Devon County Council (18 002 322)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 19 Jul 2019

The Ombudsman's final decision:

Summary: Mrs X says her daughter, E, was out of full-time education for over 17 months. She says the Council failed to provide her with education or support during this period. She also complains the Council delayed issuing E’s Education, Health and Care Plan, (EHC plan). She says the Council’s fault caused E a significant injustice. The Council is at fault. It delayed beginning E’s EHC plan assessment. It failed to provide full-time or sufficient education for E while out of school and failed to draft a plan that clearly set out the provision it considered E needed. It should apologise, review its processes and make a payment to Mrs X.

The complaint

  1. Mrs X complains the Council:
      1. failed to support E when she was out of education for over 17 months. She says she and her partner, Mr X, had to privately educate her throughout the period and feel they should be compensated, and
      2. delayed issuing E’s Education, Health and Care plan, (EHC plan).

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’ 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)
  3. 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)
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. Under our information sharing agreement, we will share our final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

  1. I spoke with the complainant and made enquiries with the Council. I researched relevant law and guidance. I gave both the Council and the complainant the opportunity to comment on my draft decision. I have made amendments to the decision to reflect their input.

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What I found

Relevant law

Education, Health and Care (EHC) plans

  1. Children who have special educational needs may require an EHC Plan. This sets out the child’s special educational needs (SEN) and the provision required to meet them.
  2. The Special Educational Needs and Disability (SEND) Code of Practice Statutory Guidance provides the following:
  • The process of EHC needs assessment and EHC plan development must be carried out in a timely manner. The time limits set out below are the maximum time allowed. However, steps must be completed as soon as practicable. Local authorities should ensure they have planned sufficient time for each step of the process, so that, wherever possible, any issues or disagreements can be resolved within the statutory timescales (paragraph 9.39);
  • The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks (paragraph 9.40);

Some other requirements are set out below:

  • A council’s duty to make a decision on whether to assess a child’s educational health needs is triggered by a request for assessment by the child’s parent, the young person or a person acting on behalf of a school. (S.36(1) CAFA, 2014)
  • It is also triggered where the council becomes responsible (eg: because a child or young person has been brought to the council’s attention by, amongst others, a health or social care professional. (S.36 (2), CAFA, 2014)
  • Local authorities must give their decision in response to such a request within a maximum of 6 weeks from when the request was received or the point at which a child or young person was brought to the local authority’s attention; (SEND Reg 5(1))
  • A local authority must assess where it considers it ‘may be’ necessary for special educational provision to be made for the child in accordance with an EHC plan. (Children and Families Act 2014, (CAFA 2014), s.36(8)).
  • The local authority must seek advice on needs, provision and outcomes for a child from a number of professionals. It should also use advice from any person a child’s parents or young person reasonably requests. (SEND Reg 6(1)(h).
  1. Local authorities have a duty to arrange for the special educational provision set out in an EHC Plan. (Children and Families Act 2014, section 42)
  2. It is important EHC Plans are completed so that a child’s provision is set out clearly. Failure to clarify vague information or failure to take parents’ independent professionals advice into account without justification can lead to a child missing out on the provision he/she needs or mean plans are unenforceable.

Alternative Education

  1. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
  2. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
  3. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says 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;
    • 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; and
    • arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
  4. The guidance says, if a child receives one-to-one provision, the hours of
    face-to-face provision could be fewer than provided in full-time education, as the provision is more concentrated.
  5. Case law says councils are under a duty to secure provision which meets a child’s special educational needs but, “..this does not oblige the [council] to make available the best possible education, Parliament has imposed an obligation to meet the needs of the child and no more.” (S v SEN Tribunal [1995] 1 WLR 1627; AND Stanley Burnton J in Hammersmith & Fulham v Pivcevic & SENDIST [2006] ewhc 1709 (Admin), [2006] ELR 594 [51].
  6. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
  7. 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’).
  8. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
  9. The Education Act 1996 provides the following:
    • parents have a duty to ensure their children are receiving suitable full-time education (section 7);
    • a failure to meet this duty on the parent’s part is an offence under section 444; and
    • section 436 of the Act requires councils to identify children not receiving an education.
  10. The Government issued statutory guidance to local authorities in January 2015, ‘Ensuring a good education for children who cannot attend school because of health needs’. It says:
    • local authorities (LAs) must arrange suitable, full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education; and
    • where full-time education would not be in the best interests of a particular child for 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.
  11. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This 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.
  12. In the Focus Report, we made six recommendations based on examples of good practice seen. We said 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.
  1. Local authorities should:
  • Ensure that the education the child receives is of good quality, preventing them slipping behind their peers and allowing them to reintegrate back into school as soon as possible.
  • When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities. January 2013)
  1. The Council’s policy says:
  • A child who has medical or health needs should have the same opportunities as their peer group, including a broad and balanced curriculum. As far as possible, children with health needs who are unable to attend school, should receive the same range and quality of education as they would have experienced at their school.
  • A child’s medical need may be related to a physical or mental health condition or both, with a medical diagnosis.

Background facts

  1. Below is a summary of the material background facts.
  2. E started year one of her schooling in September 2016. Mrs X soon became concerned. She said E found the school environment very difficult. School reports show the school thought E was doing well.
  3. However, Mrs X said that, at home, E was extremely anxious. An occupational therapy report, which had been carried out earlier in the year, supported what Mrs X said about E’s behaviour at home. The therapist said, ‘her presentation at home was markedly different from how she presents at school.’
  4. Mrs X says that, at home, it became clear E was finding it hard to cope. A screening process showed E might be autistic. She stopped attending school on 7 October 2016. Mrs X says this was because she no longer engaged at school and refused to attend.

Team Around Child (TAC) meeting – 22 November 2016

  1. At this meeting, attended by a variety of relevant professionals, E’s absence from school was authorised from 16 November 2016. This was following a conversation with a medical practitioner, Dr H. The school was advised to ‘step back’ to avoid E feeling under pressure.
  2. An autism practitioner, Mr P, suggested E could meet with a designated adult from the school to begin to reintegrate her back to school. This did not happen. The records show Mr and Mrs X said that E was reluctant to do this. The school said when the parents were ready, a designated member of staff could be made available.
  3. In a letter to Mrs X, later on in the year, Mr P emphasized there were, “numerous negative associations for [E] with [the school] hence my strong suggestion of establishing strong and positive links outside of [the school], through both arranged and ‘chance’ meetings with someone from [the school] before even considering attempts to provide opportunities for E to access the school premises.”
  4. It was reported that the Education Welfare Office (EWO) viewed that E’s parents were engaging with professionals and there was ‘current medical evidence’, which meant that, ‘for now’, any legal proceedings against Mr and Mrs X for not taking E to school, were ‘off the table.’
  5. It was agreed a part-time timetable should be organised and the multi-agency team would await reports from professionals to assess what would be needed to enable E to return to school. In the meantime, the school was tasked with providing work for E to ‘dip in and out of’. A review was planned for 12 January 2017.

Review hearing of 12 January 2017

  1. The minutes of the meeting from the Council show the school provided assessments for E to complete, some of which Mrs X took along with her to the review meeting. Mrs X was teaching E the National Curriculum at home. She was accessing the Home Education Community. E had been invited to the school nativity play, which she attended. It was reported that the Early Years staff worked to maintain links between the home and school and work had been delivered to the family home.
  2. A key worker had not been allocated but the school reported it had a member of staff ready to step in and support.
  3. The EWO asked what actions could be taken. The minutes show she said, ‘we need to come up with a plan.’ Mr P said professionals needed to continue trying to ‘make links’ with E.
  4. The EWO said there was, ‘enough medical information now for [her department] not to be involved.”
  5. Mrs X said the family could home educate E but they would not ‘elect’ to do this.
  6. Dr H said E should remain on the school roll as ‘no one can answer what is best for [E] at the moment.” Mr P was asked if E could come back to school and he said he was not able to answer at that stage.
  7. Mrs X was asked how the family were coping and if they needed more support. She said they did not need support.
  8. Shortly after this meeting, E went to the school on two occasions for short visits in January 2017.

Discussion around the need for an EHC Plan

  1. At the January meeting, Dr H said that, “despite the school having a good plan in place” for E, the EHCP, “needs to go through asap with very clear descriptors on [E’s] needs.” She said an EHC Plan was ‘mandatory’.
  2. It was anticipated this could take between 20 to 25 weeks, which would be up to the end of the school year.

Team Around Child meeting – 27 February 2017

  1. By this point, Mr P had diagnosed E with Autism Spectrum Disorder with Extreme Demand Avoidance presentation.
  2. An educational psychologist recommended ‘phased reintegration’ with additional support and additional training for staff at the school.
  3. A representative from Devon Information Advice and Support (DIAS) attended the meeting. She suggested Mr and Mrs X make an application for the EHC Plan as it might speed up the process. It was also recommended that the school should submit an EHC plan application.
  4. The school said it was important to plan E’s reintegration. The headteacher said E was welcome to visit whenever she wanted. It was clear that the guidance the school was following was to leave it to Mr and Mrs X to decide to reintegrate E, if they thought it was appropriate.
  5. It reported that E had visited the school twice after the January TAC and that two members of staff had visited E.
  6. The records show Mrs X was providing education for E at home, which was working well. However, she said she was not sure what she should be doing. She said she had not been given much work by the school and ‘what she has had doesn’t have enough depth.”
  7. The school said it needed to be able to assess the level E was at before it could set work in more depth. There were concerns E would become too stressed and anxious if she was overloaded with work. Mrs X said she was worried about gaps in E’s learning and said E was working at above the expected level for her age.
  8. One of the action points from the meeting was that a member of the school support staff would introduce herself to E to try and begin a to build a relationship with her. It was agreed Mrs X would meet with the headteacher to try and work on providing schoolwork and feedback to Mrs X. Mrs X said she met with the headteacher but she did not receive regular work as promised.
  9. Mrs X says the school spoke of planning a craft session for E to attend but this never happened.
  10. In May 2017, there was another team around child meeting. Following this, E attended at school for short periods on three occasions in May.
  11. The Council say it was agreed E would attend the school library on Fridays and sessions would be built up to increase her resilience.

Dr H’s updated advice

  1. On 18 May 2017, Dr H said she had understood E was to be re-integrated into school with specialist support. She advised that the reintegration process needed to be carefully structured and ‘was likely to be a lengthy process in order to avoid any detrimental impact on E’s mental health.”
  2. She added: “[E] does not have health needs which preclude her from attending school rather, significant additional needs which require robust and specialist inputs in order to support her emotional development whilst accessing education.”
  3. On 10 June 2017, a part-time timetable was completed to begin E’s reintegration to school.

Team Around Child meeting – 15 June 2017

  1. The school reported it had been ‘ready to go’ since the last TAC meeting (May 2017). It said it had tried to organise parents visits and meetings. But E had only attended two sessions.
  2. The notes of this meeting show Mrs X wondered if E needed a new start at another school. She expressed concerns about whether E would be able to manage in a mainstream school.
  3. The notes also show that the school said it had:
  • ‘now’ implemented recommendations from professionals
  • appointed a teaching assistant for [E] to work with, and
  • two members of staff had completed relevant training to work with E (I understand this had been undertaken in the week commencing 27 February 2017)
  1. The EWO said the parents had already had enough time to find E a new school as it had been six months from E’s diagnosis. The notes show there was a discussion around this and how an EHCP was needed before the local authority would consider a special school or an independent place.
  2. The conversation between professionals and Mrs X seems to have been fraught. It was noted that E’s, “…absence was originally authorised while confirmation of health needs was ascertained, but now health needs are no barrier.”
  3. The educational psychologist felt that there was a, “need to get past this period of indecision.” It was felt some decisions about E’s schooling needed to be made and a plan put together for reintegration.
  4. A plan was set up. An offsite visit was arranged for the next day. Other visits were arranged for the remaining part of the week. It was planned that other sessions would be at school. Mrs X was warned any non-attendance would not be authorised.

Following the 15 June 2017 meeting

  1. On 19 June 2017 Mrs X wrote to the Council. She complained about the lack of work X had been given to complete since her time off school. She said she had received nothing since 20 April 2017 and before that, very little. She said she had been given assurances at the February TAC meeting that she would be given weekly lessen plans, but this did not happen.
  2. The Council says it did not receive this letter and so did not respond.
  3. On 26 June 2017, the Council wrote to Mrs X, saying that, because E had not been attending school, there was a possibility the Council would take legal action against Mr and Mrs X. A meeting was scheduled to discuss the next steps on 10 July 2017 and Mrs X was invited to make her representations.
  4. Mrs X removed E from the school roll on 3 July 2017.

Mrs X’s complaint

  1. Mrs X complained again in August 2017, saying her daughter had been out of formal education for 10 months. The Council responded in September 2017.
  2. It told her there had always had a place available for E at her school. It said attempts had been made at reintegration by working with the school librarian and through surprise visits.
  3. It said Dr H said E did not have any health needs which precluded her from attending school and the school had gone through further training to support E in school.
  4. The Council’s view was that, at the June TAC meeting, Mrs X had been given the choice to either engage with the re-integration process, find an alternative school or home educate. It said she had chosen to home educate.
  5. Mrs X responded. She said the Council had only organised one ‘accidental’ meeting in April. She said the Council had failed to provide sufficient education for E since October 2016. She reminded the Council E’s absence from school had been authorised.
  6. At Stage 2 of the complaint, the Council again said Mrs X had to acknowledge that Dr H said E did not have health needs which precluded her from attending school. It repeated it was Mrs E’s choice to home educate E.
  7. The Council said the educational welfare service had worked with Mrs X for several months and a meeting had been arranged for 10 July 2017, but Mrs X removed E from school before the meeting went ahead.
  8. The Council’s stage three response said E, “did not meet the 24 hours per week, as there was no evidence of medical need. The school aimed to reduce [E’s] anxiety by offering a part-time timetable dated 15 June 2017.”
  9. It said, if there had been medical evidence E was unfit to attend school, the Council would have discharged its duty through an alternative provider. It insisted there had been no medical evidence to indicate E was unfit to attend.
  10. It pointed out Dr H had said the school ‘had a good plan in place for E’s needs’.
  11. Mrs X took her complaint to the Ombudsman and continued to home educate.

Home education

  1. Mrs X says she put into place a comprehensive programme of education for E between September 2017 and July 2018. She says this was financially draining. She has provided receipts showing payments to tutors and payments made for schooling materials during this period. She also commissioned specialist reports, for E as she considered the Council had not properly considered E’s needs.
  2. Mrs X says, to provide E with an education, she gave up her job. She said her husband had to change jobs so he could provide support. She said they incurred significant emotional and financial cost.
  3. In November 2017, Mrs X was visited by an ‘elective home education advisor’. The visit showed Mrs X was providing a good education for E and there were no concerns. Mrs X was unhappy that this education was described as ‘elective’ as she did not feel she had elected to provide home education but had been forced to do so by the Council.

Education, Health and Care plan

  1. Dr H had said an EHC Plan was needed ‘asap’ in January 2017.
  2. In March 2017, E’s school made a request for an EHC Plan which stated E’s anxiety was such she was not able to attend school. The school noted 1:1 attention had been recommended for E.
  3. On 9 April 2017, E’s parents requested an EHC Plan. On 8 May 2017, the Council wrote to Mrs X, saying it had decided to complete an EHC needs assessment. It said it would spend the next seven weeks gathering information to see if it should issue a plan. That would have taken it up to the 30 April 2017.
  4. The Council obtained Mr and Mrs X’s signatures to make relevant enquiries on 24 June 2017. On 29 July 2017 Mrs X asked what was happening. On 31 July 2017 the Council responded, saying it was waiting on some information.
  5. On 30 August 2017, in notes made to consider whether an EHC Plan should be issued or not, a senior officer said:

“It was clear…that some professionals were concerned that [E] not attending school was more to do with her mother’s anxieties than [E’s]….Historically parents have not supported the school in trying to reengage [E].

The main difficulty will be [E’s] perception of school and mum’s anxiety. [E] has now attended 5 pre-schools and primary schools since she was 2.5 – she is now 6.”

  1. A draft EHC Plan was issued on 5 September 2017. It said E could benefit from small class sizes but it did not suggest 1:1 provision was appropriate.
  2. On 3 October 2017 Mrs X commissioned a report from a specialist who was very critical of the Council’s draft EHC plan. She said the Council should obtain advice from a speech and language therapist. She said the education psychologist’s reports obtained were observational only, which meant there was no baseline data by which E’s progress could be measured. She noted there was no specification as to the hours, frequency of support etc or level of expertise that was needed for E. She said:

“Without [E’s] needs being properly identified, it is not known what support should be put in place for her. A placement back into a school situation without adequate provision may result in significant distress for [E] and subsequent failure of that placement.”

  1. On 28 November 2017 Mrs X wrote to the Council. She said the Council had failed to undertake the appropriate assessments for E. She asked about a school, School T, and said she had left two voicemail messages but her calls had not been returned. She said she needed to know the Council’s views of this school as it could affect her choices going forward.
  2. The Council responded to Mrs X, saying, in summary, it did not view the assessments she asked for, as being necessary.
  3. The Council issued the final EHCP on 12 December 2017. The final plan said School T could meet E’s needs. Later, in complaint correspondence, the Council confirmed it had costed the placement at School T with 1:1 tuition. The EHCP does not refer to this provision. Mrs X says she was not made aware the Council had considered that provision. She says, if she had known, she would have accepted provision at School T and would not have needed to appeal the Council’s EHCP. She said there was no way she could have known as it was not referenced in the EHCP.
  4. Mrs X decided to appeal the EHC plan. It did not say it would provide 1:1 provision. She felt it had not addressed the points made by the specialist she commissioned to look at the draft EHC plan.
  5. A few days before the tribunal hearing, the Council agreed to provide education at a private school Mrs X was happy with, School P. It said it agreed to name School P on the plan because the difference in cost of sending E to School T with 1:1 tuition, or School P, was negligible. It considered there was therefore no point going through the appeal process.

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Findings

Education, Health and Care plan

  1. The law says a council’s duty to make a decision on whether to assess a child’s educational health needs or not, is triggered when a young person is brought to the council’s attention by a health professional. Dr H is a health professional. In January 2017, she told the Council she felt an EHCP was ‘mandatory’. The Council say that Dr H did not believe she was triggering an assessment. But she was clearly bringing the urgency of the situation to the attention of those at the meeting. The Council should have begun to gather information to decide on assessment at that stage.
  2. It should have reached a view on whether an assessment was required or not by 23 February 2017. Once it reached a view that it was going to assess, the process should have been concluded with a final EHC plan by 1 June 2017. But the Council did not reach a view on assessment until 8 May 2017. It decided an assessment was appropriate, 10 weeks later than it should have done. This is fault. Its final EHC plan was over six months late and issued on 12 December 2017. This is fault.
  3. From the point when it should have commenced the process, in January 2017, it should have taken 20 weeks in total. It took 47 weeks.
  4. The Council says it took 38 weeks. This is because it must be using the point at which Mrs X or the school asked for a needs’ assessment. That is the wrong starting point, and in any event, fault.
  5. The Council’s delay caused Mrs X and E an injustice. When the final EHC plan was issued, Mrs X sought to appeal. Had the plan been issued in accordance with statutory timescales, appeal rights would have been engaged in June 2017. The SEND tribunal has confirmed that had it received an appeal at this time it could have arranged a hearing date by October 2017. Had the agreement been reached about E’s needs at that time, E could have started at her new school two and half terms earlier than she did. It is likely she could have started after the half term period in October 2017. Instead, she did not start at school P until September 2018. This is fault causing injustice and I have made a recommendation to acknowledge the financial burden this delay placed on Mrs X.

Duty to provide an education

  1. While E’s absence was authorised between November 2016 and June 2017, the Council had a responsibility to ensure E received a full-time education. I consider that, from November 2016 to the January 2017 TAC meeting, the Council reacted to the situation correctly. It was right not to do anything that would adversely affect E’s health. The EWO tried to encourage a plan but was advised by medical practitioners that everyone should continue what they were doing.
  2. The minutes of that meeting show Mrs X returning school assignments. She said E was not ready for a planned visit with a key worker. The school said it was ready to receive a visit whenever the parents wanted one. It was reasonable for the Council to consider E was receiving as much education as E’s health allowed. There is no fault here.
  3. But, from then on, I consider the Council allowed matters to drift. Mrs X informed the TAC meeting in February 2017 she had not received sufficient schoolwork for E. She needed support. One of the action points from the February meeting was that a member of the school staff should try to build a relationship with E. I make no observations on the actions of the school. We have no jurisdiction to do so. The Council should have better monitored the situation.
  4. Between the February TAC and June 2017, the Council/the school organised only one surprise visit. The minutes of the February meeting indicate there was an open invitation to Mr and Mrs X to reintegrate E if they decided to do so. But, if professionals judged Mrs X’s anxiety about the school was preventing reintegration, they should not have left the decision to the parents.
  5. If professionals considered Mrs X was blocking engagement (and the evidence is that they did), the Council could have taken other action. It should not have allowed delay to build.
  6. The Council would have been right, on the medical advice, to move cautiously, but it should not have delayed in fulfilling its duty to provide E with a full-time education. Mrs X complained about the lack of schoolwork provided. The Council has not been able to provide any evidence to the contrary. This is fault.
  7. When responding to Mrs X’s complaint, the Council repeatedly said it did not have to provide full-time education for E because there was no evidence of medical need and therefore its duty did not arise. In fact, there was medical evidence of need. The Council relied on medical opinion from Dr H to authorise absence in November 2016. The Council now says, in hindsight, E’s absence should not have been authorised. But it was. It says it considered E’s needs could have been met at school, but it had received medical advice that indicated the contrary. The Council should have addressed what it would do to support E during her time out of school, more proactively. In the absence of educational support from the Council, E’s parents felt they had to fund her education themselves. This is fault causing injustice.
  8. To justify why the Council viewed the school had been ready to take E back, the Council relied on Dr H’s statement; ‘the school had a good plan in place for E’s needs.’ However, this statement was made at the January 2017 TAC, when I consider the Council was acting in line with its duty, both to help with reintegration and to ensure E had an education. In the same meeting, Dr H also said nobody knew what was best for E at that stage. Mr P had been unable to say E could return to school. Crucially, after this meeting, I consider there is little evidence of a coherent plan to reintegrate or to educate E. This is fault.
  9. The Council says library visits were organised. But, again, this was not organised until April 2017 and does not represent what should have been a co-ordinated plan to reintegrate. The Council says E was given a part-time timetable, which Mrs X refused to engage with. But this was not until June 2017, nine months after E had stopped attending school. It said it organised a visit. Again, apart from the failed visit in April 2017, the other ‘chance meeting’ it organised was also in June 2017, following the TAC meeting. This should have been implemented much earlier. This is fault.

The extra reports commissioned by Mrs X.

  1. Mrs X paid for specialist reports. She said she had to do this because the Council would not properly accept her concerns about E’s anxieties and issues. The Council has a duty to make enquiries with professionals. If Mrs X felt it had not done this correctly, the forum to challenge this would have been at the appeal tribunal. As Mrs X did not continue with the appeal, I make no finding on that. I do not, having viewed the evidence so far, intend to make a recommendation that the money spent on privately-funded reports should be reimbursed to Mrs X.

Legal fees

  1. Mrs X says she paid solicitors to prepare her appeal. She says she would not have done this if she had known that the Council were willing to provide 1:1 provision for E at School T. She says she would have accepted that.
  2. There was no mention of 1:1 provision in the December 2017 EHC Plan. I consider, on balance, Mrs X would have accepted School T if she had known the Council would have provided 1:1 provision. She asked the Council to respond to her questions about School T but the evidence indicates she received no response. She was consistent throughout that she wanted to secure for E what the professionals recommended, which was 1:1 provision. The vague non-specific nature of the EHC Plan meant Mrs X had to bring the Council to the door of the tribunal before she understood what was on offer. This is fault and I consider the Council’s lack of transparency about the provision it had planned for E, added to Mrs X’s distress. Without clear information, she was unable to make informed decisions.
  3. It is not the Ombudsman’s practice to recommend reimbursement of legal fees in situations such as these. Mrs X could have appealed without legal representation. But she might not have had to take that course of action if the Council had been clearer about what was on offer for E. I have therefore recommended a payment to acknowledge the extra distress the Council’s lack of transparency caused Mrs X.

The education provided by Mrs X

  1. It was not Mrs X’s choice to educate E from 7 October 2016 to 3 July 2017. After E had been absent from school, with authorisation, for 15 days, the Council had to provide E with a full-time education. I consider it acted appropriately up to the 12 January TAC meeting, but not thereafter. From January to June 2017, I consider Mr and Mrs X had to provide an education for E that the Council did not provide. Her absence was authorised and it failed in its statutory duty.
  2. In July 2017 Mrs X made a choice to home educate E. Medical advice had confirmed there was nothing to prevent E from returning to school. However, as noted earlier, if the Council had not delayed E’s EHC assessment and final plan, E could have started at her new school, School P, from October 2017. Therefore, she home-educated E for two and half terms longer than she would have had to.
  3. I have made a recommendation in line with the Ombudsman’s guidance. When assessing the remedy, we take account of any provision made or offered. We recommend reimbursing quantifiable financial loss, such as the cost of educational materials, tuition, or childcare bought by parents.
  4. Mrs X has provided receipts and other evidence, setting out the costs she incurred throughout the period. I have assessed these at a lower figure than claimed. Mrs X clearly wanted to give E the best possible education. But the Council is not obliged to do the same. I have made a recommendation the Council makes a payment to Mrs X.

Agreed action

  1. Within one month of my final decision, the Council should:
      1. apologise to Mrs X and (if Mrs X feels it is appropriate, to E), for;
  • failing to provide E with a full-time education and support in line with its statutory duty between January 2017 and June 2017; and
  • failing to act on professionals advice to begin the process of considering whether an EHC assessment was appropriate or not, within the mandatory statutory framework.
      1. pay Mrs X £5000 to contribute towards the cost of tuition and educational materials provided by Mrs X between November 2016 and June 2017 and between October 2017 and July 2018.
      2. pay Mrs X £500 to acknowledge the unnecessary distress Mrs X was put through in preparing to appeal the Council’s late final EHCP.
      3. pay Mrs X £200 to acknowledge the time and trouble bringing this complaint caused.
  1. Within two months of my final decision, the Council should:
  • Review its approach to handling cases of authorised absence, to ensure cases are not allowed to drift without effective decision making to ensure full-time education is provided in line with statutory duty. It should provide evidence to the Ombudsman that it has done this.

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Final decision

  1. I have found the Council at fault for failing to comply with its statutory duty in terms of providing an alternative education for a child and for delaying the process of assessing needs for an Education and Health Care plan. This caused the complainant and her daughter an injustice. I have made recommendations to remedy that.
  2. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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