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Kent County Council (18 017 170)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 Oct 2019

The Ombudsman's final decision:

Summary: The complainant alleges that the Council has failed to provide appropriate alternative education to her daughter who has been unable to attend her named school because of severe anxiety. The complainant also says that the Council has delayed in completing the annual review process. The Ombudsman has found the Council at fault in not making alternative educational provision. The Council has accepted the recommended actions to resolve the complaint.

The complaint

  1. The complainant, who I refer to as Mrs X, complains that her daughter, Child B, has been out of school since October 2018. Mrs X says that the Council has failed to provide alternative educational provision even though it is aware that Child B was unable to attend her named school because of severe anxiety.
  2. In addition, Mrs X says that the Council delayed in ensuring additional funding for the named special school and the Council has delayed in reviewing Child B’s Education, Health and Care (EHC) Plan and issuing an amended Final Plan.
  3. Mrs X also alleges that the Police visited the home to check on Child B, when she was not at school. Mrs X does not know if the School or the Council instigated this.

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What I have investigated

  1. I have investigated the Council’s actions. The Ombudsman cannot investigate the actions of the Police and he cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
  2. 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)
  3. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. Once a SEND Tribunal has made an order, the council must abide by the order within five weeks.
  4. The Ombudsman cannot consider matters, which have been appealed to a SEND Tribunal, or which are ‘inextricably linked’ to matters that have been the subject of an appeal, even if the Tribunal has not provided a complete remedy for all the injustice claimed. (R v the Commissioner for Local Administration ex parte PH, 1999, R (on the application of ER) v the Commissioner for Local Administration, 2014, Local Government Act 1974, section 26(6)(a), as amended)
  5. This means the Ombudsman has no jurisdiction, where a parent has appealed. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay.
  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 have obtained written information from the complainant and from the Council.
  2. I issued a draft decision statement and have taken account of the additional comments when reaching a final decision.
  3. 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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What I found

School Attendance

  1. The Education Act 1996, Section 444(1) provides that, if a child is of compulsory school age, and fails to attend regularly, those with parental responsibility are guilty of an offence.
  2. The 2007 Guidance - Guidance on Education Related Parenting Contracts, Parenting Orders and Penalty Notices - states councils must judge whether to prosecute on a case by case basis.

Special educational needs

  1. Once an assessment determines that special educational needs provision is required for a child, the council must issue an EHC Plan. The council has a duty to ensure it is in place and is maintained. The courts have decided that councils can ask other agencies to make the provision on their behalf but the duty to make sure it is in place remains with the council.

EHC Plans

  1. An EHC Plan sets out the child's educational needs and what arrangements there should be to meet them. The council is responsible for making sure that arrangements specified in the EHC Plan happen and are reviewed each year.
  2. Councils normally oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 says reviews must be undertaken in partnership with the child and their parent.
  3. In addition, the Special Educational Needs and Disability Regulations (Regulation 22) also states that, councils must inform parents within four weeks of the review, whether it will amend the Plan. Where the council is considering amending an EHC plan, following a review, it must send the child’s parent or the young person a copy of the EHC plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments.

Provision and Appeals

  1. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan. Appeals must be made within two months and are now normally heard within 12 weeks of being registered with the Tribunal. While awaiting an appeal, councils must provide what is required under the EHC Plan.

Children out of school because of medical needs

  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. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who, because of illness, would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
  3. Statutory guidance says councils must provide such education as soon as it is clear the child will be away from school for 15 days or more, whether consecutive or cumulative, and ensure minimal delay. The education must be ‘good quality’ allowing children to take appropriate qualifications and prevent them slipping behind their peers.
  4. The guidance is clear that the Council’s duty applies whether, or not, a child is on a school roll. Full-time is generally considered to be 22 to 25 hours per week (although one to one face to face tuition might be less as it is more concentrated).
  5. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance for local authorities on how to fulfil their responsibilities to children who, for whatever reason, do not attend school full-time. The Ombudsman takes the view that:
    • Where councils contract out alternative provision, they remain responsible for the quality of education provided.
    • Work sent home by schools to be completed at home (except in the first five days after an exclusion) is not the same as teaching and does not count towards full-time alternative provision.
    • Any hours of teaching provided by a school will count towards the full-time duty, but councils remain responsible for any shortfall.
  6. Government guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says:

“There will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority - for example, where the child can still attend school with some support; where the school has made arrangements to deliver suitable education outside of school for the child; or where arrangements have been made for the child to be educated in a hospital by an on-site hospital school. We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”

  1. So, the guidance recognises that schools can do a lot to support the education of children with health needs and in making sure the provision is as effective as possible. But councils should be ready to take responsibility for any child whose illness prevents them attending school for 15 days or more.
  2. In addition, the guidance states that:

“In order to better understand the needs of the child, and therefore choose the most appropriate provision, 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.”

  1. Councils must have a written, publicly accessible policy statement on their arrangements to comply with their legal duty towards children with additional health needs. There should also be a named officer responsible for the education of children with health needs and parents should know who that person is.

Autistic Spectrum Disorder

  1. Where there is a diagnosis of autism, the National Institute for Health and Care Excellence (NICE) guidance recommends health and social care professionals, working with children with autism, should receive training in autism awareness and skills in managing, which should include a range of factors. The management and coordination of care should be provided through local specialist community based multi-agency teams. There should be a case manager to co-ordinate treatment, care and support.
  2. Professionals should consider whether children and young people may have a coexisting mental health condition like Attention Deficient Hyperactivity Disorder (ADHD), anxiety disorders and phobias, mood disorders, Oppositional Defiant Disorder, Tourette syndrome, Obsessive Compulsive Disorder and self-harming behaviours.
  3. Pathological Avoidance Demand (PDA) can be a coexisting condition. The National Autistic Society describes it as a ‘behaviour profile within the autism spectrum’ and “those who present with this particular diagnostic profile are driven to avoid everyday demands and expectations to an extreme extent. This demand avoidant behaviour is rooted in an anxiety-based need to be in control”.

Kent County Council’s procedures for pupils with medical needs

  1. The Council has a Health Needs Education Service (KHNES) for pupils with health needs who are unable to attend school. The Service is funded by Kent County Council, it is managed by a Management Committee on behalf of Kent County Council, which comprises of representatives from Kent County Council, community representatives and senior leaders of schools.
  2. The purpose of KHNES is to provide educational support for pupils that are unable to attend their own school owing to health conditions. The primary need must be a health need. Recently the criteria specified that pupils must have an Individual Healthcare Plan (arranged by the school). Where there is a perceived mental health need, KHNES will consult the local health trust to ensure decisions about provision are appropriate
  3. Kent County Council issued a document, Autism Pathway For Children and Young People 0-17, in April 2017. This Pathway document explains that KHNES is not intended for young people with autism and ADHD, unless there is a secondary Anxiety Disorder caused by their autism.
  4. If a pupil has an EHC Plan, Kent County Council’s guidance says the case will be considered following the ‘same protocol as all cases based on individual situation’. If an additional health needs arises, an early review of the EHC Plan is recommended.
  5. Kent County Council also commissions its Education Programme Services to provide off-site tuition for pupils unable to attend school. It is for the Education Programme Service to decide how many hours tuition to provide, which normally takes place in a library, or at home. Schools have to pay for this provision where a child is on a school roll. The level of tuition is 1:1 and therefore is more concentrated.

Key facts

  1. Child B is a young teenager. Mrs X says that she is afflicted with severe anxiety and was diagnosed with Autistic Spectrum Disorder (ASD) in August 2013. Child B has always had problems in attending school and, to date, she has had a number of school placements.
  2. An Educational Psychologist (EP) assessed Child B in March/April 2017 and updated the assessment in September 2018. The EP assessed Child B’s anxiety as very high and noted the regulation of her emotions was poor. The EP considered that Child B had ASD with a profile of behaviours consistent with Pathological Demand Avoidance.
  3. The Council issued an Education, Health and Care Plan in May 2017 and a further Plan in March 2018. The Plan specified that Child B should attend a maintained special school with 1:1 support from a familiar consistent adult.
  4. Broadly, the Plans confirm that Child B has a diagnosis of ASD and presents with a sensory processing disorder coupled with fine and gross motor difficulties. She had a full dyslexic assessment in April 2017 which highlighted her areas of difficulties including visual stress.
  5. Child B also has a severe social communication disorder which affects her ability to interact successfully and to use language within a social context. She displays significant anxiety-related behaviour which limits her independent day-to-day functioning, including attending school and lessons within school. Child B requires support to understand and manage her emotions, particularly during transitions, including starting the school day and starting lessons after lunch. Child B requires support from adults experienced in working with pupils with significant anxiety and ASD difficulties.
  6. Child B was also diagnosed with ADHD in July 2017. Her Plan confirms that the ASD and ADHD diagnosis are health conditions which relate to Child B’s special educational needs.
  7. Child B was offered a place at a special maintained school. She started there in September 2018 for three days per week. But her anxiety was such that she was only able to attend for part of the day. Child B had not attended the school since 5 October 2018.
  8. The school called an emergency interim review meeting on 10 October. The school staff and parents attended. There was no one in attendance from the Council. The Council says that there is no requirement for it to attend all reviews and that close communication with schools is maintained so that consideration can be given for potential amendments to be made to an EHC Plan. The review was also arranged by the school at short notice.
  9. Mrs X says that, at the review meeting, it was agreed that the school would seek additional funding to provide one to one support. Mrs X says that she had to chase the Council for an update regarding whether there would be amendments made to the Plan.
  10. The Council says that the school delayed in sending it the review papers and these were not received until 8 November 2018. However, once received, the Council issued an amended draft EHC Plan within nine weeks after the review meeting. This was sent to Mrs X on 23 November. The final amended Plan was issued on 13 December 2018. It named the special maintained school as appropriate provision.
  11. The Council says the school has been proactive in its attempts to get Child B back to school. The school explained it had offered intensive support and also support from the Family Liaison Officer. The school says that this was refused by the parents.
  12. Mrs X says that they did not refuse the help. But the support offered by the school was to try to persuade Child B back without recognising the extent of her anxiety about school. And this approach went against previous professional advice.
  13. The Council says it did not receive medical evidence that Child B was unable to attend school because of medical needs until 2 January 2019. The Council then agreed additional funding to the school to support Child B.
  14. Mrs X says that they tried to obtain the medical evidence required, first from their local Child and Adolescent Mental Health Service (CAMHS), who told them knowledge of an appointment should be sufficient evidence for the Council. Their General Practitioner (GP) also delayed in confirming Child B was unfit to attend school until 2 January 2019.
  15. Child B was assessed by CAMHS in December 2018 and accepted on its ‘anxiety pathway’. But she remains on the waiting list and to date no treatment has been offered.
  16. Mrs X appealed the final Plan on 8 March 2019. The Tribunal appeal was postponed to September 2019.

Alternative provision

  1. Mrs X says that the Council has been aware, since 5 October 2018, that Child B has been too anxious to attend school. But it has offered no alternative provision and, in effect, Child B has been without alternative education.
  2. The Council says it was aware that the school was trying to provide alternative education for Child B.
  3. In response to the draft decision statement, the Council explained that it did not accept that it had a duty to provide all school non-attendees with educational provision pursuant to section 19. However, it accepted that for the period of November and December 2018, it was not reasonably practicable for Child B to attend school. Accordingly, the Council accepts it should have offered alternative educational provision and support in these circumstances.

Visit from the Police

  1. The Council says that the school referred Child B to the family liaison officer as a child missing from education. The Council is not able to explain why there was a visit from the Police.


Review process

  1. There were some administrative errors in the review process, which the Council has acknowledged. It appears that these were primarily as a result of the school not sending the review paperwork to the Council on time. But I am satisfied that the Council issued the amended EHC Plan within the timescale required. So, while there is some fault, I do not think it has caused an injustice which warrants a personal remedy. However, I will make a recommendation about the Council’s practice in the overseeing of the EHC Plan process.

Alternative provision

  1. I cannot see that the Council liaised with its local health Trust in respect of Child B’s medical needs. It is good practice for there to be joint working between these two agencies, who have joint responsibilities in assessing, managing and providing for a child’s special educational and health needs. So, as soon as a parent, or a school, raises questions and informs the Council that there may be medical reasons for a pupil’s non-school attendance, it is good practice for the Council, normally with the parents’ consent, to seek information from the local health Trust.
  2. The joint arrangements between the health authority and the Council is a matter which has been considered by Ofsted and the CQC recently, who found that there were significant weaknesses. The Council and the health authority have agreed, as part of another complaint before the Ombudsman, to develop joint working protocols regarding SEN and offer training to relevant Council and health staff on SEN legislation.
  3. Councils can take action against parents, and should do so, where there is no reason not to send their child to school. But, in cases where there are legitimate reasons, it is important that the Council, once aware that a child is out of school, considers its responsibility to ensure the child receives education.
  4. The Council can ask schools to make alternative provision, while a child is unable to attend. But failing that, the law is clear that, where a school does not make appropriate arrangements for a child, who is missing education through illness, the Council must intervene and make such arrangements itself.
  5. The Council was aware that the school’s efforts to ensure Child B’s return to school were not successful.
  6. I accept that not all school refusers will be entitled to section 19 alternative education. Each case will depend on the facts. However, in this case, I consider the Council should have stepped in to provide home tuition to Child B as from the start of November 2018. The education provided should have been in keeping with Child B’s EHC Plan. While the Council did not have medical evidence, at this stage, about Child B, I cannot see that the Council had asked the parents to provide this or approached the local health trust, with parents’ consent, seeking it.
  7. However, in view of Child B’s anxieties and difficulties, had the Council agreed to step in and provide alternative tuition, I accept that this may have been for short periods, so not to have overwhelmed Child B.
  8. Once the final Plan was issued, Mrs X’s appeal right arose. The Ombudsman’s jurisdiction, at this point, changes and he cannot consider Mrs X’s concerns about Child B’s situation, or about the contents of her EHC Plan, once she appealed.
  9. The Ombudsman has recently issued a report about the limits on his jurisdiction with regards to SEN complaints. However, up to the point of the completion of the Tribunal hearing, the Council should, as a matter of good practice, be providing the alternative provision in line with Child B’s EHC Plan.

Visit from the Police

  1. The Council has confirmed that it was not involved in this and therefore I cannot comment further. Mrs X can ask the school to clarify this and consider if she wishes to pursue a complaint against the school or the Police.

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Agreed actions

  1. The Ombudsman’s Guidance on Remedies recommends a payment of between £200 – £600 for each month of lost education, taking into account the seriousness and individual circumstances of the case. Our guidance on remedies states that the amount should be based on the impact on the child and take account of factors such as:
    • the child’s SEN;
    • any educational provision that was made during the period;
    • whether additional provision now can remedy some, or all of, the loss;
    • whether the period affected was a significant one in a child’s school career for example, the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
  2. It is difficult to assess what alternative education would have been best for Child B, after November 2018. I have to recognise that her anxieties are such that it may have limited what could realistically be provided to her. But I can say that there was a lost opportunity to make some provision and this has caused an injustice. I doubt, however, that extra tuition now, to make up for the loss of education, would work in Child B’s interests and therefore I consider a financial remedy is appropriate. It will be for Mrs X to decide how best to use this for Child B’s education.
  3. I consider a payment of £400 per month would be appropriate because Child B had no education during this period. Alternative provision should have been provided by the beginning of November through to December 2018, when the final Plan was issued. Therefore, I recommend a payment of £800 for Mrs X to use on her daughter’s education, to make up for the previous loss, as she sees fit.
  4. I also recommend a payment of £200 for Mrs X’s time and trouble in pursuing her concerns and for her avoidable distress.
  5. I recommend also that the Council writes to all its maintained special schools, reminding them of the importance of abiding by the timescales and procedures for completing annual reviews.
  6. These recommendations should be completed within two months of the date of the final statement.

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Final decision

  1. The Council has agreed to remedy the injustice caused by its fault in the way recommended. Therefore, I have completed the investigation and I am closing the complaint.

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Parts of the complaint that I did not investigate

  1. I have not considered the actions of the school or of the Police.

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Investigator's decision on behalf of the Ombudsman

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