The Ombudsman's final decision:
Summary: The Council failed to provide suitable alternative education Mrs B’s daughter, C, when she was unable to attend school due to anxiety. The Council also failed to support C and her family, arrange a multi-agency meeting or make a referral to Autism Outreach. The Council accepts these failings and has offered to apologise to the family, make a payment, and undertake a review of its policies and procedures. The Ombudsman considers this to be a satisfactory remedy for the injustice caused.
- Mrs B complains that:
- the Council has failed to provide suitable education for her daughter, C, in accordance with Section 19 of the Education Act 1996 between September 2018 and April 2019;
- the Council failed to support C or Mrs B when C was unable to attend school. Officers did not visit C or make any contact since 3 September 2018 which put strain on the family and led to C being socially isolated and unable to leave the house alone;
- the Council’s SEN officer repeatedly failed to return telephone calls or answer correspondence and texts;
- multi-agency meetings did not take place despite promises from the Council in September 2018 and December 2018; and
- the Council stated in a report that C attended School X for two days on transition when this was not the case.
What I have investigated
- I have investigated all Mrs B’s complaints except matters which are outside the Ombudsman’s jurisdiction.
The Ombudsman’s role and powers
- 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)
- 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)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended), even if the tribunal has not provided a complete remedy for all the injustice claimed (Local Government Act 1974, section 26 (6) (a), R v the Commissioner for Local Administration ex parte PH, 1999).
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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.
How I considered this complaint
- I have considered:
- information provided by Mrs B;
- information provided by the Council;
- the Education Act 1996;
- Ensuring a good education for children who cannot attend school because of health needs - statutory guidance for local authorities published by the Department for Education in January 2013;
- Out of school… out of mind? How councils can do more to give children out of school a good education, published by the Ombudsman in September 2011; and
- Guidance on good practice: remedies, issued by the Local Government Ombudsman in 2018.
What I found
Legal and administrative background
- Section 19 of the Education Act 1996 says “Each local authority shall 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”.
- The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have.
- Statutory guidance states the duty to provide such provision 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 guidance also states this provision should be made “as quickly as possible”.
- The guidance says local authorities should provide alternative education “as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative” and make every effort to minimise delay in arranging appropriate provision for the child.
Special educational needs
- Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs (SEN) and who probably need an Education, Health and Care Plan (EHCP).
- An EHCP sets out the child’s needs and what arrangements should be made to meet them.
- C was attending a primary school and was due to move to Year 7 at School Y in August 2018. She attended two transition sessions between September and November 2017.
- C was on the Special Educational Needs and Disability (SEND) register and received additional support at school with development of literacy and numeracy.
- In November 2017 Mr and Mrs B requested an Education Health and Care Needs assessment because of C’s increasing level of anxiety which was affecting her learning and she was starting to refuse to go to school. She had also been referred to the Children and Adult Mental Health Service (CAMHS).
- The Council carried out an EHC Assessment in January 2018. It decided it would not assess C for an EHCP because her SEN were not of a degree or kind to require a statutory assessment at that time and could be met with a SEN Support Plan.
- Mrs B appealed and, in May 2018, the Tribunal ordered the Council to assess C for an EHCP.
- On 5 May 2018 Mr and Mrs B wrote to the Council explaining that C had been diagnosed with autistic spectrum disorder (ASD) and, as a result, they wanted her to attend specialist provision rather than a mainstream school.
- On 30 July 2018 the Council wrote to Mr and Mrs B stating that, after carrying out an EHC assessment, it was satisfied C’s SEN were not at the level which required an EHCP. It considered her needs could be met through a SEN support plan and the level of support could be provided from the funding already allocated to schools for pupils with SEN.
- On 30 August 2018 Mrs B contacted Autism Outreach (a multi-disciplinary team) for help because C was refusing to go to her new school. She spoke to an officer who said a casework officer would return her call but this did not happen.
- On 19 September 2018 Mrs B received a message from the Head of Service-Educational Needs and Disability stating he had made another referral to the Autism Outreach service and they would visit C and then provide a report for a multi-agency meeting that was being arranged.
- On 1 October 2018 a consultant community paediatrician prepared a report stating that C was exhibiting “really quite severe anxiety symptoms probably related to her underlying autistic spectrum disorder”. She was accepted for assessment by CAMHS.
- On 8 October 2018 School Y took C off the roll because she had not attended. It sent a referral to the children with medical needs team.
- The Council issued a proposed EHCP. Mr and Mrs B responded and also requested that C attend School X, a specialist autism provision.
- On 1 November 2018 the Council consulted with School Y which said it could not take C as she had not engaged in transition and Year 7 was now full. However, the Council issued the final EHCP on 12 November 2018 naming School Y.
- Mr and Mrs B disagreed with the EHCP because they felt a mainstream school could not meet C’s needs and she should attend School X. They appealed to the Tribunal.
- On 20 November 2018 the Council consulted with School X which said it could accept C but an extended transition period would be needed because she had been out of education since July 2018.
- On 30 November 2018 Mrs B complained to the Council that: parental preference for School X was not explored before issuing the final EHCP; there had been no contact from the SEN officer; and the Council had failed to provide alternative education for C whilst she was out of school.
- On 11 December 2018 the Council’s SEN officer wrote to School X asking it to explain why it had removed C from the school roll when the Council had not agreed to this, she was not on roll anywhere else and had SEN needs which, at the time, were subject to the Tribunal appeal process. The email stated that, following her previous request, the officer was formally asking the school to re-admit C to the school roll backdated to 8 October 2018. School X re-admitted C to the roll.
- On 3 December 2018 the Director of Children and Family Services wrote to Mrs B stating that the SEN officer was working with Autism Outreach, Early Help and CAMHS on the best way to support C and would convene a multi-agency meeting to agree a plan.
- On 9 April 2019 the Tribunal decided the Council should change the school placement to School X. Accordingly, the Council amended the EHCP to name School X and C began attending shortly afterwards.
Failure to provide suitable education
- The Council accepts it knew on 30 August 2018 that C was unable to attend school because of high anxiety and she did not start the new term. It also accepts that insufficient work was done to ensure a prompt referral to the children with medical needs team and to ensure alternative education was in place and continued until Mr and Mrs B exercised their right to appeal to the Tribunal on 21 November 2018.
- Once the Council was aware C was not attending school, we would expect it to provide alternative provision in line with statutory guidance. Failure to do so was fault and, as a result, C missed out on education for a period of 12 weeks and Mrs B suffered distress and anxiety.
Failure to support C and her family/lack of contact
- Mrs B says Council officers did not visit C or make any contact with the family after 3 September 2018 which put strain on the family and led to C being socially isolated and unable to leave the house alone. She also says the SEN officer repeatedly failed to return telephone calls or answer correspondence and texts.
- The Council accepts there was poor communication and delay in contacting the family which caused further distress and anxiety and put Mrs B to time and trouble in trying to contact officers.
Failure to make a referral to Autism Outreach and arrange a multi-agency meeting
- Mrs B contacted Autism Outreach for help when C refused to go to her new school on 30 August 2018. She spoke to an officer who said a casework officer would return her call but this did not happen.
- On 19 September 2018 Mrs B received a message from the Head of Service-Educational Needs and Disability saying he had made another referral to the Autism Outreach service who would visit C and then provide a report for a multi-agency meeting that was being arranged.
- Mrs B never received any contact from Autism Outreach and heard nothing further about the multi-agency meeting until 3 December 2018 when the Director of Children and Family Services wrote to her stating that the SEN officer was “working with Autism Outreach, Early Help and CAMHS on the best way to support [C] and she will convene a multi-agency meeting to agree a plan with yourself”.
- No multi-agency meeting ever took place.
- The Council says there were discussions with Mr and Mrs B about arranging a meeting in November 2018 but they did not agree with comments made by the SEN officer and refused to attend.
- Mrs B says the SEN officer telephoned on 27 November 2018 in response to various attempts to contact her and agreed they needed to meet. Mrs B says that, during the conversation, the officer blamed her for C being the way she is and said she has ASD and mental health issues because of problems at home. She says that, at no time during the conversation, did the officer mention that Autism Outreach or children’s social care representatives would be at the meeting so she was unaware that they were discussing a multi-agency meeting.
- Mrs B sent an email to the SEN officer on 27 November 2018 stating “we feel that you are not able to empathise with parents in our position. When you say that it is our fault that [C] is Autistic, has Mental Health issues and that there must be problems in the home just proves our point. We have decided not to meet with you as we feel that this would be pointless. We will go down the legal route instead.”
- The fact that Mrs B did not wish to meet with the SEN officer should not have prevented a multi-agency meeting taking place. In any event, the Council should have arranged a multi-agency meeting well before Mr and Mrs B sent the email on 27 November 2018. It should also have made a referral to Autism Outreach at the outset.
- The Council’s failure to arrange a multi-agency meeting and make the referral to Autism Outreach caused C a significant injustice because she did not receive the support she should have done.
- The SEN officer stated in the Council’s case for the Tribunal that C attended School X for two days on transition when this was not correct.
- The Council accepts there is an email from School X which confirms that a two-day transition visit did not take place. It says it cannot explain why incorrect information was supplied to the Tribunal. The SEN officer who prepared the document has now left the Council’s employment and it has been unable to contact her.
- Including an incorrect statement in the Council’s case for the Tribunal was fault and caused Mrs B justified anger.
- At an early stage of my investigation the Council accepted its failings and offered to remedy the injustice caused to C and Mrs B.
- The Council has offered to pay C £1800 in recognition of the missed education provision between 30 August and 21 November 2018. This equates to 12 weeks of lost provision and I consider this to be an appropriate remedy.
- The Ombudsman’s Guidance on Remedies states payments for lost provision should be between £200 and £600 per month. The Guidance states that payments at the higher end are appropriate when a council makes no provision or the child concerned loses provision during a key stage of their education, for example when moving from primary to secondary school. Both factors apply in this case.
- The Council has also agreed to:
- pay Mrs B £300 in respect of the uncertainty and time and trouble caused by its poor communication and delay in responding to concerns raised during the time C was not receiving education;
- issue a formal apology for the faults identified.
- undertake a review of relevant policies, procedures and guidelines notably around the key area of provision of alternative education; and
- undertake a review of its practice to ensure effective partnerships working with all education providers, including specialist teams within Children and Family Services to consider children with disabilities in the wider context.
- I find the Council was at fault in:
- failing to arrange alternative educational provision for C while she was unable to attend school due to anxiety;
- failing to contact and support the family while C was not receiving education;
- failing to make a referral to Autism Outreach and arrange a multi-agency meeting; and
- making an incorrect statement in its case for the Tribunal.
Parts of the complaint that I did not investigate
- Mrs B exercised her right of appeal to the Tribunal against the content of the EHCP issued in November 2018. Her appeal was regarding the school placement.
- Where there is a right of appeal to the Tribunal about a decision, the courts have decided that the decision, and the consequences of it, are matters which are ‘inextricably linked’. Where a council issues an EHCP and names an inappropriate school and also fails to meet its duty to provide alternative education for the child, the Ombudsman cannot provide a remedy if the parents have appealed to the Tribunal. The decision (naming an inappropriate school) and the consequence (failing to provide education) are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
- The Council’s decision to name School Y and its failure to provide alternative education are inextricably linked. So, the Ombudsman cannot consider C’s loss of education from the date Mr and Mrs B appealed to the Tribunal (21 November 2018) until the Tribunal decided the appeal. So, I have not investigated Mrs B’s complaint that the Council failed to provide suitable alternative education after from 21 November 2018 to April 2019. The Ombudsman can only consider whether the Council provided suitable education for C up to 21 November 2018.
Investigator's decision on behalf of the Ombudsman