The Ombudsman's final decision:
Summary: It was Mrs B’s decision to withdraw C from school in April 2017, and to stop her returning to school. However, the Council was at fault for failing to arrange home tuition when it accepted that C could not attend school full-time because of her health needs. It was also at fault for a delay in issuing C’s EHC plan. It has agreed to apologise to Mrs B and pay her £900 to recognise C’s injustice.
- The complainant, whom I refer to as Mrs B, complains about the education the Council provided to her daughter in 2017 and early 2018. I refer to her daughter as C. C has autism and suffers from anxiety which, Mrs B says, means attending school causes her great difficulty.
- Mrs B says the Council failed to provide alternative education to C when she was too ill to attend school. She also says the Council delayed issuing an education, health and care (EHC) plan for C, and then named elective home education in the plan, which meant C did not receive the provision she needed.
What I have investigated
- I have investigated Mr B’s complaints about C’s educational provision between April and December 2017, and about the alleged delay in the Council issuing C’s EHC plan.
- The final paragraph of this decision statement sets out why I have not investigated other matters.
The Ombudsman’s role and powers
- 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)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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 considered information provided by Mrs B and the Council.
- I wrote to Mrs B and the Council with my draft decision and considered their comments.
What I found
- I have considered each part of Mrs B’s complaint, in turn, below.
The Council’s provision of education to C when she was out of school
- In late 2016 Mrs B decided that C should stop attending school because it was causing her great distress. In November 2016 C’s GP wrote to her school and supported Mrs B’s decision. The GP said Mrs B was exploring the possibility of home tuition, but would be happy to meet the school to discuss options.
- On 25 November Mrs B met with professionals, including C’s school and her Consultant Paediatrician. The Consultant said C had ‘school phobia’. All attendees of the meeting agreed a plan to return C to school. The Consultant also agreed to support C’s planned absences while she was not attending full-time.
- After the meeting C’s school wrote to Mrs B. It confirmed the reintegration plan and said that, during the meeting, C’s Consultant had been supportive of C eventually attending school full-time. It said C would now start attending school in the afternoons only.
- On 5 January 2017 C started attending school for two days and three half-days each week.
- On 1 February C’s Consultant wrote to her school and said he supported the plan to return C to school and support her with stress. He said he would medically support any absences which occurred during the reintegration process.
- On 6 March C’s school told the Council that Mrs B, and C, struggled to manage C’s part-time timetable. It said C had had absences which were not agreed as part of the reintegration plan.
- On 19 April Mrs B decided that C’s distress at attending school had, again, become so great that she should no longer attend. She stopped sending C to school.
- The following day C’s GP completed a form, saying, “absence [from school] is the best thing for now”. The form also referred to C’s Consultant’s letter of 1 February 2017 – which had supported C’s return to school.
- On 18 May C’s consultant wrote to the Council. He did not recommend any particular provision for C, and did not say C could not attend school. He said Mrs B’s view that C could not attend school “is a reasonable judgement. Other judgements may also be reasonable”.
- On 6 June the Council told Mrs B that it could arrange home tuition, but only when combined with a plan for C to return to school. It said it would need evidence from the child and adolescent mental health service (CAMHS) that C could not attend school in the short-term, and would need Mrs B to engage with a reintegration plan, before it arranged home tuition.
- On the same day C’s Consultant told the Council that C’s absences should be authorised on medical grounds until her new EHC plan was completed (with a new educational placement named).
- On 14 June the Consultant, with CAMHS, wrote to the Council with a suggested reintegration plan. They said C should return to school in the long term, at a pace she was comfortable with. They said this should start with 2 hours’ home tuition each week, with a view to increasing the number of hours as she got more comfortable. They said attendance at school should follow a similar pattern – starting from 2 hours each week and increasing slowly.
- On 20 June the Council told Mrs B that it had accepted the medical evidence about C’s mental health issues affecting her attendance at school. It said, however, that home tuition must only be a temporary measure and – until a new school was identified – the plan would be for C to return to her existing school. Mrs B told the Council that she would not agree to a reintegration plan because she did not want C to return to the school.
- On 10 July C’s school created a reintegration plan. The plan reflected the medical recommendations of 14 June, and said C would receive home tuition for 2 hours each week, which would increase when she had built a relationship with her tutor. The plan said C would, at some point, return to school, initially for some afternoon sessions each week (to be agreed by CAMHS and Mrs B).
- Mrs B says she did not receive a copy of the reintegration plan.
- The Council says that, because Mrs B did not engage with the reintegration plan, it delivered no educational provision to C prior to issuing her EHC plan in December 2017.
Law and guidance
Education Act 1996
- Section 19(4) of the Act says councils should arrange suitable education for children who, because of illness, exclusion from school or otherwise, may not receive suitable education unless such arrangements are made.
‘Ensuring a good education for children who cannot attend school because of health needs’
- This statutory guidance, issued in 2013, says councils should provide education to a child when they become aware the child will be away from school for 15 days or more (this does not have to be consecutive and can be over the course of a school year). It says councils should consider medical evidence and should liaise with medical professionals and the child’s family to ensure this provision is not delayed.
- The guidance says councils should have arranged provision by no later than the sixth day of absence.
- The guidance says, where children have complex or long-term health issues, the pattern of illness can be unpredictable. It says councils should discuss the child’s needs and how these may best be met with the school, the relevant clinician and the parents, and where appropriate with the child. It says the child’s needs may be met through individual support or by them remaining at school and being supported back into school after each absence. It says councils should make provision available as soon as the child is able to benefit from it.
- Mrs B made the decision to withdraw C from school in April 2017. However, she says the Council had a duty to provide home tuition for C until it found a new school. She says this was because C was too ill to attend her existing school.
- It is certainly true that – in cases where a child cannot attend school because of health needs – councils have a duty to provide an alternative education. Whether a council delivers alternative provision, and the extent of that provision, depends on its consideration of medical evidence.
- The Council says there was initially no medical evidence which supported Mrs B’s view that C could not attend school, and, when a plan was made, Mrs B refused to engage with it.
- I agree that, until June 2017, there does not appear to have been medical evidence which said C could not attend school. Her Consultant wrote one letter in February 2017 which supported attempts to return her to school, and wrote another in May which did not make any specific recommendations.
- At that point the Council’s position was that C had a school available, and there was no evidence she could not attend, other than Mrs B’s own views.
- Although, after six days of sickness-related absence (if there are to be more than 15 days of absence over a school year), councils have a duty to provide alternative education, they must be satisfied that a child cannot attend school.
- As, by early June 2017, there was no significant evidence to say C could not attend school, I have found no fault with the Council’s approach up to that point.
- However, on 14 June 2017 C’s Consultant (with CAMHS) wrote a letter to the Council, with a recommended reintegration plan for C to return to school. They said C should initially receive two hours’ weekly home tuition, and should return to school for two hours each week. They said the provision could increase as she got used to it.
- The Council had told Mrs B that, before arranging home tuition, it needed evidence from CAMHS about whether C could attend school, and, if not, what she could manage. I am satisfied that this letter is what the Council said it needed, and it told Mrs B on 20 June that it had accepted the evidence. This means that, from that point, it was under the duty to deliver alternative provision to C.
- C’s school created a reintegration plan on 20 July, which was similar to the medical recommendations (starting with two hours’ home tuition each week and building up, potentially, to C attending school regularly). Mrs B had already said she would not engage with such a plan, and it appears she did not engage at all. Although she says she did not see the plan, I have seen nothing to suggest that she would have agreed to return C to her existing school if she had seen it.
- Mrs B clearly has a duty to ensure that C accesses education, and the Council has the power to take action against her if she does not do so. The Council, having considered medical opinion, did not use that power. This decision was not part of Mrs B’s complaint, so I am not looking at it.
- However, the Council – which had accepted that C could not attend school full-time – also had a duty, which was to deliver alternative educational provision while C was out of school.
- The Council appears to have tied the offer of home tuition to a requirement for C to return to school. It made clear that C would receive no home tuition if Mrs B did not agree to her eventual return.
- I have some sympathy with the Council’s position, because the medical evidence, which said C could not attend school full-time, also said she should return to school when she was ready.
- However, the Council’s approach does not appear to have been compliant with its duties. It had medical evidence that C could manage 2 hours’ home tuition, and Mrs B had consistently said she wanted home tuition in place. I have seen nothing to suggest that, if the Council had arranged the tuition, Mrs B would have refused it.
- The Council should have arranged the two hours’ home tuition in late June 2017, and worked with Mrs B and C to increase this provision – as set out in its reintegration plan.
- If Mrs B had then refused to comply with the rest of the plan, and had not sent C back to school, the Council could have considered whether to take action against her for failing to ensure that C accessed all of the available provision. In the meantime, however, C would have been receiving at least part of an education.
- As it was, C received no educational provision at all from April until December 2017 (when the Council issued an EHC plan naming elective home education).
- Given the Council’s responsibility to arrange education from C’s sixth day of absence – but accounting for the initial lack of medical evidence available – I consider it to have been at fault for failing to deliver alternative educational provision from late June until mid-December 2017.
- C’s injustice was restricted by the limited provision she would have received if the Council had arranged home tuition. However, its offer of two hours’ tuition was informed by medical opinion, which I cannot question. I also cannot predict if or when the provision would have increased, or by how much, because I cannot speculate about how C may have progressed.
- Nonetheless, the Council failed to deliver alternative educational provision to C for 17 weeks (accounting for school holidays). It should apologise to Mrs B, and should make a payment of £400 to recognise C’s injustice.
The delay in issuing C’s EHC plan
- Mrs B requested a special educational needs assessment of C on 20 February 2017. On 17 March the Council agreed to assess C, and it sent enquiries to other agencies on 21 March.
- On 6 June the Council’s special educational needs and disability (SEND) panel agreed the content of C’s EHC plan, and the Council issued a draft plan the following day.
- On 25 June Mrs B asked the Council to make changes to its draft EHC plan. The Council put the case back to its SEND panel which, on 1 August, agreed to make some changes (although not all the changes Mrs B asked for).
- The Council consulted schools on 29 September, and issued C’s final EHC plan on 30 October – with a type of placement named (mainstream school), but not a specific placement.
- On 12 December the Council issued an amended EHC plan, naming elective home education. This meant Mrs B would arrange C’s education at home, and the Council stopped trying to find a school.
- Mrs B was dissatisfied with the Council’s decision to name elective home education, and appealed to the SEND Tribunal.
- In late February 2018, prior to the Tribunal hearing, the Council agreed to provide C with 15 hours of home tuition.
2015 SEND code of practice
- This code provides statutory guidance on duties, policies and procedures relating to Part 3 of the Children and Families Act 2014 and associated regulations.
- Paragraph 9.40 of the code says the whole process of issuing an EHC plan, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks.
- Paragraph 9.42 says there is an exception to the 20-week timescale if an educational establishment is closed for at least four weeks, and if this delays its submission of information.
- Councils have 20 weeks to issue EHC plans, starting from when assessments are requested.
- Mrs B requested an assessment on 20 February 2017, so the Council should have issued C’s final plan by 10 July. It did not issue the plan until 30 October – a delay of 16 weeks.
- This was fault by the Council, and Mrs B’s right to appeal to the SEND Tribunal was delayed. Although she did not appeal the EHC plan of 30 October (she appealed a decision in the subsequent amendment of 12 December), I consider it likely that the 16-week delay had a knock-on effect.
- Following Mrs B’s appeal, the Council agreed to put home tuition in place. I cannot look at the content of the EHC plan because it was subject to appeal, and I cannot look at whether the Council’s offer of home tuition was suitable because it was put in place as part of the appeal process.
- However, I consider that the Council’s delay in issuing a plan in 2017 meant Mrs B’s right of appeal was delayed. This meant the delivery of home tuition – which the Council arranged as a consequence of the appeal – was also delayed. C’s injustice was that she began receiving the 15 hours’ home tuition later than she would have if the Council had issued the EHC plan on time.
- I acknowledge that part of the reason for the Council’s delay was that it was trying to find a suitable school for C, and the closure of schools during the 2017 summer holidays did not help. The SEND code of practice allows an exception to the 20-week deadline if a school is closed for more than four weeks.
- It is true that the summer holidays took place after the Council’s statutory deadline of 10 July, so the Council should have already issued the plan before the holidays started. It is also true that the Council did not consult schools until four weeks after the start of the autumn term. However, I do not doubt that the six-week summer holidays – of which the Council had no control – contributed to the delay.
- As a result – and having noted that three of the 16 weeks in which C could have been receiving home tuition were school holidays – I consider that the Council’s failure to issue C’s EHC plan on time meant she missed out on seven weeks of home tuition.
- In considering a remedy for C’s injustice, I note that her eventual provision was only 15 hours a week, rather than a full week. Nonetheless, the Council should apologise to Mrs B, and should make a payment of £500 to remedy C’s injustice.
- The Council has agreed to write to Mrs B and apologise for its failure to arrange home tuition for C in June 2017, and for its delay in issuing C’s EHC plan.
- The Council has agreed to make a total payment of £900 to Mrs B in recognition of C’s injustice.
- These actions should be completed within six weeks of the date of this decision statement.
- The Council was at fault for failing to arrange home tuition when it accepted that C could not attend school full-time because of her health needs. It was also at fault for a delay in issuing C’s EHC plan. The agreed actions remedy C’s injustice.
Parts of the complaint that I did not investigate
- I did not investigate Mrs B’s complaint about the Council’s decision to name elective home education on C’s EHC plan – which, she says, meant C did not receive the provision she needed – because I cannot look at matters which have been appealed to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman