Kent County Council (18 014 125)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 02 Dec 2019

The Ombudsman's final decision:

Summary: Mrs X says the Council failed to provide suitable full-time alternative education for her daughter, Miss P and to enable Miss P to take her GCSEs. She says this caused injustice as Miss P was out of education for some time, leading to depression and so missed out on a college placement. The Ombudsman finds the Council at fault for a failure to try and make alternative arrangements for Miss P to sit her exams. However, I have not found that this caused Miss P an injustice.

The complaint

  1. Mrs X complains that the Council:
  • Failed to provide suitable full-time education for Miss P when she was signed off school because of bullying;
  • Delayed in placing Miss P in a placement, (“the hub”), that would have been suitable;
  • Failed to ensure Miss P could take her GCSE exams, the consequences of which meant she was unable to take up a placement at her preferred college and had to repeat her final GCSE year of education.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
  4. 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)
  5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  6. 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)

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How I considered this complaint

  1. I spoke with the complainant. I made enquiries with the Council and reviewed the relevant law and guidance.
  2. Mrs X provided me with information about Miss P’s educational history which goes back to 2015. However, the Ombudsman does not generally investigate complaints about issues that happened more than 12 months after the complainant became aware of those issues. I do not consider there is good reason to exercise my discretion to investigate any issues arising beyond July 2018.
  3. Mrs X has also continued to update the Ombudsman about ongoing issues with the Council. I have read her correspondence but have only investigated those issues I consider the Council has had an opportunity to respond to or are as a direct result of the issues connected with this complaint.
  4. I have given both the Council and Mrs X the opportunity to comment on my draft decision. As a result of Mrs X’s comments, I have made some amendments to the final decision.

What I found

Legal and administrative considerations

  1. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
  2. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.

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’, (“the Guidance”), 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. The Guidance stresses the need for medical information to inform the decisions about what education a child or young person may be able to manage. It states that “In order to better understand the needs of the child, and therefore choose the most appropriate provision, local authorities (LAs) should work closely with medical professionals and the child’s family and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  7. The guidance states councils should ensure alternative education is arranged as quickly as possible and that it appropriately meets the needs of the child. It also stresses the need to include the young person, when age appropriate to do so, in the discussions and decisions reached about his or her educational provision.
  8. Councils should therefore:
  • 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;
  1. 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.

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.

Special educational needs

  1. Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need an Education, Health and Care Plan (EHC Plan).
  2. Miss P has an EHC Plan.

The Council’s procedures for pupils with medical needs

  1. The Council provides education for those with health needs who are unable to attend school. It runs a Health Needs Education Service, which provides education for pupils that are unable to attend their own school/provision because of health conditions. It is intended to provide short-term placements only.
  2. Following an Ombudsman investigation, (see below), its revised policy says that, in line with Government guidance, when allocating this provision, there are no ‘hard and fast rules’.
  3. It says that when referring the service employs an NHS Mental health Nurse and offers of education and support are supported by this professional’s advice.
  4. It stresses that the primary need must be a ‘health need’. All young people referred must have a fully completed Individual Healthcare Plan (IHCP). The referral criteria include:
  • The medical need must be such that a child has missed 15 days of schooling (consecutive or cumulative) owing to health conditions.
  • The young person’s health has significantly reduced their ability to access their home school full time and this is reflected in their attendance record.
  • A senior medical professional (such as a consultant, mental health practitioner etc) is providing support, diagnosis and/or advice. GP referral is not always sufficient.
  • Health need can mean either physical health need, or mental health condition meaning it is disrupting the young person’s ability to attend school full time.
  • It must be clear the provision is able to meet a pupil’s needs.
  1. The Council’s policy says that this type of provision can not be named on an EHC plan as a main provider of education. I understand it is reviewing this, following a tribunal decision.

Naming providers in Education, Health and Care plans

  1. A child’s parent or the young person has the right to request a particular school, college or other institution of the following type to be named in their EHC plan. (Send Code, 9.78).
  2. The Council initially viewed that the education provider could not be named in Miss P’s EHC plan. I have not considered this issue as it has been addressed by the tribunal, who have ordered that it can be named in Miss P’s EHC plan. The Council has said it will abide by this order.

A previous Ombudsman investigation

  1. In a previous Ombudsman investigation, that Mrs X is aware of, the Council agreed to implement the following recommendation:
  2. Review and clarify its policy regarding referrals to its Health Needs Education Service, specifically looking at the medical evidence required for schools, or for the Council, to make a referral and amending its policy to include a GP’s sick certification as sufficient to determine that a child has medical needs preventing school attendance. It is also the case that referrals to CAMHS, or the provision of treatment, can be delayed and the Council therefore needs to consider the impact of this on its current insistence that a pupil, out of school, should be under a CAMHS Consultant. The Council might also wish to talk with its local health trusts to ensure a more coordinated response between health and education where pupils cannot attend school for medical reasons.

Exam provision

  1. Schools or other bodies who are registered as approved centres enter candidates to take exams. They can change those entries but will be charged a fee.
  2. The closing date for entries for Miss P’s examinations was 21 March 2019. After that date awarding bodies would not be able to guarantee arrangements.
  3. A school can request that a candidate is transferred to another venue to take his/her exams. There are a number of ‘acceptable reasons’ for a transfer. These include:
  • A diagnosed medical condition which prevents the candidate from taking the examination(s) at the entering centre.
  • A candidate is taught at a different centre to that which made the original entry.
  1. However, the list of acceptable/unacceptable reasons for allowing or not allowing a transfer is not exhaustive. The awarding body reserves the right to use its discretion when accepting or rejecting an application for a transferred candidate arrangement.
  2. The closing date for requests for Miss P’s examinations was 21 March 2019. After that date awarding bodies would not be able to guarantee arrangements.
  3. The minimum requirement for special considerations to be taken into account if a student has been disadvantaged and is unable to attend examinations, is for the student to have completed 25% of the total assessment for a subject award. No special consideration applications were made for Miss P but this would not have been appropriate in Miss P’s case.
  4. In this case Mrs X says that Miss P always wanted to study course A. The course was offered at College C. However, it was only offered at Level 2. Miss P would have needed some GCSE qualifications to be accepted on the course.
  5. The course was offered at another campus at Level 1.
  6. College C also offered another two courses at Level 1, which Miss P could have attended. But she did not want to study those courses.

Background facts

  1. At the time Mrs X complained to the Ombudsman Miss P was under 16. She has a diagnosis of Autistic Spectrum Condition (ASC) and Attention Deficit Hyperactivity Disorder (ADHD).
  2. In February 2019, Miss P was at School P. It was anticipated that she would complete her GCSE year and progress to a college, College C. With this in mind, the Council issued an EHC plan which named College C.
  3. As I set out below, things did not go according to plan. She had a difficult time at School P. Mrs X feels the Council did not do enough to protect her. In mid-February 2019 Miss P’s doctor signed her off, stating bullying as a reason. Mrs X says that, when Miss P was signed off, the Council failed to provide her with an alternative education. She said it failed to progress Miss P’s referral to an appropriate setting, (“the hub”) because it put bureaucratic barriers in place which blocked that placement. She says the Council also failed to organise a place from where Miss P could complete her GCSE exams and go to college. Miss P is currently repeating year 11 but Mrs X says she would not have had to if the Council acted in accordance with its statutory duty.
  4. Mrs X says there was also an issue with the transport that was offered to Miss P.
  5. During the course of my investigation, Mrs X says other issues have come to light. However, as the Council has not had the opportunity to respond to the ongoing issues, I have limited my investigation to the issues outlined above.

Safeguarding concerns at Miss P’s school

  1. In July 2018, Mrs X told the Council Miss P was being bullied at school, (“School P”.) At around this time School P asked Miss P to leave.
  2. The Council intervened. It wrote a letter to the school pointing out that its decision to discontinue Miss P’s education when she was part way through her GCSEs “…could be very harmful”. It said it would provide support. Miss P was allowed to return to school in September 2018.
  3. Shortly afterwards, Miss P was excluded from school and given off-site education. The Council intervened again and Miss P returned to school again on 24 September 2018.
  4. In January 2019 Mrs X raised some safeguarding issues with the Council about School P. The Council suggested that Mrs X contact OFSTED or her local MP and/or councillor. She was advised on another date to contact the department of education if she was still concerned. This was followed up by a visit to the school by a provision evaluation officer. The records show no concerns were reported.

Miss P is signed off school from 13 February to 30 May 2019

  1. On 13 February 2019 a doctor wrote a medical note for Miss P. It said that Miss P was “suffering from bullying in school.” It said she was unable to attend school from 13 February to 30 May 2019. It did not provide further explanation. The Council did not consider this was a medical diagnosis that Miss P had a ‘health need’.
  2. On 14 February 2019 Mrs X wrote to the Council. She said Miss P had attended school that day but she had told her to come home. The school arranged for a teaching assistant to accompany Miss P during the day to prevent bullying, but Miss P found this oppressive.

Mrs X asks Council to refer Miss P to the hub

  1. Mrs X said she did not want to go to any other interim school placement as Miss P still wanted to attend School P to maintain friendships. However, she was concerned that the school had the wrong approach to bullying. She wanted Miss P to go to the hub, which she trusted to provide the support she felt Miss P needed.
  2. On 18 February 2019, a Council officer, Officer B, sent a referral form to School P to make a referral to the hub.
  3. Officer B did not consider Miss P met the criteria for referral at that stage. She noted the hub might still allow Miss P to use their site for tuition, even if it could only offer GCSE Maths and English.
  4. The completed referral was sent to the hub on 5 March 2019.
  5. In order to help with the referral, Mrs X said she would obtain a report from an educational psychologist. She said there was no point in her obtaining an assessment from CAMHS. She said, in her experience, they would only help if a child was suicidal.
  6. The hub said it would consider any medical evidence but that it must be up to date.
  7. Mrs X said it would take six to nine months to be seen by CAMHS.
  8. She wrote to the hub and said she would, “…keep on at CAMHS…to see if they will find someone else for the proof that you force or put barriers in the way to access your service.”
  9. On 8 March 2019 Mrs X said the medical certificate from the GP should be enough for the Council. She also added that the Council’s educational psychologist could confirm Miss P’s anxiety.
  10. On 12 March 2019 the hub informed Mrs X it was trying to obtain more information from Miss P’s GP as the medical note did not provide enough detail. However, Miss P’s GP was not available. The information the referral panel received from the GP surgery was:

“Victim of bullying in school. Mum brought extracts of texts as evidence. Mum and patient have requested for her to be signed off till things are sorted. Signed off to 30/05/19 on Mum’s request.”

  1. The panel considered it needed clear medical evidence that there was a mental health need before referral to the hub. It also thought that, if it were to allow Miss P to be referred on the then current evidence, this could lead to a ‘tide of similar referrals.’
  2. It said it arranged for a CAMHS assessment on 22 March 2019, which was much earlier than could usually be organised.
  3. Mrs X felt ‘bureaucratic barriers’ were being put up to prevent Miss P from attending the hub.
  4. She said she did not want Miss P to be seen by the CAMHS service at the venue arranged. She had a previous poor experience with that service.
  5. The records show the Council tried to arrange another venue for the CAMHS assessment, either at the hub or at another Council building.
  6. On 22 March 2019 the Council received further information from Miss P’s GP. It said Mrs X said that Miss P had anxiety, especially with thoughts of going back to school. It supported the request for a special educational needs placement.

Alternative education offered by Council

  1. The records show that, upon hearing Miss P had been signed off, the Council asked School P to send sufficient work home.
  2. The Council says it offered Miss P tuition, within four days.
  3. On the day the Council asked School P to complete a referral form for the hub, Officer B reminded School P that it had a system in place to minimise the effects of exclusion on a student’s education.
  4. On 27 February 2019, a school representative sent Mrs X an offer of 12 hours of education per week off-site either at home or at a library. He:
  • enclosed revision books for History and ICT
  • offered three hours of home tuition for English, Maths and ICT from Monday to Thursday.
  1. Mrs X initially missed this offer and contacted the Council to complain. She then checked again and on 6 March 2019, agreed it had been sent it.
  2. She queried why the provision was not full time. She said any provision could not take place at her home or at the library. She said she wanted a suitable alternative.
  3. She asked if it could take place at the hub. This was not possible.
  4. The records show that the Council diligently investigated alternative venues. On 13 March 2019 the Council suggested using a Council building for the tuition on an interim basis.
  5. On the same day Officer B also attempted to arrange tuition on Monday and Thursday at School P. She said the aim was to focus on Miss P’s GCSE’s being achieved this year so she could move on to college in September 2019.
  6. On 14 March 2019 Mrs X said she wanted to check that Miss P could attend at School P on Monday and Thursday for her history and art classes. The Council made enquiries to ensure that her other classes would be taught away from her core group. The Council also arranged transport. Mrs X described the arrangement as, “perfect”.
  7. However, on 19 March 2019 Mrs X informed the Council that Miss P would not attend tuition at School P. She also queried what was happening for Tuesday, Wednesday and Friday. She said the Council should be providing a full-time education and the fact that it had not impacted on Mrs X’s time. She said if no suitable education was provided by the end of the week, she would consider Miss P repeating year 10.
  8. Officer B replied that this was an interim arrangement. She expressed frustration that Mrs X would only accept tuition at the hub. The next day Officer B offered to investigate hotel conference sites. Mrs X refused to consider this as she said she assumed she would have to attend the conference sites herself and she did not want to leave building contractors in her house. She said, “…there is a place which she can go to which is the [hub] which yourselves refuse.” She said Miss P’s situation was no different to the case previously investigated by the Ombudsman where fault was found for delaying referral to the hub.
  9. The Officer appeared to find Mrs X’s attitude frustrating. She said Mrs X had refused all options apart from the hub, which was not available. She also refused to attend the CAMHS appointment which the Council had arranged.
  10. Officer B said again if Miss P wanted tuition, she would set it up. She said this could be at the family home, a hotel or a council building. She confirmed that Mrs X did not have to attend tuition at the council building or at a hotel. She said the tutor would manage the sessions. However, Mrs X objected to the plan. She said she did not want to leave Miss P on her own with a tutor. She also said the tuition had to be full time.
  11. Officer B said the tutor would be DBS checked. She said that once the location was agreed they could move on to provide a timetable. She said, “My expectation is this will be a considerable offer. Full time 1:1 tuition is normally about 15 hours as the nature of 1:1 makes it quite intense. This would include Maths, English, Art and History.”
  12. Mrs X wanted more details. She said 15 hours was not sufficient. She asked if tutoring at a Council building would be for 25 hours a week.
  13. On 26 March 2019 the Council secured an extra four hours tuition for Miss P at a Council building. It offered art and history at School P, which Mrs X had previously said was acceptable. This increased the overall offer to 16 hours of education.
  14. Mrs X said Miss P would not now attend School P for her history and art lessons. She said she needed 25 hours a week at the Council building. She also queried how the Council was going to ensure Miss P kept in touch with her peers to avoid becoming socially isolated.
  15. The Council also offered three hours per week during the Easter holidays period. It says it offered 14 hours across the two weeks but this was not agreed by Mrs X.
  16. From 2 April 2019 the Council offered an extra 7 hours per week. It said this totalled 23 hours per week, but this was not agreed by Mrs X. The provision was offered at a Council building but despite risk assessments being carried out, Mrs X was unhappy with the offer.
  17. The offer decreased to seven hours per week from 26 April 2019. The Council said this was because they were unable to secure tutors from School P for a period. New tutors were identified in May and the offer increased to 12 hours per week. Miss P did not attend the tuition offered, bar one session when she attended for 30 minutes.
  18. There was a lot of correspondence between Mrs X and the Council about where her off-site tuition should be provided.
  19. The Council insisted that because of Miss P’s special educational needs, the provision Mrs X thought was appropriate, 25 hours per week, would be too much for her. It suggested that, if Miss P attended the sessions it had arranged, provision could increase.
  20. On 4 April 2019, the Council made a request for an art tutor to deliver sessions to Miss P during the Easter holidays to prepare her for her Art GCSE. (Mrs X had complained that Miss P had not been prepared for this because of a lack of provision.) A number of sessions were planned. However, Mrs X said that Miss P “…is not going to give up…Easter holidays because of having art tuition, this is a holiday and [Miss P] is visiting staying round her friends throughout.” She complained that having art tuition would be a “barrier” to her social time.
  21. Mrs X suggested that the Council might conduct the art tuition at her friend’s house, over sixty miles away. But she also said she did not think her friend’s mother would like that arrangement. The Council understood that Mrs X did not want that tuition to go ahead.

Exam arrangements.

  1. On 6 March 2019 a Senior Educational Psychologist reported that, in October 2018, Miss P had not wanted to transition to college, and would have preferred to spend another year at School P. By 2019, the psychologist reported that Miss P had, with the support of her parents, applied to attend college C from September 2019.
  2. On 20 March 2019 Mrs X texted the school asking the head for information about what would happen with Miss P’s exams as she was still on roll at School P.
  3. On 21 March 2019 Mrs X told the Council that she did not expect Miss P would attend school for her exams as she had not attended school that morning. She said there was also a worry about her safety, which she felt everyone ignored. She said that she and her husband would now, “…not be persuaded that [Miss P] is to start college in September as I gave you the opportunity to provide suitable alternative education previously and yourselves have failed to.”
  4. The Council had until 21 March 2019 to transfer Miss P. It says it was too late to request a change in host school. It says that, in any event, Miss P did not meet the criteria to be transferred from School P as she did not have a diagnosed medical condition and she was not taught at a different centre.
  5. On 26 March 2019 Mrs X said she wanted to know where Miss P would be able to take her GCSEs as she was too anxious to take her exams at school.
  6. The Council said it would make enquiries with School P.
  7. She also commented that she was aggrieved the Council had named College C on her EHC plan for September 2019. She pointed out that Miss P did not know which course she wanted to do yet.
  8. On 2 April 2019 Mrs X again asked where Miss P could take her exams.
  9. On 3 April 2019 the Council made enquiries about alternative settings. School P said the school had alternative buildings at the school that could be used to accommodate Miss P.
  10. On 4 April 2019, in an email to the Council, Mrs X said: “[Miss P] is not in the right headspace to take her exams which you know full well when you have not provided any alternative education for the past seven weeks and transport was only agreed yesterday so withdraw her from the exams as she does not need this further anxiety as you are aware…”
  11. On 17 April 2019 a telephone conference was scheduled with the First Tier Tribunal. The Council did not attend and did not provide reasons why. It was noted by the Judge that there was concern that as Miss P was signed off attending school until 27 May 2019, “this may disrupt her sitting her GCSE exams.” The Judge said it was unclear what arrangements had been put in place to allow her sit them.
  12. The decision also went on to say that “[Mrs X] is clear that [Miss P] does not want to attend [College C]. Instead [Mrs X] is requesting that the LA provide an appropriate and bespoke education for [Miss P] through [the hub] over the next academic year to allow her to obtain the 5 GCSEs that she requires to allow her to progress to Higher Education. [Miss P] has visited and now wishes to attend [another college]…but she requires 5 GCSEs to fulfil their entrance requirements.”
  13. However, the day before her exams were due to start Mrs X met with a tutor to look at the Council building suggested for Miss P’s tuition. At that session, she asked the tutor where Miss P would be doing her exams.
  14. Miss P’s exams were from 24 April to 14 June 2019. The Council says that, if Mrs X had informed it that Miss P intended to sit her exams, her tuition timetable would have been amended and transport would have been provided to take her to and from her exams.
  15. The records show that Mrs X contacted College C in early July 2019. She said Miss P wanted to study Course A. She was initially told that the college did not expect that this course would be available. The college suggested Miss P could take another course that had a ‘great deal of crossover’ with the course Miss P wanted to study. The records show the college said it discussed other possible options, but Mrs X did not consider these would be suitable.
  16. In August 2019 the college set up a visit for Miss P to consider taking another type of course at the college.
  17. Miss P retained her interest in studying Course A and the college emailed Mrs X details about studying Course A. However, as Miss P did not have any GCSEs, she would be only able to start at Level 1. This was offered at different campus. It was 10 minutes further away than College A. Mrs X considered this was too far and would restrict Miss P’s friendships, possibly leading to social isolation.  
  18. Miss P attended a tribunal hearing in September 2019. She said she was not ready to go to college. She wanted to go to the hub and go to college next year.

Social interaction

  1. The records show Mrs X did not accept the offer of help from the Early Help team in March 2019. She said, “What are early help going to do? Magic up some friends.”
  2. But on 16 April 2019 Mrs X asked for some help from the Early Help team. She wanted to know what support could be available. The records show that Mrs X felt that “support from Early Help was not required at this time.”
  3. The Council understood that Miss P was socialising with her friends and that she was not interested in pursuing other activities.
  4. On 23 April 2019 Mrs X emailed the Council, reminding it that the Council had previously recognised that home tuition did not address Miss P’s need for social interaction, as identified in her EHCP.
  5. Mrs X later emailed the Early Help team to say that she had been told it would not offer her help. It responded saying that it could not help her support Miss P obtain the education provision she needed. But it could meet with her to discuss other support.

On 16 May 2019 the Council asked Mrs X if she would like an Early Help worker to come and assess Miss P’s current needs.

  1. Mrs X replied that she would if it was going to help with her being social isolated as Miss P had to have her tuition in a council building, which Mrs X felt was isolating. She was told a worker would be allocated to visit her the following week.
  2. The records show that on 22 May 2019 Mrs X had a conversation with one of the team. She was reported as saying that she did not need any further help as Miss P had been given a place at a ‘youth hub’. Mrs X said this was confused as Miss P had got a place at the hub, not a youth hub. She said she could not remember speaking to anyone.

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Analysis

Referral to the hub

  1. The Council did not consider Miss P met the criteria for transfer to the hub. Nevertheless, it put together an application for referral in a reasonable timeframe.
  2. Mrs X said the Council put bureaucratic blocks in her way to prevent Miss P from attending the hub. I disagree.
  3. The hub did not have to agree to take Miss P. It was entitled to have reservations about the limited evidence from her GP about why she was signed off school. The initial GP medical note was not a ‘referral’. It said Miss P was suffering from bullying. The latest educational psychologists report mostly referred to Miss P’s presentation the previous year.
  4. The Council made enquiries and learnt Miss P’s GP had signed her off school at Mrs X’s request. Therefore, the fact she had been signed off did not show that Miss P had the requisite level of need to access its services.
  5. The 22 March 2019 letter from her GP referred to Mrs X informing the GP of her concerns. It did not represent a medical diagnosis. It supported a referral to a specialist setting. The Council says that the hub is not a specialist setting. I do not think the Council should rely on that distinction. As the GP had been in discussion with Mrs X, it is likely the GP meant he supported referral to the hub. But the Council’s policy says that a GP referral is not always sufficient, and the hub was entitled to view that it needed more evidence about Miss P’s difficulties.
  6. Mrs X complained that Miss P’s circumstances were the same as those set out in the previous Ombudsman finding, where the Council was found at fault.
  7. Every case has to be looked at individually. To find out if the hub was appropriate, the Council said a CAMHS assessment would be necessary. This was reasonable given the lack of detailed evidence to support a referral at the time.
  8. Mrs X initially said she did not want a CAHMS assessment because she would have to wait for months. The hub managed to organise an assessment within two weeks. Mrs X then refused it. The Council proposed an alternative venue. Mrs X said she did not want a CAHMS assessment full stop. She said this was because she has had a poor experience with CAHMS in the past.
  9. The Council was doing all it could to ensure that Miss P was assessed. There was no fault in the actions it took to try and facilitate the referral.
  10. Mrs X says the tribunal later ordered the Council to set up a mental health assessment with a mental health nurse from School P. She says this could have been done earlier and Miss P would have therefore been referred at an earlier date. But the tribunal did not order the Council to set up this assessment. It asked the Council to consider this as Mrs X had suggested it to the tribunal. The Council acquiesced. There is no fault here.

Alternative education provision

  1. Local authorities should make every effort to minimise disruption to a child’s education. This was especially so given that Miss P was in her GCSE year at school. But I do not find that the Council compromised on effort.
  2. Miss P had been signed off because of bullying at School P. It is therefore far from ideal that the Council initially offered Miss P an education timetable that was partly at School P. However, I have not found the Council at fault in this regard. This is because the records show that Mrs X was initially supportive of the offer. Mrs X said this was because the Council suggested Miss P could study lessons at school where those Miss P said bullied her would not be present. She said Miss P decided against the timetable when she continued to receive unpleasant messages from her peers at School P. She feared for her safety. This is entirely understandable.
  3. However, I do not find the Council at fault for the initial suggestion that some lessons at School P might have been suitable. It was a suggestion that all parties initially viewed acceptable.
  4. When the Council then offered other venues for Miss P’s education, Mrs X refused them all. She provided reasons but these were not always reasonable. She said home tuition could not go ahead because she had builders at her house. The records show this was for two to three weeks only. She said provision at a library had not worked previously. The Council accepted this and tried to secure tuition at the hub. She objected to tuition in Council-owned buildings and a conference room at a hotel. This suggestion was a little irregular, but I consider it goes to show the Council was trying to find solutions. Mrs X would only accept the hub. This was not her decision to make.
  5. On one occasion Mrs X turned down art tuition because Miss P wanted to go to a friend’s house. Mrs X did not like the hours that tuition was offered. The records show it was very difficult for the Council to find an arrangement that would please Mrs X.
  6. Mrs X also complained about the amount of provision offered. She said Miss P needed a full-time education and the Council’s offer was not enough. The Council offered to build the level of provision up incrementally. But the records show that, in total, she attended one session for only 30 minutes.
  7. The Council has a statutory duty to provide a suitable alternative education. It made numerous suggestions all of which were rebuffed and, while it did not provide exactly the type or level of education that Mrs X asked for, I do not find the Council at fault.
  8. Mrs X says the alternative education the Council offered was not suitable. She says it did not show any consideration of Miss P’s needs as set out in her EHC plan. For example, she says it did not help her to feel more socially included.
  9. But the Council’s focus was understandably on Miss P’s tuition for her exams. It was doing what it could to find a location and tutors for her. It was asking the impossible to also manage her socialisation at that period. I have reviewed the EHC plan the Council would have been directed to at the time the Council was trying to source provision. The Council’s approach was not out of sync with it. There is no fault.
  10. Further, Mrs X was offered Early Help. There may have been some confusion over whether she felt it was still necessary or not. But it was offered and initially at least, Mrs X refused that help.

Transport to tuition

  1. Mrs X says she had safeguarding concerns about the transport offered to Miss P. She reported those concerns to the police. The records show the Council provided her with an alternative service. There is no evidence of any fault and, as Miss P did not want to attend any of the sessions anyway, even if the service had been faulty, there would have been no injustice.

Exam provision

  1. The Council knew Miss P had been signed off school because of bullying. It should have understood that she might well have been anxious about attending exams at school.
  2. The Council could have made enquiries about where Miss P could have taken her exams at an earlier stage. She was signed off school until 27th May 2019 and the bulk of her exams started on 14th May 2019. The Council did not make any enquiries into what could be done until 3 April 2019. However, the Council points out that, on 4 April 2019, Mrs X said, she wanted Miss P to be withdrawn from all her exams.
  3. Further, Miss P did not initially meet the criteria to have her exams transferred because there was no medical reason to do so, but this changed on 15 May 2019 when she received a diagnosis of depression.
  4. The AQA guidance says that transfer applications had to have been made by 21 March 2019 but it does not prohibit an application. Rather, it warns that awarding bodies would not be able to guarantee arrangements if requests are received after that date. A request could still have been made for Miss P after 15 May 2019. The Council could have asked School P to make an application for Miss P on other criteria. The guidelines are clear that the list of acceptable and unacceptable reasons are not exhaustive and is a matter for the awarding body’s discretion.
  5. Mrs X considers that the only block on the Council asking for a transfer after the 21 March 2019 was that it would have to pay a fee. That is not my understanding of the rules. There is no mention in the guidance that an extra fee is incurred for transfer after 21 March 2019, only for changing entries.
  6. The Council says there was no reason why Miss P could not have taken the remainder of her exams at School P, after the end of her sign-off period. This is not correct. There were reasons. While the Council was confident the school could provide a safe place for Miss P to take her exams, it was told by Mrs X that Miss P did not feel safe at the school.
  7. By 6 June 2019, Miss P had a placement at the hub. This would mean that she fitted another one of the criteria to have had her exams transferred to the hub.
  8. Mrs X says Miss P did not need to achieve any grades in her exams to be admitted to College C. All she had to do was take them. Therefore, she says, the Council has caused Miss P injustice by denying her the opportunity to sit the exams.
  9. By the time of the telephone conference with the Judge of the First Tier Tribunal on 17 April 2019, Mrs X said that Miss P did not anticipate doing her exams that year. She did not plan on going to College C. Instead she had changed her plans and wanted to stay at the hub for a year to obtain the five GCSEs she needed to start the college course she wanted.
  10. At several points over the months before Miss P’s exams, Mrs X said she wanted Miss P to repeat the year. Mrs X might have been saying that because she was trying to obtain a better education for Miss P, but the Council was entitled to believe there was little to no hope of Miss P attending her exams that year.
  11. Further, I take into consideration that even though I consider the Council should have made better efforts to explore the possibility of Miss P being able to take her exams at the hub, there is no certainty that a transfer would have been possible. Even if it had been possible, it is impossible to say if Miss P would have been able to achieve the grades she needed to study Course A at College C. She may have done but I cannot sensibly speculate on that.
  12. Miss P says she would have attended her exams at any other place than at School P, But the evidence at the time does not suggest that was the case. I cannot say, given the fact she did not attend tuition from February 2019 and had, through her mother, expressed her wish to repeat the academic year, whether she would have done so or not. In Mrs X’s correspondence with the Council Mrs X thought not.
  13. Therefore, I find the Council was at fault for not making early enquiries into alternative exam venues. But I do not find that, on balance, this failing caused Miss P an injustice.

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Final decision

  1. I have found no fault causing injustice and have therefore made no recommendations. I have completed my investigation.
  2. 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 as we found some fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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