met with Mrs C on 16 November to discuss elective home education for B. Mrs C and the Council officers agreed that such a decision could only be made on the basis of further information and assessments.
- The Council sent Mr and Mrs C a letter dated 17 November 2016. The letter said that following statutory assessment the Council had decided not to issue an EHC Plan. ‘It was felt that (B’s) additional needs could be met through the funding arrangements that are in place, taking into account the information gathered as part of the assessment process, a copy of which is enclosed and can be shared with B’s current education provider’. The letter drew attention to the parent’s right to appeal the decision to the SEND tribunal.
- A meeting was held to discuss B’s education on 7 December 2016 involving various professionals and Mrs C. Mrs C said that B’s educational needs could not be met in a mainstream school. Mrs C said that B had been assessed by a specialist OT and the family was waiting for an assessment report. The SEN team representative’s view was that B’s needs could be met in a mainstream primary school and that B did not meet the criteria for an EHC Plan (though this could be reviewed in light of further information from CAMHS and an educational psychologist). The SEN team representative said that interim education in a medical needs related Pupil Referral Unit (MERIT) was dependent on receiving a report from a consultant psychiatrist saying that ‘B’s medical needs would make it difficult for him to attend a mainstream school’. A EWS officer referred to the possibility of a further enforcement intervention against Mr and Mrs C. According to the EWS officer’s record of the meeting the CAMHS psychologist attending the meeting said that she ‘was working with the family to get B into school as a school environment is needed’. Attendees agreed that more assessment by CAMHS and an educational psychologist would provide evidence for further decision making about B’s education.
- B did not attend any teaching sessions in school Q in the period 4 January 2017 to 21 July 2017 (spring and summer terms 2017).
- In a letter dated 16 January 2017 a CAMHS senior clinical psychologist assessed B based on a recent meeting with him. The letter said that B’s ‘emotional difficulties and sensory processing difficulties are preventing B from attending a mainstream school at present’. The letter said: ‘I understand that B has not managed to go into school for some time despite his parents continuing to try to encourage and support his attendance’. The letter suggested that mainstream education was unsuitable for B. The letter said: ‘Issues with re-engaging in his current mainstream education are likely to be compounded by his experiences in education over the last two years where he has found the environment difficult to cope with and thus formed a negative association with school in general. It is recommended that, if possible, B is given access to specialist educational provision that is equipped to meet his emotional and behavioural needs and has smaller ratios of staff to pupils, which B might be more able to cope with.’ CAMHS would continue to provide therapeutic interventions for B.
- On 16 January 2017 Mr and Mrs C lodged an appeal with the SEND tribunal against the Council’s decision not to issue an EHC Plan.
- On 25 January 2017 the EWS officer recorded in the case log: ‘CAMHS letter now received saying B cannot access school Z at the moment’.
- On 2 February 2017 the EWS officer advised school Q to authorise B’s absences: ‘explained should do this as have had a letter from CAMHS saying B cannot access mainstream school’.
- A local authority educational psychologist submitted a report about B in February 2017.
- The Council conceded the SEND tribunal appeal on 8 March 2017. The Council agreed to issue an EHC Plan.
- A specialist occupational therapist issued a report dated 8 March 2017. The report said that ‘B has become traumatised by experiences in education and currently experiences a high level of anxiety when meeting new people and situations. Parents are keen to seek support to enable his return to education in an appropriate environment which would ultimately meet his sensory and academic needs.’ The report said that occupational therapy would invite B to sensory integration therapy sessions.
- The Council issued a first Draft EHC Plan on 12 April 2017. A second draft EHC Plan was issued on 20 April 2017.
- Mrs C submitted a formal complaint to the Council in a letter dated 26 April 2017. Mrs C complained about several issues including the Council ‘covering up’ for school P’s failings. The Council issued a stage 1 complaint response in a letter dated 5 May 2017. The Council did not uphold Mrs C’s complaints.
- In early June 2017 school Z sent an email to Ms C saying B ‘could come off our register if she signed a form to say that she would home school him’.
- The Council issued a final EHC Plan on 23 May 2017. An amended final Plan was issued on 12 June 2017. The amended final Plan named a maintained school (school R) which specialises in the education of children ‘with needs relating to social, emotional and mental health difficulties’.
- Mrs C asked for escalation of her complaint in a letter dated 17 May 2017. The Council issued a stage 2 response in a letter dated 15 June 2017. The letter did not uphold Mrs C’s complaints. The letter concluded: ‘We are confident that the Local Authority has taken appropriate action to meet B’s needs, in the first instance supporting to improve his attendances and secondly meeting his Special Educational Needs once they were identified’.
- School Q removed B from its admission and attendance register in July 2017.
- In September 2017 B began attending school R. Mrs C has told the Ombudsman that B’s attendance has been very poor throughout the autumn term 2017 and the spring term 2018.
Breach of time frame – communication of the decision not to issue an EHC Plan following statutory assessment
- Paragraph 9.41 of the Code says that ‘if a local authority decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or young person within a maximum of 16 weeks from the request for a EHC needs assessment.
- Mr and Mrs C requested statutory assessment on 26 April 2016. To comply with the statutory time frame the Council should have informed Mr and Mrs C of the decision not to issue an EHC Plan by 16 August. The Council informed Mr and Mrs C of the decision on 17 November. The Council overran the statutory timescale by 9 weeks. Over-running the timescale had the effect of significantly delaying Mr and Mrs C’s entitlement to appeal an adverse decision about an EHC Plan to the SEND tribunal. The length of time the Council took to communicate the decision also meant that Mrs and Mrs C were in a state of prolonged suspense as to the outcome of statutory assessment.
Time frame for issue of EHC Plan following tribunal hearing
- The Ombudsman has not seen a SEND tribunal order referring to a timescale for issue of the EHC Plan. The Council has however told the Ombudsman that it acted within the timescale set by tribunal.
- The Council conceded the appeal on 8 March 2017 and a finalised Plan EHC Plan (subject to an amendment made in the following month specifying education setting) was issued on 23 May 2017. If there were a breach of the timescale set by tribunal the delay was not in my view excessive. I note that Mrs C made lengthy representations in relation to the draft EHC Plan and that the Council issued a second draft in the light of these representations.
Alternative Provision/Interim education
- Though Mr and Mrs C did not explicitly refer to the issue in their statement of complaint, I have exercised discretion to investigate whether the Council should have provided interim education for B (allocation of a place in a medical needs Pupil Referral Unit or 1:1 tuition in the family home or community venue) in the school year 2016-17 excepting the period of the tribunal appeal. (A judicial decision says that the Ombudsman cannot investigate interim education which relates to a period when a SEND tribunal appeal was in progress and there was a close connection between the interim education issue and matters under the tribunal’s consideration. The Ombudsman cannot therefore investigate interim education in the period 16 January 2017 to mid-March 2017.)
- There is insufficient evidence that the Council was under a duty to put in place interim education for B during the autumn term 2016. I note that CAMHS clinical psychologists involved with B considered that B could re-engage with mainstream education through a school led reintegration plan. A place was available for B at school Q and school Q had devised a reintegration plan for B and was attempting to implement it.
- The Council was under a duty to put in place interim education for B from mid-March 2017. The Council should have allocated a place for B in a medical needs related Pupil Referral Unit or allocated a personal tutor to deliver education on a 1:1 basis in the home or community venue following the decision to concede the SEND tribunal appeal in early March 2017. This is because by March 2017 the evidence was compelling that B was medically unfit to attend school Q and any other mainstream school. In a letter dated 16 January 2017 the CAMHS clinical psychologist communicated the professional judgement that B could not attend a ‘mainstream school’ ‘in the present’ and that inability to attend mainstream school was related to B’s significant mental health difficulties. Having considered the clinical psychologist’s letter a EWS officer took the view that B’s absence from school Q was caused by ill health. School Q coded B’s absences from 12 January 2017 to 21 July 2017 as ‘authorised’ (absent due to illness). The evidence suggests that there was consensus amongst the professionals that B was medically unfit to attend school Q and that this was the view of the specialist medical professional responsible for diagnosis and treatment of B’s illness.
- There is no evidence that the Council offered interim education for B in the period mid-March 2017 to July 2017. I note that though a budget for interim education may have been delegated to school Q, the Council has overall responsibility for ensuring that interim education is in place.
- Mrs C has told the Ombudsman that she would have been willing to engage with a Council offer of Alternative Education including home or community based tuition for B.
- There was fault by the Council causing injustice to B and Mr and Mrs C. To remedy fault causing injustice the Ombudsman recommended and the Council agreed to carry out the following action:
- Apologise in writing to Mr and Mrs C.
- Pay B £1,500 to acknowledge lost educational provision in the period mid- March 2016 to July 2016. The money is to be given to Mr and Mrs C and is to be spent on any purpose which furthers B’s on-going education.
- Pay Mr and Mrs C £500 to acknowledge distress caused by failure to issue a timely decision on whether make an EHC Plan for B following statutory assessment
- Finalise and publish a policy document on education provision for children who are too ill to attend school.
- Finalise and publish a policy document on Council provision of alternative education.
- The agreed action appropriately remedies fault causing B and Mr and Mrs C injustice. The complaint is therefore closed.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman