The Ombudsman's final decision:
Summary: The complainant says that the Council delayed in completing her daughter’s Education, Health and Care Plan, failed to tell her that an independent special school had offered her daughter a place and delayed in providing alternative educational provision. The Ombudsman finds that the Council has been at fault on all three complaints and this has caused an injustice. The Council has accepted the findings and recommendations. The Ombudsman has therefore completed his investigation and is closing the complaint.
- The complainant, who I refer to as Mrs X, complains that the Council delayed in completing her daughter’s (Child B’s) Education, Health and Care (EHC) Plan (first requested on 6 November 2017), failed to tell her that an independent school (School G) had offered her daughter a place on 24 May 2018 and that the home tuition was not started promptly and consisted only of 4.5 hours initially per week.
What I have investigated
- I have investigated only the Council’s actions. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
The Ombudsman’s role and powers
- 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)
- The SEND Tribunal deals with disputes about assessments and provision for special educational needs. This means the Ombudsman cannot normally look at a council’s decision not to carry out an assessment or provide an EHC Plan. Once the SEND Tribunal has made an order to amend an EHC Plan, the council must do so within five weeks.
- The Ombudsman cannot investigate a complaint if someone has appealed to a SEND Tribunal (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’)).
- 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)
How I considered this complaint
- I have obtained written information from the complainant and from the Council.
- I issued a draft decision statement, sent to both the Council and to the complainant. I have taken into account their additional comments when reaching my final decision.
- 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.
What I found
- 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.
- 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
- The Children and Families Act 2014 says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
- Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care (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 its behalf but the duty to make sure it is in place remains with the council. The child’s needs and provision should be set out in the EHC Plan.
- 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.
- When consulting professionals about a child’s SEN, they should provide information to the council within six weeks of the request. When consulting schools to see if they have a vacancy and may be an appropriate school placement for a child, schools have 15 calendar days to give a council its decision on whether it will admit the child.
Children out of school because of medical needs
- 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”.
- 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.
- 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.
- 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). The guidance says councils must intervene after a child has been without education for 15 days and must provide a minimum of five hours teaching a week.
- The guidance says that councils should not withhold or reduce the provision for a child because of how much it will cost.
- The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance for councils 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.
“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.”
- 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.
- In addition, the guidance states that:
“In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs (councils) 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.”
- 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
- 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.
- Professionals should consider whether children and young people may have a coexisting 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.
- Pathological Demand Avoidance (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”.
- The Council says that its local Health Trust does not recognise PDA as a diagnosis.
Kent County Council’s procedures for pupils with medical needs
- There is a Kent 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.
- 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 its local Health Trust to ensure decisions about provision are appropriate
- 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.
- 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 need arises, an early review of the EHC Plan is recommended.
- There are six education Hubs in Kent County Council’s area, which provide education for those medically unfit to attend school and also they will design a re-integration plan to support pupils back into school.
- 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. The Council says that 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.
What I found
- In 2017/2018 Child B was attending her local primary school. On 6 November 2017, Mrs X requested a statutory assessment of Child B’s special educational needs (SEN). The Council agreed to undertake this.
- Mrs X says that, by February 2018, due to Child B’s high anxieties, she wrote to the Council’s Educational Welfare Officers explaining her daughter’s related anxiety and that they had an appointment with a Clinical Psychologist in April. Mrs X says that the Council was told of Child B’s school anxiety. However, Mrs X says that the Council did not offer alternative educational provision at this point. Child B did not attend her primary school, after February 2018, because she was too anxious to do so.
- In April 2018, the Clinical Psychologist confirmed that Child B had significant anxiety about a number of issues, including attending school.
- On 24 May 2018, as part of the SEN assessment, the Council wrote to four schools seeking a placement for Child B. The letters were marked ‘Urgent’ and the schools told that they should respond within 15 calendar days from the date of the letter. This is the statutory timescale for schools to decide whether it will admit a child with special educational needs. Two schools indicated quite quickly that they could not manage Child B’s needs.
- The third school (School G), an independent special school, which Mrs X says the Council encouraged them to visit, was also consulted. School G contacted the Council on 24 May indicating it had a vacancy and that the school would be appropriate for Child B. The Council did not tell Mrs X this, so she was unaware of a possible placement for her daughter at School G.
- On 20 June, Mrs X’s husband visited School G and was told that it had a vacancy, that Child B was suitable for the school but that it was a ‘race’ between Child B and another child, who had also been offered a place at School G. School G told Mrs X’s husband that Child B was a ‘better’ fit for the school rather than the other child.
- On 21 June, the Council chased up a response from the special maintained school, School H. Mrs X also contacted School H but was only able to speak to the receptionist rather than to the Deputy Head who made the decisions about admissions. Mrs X also left a message for the Council’s caseworker and followed this up with an email, the next day, explaining that School G seemed appropriate.
- On 26 June, Mrs X learnt from School G that it had allocated the place to the other child and there was no possibility of a place becoming available in September 2018. Mrs X also says that School G had spoken to the Council before offering the place to the other child. So, the Council knew that it had to act quickly to secure a place for Child B at School G. But the Council took a risk in that it had no idea whether School H would offer Child B a place.
- Mrs X finally spoke to the Deputy Head of School H, who explained that it needed to consider Child B’s papers. On 2 July, staff from School H visited Mrs X and subsequently told the Council that it would not be able to admit Child B. This was over five weeks after the Council had contacted School H seeking a placement.
- Mrs X raised concerns with the Council. In a letter dated 9 August, the Council told Mrs X that it had no legal obligation to inform her of School G’s decision and that there was no attempt to deliberately withhold information.
- The Council explained, in its letter, that it had to wait for the response from School H because it is preferable to have decisions from maintained specialist provision before the Council agrees to independent provision. The Council stated that it had made ‘repeated’ attempts to obtain a decision from School H and also there was no legal obligation for schools to respond within 15 days. There had, though, only been one attempt to chase up School H and that was on 21 June.
- The Council also indicated that School G may not have been an appropriate placement. But Mrs X says that this is conjecture and contradicts School G’s assessment that Child B would be well suited to the school.
- On 15 August 2018, the Council used its Dynamic Purchasing referral scheme, whereby an anonymised copy of Child B’s EHC Plan is sent out county wide to schools which have signed up to the scheme. No school expressed an interest.
- Between September 2018 and April 2019, the Council approached another independent school, but it did not respond until April 2019. However, by this stage Mrs X had found another possible school (School J) and, in April 2019, the Council agreed a placement for Child B at this school. Child B had some taster days and started there properly on 4 June 2019.
- While not part of Mrs X’s original complaint, Mrs X is concerned about the long drawn out process by the Council in consulting possible schools. This meant that decisions from schools about whether they could offer Child B a placement were delayed.
- Mrs X requested an assessment of Child B’s special educational needs on 6 November 2017. The Council agreed to do this and subsequently agreed to issue an EHC Plan. This should have been issued by 26 March 2018, but the draft was issued on 24 May 2018 and the final Plan on 18 September 2018.
- In June 2018, Mrs X complained about the length of time it was taking the Council to complete Child B’s final EHC Plan. The Council says this delay was caused by the late submission of the Educational Psychologist’s report. Nonetheless it was a delay beyond the statutory time limit for issuing final EHC Plans.
- Child B’s EHC Plan confirms she has a diagnosis of autism, which was identified when Child B was in her first year at primary school. Subsequently, Mrs X says that Child B was diagnosed as fitting the Pathological Demand Avoidance (PDA) profile. The Council say that this was not confirmed as a separate diagnosis, but Child B’s behaviour was as a result of the rigidity of autism and that she had extreme oppositional demand avoidant behaviour.
- The description of Child B’s special educational needs in her final EHC Plan demonstrates her significant difficulties in communication and integration with her classmates and that she has high levels of anxiety which prevent learning. The Plan states teachers should be aware of the different strategies required for a ‘demand avoidant profile’ of autism.
- In Section I of Child B’s EHC Plan, the Council confirmed that she should attend a special school for pupils with ASD and that, while the Council was looking for an appropriate school, Child B would receive individual tuition. No health or social care provision was recommended.
- On 13 August 2018, the Council made a referral to its Education Programme Team. During the period of February and September 2018, Child B remained on the roll of her primary school. Mrs X says that the school provided no schoolwork for Child B, even though Mrs X had offered to collect work from the school.
- Mrs X says that it was clear to the Council, from February 2018, that Child B was not attending school. Mrs X emailed the Education Welfare Office on 19 February and received responses. The Education Welfare Officers expressed no concern regarding Child B being out of school. Mrs X also reported Child B’s absences to the primary school on a daily, then weekly, basis.
- The referral form to the Education Programme Team stated it should provide tuition for up to 12 weeks. After this, the SEN department would be charged £50 per hour from the 13th week of tuition.
- The Education Programme Team visited Child B on 7 September 2018. Individual tuition started on 11 September for 4.5 hours per week. The Council says that the number of hours was determined by Child B’s EHC Plan.
- Mrs X says that she was told the hours could not be increased. She was also concerned that Child B was not accessing other subjects, like history, geography, science and music. The tuition concentrated on literacy and maths. There was some help with communication skills but Mrs X considers that this was not at the level specified in the Plan.
- In January 2019, the tuition hours were increased to six hours as from 24 January 2019. Mrs X had explored the possibility of switching to an independent tuition provider. But the tutor provided by the Council related well to Child B and she felt that it was important to maintain this relationship. However, Mrs X says that they would have considered accepting some further teaching from another provider had this been offered. Child B’s tutoring sessions ended on 24 May 2019.
Mrs X’s claimed injustice caused by the Council’s faults
- Mrs X says that, given Child B was at home from February 2018, her husband resigned from his full-time employment to work part-time at a lower level so that they could share the childcare and the task of managing the EHC process and looking at schools.
- Mrs X also had to resign from a volunteering job and has been unable to have paid employment while Child B was not attending school between 18 February 2018 to 18 April 2019. Mrs X says that their lives have been put on hold sorting out the long-term plans for Child B and caring for her at home.
Complaint (a) EHC Plans
- The Council has accepted that there was a delay in issuing the final EHC Plan for Child B over the statutory time limit of 20 weeks. It has apologised to Mrs X for this and offered her £500 for the delay in completing the process.
- The Council has explained that there has been a significant increase in requests for an EHC Plan, which has created huge demands on the Council’s time and resources. The Council also tries to issue EHC Plans in cooperation with parents on the basis that this might reduce the need for them to appeal.
- While recognising the increase in demand, the Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. Co-production of final Plans can also still take place, but councils need to ensure that meetings or discussion with parents are managed and arranged within the statutory 20 weeks timeframe to issue final Plans.
- This also means the Council should ensure other professionals, and schools, are aware of the importance of meeting their timescales for providing the Council with reports and decisions regarding school placement. Delays by other professionals or agencies creates difficulties for the Council to meet its statutory responsibilities.
- I find fault by the Council in that it significantly delayed in issuing Child B’s final Plan, taking approximately 24 weeks over the statutory timescale to issue this.
- To try to prevent a reoccurrence of the faults in this case, the Council says that it is considering introducing a scheme whereby, if a maintained school does not respond within 15 calendar days, the Council will conclude that the school is willing to make adjustments and it will name the school in the final EHC Plan. It is likely that, if the Council warns schools that this might be the outcome, this will trigger a prompt decision from schools.
- Parents can only appeal to the SEND Tribunal about educational provision, or other matters in relation to an EHC Plan, once they have received a final Plan. Therefore, a delay in issuing a final Plan means a delay in parents being able to appeal to the SEND Tribunal in a timely manner. Appeals are one of the best ways for parents to challenge the Council about educational provision for their child, and therefore a delay in enabling appeals to take place, is an injustice in itself.
- Had the Council issued the final EHC Plan for Child B within the 20 week timeframe, say by 26 March 2018, it would also have had to ensure reports and school consultations were carried out in that timeframe.
- I cannot say whether Mrs X would have considered it necessary to appeal Child B’s EHC Plan, either in respect of its content or named provision. But Child B would have had the protection afforded by a final Plan.
Complaint (b): School G offer of a place
- School G responded on the day it was consulted, 24 May 2018. It said that it had a vacancy and that it was confident it could meet Child B’s needs. The Council did not tell Mrs X of this positive response.
- The Council says that it could not accept this placement, in any event, without first exploring the option of a place at the maintained school, School H. I accept that the Council has to consider issues involving the public purse. But those considerations should not prevent the Council from telling parents of a possible place at an independent school.
- The Council says it had no legal duty to tell Mrs X that School G thought it was a suitable school for Child B. That may be the case. But it was significant information and Mrs X could have been told of the possible place there for Child B, while at the same time the Council chased up a response from the maintained school, School H.
- I therefore can see no reason why the Council did not tell Mrs X of the available place at School G and therefore I find the Council was at fault. At this stage, School G was the only school which had been willing to admit Child B. In all likelihood, Mrs X would have asked the Council to name this school in Child B’s final EHC Plan had she been aware of the vacancy.
Complaint (c): Alternative educational provision
- I cannot see that the Council liaised with its local Health Trust or Mrs X’s GP in respect of Child B’s medical needs. It is good practice for there to be joint working between health and the Council because they 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 or the child’s GP.
- 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 Health Trust will need to respond to the criticisms raised by Ofsted and the CQC.
- The Council and the health authority have also agreed, as part of another complaint before the Ombudsman, to develop joint SEN working protocols and offer training to relevant Council and health staff.
- It is hoped that these actions will improve the SEN joint working practices.
- 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. Alternatively, if the Council considers the parent is simply failing to send their child to school, it should take prompt action, including legal action if necessary, to ensure attendance.
- The Council may expect schools to make provision or delegate funds to schools to arrange provision, but the Council cannot delegate the statutory duty to ensure a child receives education. The law is clear that, where a school does not make appropriate arrangements for a child, who is missing education through illness, or other reasons, the Council must intervene and make such arrangements itself.
- The Council was aware that Child B was not attending her primary school as from 18 February 2018. Mrs X asked the school to provide Child B with some work. But it appears it did not.
- My view is that, after 15 school days, the Council should have stepped in to provide Child B with alternative provision. So, by the beginning of March 2018, Child B should have been receiving some alternative education. This means that for the last month of the winter term 2018, and the whole of the summer term 2018, Child B received no education.
- The Council did provide education as from 11 September 2018 and the tutor had a good relationship with Child B. But I am concerned at how the Council determined the number of hours Child B should receive. It seems arbitrary and, although the Council says it was based on Child B’s draft EHC Plan, there is no evidence to support this claim.
- Moreover, the education provision for Child B consisted of literacy and maths and some communication skills training. But not to the level specified in the Plan. Yet there is a requirement for alternative provision to be on par with what other pupils, of the same age, would be receiving at school, and for it to be in accordance with an EHC Plan.
- In late January 2019, the home tuition hours were increased to six hours, but again there is not a clear rationale for this number of hours.
- Accordingly, I find fault by the Council in its delay in providing alternative educational provision for Child B and in its content.
- The Ombudsman normally recommends symbolic payments for avoidable distress and frustration caused to complainants, ranging from £300 to £1,000.
- There are three areas where an injustice has been caused by the Council’s faults: injustice caused by the Council’s delays in issuing a final EHC Plan, the injustice caused by the Council’s failure to tell Mrs X about a possible place at School G and the injustice caused by the delay, and inadequate content, of the alternative educational provision for Child B.
- The Council has offered £500 to Mrs X for its delay in the EHC process. The Ombudsman has to consider whether that constitutes an appropriate remedy. My view is that this is sufficient for the avoidable frustration and time and trouble caused to Mrs X and her husband by the delay.
- In respect of the failure to tell Mrs X of the possible placement at School G, Mrs X considers that, but for this fault, Child B could have started at School G in the summer term of 2018, or in September 2018. I am mindful that Mrs X and her husband had to make alterations to their work arrangements to accommodate Child B being at home. So, in view of the disruption to Mrs X and her husband’s employment, and the loss of a possible school placement, which would have resolved the situation for Child B and her parents, this is quite a significant lost opportunity. So, I recommend a payment at the higher end of the Ombudsman’s recommendations and that the Council should pay £1000 for the complainants’ avoidable inconvenience and lost opportunity in respect of this complaint.
- In respect of the loss of education for Child B, the Ombudsman’s Guidance on Remedies recommends a payment of between £200 – £600 for each month of a child’s lost education, taking into account the seriousness and individual circumstances of the case. Our guidance 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.
- In respect of home tuition, the Council has already agreed to carry out an audit of pupils currently receiving home education (in respect of another complaint) to ensure the tuition meets requirements as set out in the guidance.
- In addition, the Council has agreed to:
- require its Education Programme Team to provide a written rationale for the hours it offers to children out of school, showing how it has met the child’s EHC Plan, if there is one, and also how the tuition covers the full range of subjects, unless there is a good reason not to;
- write to all schools to remind them of its expectation that they will provide initially suitable education for children on the school roll, but who are not attending school;
- in respect of EHC Plans, the Council recognises that it should find ways to ensure compliance with the 20 week timeframe. The Council is now considering two possible significant procedural changes, which should help it achieve compliance with timescales;
- the Council is also developing its joint working protocols to ensure that it seeks information when it is told a child is not attending school;
- the Council is also developing a process whereby there will be dedicated teams to ensure compliance from other professionals to enable EHC Plans to be completed in the required timescale. This should include ways of ensuring advice is provided promptly;
- the Council will report back to the Ombudsman about progress on these above matters within two months of the date of the final statement, along with making the required payments.
- The Council has accepted the findings and recommendations. It is seeking ways to improve its performance to meet the requirements of the SEN legislation. I am satisfied that the Council has resolved the complaint.
- I have therefore completed my investigation and I am closing the complaint.
Investigator's decision on behalf of the Ombudsman