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Hertfordshire County Council (17 016 931)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Jul 2019

The Ombudsman's final decision:

Summary: Mr D complains the Council failed to provide his daughter with suitable education when she could not attend school due to anxiety and delayed issuing her education, health and care plan. The Ombudsman has found fault causing injustice. The Council has agreed to make a payment to benefit Mr D’s daughter’s education.

The complaint

  1. Mr D complains the Council failed to:
      1. provide his daughter, J, with suitable education from May 2017 after she was unable to attend school because of anxiety.
      2. meet statutory deadlines in issuing J's Education, Health and Care plan (EHC plan) in 2017/18.
      3. commission the necessary assessments to amend the EHC plan after June 2017.
      4. commission an assessment of J's social care needs.
      5. comply with the December 2018 SEND Tribunal's orders.
      6. respond on time, accurately or fully to his complaints.
  2. Mr D says the lack of educational support caused J considerable distress and anxiety and resulted in her mother being unable to work. He also says they have had to pay for assessments and legal support.

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The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a Tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. 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)
  6. 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.

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How I considered this complaint

  1. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
    • The Education Act 1996
    • The Children and Families Act 2014
    • The Special Educational Needs and Disability Code of Practice January 2015 (“the Code”)
    • Children missing education, Statutory guidance for local authorities
    • Alternative provision, Statutory guidance for local authorities
  2. I sent Mr D and the Council my draft decision and considered the comments I received.

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What I found

Special educational needs

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
  2. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s plan. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Professional assessments

  1. In order to complete an EHC needs assessment the council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist, social care, anyone else the council considers appropriate and from any person the child's parent reasonably requests. The council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC plan.

Annual reviews

  1. The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Schools are responsible for convening a review. Paragraph 9.173 of the Code says councils and schools must cooperate to ensure a review takes place. This includes attending the review when requested to do so. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan.

EHC plan timescales

  1. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
  2. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
  3. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.

Education for children out of school

  1. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
  2. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education (Statutory Guidance 'Children Missing Education'). If a parent withdraws a child from school without another place for them to go to, they are taking responsibility for the child’s education. If parents are not home educating, the Council has responsibility for the education.
  3. If a child of school age cannot attend school for reasons of illness, exclusion from school or otherwise, the Council must make arrangements to provide suitable education at school or elsewhere (for example, at home). The provision must be suitable for the child’s age, ability and aptitude, including any special needs. Statutory guidance on alternative education provision says the provision should start as quickly as possible.
  4. When a child refuses to attend school or appears to have a phobia about attending, councils must consider whether he or she is medically fit to attend school. If not, they need to decide how many hours of what type of education they should provide.
  5. 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. Councils should periodically review the suitability of the education the child is receiving, to consider how much education the child could cope with.
  6. Our Focus Report, Out of school…out of mind?, gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:
    • consider the individual circumstances of each case and be aware that, potentially, 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 back 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.

Alternative provision

  1. Alternative education covers a range of provision including classroom based teaching in a pupil referral unit or 1:1 tuition in the family home or a community venue.
  2. In considering alternative education local authorities should not:
    • have processes or policies in place which prevent a child from getting the right type of provision and a good education; and
    • have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
  3. A judicial decision (R (on the application of G) V Westminster Council [2004] EWCA Civ 45) says that where a pupil is not attending school and remains on the school's roll the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
  4. The Council’s Education Support Team for Medical Absence (ESTMA) supports the Council’s schools that have pupils who are temporarily unable to attend school full time for medical reasons. The service offers a personalised programme of educational provision to help pupils return to school. Referrals to ESTMA must be accompanied by a letter from a medical practitioner stating the impact the medical condition has on the pupil’s ability to access education in school.

What happened

  1. Mr and Mrs D’s daughter, J, is autistic and has diagnoses of attention deficit disorder, epilepsy, and other health problems. J attended a mainstream primary school until 2014 (when she was in Year 4), when she became unable to attend due to school-based anxiety.
  2. The Council commissioned speech and language therapy (SALT) and educational psychology assessments to inform a statement of SEN. The statement named a local authority special school for children with learning difficulties and additional needs (‘the School’) for J to attend from the start of Year 5 in September 2015.
  3. J started to work with children’s mental health services. The statement was converted to an EHC plan in 2016. By January 2017 J was on a part-time timetable of 1.5 hours per day due to her anxiety. A new EHC plan was issued in February 2017. This set out measures the School would take to reduce J’s anxiety and said no social care needs had been identified.
  4. On 10 March 2017 the children’s mental health service wrote to the Council requesting support from the ESTMA team. The letter said “expecting J to attend school even part-time is currently unachievable for J, and that any expectations for her to do so may in fact be contributing to her anxiety”. It recommended J have “a home-based ESTMA intervention with a view to gradually accessing mainstream school.” The letter explained J was unable to engage in the mental health therapy sessions as these increased her anxiety.
  5. The educational psychologist provided a report that said the provision detailed within J’s EHC plan “remained appropriate with some minor adjustments and additions”, including a jointly agreed approach to support J’s attendance at school.
  6. There was an annual review of J’s EHC plan on 13 June 2017 at the end of Year 6. The Council’s SEND officer had been invited but did not attend. There was a report from the mental health team and an educational psychologist attended. The review noted that J had stopped attending school in May 2017 due to her anxiety. Mr and Mrs D requested alternative provision be made for her education outside school. A social care assessment was also requested. The School sent the report of the review to the Council on 19 July 2017.
  7. In response to the referral to ESTMA, the Council said a home package of education would need to be considered as part of J’s EHC plan, and was not ESTMA’s role, which aimed to support reintegration into school.
  8. The Council wrote to Mr D on 3 August 2017 to say it intended to amend the EHC plan and would issue a draft amended EHC plan within six weeks (i.e. by 14 September 2017). A draft EHC plan was sent on 6 October 2017. This said J had been out of school since May 2017 due to school-based anxiety. It named the School and set out the educational provision needed to reduce her anxiety.
  9. Mr and Mrs D were dissatisfied with the plan and submitted comments. Following an emergency planning meeting at the school in October 2017 and further correspondence another draft EHC plan was issued on 28 November 2017.
  10. The Council referred J for an occupational therapy (OT) assessment in December 2017, but this was not completed due to J’s anxiety.

Mr D’s complaint

  1. Mr D complained to the Council in January 2018. He said J had not received an education since May 2017 and the Council had missed the statutory EHC plan deadlines. He also complained a social care assessment had not been done. The Council considered this under its corporate complaints procedure and responded on 27 February 2018.
  2. The final EHCP was issued on 9 March 2018. Mr and Mrs D were dissatisfied with it. They considered it was incomplete, erroneous and out of date. They said it was based on old assessments and did not contain specified, measurable, and quantifiable special educational provision.
  3. Mr D escalated his complaint to stage 2 on 14 March 2018. The Council posted its response to Mr D on 24 April 2018, which was the deadline. The Council accepted it had missed the EHC plan deadlines and apologised. It accepted there had been a delay in commissioning the social care assessment. The Council accepted the stage 1 response was late and had not accurately or fully responded to Mr D’s complaint. The Council apologised and offered £350 to the family for distress caused.
  4. A child and family assessment was carried out in May 2018. This determined J was a child in need and a plan was developed, which included considering an OT assessment and a further referral to ESTMA.
  5. Mr and Mrs D appealed to the SEND Tribunal. They privately commissioned OT, speech and language and neuro-psychological assessments.
  6. Mr D complained to the Ombudsman in June 2018. He said the Council had made no attempt to provide any service to J, instead leaving her at home. It had also failed to commission up to date assessments, causing them to do so. Mr D said the Council had failed to coordinate J’s support.
  7. Following his complaint to the Ombudsman, in December 2018 the SEND Tribunal found J’s special educational need was her inability to access school due to severe anxiety disorders. It named the School and ordered the Council to:
    • provide further OT sessions in the home
    • increase social care provision at home that educates or trains
    • hold multi-disciplinary team meetings half-termly
  8. Mr D made a further complaint that the Council had not complied with the Tribunal’s orders.

My findings

Failure to provide suitable education

  1. In response to my enquiries, the Council said that, whilst J had not attended school, a suitable school place and provision to meet her special educational needs had been available, along with free home to school transport. It and the School had been working with the family to increase J’s attendance. Mr D says the Council did not work with the family, there were periods without contact and they had to chase the Council for support.
  2. The Council said the mental health service referral to ESTMA had asked for alternative education to school and did not detail that J was too unwell, medically, to attend school. J therefore did not meet the criteria for ESTMA support.
  3. To provide alternative education, either on health grounds or on other grounds, councils require evidence the school is unable to meet the child’s needs and they are unable to attend. The Council's view is that until the medical evidence was provided there were no grounds to consider alternative education. I agree that where a child cannot attend school for medical reasons the Council is entitled to expect medical evidence to be provided. However, the Council needs to consider the individual circumstances of a case and not adopt inflexible policies. The mental health service referral to ESTMA in March 2017 said J’s anxiety was in relation to school, and that she was unable to attend. I find this is evidence of an inability to attend school on medical grounds.
  4. The Council says J did not meet the criteria for ESTMA support, as ESTMA works with children trying to reintegrate into school and Mr and Mrs D were seeking provision outside of school. However, the referral recommended J have “a home-based ESTMA intervention with a view to gradually accessing” school. The Council says its aim was to encourage J’s attendance at school.
  5. On the evidence I have seen, therefore, I consider J did meet the criteria for ESTMA support. I find the Council had a duty to provide alternative education after the May 2017 half term because there was evidence it was not reasonably possible for J to attend school and the cause of her non-attendance was unavoidable. It was therefore fault not to provide alternative education.
  6. In response to my draft decision, Mr D said J had missed out on full-time education. As there was no review of how much education J could have coped with in 2017, I cannot say how much education the Council should have provided. However, I note that she was on a part-time timetable before she stopped attending in May 2017, and her educational provision following the Tribunal was 11 hours a week.

Failure to meet EHC plan and complaint response deadlines

  1. The Council has accepted there were delays in issuing the amended EHC plan and has apologised.
  2. Following the annual review on 13 June 2017, the Council should have written to Mr D on 11 July 2017 with its decision whether to amend the EHC plan. It sent this letter on 3 August 2017. However, this delay was due to the School issuing its review report late (on 19 July 2017). The Council wrote to Mr D within four weeks of receiving the report, so I do not find fault by the Council.
  3. The final amended EHC Plan should have been issued on 1 December 2017. This is eight weeks after the first proposed amended EHC plan was sent. It was issued on 9 March 2018. This is fault.
  4. The Council has accepted its response to Mr D's Stage 1 complaint was delayed by about two weeks. The Stage 2 response was also late, as it was posted on the day it should have been received.

Failure to commission assessments

  1. The Council has accepted there was a delay in commissioning the social care assessment, originally requested in June 2017 but carried out in May 2018. This had been caused by a failure to chase up the referral that had been made after the October 2017 meeting.
  2. I consider the Chid in Need plan could have been in place by November 2017 if the referral had been made following the receipt of the report of the annual review in July 2017 and allowing three months for the assessment to be done.
  3. Mr D says they had to privately commission SALT, OT and psychology assessments as the Council had refused to do so. I have seen no evidence of this refusal. The June 2017 annual review considered a recent educational psychology report but did not decide a SALT or other psychology assessments were necessary. I cannot question this decision because there is no evidence of administrative fault in the way it was made. The Code does not require the Council to commission professional assessments. I therefore do not find it was fault for the Council not to commission them. It was Mr D’s choice to commission private ones.

Failure to comply with the SEND Tribunal’s orders

  1. Following the Tribunal, the Council put in place three hours of education at home and four hours of social care, funded by direct payments. Mrs D complained this was incorrect as the Tribunal had ordered seven hours of educational provision at home and four hours of social care to support education and training. He also complained the Council had wrongly said the provision was term time only. The Council accepted there had been a misunderstanding and in March 2019 it increased the direct payments and backdated them to 4 January 2019, when the amended EHC plan had been issued.
  2. Mr D also complained the Council had not complied with half-termly multi-disciplinary meetings as they had to chase up the first one and it was added onto a pre-arranged social care meeting on the last day of term. Mr D says although this meant the Council were technically within the requirements of the order, nothing had been done for the first half-term period. He also complained the numbering within the EHC plan had not been corrected. The Council says multi-disciplinary meetings have been held half-termly and an amended EHC plan provided. I do not find fault here, the meetings were held and the correction of the numbering was not an order by the Tribunal, but a recommendation which the Council intends to carry out.

Has the fault caused injustice?

  1. The Council’s failure to provide alternative provision after May 2017 meant J lost out on a suitable education at the start of her start of her secondary education. That is a significant injustice.
  2. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
  3. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit. As J has special educational needs and was at a key point in her education, I consider her to be at the maximum end of this scale.
  4. Where the period out of education coincides with an appeal against the content of an EHC plan, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. So I cannot consider any lack of educational provision between March 2018 and December 2018. The restrictions imposed by the legislation and case law described above apply even though the Tribunal has no power to provide remedy for the lost education. I have therefore considered the disadvantage J experienced from June 2017 to February 2018 and whether additional provision now can remedy some or all of the loss.
  5. I accept Mr D considers J could have attended school full-time with the right support, but I have seen no evidence she could have coped with full-time education in May 2017. She was on a part-time table by January 2017 and the December 2018 Tribunal found she required 11 hours per week of educational provision. I therefore find J lost out on 40% of full-time provision for eight months.
  6. Injustice to J was also caused by the delay in carrying out the child and family assessment. I find J therefore lost out on seven months of the social care provision identified in the child in need plan. This related to possible OT assessment and a further referral to ESTMA.
  7. The delay in issuing the final EHC Plan and complaint responses caused time and trouble for Mr D. He had to spend time from July 2017 to March 2018 chasing the plan and complaining to the Council and the Ombudsman. It also delayed his right to appeal to the SEND Tribunal. This is his injustice.
  8. In response to my draft decision, Mr D said he and Mrs D have had to initiate contact and chase the Council in relation to J’s education for several years. There is inevitably time and trouble involved in bringing a complaint, but the Ombudsman’s guidance says this only requires a remedy when there has been a fault in the way the council considered the complaint. We do not recommend repayment of the actual costs (such as postage and phone calls) associated with making a complaint. Nor do we recommend councils compensate complainants for the costs of dealing with the matter. Rather, we suggest a symbolic payment of between £100 to £300 to acknowledge the time and trouble caused by delay in responding to the complaint. In this case, the Stage 1 complaint response was issued about two weeks late and the Stage 2 response was one day late.
  9. Injustice was caused by the misunderstanding of the Tribunal’s order in relation to the number of hours of provision. The Council has since rectified this.

Agreed action

  1. The Council has agreed to, within a month of my final decision, apologise to Mr and Mrs D for its failure to provide alternative education to J between June 2017 and February 2018, and to pay them:
    • £1,920 to use for J’s educational benefit
    • £150 in recognition of the delay to the right of appeal against the EHC Plan
    • £100 to acknowledge the time and trouble caused by delays in dealing with the complaints

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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