Summary: Ms X complained about the way the Council dealt with the provision in her daughter’s Education Health and Care (EHC) Plan and her request for a change of school. She also complained that the Council failed to ensure her daughter received a full-time education. The Council did not take enough action to ensure her daughter received full-time education. It has agreed a suitable remedy including arrangements to ensure suitable education for the rest of the school year and a payment to recognise missed education.

The complaint

1. Ms X complained that since December 2017 when she started raising the issues with the Council, the Council has:
1. failed to ensure the support set out in her daughter's Education Health and Care Plan is put in place;
2. failed to deal properly with her requests for a change of school placement; and
3. failed to ensure her daughter has received a full-time education from May 2018.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. 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)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

8. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on special educational needs and education for children out of school. I shared my draft decision with the Council and the complainant and considered their responses.

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What I found

9. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the special educational provision that needs to be made. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
    
10. A parent or young person has a right of appeal to the SEND Tribunal about the education placement named in the final EHC Plan.
11. Councils must review EHC Plans at least every 12 months. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC Plan as it is, amend it, or cease to maintain it. It must notify the child’s parent and the school attended.
12. If the council proposes to amend the EHC Plan it should start the process without delay. It must take the following steps:
• send the child’s parent or the young person details of the proposed amendments, including copies of any evidence to support the proposed changes;
• tell them they may ask for a meeting to discuss the proposed changes;
• give them at least 15 calendar days to comment and make representations on the proposed changes;
• if it decides to continue with the amendments after considering the representations it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the amendment notice.
13. If a council proposes to amend an EHC plan at any other time, it must follow the same procedure as if the proposed amendment were an amendment proposed after a review.
14. Local authorities have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Education for children out of school

15. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
16. Statutory guidance ‘Alternative Provision’ and ‘Ensuring a good education for children who cannot attend school because of health needs’ advise local authorities on how to carry out this duty. The guidance says:
• The duty means “that where a child cannot attend school because of health problems and would not otherwise receive a suitable full-time education, the local authority is responsible for arranging provision and must have regard to this guidance”.
• It applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend.
• The provision should generally be full-time unless it is not in the child’s best interests.
17. 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). 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 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 ESMA 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.
18. The Council also provides advice to schools on part-time timetables, ‘Guidance on the use of part-time timetables for pupils of compulsory school age’. This says part-time timetables may be used in exceptional circumstances to meet a pupil’s individual needs. This could be for example where a medical condition prevents the child attending school or the child has behavioural problems which mean they cannot cope with school. The guidance says “a part-time timetable must not be treated as a long-term solution”. It advises schools on how to work with the Council to produce a plan for the child and ensure any EHC Plan is fully implemented. It emphasises that:

“All children of compulsory school age are legally entitled to receive a suitable full-time education and local authorities have a statutory duty to ensure that all such children in their area receive such an education. There is currently no legal definition of what constitutes ‘full-time’”

“The local authority is responsible for ensuring that all children of compulsory school age who are not receiving a suitable full-time education, receive this unless they are deemed to be medically unfit to do so, or it is otherwise considered to be in the best interests of the child’s mental or physical health not to.”

What happened

19. Ms X has a daughter, Y, now aged 14. Y has a diagnosis of Autistic Spectrum Disorder (ASD) and suffers from high levels of anxiety. She has attended a mainstream secondary school with specialist speech and language provision, School 1, since September 2016. Y has an EHC Plan which includes provision for a key worker, extra support with reading, writing and mathematics, and specialist support with speech and language development.
20. Ms X says that in December 2017 she asked the SEN Officer dealing with her daughter’s case about a change of placement as she wanted her to go to a specialist learning disability school, School 2. Ms X says the SEN Officer promised to send her a form by email so she could make her request. She says that five weeks later when she had not received the form she contacted the Officer again and was told she did not need a special form but could just put her request in writing in an email.
21. In January 2018 Ms X provided School 1 with a letter from Y’s GP explaining Ms X’s concerns about her daughter’s anxiety about attending school and her self-harming behaviour. He said the reason for writing the letter was to make the School’s Special Educational Needs Co-ordinator aware of the impact Y’s state of mind was having on the family and to offer support with a transfer to a specialist school.
22. The Council confirms it received Ms X’s request for a change of placement in early January 2018. It brought forward the Annual Review meeting due in February to 16 January 2018 in order to gather information and evidence needed to put the request to the Provision Panel. School 1 provided the evidence it had been asked for on 1 February 2018 and the request for a change of placement was considered at the Provision Panel in mid-February 2018.
23. The Panel did not consider a specialist learning disability placement suitable for Y as her academic ability levels were too high.
24. The Council wrote to Ms X on 20 February 2018 to confirm its decision to amend Y’s EHC Plan.
25. It wrote to her with the Provision Panel’s decision in early March 2018. Around the same time Ms X asked the Council for a placement for her daughter at School 3, a specialist school for children with social, emotional and mental health (SEMH) needs. The Council considered the request at the Provision Panel at the end of March 2018 after obtaining further information from School 1. The Panel decided there was not enough evidence to show Y met the criteria for an SEMH specialist school.
26. The Council issued a proposed amended EHC Plan on 17 April 2018 and the final Plan on 30 May 2018. The Plan continued to name School 1 as the placement.
27. Following an incident at school in May 2018 Ms X decided not to return Y to School 1 as she felt the School was neglecting her daughter and could not keep her safe. She told the SEN Officer about her decision. The Council arranged a meeting at School 1 for 13 June 2018 to discuss Y’s education. At the meeting Ms X said she would return her daughter to school for the mornings only. She asked for a change of placement to School 3 and an assessment by an Education Psychologist and other professionals. School 1 confirmed it would provide evidence for the Provision Panel, and the meeting agreed it would be considered at the Panel in October 2018. The Council says all those attending, including Ms X, agreed with this approach.
28. Ms X spoke to the Council on 5 July 2018. She said she was not happy with Y’s part-time timetable as there were gaps in it. She gave the Council permission to obtain Y’s medical records from her GP to try and support her application for a specialist placement. The Council’s notes of the call say the officer she spoke to said she would write to the GP to ask for the information.
29. On 8 July 2018 Ms X made a complaint to School 1 and the Council about the way they had dealt with Y’s special educational needs. She complained that:
• the School had not provided the support set out in the EHC Plan; and
• the Council had delayed in dealing with her request for a specialist school placement.
30. In response to the complaint, the Council said it had checked with the School and found no evidence that it was failing to provide the support set out in Y’s EHC Plan. It said the Plan did not provide for 1:1 support and there may be isolated instances where Y could not get the help she needed while the support worker was attending to another pupil. Regarding the request for a change of placement, the Council said the February 2018 Panel was the earliest one which could consider her request for a special school. It explained the action being taken to gather information for the October Panel. It did not agree it had neglected Y’s needs. The Council offered a meeting in September at School 1 to review Y’s progress since the Annual Review meeting in June and consider the support she was receiving. The letter said “clearly [Y] needs to have access to a full timetable at school and a return to full-time attendance with appropriate support will be an outcome which will be pursued by the School and the Local Authority during the Autumn Term.”
31. Ms X was not happy with the response and wrote back to the Council asking to take the complaint to the next stage. She referred to incidents at school where she felt Y had not received the support she should have had. She complained about delay by the SEND Officer in asking for the medical records. She wanted to know why her daughter had not had any external assessments and said she had recently had an appointment with CAMHS and was expecting to receive a report shortly.
32. At the end of August the Council replied to the complaint. It said it was not clear all the provision for Y was in place and would send out a new form it had developed asking for confirmation from School 1. So the Council partially upheld the complaint. But it did not agree it had neglected Y’s needs.
33. The Council sent a ‘section F provision checklist’ to School 1 asking the School to confirm how and when it was delivering the support set out in the EHC Plan. The Council received a response in mid-September, giving the dates when each part of the provision was put in place.
34. Ms X received a report from CAMHS in mid-August 2018. It said Y was suffering significant mental health and emotional wellbeing difficulties. It said she was vulnerable, socially isolated, and highly anxious and had been self-harming. CAMHS said Y was attending a school which could not meet her needs and recommended a specialist placement. Ms X says CAMHS advised Y should continue on a reduced timetable until specialist provision had been agreed. CAMHS said it would not offer support as the problem was that Y was in an unsuitable school. It closed the case.
35. Ms X sent a copy of the CAMHS report to the SEN Team in early September 2018 and also asked for the case to go to the September Provision Panel. The Council agreed. It explained to Ms X that the Panel would decide if Y met the criteria for specialist provision. If agreed it would go to a Placement Panel to consider the request for a specific placement. If that Panel agreed, the Council would consult the school and allow 15 days for a response. The Council said it would tell Ms X the decision up to 14 days after the Panel met.
36. The Council also decided it would arrange for the Advisory Teacher for ASD to observe Y and would consider alternative placements.
37. The Provision Panel considered the request for SEMH provision in September 2018. The description of Y’s needs included that “since November 2017 [Y’s] anxieties have started to manifest themselves at school in the form of sickness and faintness and she has attended the medical room several times for this reason”. The Panel did not agree Y needed a specialist placement. The Council wrote to Ms X to tell her decision towards the end of September. It said Y did not present with disruptive behaviour at school and there was no evidence Y was receiving support with mental health issues at home.
38. Ms X was not happy with the Council’s response to her complaint at stage 2. She wrote back to the Council saying she had heard no more about the checklist showing whether the EHC Plan support was in place. The Council’s reply was that it would not investigate further and Y had a place at School 1 which considered it could meet Y’s needs. It sent Ms X a copy of the completed checklist.
39. On 26 September, after receiving advice, Ms X wrote to the Council to say it had a duty to provide full-time education for Y. She asked for home tuition in the afternoons. I have seen no evidence of a reply.
40. The Advisory Teacher for ASD carried out observations of Y at school and at home and had a discussion with Ms X. She produced a report in mid-October. This said that Y’s “extreme difficulties with anxiety are a significant barrier to her learning. She would benefit from access to a nurturing environment. Staff should have a good understanding of autism, social communication and language needs and the significant impact of these areas of difficulty, when unsupported, on social emotional and mental health”. It advised on strategies for supporting Y.
41. Around the same time the Council arranged an emergency Annual Review meeting for mid-October. Ms X asked for it to be re-scheduled till after the Advisory Teacher’s report was available. The meeting took place in early December 2018. By this time the Educational Psychologist had carried out an assessment. The report of the meeting noted that Y experiences “extremely high levels of anxiety due to her difficulties with speech, language and communication and her autism”. It said “these areas of need significantly impact her ability to access learning in school”. It confirmed that Y had started to display anxiety in school since November 2017, although her symptoms were worse at home, including self-harming. It noted Ms X’s request for a specialist placement and said all parties agreed with the Annual Review report. Ms X says the meeting agreed School 1 was not suitable for her daughter’s needs.
42. After receiving the report from School 1 and further information including the Advisory Teacher’s report, the Council wrote to Ms X at the end of January 2019 to notify her it would be amending the EHC Plan. In response to the Ombudsman’s enquiries the Council said it was waiting for documents and details from Ms X about what type of provision she was asking for in order to present the information to the Provision Panel.
43. The Provision Panel considered Ms X’s request for a specialist placement on 24 January 2019. The Panel noted that Y’s “anxiety levels do not present the same way at school and at home”. It queried whether she needed a specialist placement or whether she could continue in a mainstream school with specialist support in relation to her autism. The Panel did not agree she met the criteria for a learning disability placement but agreed the Council would consult with both learning disability and SEMH schools and suggested a professionals meeting.
44. Ms X says she telephoned the Council to find out what had happened at the Panel and when she would receive an amended EHC Plan following the Annual Review meeting. The Council told her the Panel had turned Y down for a learning disability specialist school. On 29 January 2019 the Council sent Ms X a letter confirming it would be sending her a draft amended EHC Plan within six weeks.
45. In further correspondence the Council told Ms X it would be putting her request for a specialist placement to its ‘SEN Xtra panel’. The Council says this is a forum where senior officer in SEN discuss more complex cases. Then in early February 2019 two people from a learning disability school, School 2, came to observe Y at school. Two days later Ms X received a call saying they had advised Y would be suitable for a learning disability school and would like to offer her a placement from September 2019 at School 2. The Council said it would confirm this with School 2 and issue a final EHC Plan. The Council issued the final amended EHC Plan on 28 February 2019, naming School 1 until July 2019 and School 2 from September 2019. Ms X says the Council told her Y would remain on a part-time timetable until she leaves School 1.

Analysis – was there fault causing injustice?

Complaint a) – putting provision in EHC Plan in place

46. The Council has the overall responsibility for ensuring the provision in an EHC Plan is in place. However the complaint here concerns the day to day arrangements for support within the School. This is a matter outside the Ombudsman’s jurisdiction. If the Council becomes aware the required support is not being provided it should take steps to ensure it is. In this case there is evidence that the Council took reasonable steps in response to Ms X’s concerns to satisfy itself the provision was in place. It sent the provision checklist to the Council and considered the response. I do not find that the Council was at fault in failing to ensure the support in Y’s EHC Plan was in place.

Complaint b) - request for change of placement

47. The question of how the Council dealt with the request for a change of school is bound up with how it dealt with the reviews of the EHC Plan. The Ombudsman cannot look at the merits of decisions to name placements in the EHC Plan but we can consider whether there were delays in the process.
48. In my view the Council dealt with Ms X’s request for a change of placement appropriately when it received it in January 2018. It brought forward the scheduled Annual Review meeting and considered the request as part of the Annual Review process. The Council issued the decision agreeing to amend the EHC Plan four weeks after the meeting, as required. To comply with the timetable in the Code it should have issued the final amended Plan by eight weeks after that, which would have been 17 April 2018. In fact it issued the draft EHC Plan on that date and the final Plan around six weeks later, at the end of May. So there was some delay in issuing the final Plan. However I do not consider this had a significant impact as Ms X could have appealed against the final EHC Plan if she wished it to name a specialist placement, but she did not do so.
49. The Council arranged an emergency Annual Review meeting for October 2018 but the delay to the beginning of December in holding it was the result of a request by Ms X, rather than any fault by the Council. There may have been some delay in issuing the notice to amend the EHC Plan following the meeting. But this was not significant given the Christmas break. Also the final EHC Plan was issued within eight weeks of the notice. Again, if Ms X did not agree with decision to name School 2 from September 2019 only, she could have exercised her right of appeal.

Complaint c) – ensuring full-time education

50. I have concerns about how the Council dealt with the question of provision of education while Y was on a part-time timetable. Ms X told the Council in May 2018 she was withdrawing Y from school in the afternoons and sending her for mornings only. The Council acted appropriately in line with its policies in contacting the School and arranging a meeting in June 2018 to discuss Y’s education with the School and the family.
51. However I have not seen any evidence that the Council considered its duty to ensure Y received a full-time education, its policy on supporting schools with children unable to attend school full-time for medical reasons, or its guidance on part-time timetables. The School had received a letter from Y’s GP in January 2018 about Y’s levels of anxiety, although this did not say she could not receive full-time education. The Council says the School was aware of the ESMA team and should have made a referral. If it had the Council says it would have advised the School about the support available for pupils with health needs. But as the Council was aware of Y’s symptoms, and the fact that she was on a reduced timetable, in my view it should have taken action to ensure the School provided full-time education or as much as Y could cope with. It should have advised the parents and the School about the need to provide medical evidence and refer Y’s case to its ESMA service. The Council said it would write to Y’s GP, but I have seen nothing to show that it did so. If the School did not provide sufficient education, the Council had a duty to offer it itself. There is no evidence as far as I can see that it took any of these steps.
52. In September 2018 Ms X provided the Council with a copy of the report from CAMHS produced the previous month. This supported a move to a specialist placement and said Y should continue on a part-time timetable until she was able to take up the place. In my view that should have been another trigger for the Council to consider whether Y was capable of receiving extra education out of school to make it up to full-time provision, and again either ensuring the School would provide it or doing so itself. This could be for example through sending work home or offering home tuition. I have not seen any evidence that the Council considered this issue, despite its own guidance that part-time timetables should not be a long-term plan. The Council says the School should have told its Attendance Team that Y was on a part-time timetable. However the evidence shows the Council was already aware she had been attending part-time since June 2018.
53. Even now that the final EHC Plan has been issued, it does not name a specialist school placement until September 2019. If Ms X was not happy with this, she could have used her right of appeal. But the Council has not offered anything to supplement the part-time timetable at school. So Y faces the rest of the academic year without the full-time education she is entitled to, if she is capable of receiving it. I consider this is fault causing injustice.
54. Based on the evidence I have seen so far, I find the Council at fault for failing to consider how much education Y is capable of receiving and taking the necessary steps to ensure it is provided, either through the School, with the support of the ESMA team or by providing alternative education itself. I do not know what the outcome would be from now on or would have been if the Council had considered the matter properly earlier. CAMHS advised that Y needs to be on a part-time school timetable, but an assessment may find she could manage extra support out of school. Y has missed the opportunity to have her need for full-time education considered.

Agreed action

55. To remedy the injustice to Ms X and her daughter I recommended that within one month of the final decision on this complaint the Council should take the following action:
• Apologise to Ms X for the faults found.
• Assess, or ensure that the School assesses, how much education Y is capable of receiving, given her mental health needs. Ensure arrangements are made, whether through the School or ESMA, to provide additional education as appropriate until the end of the summer term.
• Depending on the outcome, make a suitable payment to Ms X to recognise the loss of full-time education for Y, or as much as her needs allow, from the start of term in September 2018 until any extra educational provision is put in place. I proposed September 2018 as the start date because by this time Ms X had indicated she did not think the part-time timetable was enough, the Council had offered to obtain medical evidence from the GP but had not done so, CAMHS had produced the report detailing Y’s anxieties and the Council had recognised she needed to be receiving full-time education. It also makes allowances for the Council to have put the arrangements in place. Based on the Ombudsman’s guidelines, I consider £100 per month an appropriate figure, unless Y is not capable of receiving any extra education.
56. The Council has agreed to these recommendations.

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Final decision

57. I have found that the Council was at fault in the way it dealt with Ms X’s daughter’s education. I am satisfied with the action taken to remedy the injustice caused and so I have completed my investigation.
58. 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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Investigator's decision on behalf of the Ombudsman