Decision : Closed after initial enquiries
Decision date : 02 Jul 2019
The Ombudsman's final decision:
Summary: The complainant alleges that the Council has failed to make appropriate educational provision for her daughter who has special educational needs. The Ombudsman considers that most of the complaint is outside his jurisdiction to investigate because the complainant had, and used, her appeal rights to the Special Educational Needs Tribunal.
- The complainant, who I refer to as Mrs X, complains that the Council has failed to provide appropriate education to her daughter, Child B. Mrs X’s complaint to the Ombudsman is about the Council’s actions regarding her daughter’s education since 2014.
What I have investigated
- I decided initially to investigate matters as from February 2018 when Child B’s then school placement broke down and the Council agreed to provide home tuition on the basis that Child B was medically unfit to attend school.
- In response to Mrs X’s concerns about this decision, I agreed to re-examine whether the Ombudsman could investigate Mrs X’s complaints about earlier matters.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). It deals with disputes about assessments and provision for special educational needs.
- There are limits on the Ombudsman’s powers and we cannot consider complaints whereby the complainant had a right of appeal to the Tribunal about the refusal to carry out an Education, Health and Care (EHC) needs assessment, the refusal to issue an EHC Plan or about a school placement decision.
- The Court decided, in R v the Commissioner for Local Administration 2014, that complaints about matters, which are the subject of a Tribunal appeal, and their consequences, are ‘inextricably linked’ to the SEND appeal. The Ombudsman therefore cannot investigate, either the decision subject to a SEND Tribunal or the consequences arising from it.
- Therefore, where Mrs X has exercised her appeal right to the SEND Tribunal, the Ombudsman cannot consider her complaints, which were part of the Tribunal hearing or its consequences.
- Where a complainant is appealing against the provision specified, or the named placement in an EHC Plan, the council still has a duty to provide the support specified during the appeal period.
- 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)
How I considered this complaint
- I have obtained information and comments from both the Council and from Mrs X. I have spoken to Mrs X on the telephone.
- I issued two draft decision statements and have considered the further comments from the Council and Mrs X.
What I found
- In September 2014, the Children and Families Act 2014 (the Act) changed the way councils should assess and provide for a child’s special educational needs. There is detailed guidance to councils about how they should manage the process.
- The Act says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
- Section 36(8) provides that an Education, Health and Care (EHC) needs assessment must be carried out if the council considers that a child has or may have special educational needs and it may be necessary for provision to be made available to the child or young person.
- There should be joint working arrangements between the Council and its partner health agencies (clinical commissioning groups (CCGs), and NHS Trusts) to meet the requirement to jointly assess, manage and treat children and young people with special educational and health needs.
- Where the council decides that an EHC needs assessment is unnecessary, it must notify the child’s parent and provide reasons for its decision. Parents can appeal this decision to SEND Tribunal.
- Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained. The courts have decided that councils can ask other agencies to make the provision on their behalf but the duty to make sure it is in place remains with the council. The child’s needs and provision should be set out in the EHC Plan.
- Councils are required, subject to certain exemptions, to send the final EHC Plan within 20 weeks of receiving the parent’s request to conduct an assessment.
- Where a child is within 12 months of a transfer between phases of education, the council must review and amend, where necessary, the child’s EHC Plan before 15 February in the calendar year of a child’s transfer (unless it is to secondary school or post 16 education). This gives time for parents to appeal to the SEND Tribunal before the start of the school year.
Provision and Appeals
- Councils are not obliged to provide what each parent requests, but they should ensure that parents are involved properly in the decision making and be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
- Where the child or young person has an EHC Plan it is open to the council to offer a personal budget to allow the young person or his parents to arrange the special educational needs provision themselves. The council should include details of the proposed personal budget in the draft EHC Plan. It also must provide written notice of the conditions for receiving direct payments.
Children out of school for medical reasons
- Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that 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.
- Councils should:
- provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education;
- address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors;
- while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school;
- if a child receives one-to-one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated;
- good alternative provision is that which appropriately meets the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology). The alternative provision should also meet specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress;
- evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school;
- the pattern of complex and long-term health illnesses can be unpredictable. Councils should discuss the child’s needs and how these may best be met with the school, relevant clinician and parents, and where appropriate the child.
The Council’s procedures
- The Council has a service to support schools with education for children who cannot attend full-time because of health needs. This is the ‘Education Support for Medical Absence’ (ESMA) Team. Its aim is to work with schools, minimise disruption to the child’s education and work towards reintegration into school. The school makes the referral to the service, with supporting medical evidence, for example from a Consultant or from a clinician from the Child and Adolescent Mental Health Service (CAMHS).
- The evidence should explain the impact the medical condition has on the pupil’s ability to access education in school. A multi-agency panel meets fortnightly to consider referrals and the support to be provided. When the ESMA Team receives the referral, it will contact the school to offer advice and/or arrange a meeting with the school and the family to agree next steps.
- The Council also provides tutors if a child is medically unfit to attend school.
- The Council has a contract with its local NHS Trust for the provision of Speech and Language and Occupational Therapy services. There is no formal agreement between the Council and its local CCG in respect of assessing children and young people with medical conditions and special educational needs. But work is underway for a health and social care assessment checklist to be developed.
Background to this case
- Child B has a diagnosis of high functioning autism (ASD) and hypermobility. She has poor auditory and visual memory with low self-esteem. She has a learning difficulty, a connective tissue disorder, chronic fatigue syndrome, Obsessive Compulsive Disorder (OCD) and scoliosis (curvature of the spine). Child B has a history of illness and poor school attendance.
Events of 2014/2015
- In November 2014, Mrs X submitted a request for an EHC needs assessment. She asked for Child B to attend a special school for pupils with learning difficulties. The Council refused the request. Mrs X appealed to the Tribunal.
- In early 2015, Child B was signed off school for medical reasons. Mrs X says that the doctor responsible asked for Child B to be provided with alternative education until September 2015.
- In September 2015, Mrs X says the Tribunal hearing was adjourned until January 2016 as Child B had just started attending a secondary mainstream school (School E) and it was considered that there would be more information by January 2016 about Child B’s attendance, which could inform the appeal hearing.
- Mrs X says the placement at School E started well and therefore she cancelled the Tribunal appeal, due in January 2016, in December 2015.
- The Ombudsman cannot consider Mrs X’s complaints for the above period of 2014/2015 because she had exercised her right of appeal to the Tribunal. Mrs X also did not complain to the Ombudsman within 12 months and I do not consider it appropriate to exercise the Ombudsman’s discretion because the matters are too old.
Events of 2016
- Child B’s attendance at School E started to decline during 2016. Mrs X says that, in June 2016, Child B was excluded temporarily by the school.
- In June 2016, Mrs X requested an EHC needs assessment from the Council. In August 2016, the Council refused the request and Mrs X appealed to the Tribunal. The Council says that, although on the school roll, Child B did not attend School E, in September 2016, after the summer break. The Council says that this was considered as unauthorised absence although it appears the Council did not take action against Mrs X for non-school attendance, as it could have done.
- Mrs X says that Child B’s doctor asked that she was placed on a reduced timetable. She says that School E placed Child B on three fixed term exclusions, after she returned in September 2016. In addition, Child B was ‘attacked’ at school and these instances were referred to the Police. Mrs X considered that School E failed to protect her daughter.
- Following further consideration, the Council agreed the EHC needs assessment in November 2016 after Mrs X had obtained a private Educational Psychologist’s report. There was also a managed move to another mainstream school, School Z, because School E intended to exclude Child B permanently.
- During 2016, Child B had a school place and attended during the first part of 2016.
- In August 2016, Mrs X appealed to the Tribunal about the Council’s refusal to carry out an EHC needs assessment. This was concluded in November 2016 when the Council agreed to assess.
- The period of August to November 2016 is outside the Ombudsman’s jurisdiction because Mrs X appealed to the Tribunal. Prior to this, Child B had a school place which she attended.
Events of 2017
- The Council says that Child B received little formal education as from February 2017. Mrs X says that Child B was struggling to attend School Z and the Council delayed in completing the EHC assessment beyond the statutory 20 weeks. She says that the School Z tried to help Child B within the funding available.
- In April 2017, the Council issued a final Education, Health and Care Plan (EHC Plan) naming a mainstream school. Then, in September 2017, the Council offered a place at a Pupil Referral Unit (PRU), referred to as School Y, on a temporary basis. Mrs X wanted a specialist independent school (School S).
- On 12 June 2017, Mrs X lodged her appeal to the Tribunal disagreeing with many sections of Child B’s EHC Plan and the named provision.
- The Council says it provided home tuition throughout the course of the Tribunal appeal. Initially this was for 10 hours one to one tuition. However, Child B did not take up the full amount due to tiredness or, the Council says, because Mrs X cancelled the tuition at the last moment.
- Mrs X disputes that home tutoring was provided in June 2017, as claimed. She says that it was only provided, as from November 2017, when the Tribunal requested this in October 2017.
- On 30 October 2017, the Tribunal heard part of the appeal. But this had to be adjourned because of the lack of appropriate paperwork. Both the Council and Mrs X were given time to submit further evidence. Eventually, the Tribunal endorsed the placement at School Y.
- The period between June and December 2017 is outside the Ombudsman’s jurisdiction to investigate because Mrs X appealed to the Tribunal in June 2017.
- Complaints about the earlier period, January to June 2017, are mainly about Child B’s difficulties in attending School Z. In addition, the Council did exceed the time limit for completing Child B’s EHC Plan.
- However, these events happened some two years ago and I do not consider it is appropriate to exercise the Ombudsman’s discretion to investigate the delay in completing the EHC Plan or the difficulties with Child B attending the named school. This is because of the time lapse. It is also the case that, as the Tribunal endorsed the placement at School Y, and there was a place available for Child B there as from September 2017, I cannot see that the delay in completing her EHC Plan has caused a significant injustice.
Events of 2018
- The Tribunal heard the case again on 17 January 2018. The Tribunal clarified that School Y, the PRU, recommended by the Council, was a school which could be named in Child B’s Plan. The Tribunal decided therefore to name School Y in Child B’s EHC Plan as appropriate provision because it was considered it could provide the expert provision for Child B’s ASD and other difficulties.
- The Council considered, therefore, that there was a place available for Child B at School Y which it was appropriate for her to attend.
- In mid-March 2018, however, Mrs X was given permission to appeal to the Upper Tier Tribunal on a point of law and the Council agreed to reinstate the home tuition while this further appeal progressed.
- Mrs X says that she told the Council in February 2018 that Child B was too ill to attend School Y and it delayed in providing alternative home tuition. The Council says it remained of the view that there was an available school place for Child B, which the Tribunal had endorsed. However, once it was known that there was to be an appeal to the Upper Tribunal on a point of law, the Council agreed to reinstate the home tuition pending the outcome of this.
- Mrs X withdrew her appeal to the Upper Tier Tribunal in mid July 2018 and she asked the Council to carry out an urgent review of Child B’s EHC Plan instead. This was because Child B had been diagnosed with additional health conditions.
- On 27 July, the Council confirmed that there would be an annual review. It withdrew the home tuition at the end of the summer term 2018 because Child B had appropriate provision available to her at School Y, endorsed as appropriate by the Tribunal. But the Council referred Child B to its ESMA Team. The Council has provided details of the support and approaches made by the ESMA Team to assist Child B’s education and her integration to School Y.
- The Council says that Mrs X did not take up these offers of support. Mrs X says Child B would not engage because she already had a tutor, whom she trusted. But the Council was unwilling to reinstate the previous tutor, whom Child B trusted.
- Mrs X has therefore paid privately for Child B’s home tuition. Child B could not access the ESMA support or attend School Y. So, Mrs X says she had little choice but to pay for private tuition.
- The Council reviewed Child B’s EHC Plan in September 2018 and it issued an amended final EHC Plan on 3 December 2018, naming again School Y as appropriate provision.
- Mrs X then appealed to the SEND Tribunal.
- The Ombudsman cannot investigate the first part of 2018 as this period is outside his jurisdiction because of the Tribunal hearings.
- In September 2018, the Tribunal process had ended. The Council agreed to review Child B’s EHC Plan as requested by Mrs X. During this period, there was a place available for Child B at School Y, along with the offers of support from the ESMA Team. But these offers have not been taken up by Mrs X. However, I am satisfied that the Council provided sufficient support to enable Child B’s attendance at School Y.
- Once Mrs X appealed the 3 December 2018 EHC Plan, the Ombudsman cannot investigate.
Events of 2019
- In April 2019, Mrs X cancelled the Tribunal hearing because she wanted to follow Child B’s wishes to be educated at home. Mrs X is paying for tuition privately. The Council has now been told that Mrs X has chosen to educate Child B at home.
- The Council is therefore now reviewing the home education.
Mrs X’s views
- Mrs X considers the Ombudsman can investigate past events in circumstances where a council has not provided suitable education. She also considers the past Tribunals are now finished so the Ombudsman can look at her complaints about how the Council has failed Child B.
- Mrs X also says that the Ombudsman can use his discretion to look at complaints about past events even if they go back further than 12 months.
- I have set out under each year the reasons why the Ombudsman cannot investigate Mrs X’s complaints. These are that, either Mrs X has appealed to the Tribunal, or the events occurred too long ago to warrant the Ombudsman investigating the complaints out of time.
- I had decided, however, initially that it might be possible to investigate Mrs X’s concerns about the home tuition provided by the Council during 2018 to the present day. While there had been points in this period when Mrs X exercised her right to appeal to the Tribunal, I considered that, at the first stage of the Ombudsman’s investigation, and given Child B’s poor school attendance and medical needs, it was appropriate to consider the home tuition in its entirety and seek further information from the Council.
- I have now done so. Overall, I am satisfied that the Council has provided home tuition, when required, that it has tried to encourage Child B back into school and that primarily the main area of disagreement between the Council and Mrs X has been about the choice of school for Child B. This was a matter for the Tribunal to consider and is therefore not within the Ombudsman’s jurisdiction to investigate.
- I have decided that the substantial parts of Mrs X’s complaints are outside the Ombudsman’s jurisdiction to investigate. I have therefore completed my investigation and am closing the complaint.
Investigator's decision on behalf of the Ombudsman