Summary: Mrs X complained the Council failed to provide alternative education for her child Y, when they could not attend school for health reasons. She also says it delayed in reviewing and amending Y’s Education, Health and Care Plan. The Council is at fault. The Council has agreed to apologise to Mrs X and Y, pay a financial remedy for the injustice caused and review its procedures.

The complaint

1. Mrs X complained the Council:
• Failed to provide suitable alternative education for her child Y from January 2015, when it became aware of Y’s reduced school attendance due to health reasons;
• Failed to complete a timely review of Y’s Education, Health and Care Plan in December 2017, when it was clear the identified provision was not meeting their needs;
• Did not provide alternative educational provision whilst her child was unable to attend school due to health reasons from December 2017 onwards; and
• Delayed in drafting and issuing the amended Education Health and Care Plan following the review meeting in June 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 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. 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).
4. I have decided there are good reasons to investigate this complaint from January 2015. Mrs X says Y has been without education for several years, but the Council says it was January 2015 when it first became aware of Y’s reduced school attendance. Substantive parts of the complaint took place since December 2017, so I consider it reasonable that Mrs X has not brought her complaint to us until now.
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke with her about it on the phone.
8. I made enquiries of the Council and considered the information it sent me.
9. I considered The Ombudsman’s recent report against Oxfordshire County Council (complaint reference 18 009 005). This report found the Council at fault for failing to provide alternative educational provision when a child was unable to attend school for medical reasons.
10. I considered the Ombudsman’s focus report published in September 2011: Out of school… out of mind? How councils can do more to give children out of school a good education.
11. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Background information

Alternative provision

12. The Education Act 1996 puts a duty on councils to arrange alternative educational provision for children who by reasons of illness, exclusion from school or other reason, may not receive suitable education without such arrangements.
13. The education provided can be full-time or part-time, dependent on what the council considers is in the child’s best interests.
14. Statutory guidance sets out councils’ duties for those children who cannot attend due to health needs. It says councils should provide education as soon as it is clear they will be away for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimum delay in arranging appropriate provision for the child.
15. Where full-time education is not considered in the best interests of the child because of health-related reasons, the council should provide part-time education. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.

Education, Health and Care Plans

16. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
17. Legislation and the Special Educational Needs and Disability Code of Practice (the Code) set out the EHC needs assessment and plan development process. The Code includes statutory timescales which councils must meet.
18. A council must review a child’s EHC Plan at least every 12 months. If the council considers it needs amending, it must send the child’s parents a copy of the existing plan and the proposed amendments. The parent must be given at least 15 days to comment on the proposed amendments. If the council decides to continue making the amendments, it must issue the amended EHC Plan as quickly as possible, and within 8 weeks of the original amendment notice.
19. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the Special Educational Needs and Disability Tribunal.
20. Oxfordshire County Council has a document template to ensure it keeps a record of discussions and decisions made at EHC Plan review meetings. The report should be completed and circulated to everyone invited to the review within 2 weeks.

What happened

21. Mrs X’s child, Y, has health conditions and special educational needs.
22. In January 2015, Y was struggling to attend school because of these needs. Y’s school, school A, contacted the Council to ask it for advice and support.
23. In April 2015, the Council reviewed the effectiveness of support provided so far. The report said despite multiple agencies working closely together, Y was unable to attend school for more than a few hours a week. The report said Y “needs specialist help, all day, in all situations, to help them monitor their anxiety levels and practice strategies which help them regulate their feelings”. It recommended “a setting where they will have the opportunity to work in small groups or be individually supported”. The report recommended referral for an EHC Plan, but this did not take place.
24. In June 2015, Y had a visit at home by a support worker. They agreed to start work to help reduce their anxiety.
25. School attendance records between January to July 2015 showed Y was absent from school 66% of the time.
26. In September 2015, Y had three visits at home from a support worker to work on reducing their anxiety.
27. In October 2015, the Council started providing regular support visits. A support worker visited Y at home between once and twice a week until April 2016. From April 2016 until July 2016, a support worker visited Y at home once a week.
28. The Council said the effectiveness of this intervention was reviewed termly. School attendance records for the academic year September 2015 to July 2016 showed Y was absent from school 80% of the time.
29. In October 2016, Y was signed off as unfit to attend school because of health reasons. The Council said it would refer Y for alternative educational provision through the hospital school, which was its usual provider for children who were unable to attend school because of ill health.
30. In November 2016, Y did not attend school. Mrs X and Y attended a meeting with NHS professionals. Mrs X said she had not yet had any contact from the hospital school. She said she had asked the school to request an EHC Plan assessment for Y and she would contact the school to chase up progress.
31. Mrs X contacted Y’s support worker. She said the school had advised her it could not apply for an EHC Plan assessment whilst Y was receiving education from the hospital school.
32. By the end of November 2016, the hospital school still had not contacted Mrs X.
33. In December 2016, Y did not attend school. Mrs X was told the hospital school would not be providing education for Y.
34. In January 2017, the Council agreed to assess Y for an EHC Plan.
35. Between January and May 2017, a support worker visited Y at home once a week. They supported Y to to learn strategies and techniques to enable them to attend school. However, Y did not attend school during this time. Council records show school A provided Y with some homework on two occasions in April and May. Mrs X said Y would not engage with this work.
36. Between January and March, Y visited three possible alternative schools with the support worker. Y applied for a place at their preferred school, school B.
37. In May 2017, school B allocated Y a place. The Council named school B in the final EHC Plan. It issued the EHC Plan at the beginning of June.
38. Y started at school B in June 2017, initially for two days a week. The support worker continued their visits to Y during June and July and Y did attend a few days at school. They worked towards Y travelling independently to and from school B on school transport but Y did not achieve this due to their health issues.
39. In September 2017, the Council put in daily visits to support Y to attend school. These daily visits continued until December 2017, a total of 45 visits. During this time, the records show Y only managed to attend school on one occasion.
40. In December 2017, the Council met with Mrs X. It said the daily support visits were not achieving the desired outcome of Y attending school B, and due to staffing issues, were unsustainable. Instead, it arranged a taxi service for Y, and recommended Y have specialist support for their health needs through the NHS.
41. The Council said it considered calling an emergency review of Y’s EHC Plan at this time, but did not think it appropriate because:
• As Y had not yet attended, there was insufficient evidence school B could not meet their needs;
• Staff felt if they could attend, school B was still the best provision; and
• Staff felt parental preference was to continue to work towards Y attending school B.
42. In February 2018, Y started to receive support from the NHS. However, this intervention also did not enable them to attend school.
43. In June 2018, the Council held the annual review of Y’s EHC Plan. The Council say there are no formal minutes or record of this meeting, but the Council officer took personal notes. These notes show several options were discussed including online learning and record the parents’ view that Y needed a home tutor. After the meeting, the Council did not send Mrs X a record of this meeting, or a draft EHC Plan with proposed amendments. Mrs X says she did not receive a draft amended EHC Plan until December 2018.
44. Between September and November 2018, the Council provided weekly support visits to try and enable Y to attend school. The NHS provided two additional visits a week, but despite this, Y was unable to attend school at all.
45. In November 2018, the Council held an emergency EHC Plan review meeting. It decided school B was no longer suitable for Y. It agreed to provide Y with 5 hours of home tuition a week, whilst identifying a more suitable educational placement in the longer term. The Council issued the draft amended EHC Plan in December 2018 and provided Mrs X with a copy.
46. In January 2019, Mrs X complained to the Council. She said:
• Y had not attended school B or had any education since December 2017, when the Council initially stopped the daily support visits encouraging them to attend school;
• As Y was not attending school B from December 2017, the Council should have called a meeting to urgently review their EHC Plan;
• After the review meeting in June 2018, the Council never sent her any minutes of this meeting or produced or sent her an amended EHC Plan;
• The Council should have agreed to her request for a home tutor earlier.

As a result of these failings, Y had missed out on one year of education.

47. In February 2019, the Council issued the final EHC Plan and Y started home tuition.
48. The Council responded to Mrs X’s complaint. It agreed, in retrospect, it may have been appropriate in December 2017 to conclude school B could not meet Y’s needs and call an EHC Plan review. It said it was difficult to make a clear judgement at the time, as Y had not attended the school. It said it took responsibility for stopping the daily support visits in December 2017, but they were unsustainable and not enabling Y to attend school. It said it felt Y needed more specialist input and so it referred them for NHS support. However unfortunately, this also did not enable Y to attend. It partially upheld her complaint that EHC Plan review meeting could have been held sooner. It said it would review its procedures regarding timescales when concerns arose about a child’s ability to attend school.
49. It upheld Mrs X’s complaint that a home tutor should have been put in earlier. It said the reason for the delay was that the Council was working with her and Y’s preference to continue to work towards Y attending school. It said a tutor was not agreed at the EHC Plan review meeting in June 2018. It upheld Mrs X’s complaint that there was delay in producing a draft amended EHC Plan until December 2018, and a final amended EHC Plan until February 2019. Despite upholding parts of her complaint, it did not offer any remedy for the injustice caused to her and Y.
50. In April 2019, Mrs X remained dissatisfied with the council’s response to her complaint and brought it to us.

Analysis

51. In January 2015, the Council became aware Y was not attending school regularly. The report completed in April 2015 said that despite a co-ordinated multi-agency approach, interventions had not enabled Y to regularly attend school. It recommended Y be assessed for an EHC Plan. Despite this report, the Council did not request an EHC Plan assessment for Y at this time and there is no evidence it requested others to do so either. This is fault.
52. From September 2015 to July 2016, the Council provided Y with weekly support visits at home. The Council says it reviewed the effectiveness of this intervention termly, but I have seen no evidence of this. School attendance records show Y was absent for 80% of this academic year, which was an increase from 66% the previous year. Despite this, the Council reduced Y’s home visits in April 2016. Although it said it planned to provide more intervention in school instead, this decision cannot have been based on Y’s needs, as it was clear Y was still unable to attend school regularly because of their health needs. Y’s absence rate from school had increased but during this academic year there is no evidence the Council considered either:
• The need to try alternative interventions to increase their school attendance;
• The need to provide alternative education as Y had been out of school for over 15 days; or
• Referring Y for an EHC Plan assessment.
53. This failure to review its intervention, consider the need for an EHC Plan or provide any alternative educational provision despite Y’s increasingly poor attendance was fault.
54. In October 2016, Y was still not attending school and was signed off by the Community Mental Health Team as unfit to attend because of ill health. Council records show it was aware it needed to arrange alternative provision at this stage, but none was put in place. Y did not receive any education between October and December 2016. Y missed out on half a term’s education. This is fault.
55. In January 2017, the Council agreed to assess Y for an EHC Plan. Between January and May 2017, although Y had visits from a support worker at home to try and reduce their anxiety, they did not attend school or receive any education. There is no evidence the Council offered or provided any alternative provision. Y missed out on a further one and a half terms of education. This is fault.
56. In June 2017, Y started at school B. Between June and December 2017, the Council acted appropriately by supporting Y with regular home visits to try and increase their school attendance.
57. Despite this support, Y was only able to attend school once between September and December 2017. There is no evidence the Council offered or provided Y with any alternative education provision during this time. This is fault.
58. The Council has partly upheld Mrs X’s complaint that it may have been appropriate to call an EHC Plan review meeting in December 2017. It gives one of its reasons for not doing so as that it had not been able to evaluate if school B was suitable, as Y had not attended. The fact that Y had not attended school B because of ill health and despite intensive support, was precisely the reason a review was needed. The failure to call for an EHC Plan review at this time is fault.
59. Y did not attend school at all between December 2017 and May 2018. During this time, there is no evidence the Council met its statutory duty to provide suitable alternative educational provision. This led to Y missing out on a further one and a half term’s education. This is fault.
60. In June 2018, the Council reviewed Y’s EHC Plan, but there is no formal record of this meeting. The officer notes from the EHC Plan review meeting record Mrs X’s view that Y needed a home tutor. Mrs X says the Council agreed to provide this, but the Council says this was not the case. The lack of formal record of this meeting means we now cannot know what was agreed. The failure to keep proper and appropriate records is fault.
61. After this meeting, the Council did not provide Mrs X with a draft amended EHC Plan until December 2018 or issue the final amended EHC Plan until February 2019. It should have finalised the amended EHC Plan within 8 weeks. This is a 27-week delay and is fault. The Council has accepted this delay as fault but has not offered Mrs X or Y a remedy.
62. Mrs X was dissatisfied with the decision not to proceed with home tutoring after June 2018. The delay in issuing the draft amended EHC Plan delayed her opportunity to appeal against the content of the amended plan. This caused further injustice to Mrs X and Y.
63. The Council has accepted it should have put in a home tutor sooner. It said it was working with Mrs X and Y’s preference in not doing so. However, the officer notes from the EHC Plan review in June 2018 record Mrs X’s view that Y needed a home tutor at that point. This inconsistency is likely to cause further uncertainty to Mrs X and Y.
64. Y did not attend school between September 2018 and January 2019. There is no evidence the Council provided Y with any alternative education provision until home tutoring began in February 2019. This is fault.
65. In total, the Council failed to provide alternative education for Y for 9 terms and 1 month between January 2015 and January 2019. Although it did make efforts to support Y to reduce their anxiety and return to school during this time, it did not appropriately review the success of these interventions. It also failed in its duty to provide Y with alternative education whilst they were unable to attend school because of their health needs.
66. Our guidance on remedies recommends a financial payment to remedy the impact on a child of a loss of education. Y has missed out on a substantial amount of education since 2015 because of the identified faults. It is appropriate to make recommendations in line with our guidance to remedy the injustice caused. The Council has agreed to our recommendations.

Agreed action

67. Within one month of the final decision the Council will:
• Write to Mrs X and Y to apologise for the identified faults;
• Pay Mrs X £11,200 to be used for Y’s educational benefit. This payment is to remedy the impact on Y of the loss of education between September 2015 and January 2019, and the impact of the delays in the EHC Plan process;
• Pay Mrs X £1,000 to recognise the uncertainly and distress caused to her by the faults;
• Remind its staff of the importance of keeping proper and appropriate records of meetings.
68. Within three months of the final decision the Council will:
• Provide evidence of how it has reviewed its procedures related to timely review of support it provides to children with reduced school attendance;
• Consider if any further procedural changes are needed to prevent a recurrence of the identified faults. It should provide us with evidence it has done this.

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Final decision

69. I have completed my investigation. I have found fault causing injustice and the council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman