Summary: Mrs X complains the Council has failed to ensure her son, Y receives a full-time education or the provision detailed in his Education, Health and Care plan, despite the fact he cannot attend school because of illness. She also complains it has not conducted a full Education, Health and Care needs assessment as Y has not been assessed by a speech and language therapist or an occupational therapist. The Ombudsman has found the Council at fault, and recommended it pay financial remedy to the family, and explore ways to provide effective alternative education.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council has failed to ensure her son, Y receives a full-time education or the provision detailed in his Education, Health and Care (EHC) plan, despite the fact he cannot attend school because of illness. She also complains it has not conducted a full EHC needs assessment as Y has not been assessed by a speech and language therapist or an occupational therapist.

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What I have investigated

2. I have investigated the level of education and provision received by Y and the length of time the Council took to conduct the EHC needs assessment. However, I am unable to investigate whether the Council sought the necessary information and input when conducting this assessment. My reasons for not investigating this part of the complaint can be found at the end of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

7. I have:
1. Read Mrs X’s complaint and discussed it with her.
2. Considered the Council’s comments about the complaint and the supporting documents it provided.
3. Obtained information from Y’s School to help me decide the complaint.
4. Provided both parties with an opportunity to comment on the draft decision.

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What I found

Alternative Education

8. Under Section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”.
9. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have.
10. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
11. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
1. Provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
2. Address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
3. Arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
12. The guidance says if a child receives one-to-one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
13. 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 we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
14. In the Focus Report, we made six recommendations based on examples of good practice we have seen. We said councils should:
1. Consider the individual circumstances of each case and be aware that, potentially, they may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
2. Consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
3. Choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
4. Keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
5. Adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
6. Put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

EHC needs assessments and plans

15. The Statutory Guidance in the Special Educational Needs and Disability (SEND) Code of Practice states:
1. An EHC needs assessment and the subsequent development of an EHC plan must be completed as soon as practicable. Local authorities should ensure they have planned sufficient time for each step of the process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales (paragraph 9.39);
2. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks (paragraph 9.40).
16. Local authorities have a duty to ensure the special educational provision set out in an EHC Plan is delivered.

The Council’s Medical Needs Service Policy

17. This Policy details the circumstances in which the Council will arrange alternative educational provision for children and young people with additional health needs. It states schools can make a “medical needs referral” to the Council when one of their pupils cannot attend classes because of health needs and will be absent for 15 days or more. The referral is made on a form and must be accompanied by medical evidence. If the Council accepts the referral, the Policy states it will schedule a planning meeting so suitable alternative provision can be arranged.

What happened

18. Y is 13 years old and has autism, Attention Deficit Hyperactivity Disorder (ADHD), and several other special educational needs. He was issued his first EHC plan in September 2016 whilst he was in primary school. The Council issued his second in May 2017, which stated that most of his provision and support would be delivered by staff within his school.
19. In September 2017, Y started attending School Z, a secondary school.
20. In November 2017, School Z completed the annual review paperwork for Y’s EHC plan. It did not recommend any new assessments or amendments to the plan.
21. In December 2017, Y was taken ill and was unable to attend school on a regular basis.
22. At the beginning of February 2018, School Z emailed the Council. It provided a copy of Y’s attendance record and highlighted he had only been present for five morning sessions since the Christmas break had ended. Likewise, it noted his overall attendance since September 2017 was approximately 59%.
23. In mid-March 2018, Mrs X and her husband attended a meeting with School Z to discuss their son’s education and his attendance.
24. At the beginning of August 2018, Mrs X wrote to the Council to request a new EHC needs assessment, or reassessment. She highlighted her son’s EHC plan was written when he was in primary school and said his needs had since changed, meaning the plan was no longer suitable.
25. At the beginning of September 2018, Mrs X complained to the Council that she had not received a response to her request for an EHC needs assessment.
26. Six days later, the Council wrote to Mrs X to acknowledge receipt of her complaint. It said the decision to assess Y would be made by the Children’s Services panel later that week, after it had considered the case. In a separate letter, it asked her for her views about the assessment process and what outcomes she was seeking.
27. A few days later, the panel sat and decided a new EHC needs assessment should take place. It stated input would be required from an educational psychologist, speech and language therapist, and the Council’s own Virtual School Sensory Support (VSSS) Team.
28. On the same day, the Council wrote to Mrs X to inform her of the panel’s decision. It said it would be seeking advice from specialists and professionals to inform the assessment and again invited her to provide her views. It also told her where she could seek advice, guidance and support from about the process.
29. At the end of the month, the Council emailed Mrs X and stated requests for advice had been submitted to an educational psychologist, speech and language therapist, and others.
30. In mid-October 2018, the Council exchanged several emails with Mrs X. It noted it had received responses to its requests for advice and the panel would decide in a few days whether a new EHC plan should be written. Mrs X questioned the extent of the advice that was sought and stated input was required from other professionals. Consequently, she asked that the panel hearing be postponed so the necessary advice could be sought. She also noted Y had been absent from school for most of year seven and eight. In response, the Council agreed to postpone the panel hearing. It also asked Mrs X to confirm which professionals were supporting Y and what other advice was required to inform the needs assessment.
31. At the beginning of November 2018, the hearing took place and the panel decided a new EHC plan would be written.
32. In the middle of the month, Mrs X emailed the Council and queried whether additional advice had been sought to inform the assessment. In response, it notified her the panel had decided a new EHC plan would be written. Consequently, it offered to meet with her to discuss the drafting of the plan. In response, Mrs X stated she wanted a full needs assessment completed and the additional advice sought. The Council stated it would consider the matter and later noted Mrs X had not responded to its request for clarification about which professionals she wanted it to contact.
33. Around the same time, School Z emailed the Council about Y’s attendance. It said Mrs X had provided details of her son’s medical conditions but not any information which explicitly stated why he could not attend school. It stated this meant there was no formal management plan in place to address Y’s low attendance and asked the Council for advice about how to handle the situation. It added it would consider arranging e-learning provision but did not have the resources to provide one-to-one support.
34. At the end of the month, Mrs X emailed the Council after it again tried to arrange a meeting to draft a new EHC plan. She reiterated a full needs assessment was yet to take place and said new advice was needed from an educational psychologist, speech and language therapist, and occupational therapist. She added there was no point in meeting to discuss the writing of a new EHC plan until this advice was sought.
35. At the beginning of December 2018, Mrs X wrote to the Council and said it had failed to adhere to the Special Educational Needs and Disability Regulations 2014. She stated it had not obtained advice from a speech and language therapist or occupational therapist. She also stated it had breached the timeframe for issuing a draft EHC plan.
36. In the middle of the month, the Council responded to Mrs X’s letter. It said Y was last assessed by a speech and language therapist in August 2017, who advised he did not require any specialist input. It added it did not have any evidence which suggested further advice was required from a speech and language therapist. Likewise, it stated there was no evidence that Y had any sensory needs which affected his learning and noted Mrs X had not confirmed which professionals were working with him, following its request in mid-October. However, it noted that updated advice had been sought from an educational psychologist and stated the EHC plan was in the process of being rewritten.
37. At the beginning of January 2019, Mrs X complained to the Council about these matters. She said it had failed to address the points she had made about the Council breaching the Special Educational Needs and Disability Regulations 2014. She again requested a full needs assessment and highlighted Y was receiving e-learning as he was unable to attend school “most days”.
38. At the beginning of February 2019, Mrs X’s MP wrote to the Council about the case. She noted Y had not attended school for 14 months and now had additional medical needs.
39. A few days later, the Council responded to Mrs X’s complaint. It reiterated the points it had made in its previous letter and noted Y’s attendance at school between September 2018 and January 2019 was under 33%. It stated it was content with the way the case had been handled and referred Mrs X to the Ombudsman if she remained dissatisfied.
40. In the middle of the month, School Z emailed the Council and asked if it would consider arranging a home tutor for Y. In response, the Council said it was unlikely home tuition would be provided because there was no evidence this was needed. It added the School would be responsible for arranging educational provision, as long as Y was on roll and did not meet the criteria for alternative provision as stipulated in its medical needs policy.
41. At the beginning of March 2019, Mrs X attended a meeting at School Z to discuss her son’s needs, his educational provision, and his EHC plan.
42. The following day, Mrs X wrote to the Council and requested that it escalate her complaint. In addition to the points she made previously, she highlighted the Council had a duty to ensure children were educated under Section 19 of the Education Act 1996. Similarly, she mentioned it was under a duty to ensure the provision in EHC plans were delivered. In her case, she stated Y was unable to attend school and said he needed one-to-one tuition, but she noted School Z was unable to fund this. Consequently, she requested that this tuition be provided and asked the Council to conduct a full needs assessment before issuing an amended EHC plan.
43. In the middle of the month, Mrs X notified the Council and School Z that her son had been diagnosed with clinical depression.
44. The following day, the Council responded to Mrs X’s escalated complaint. It said tuition could be provided by School Z, which should deal with any issues about this matter. Regarding the EHC needs assessment, it reiterated it would not be requesting any further advice and stated it would be issuing a draft EHC plan. It added this would enable her to appeal to the SEND Tribunal.
45. At the end of the month, School Z wrote to the Council following the meeting it had with Mrs X at the beginning of the month. It referred to Y’s low attendance and said his GP was unable to declare him unfit to attend school, meaning it could not make a request for alternative provision under the Council’s medical needs policy. Nevertheless, it highlighted Y was struggling to access some e-learning provision it had put in place and asked the Council to consider Mrs X’s request for home tuition, as it was unable to provide this using its resources.
46. At the beginning of April 2019, Mrs X complained to the Ombudsman about these matters.
47. In the middle of the month, the Council issued the draft EHC plan.
48. At the end of the month, the Council exchanged several emails with Mrs X about Y’s medical conditions and her request for a home tutor. It stated it would need medical evidence showing that Y could not attend school, if it were to arrange alternative provision. Consequently, it asked Mrs X to provide this evidence.
49. At the beginning of May 2019, Mrs X sent the Council and School Z a copy of a letter from Y’s paediatrician stating he had chronic fatigue syndrome.
50. In mid-June 2019, the Council issued Y his final amended EHC plan which noted his diagnosis of chronic fatigue syndrome. In the plan, it said he:

“… may require additional time to complete formal education and reach his potential given the amount of absence recorded over the last two academic years. However, this should be monitored in line with increased attendance and developmental needs.”

51. In her complaint to the Ombudsman, Mrs X says Y has not obtained the educational provision he needs because of the Council’s failures and has missed approximately 17 months of education. She states she has spent a lot of time and effort trying to rectify these matters and has been inconvenienced and stressed when doing so.
52. To remedy the situation, she wants the Council to arrange full-time, home tuition for Y and provide dyslexia-related technology that will allow him to access online learning through his school.

Analysis

53. The first part of the complaint is about whether the Council fulfilled its duty under Section 19 of the Education Act 1996 and ensured Y received a suitable full-time education. We have reviewed his attendance records and note he stopped attending school regularly from mid-November 2017. During the school year 2017/18, he was present 38.6% of the time and his unauthorised absence totalled 33.2%. His level of authorised absence was 28.2% and he was marked as ill for 22.3% of the time. During the school year 2018/19, his attendance dropped further when he was present just 16.9% of the time. His authorised absence rate was 83.1% and was almost exclusively attributed to illness. Little has changed at the start of the most recent school year and Y’s attendance continues to be very low.
54. The evidence shows the Council first became aware of Y’s low attendance in February 2018 when School Z highlighted he had been absent for a large part of the new year. Mrs X raised the issue again with the Council in October 2018 when she noted Y had been absent from school for most of years seven and eight. Similarly, she, School Z and her MP contacted the Council about the matter on several other occasions between November 2018 and March 2019. However, despite acknowledging Y’s low attendance it did nothing to address the issue or assure itself he was receiving a suitable full-time education, as per its Section 19 duty.
55. At the end of October 2018, we issued two public reports finding fault with the Council for not arranging suitable full-time education in two other cases. In one of these reports, we wrote:

“In response to our enquiries the Council has demonstrated that its understanding of its duties is that as long as the child is on a school roll, the Council is under no duty to provide alternative education unless the child is out of school for medical reasons. This is not our view and nor is it the law. The duty may arise in situations where the child is out of school for other reasons as well…”

56. In this case, the Council appears to have adopted a similar approach. In February 2019, it stated School Z would be responsible for arranging provision, as long as Y was on roll and did not meet the criteria for alternative provision as stipulated in its medical needs policy. This policy states:

“Schools can make a Medical Needs Referral for a child who cannot attend school because of health needs where they will be away from school for 15 days or more, whether consecutive or cumulative.”

57. Although the Council adhered to its policy, it did not act to address Y’s low attendance. As noted at paragraph 17, we expect councils to consider the individual circumstances of each case and consult the relevant professionals before deciding whether to provide alternative education or enforce attendance. In Y’s case, the Council did not do this. It did not investigate the reasons behind his low attendance, nor did it consult any of the medical professionals he was under the care of. Likewise, it failed to consider whether School Z had put any alternative provision in place and whether Y was receiving a suitable full-time education. Therefore, it was at fault.
58. The second part of the complaint is about the length of time the Council took to carry out the EHC needs assessment and issue Y’s EHC plan. Mrs X requested a new assessment at the beginning of August 2018 and the Council issued the final plan in mid-June 2019. This means it took approximately 46 weeks to complete the process, even though the SEND Code of Practice stipulates this must not take any longer than 20 weeks. We understand Mrs X was not happy with the way the Council was conducting the assessment, but this should not have prevented it from issuing the EHC plan in the statutory timeframe. Consequently, we have also found it was at fault for taking too long to complete the EHC needs assessment and issue Y his EHC plan.

Injustice

59. We are concerned about the amount of education that Y has missed over the past couple of years and the fact this matter is yet to be resolved. The Council became aware of the issue in February 2018 and since this time, Y has been absent from school for a total period approximating 50 weeks. School Z tried to implement some self-directed e-learning to mitigate the impact of his absences but the level of provision he received was far from the full-time education required by the legislation and statutory guidance.
60. In these circumstances, the Council should have acted and arranged alternative provision. Y’s attendance records clearly show a high and increasing level of authorised absences and provide evidence of frequent medical issues. Moreover, his diagnoses of depression in March 2019 and chronic fatigue syndrome in May 2019 provided further evidence why he was unable to attend school. We understand the Council wanted some form of written evidence from a consultant or other medical professional explicitly stating why Y could not attend. However, the statutory guidance on this matter says:

“Where they have identified that alternative provision is required, LAs should ensure that it is arranged as quickly as possible and that it appropriately meets the needs of the child. 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. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.”

61. In this case, the Council was aware of Y’s diagnoses and the fact that he was waiting to see a specialist in the Chronic Fatigue Service. Therefore, it should have put some form of provision in place and ensured he received a full-time education or a suitable equivalent. It still has not done this and wrote in Y’s recent EHC plan that he “may require additional time to complete formal education and reach his potential given the amount of absence recorded over the last two academic years”. This is unacceptable and provides evidence that the injustice caused by the Council's faults is significant. This is further supported by the fact that Y has SEN and has missed a key stage of his education following his transfer from primary school.
62. Consequently, action needs to be taken now to remedy this injustice and ensure Y gets the education that he needs. Our Guidance on Remedies says we can recommend that a local authority makes a financial payment to a complainant in recognition of lost educational provision. It states the figure recommended should be between £200 and £600 per month of lost education, depending on a number of factors. In this case, we recommend the Council makes a payment of £400 per month for the approximate 12 months of provision that was lost. This equates to a total payment of £4,800. Our recommendation is above the minimum payment on the scale to reflect the significance of the injustice that Y was caused, most particularly the fact that he received no alternative provision during this period and lost the opportunity to form social bonds following his transfer to secondary education. However, we acknowledge there were limits on the amount of education that he could receive because of his illness, therefore a payment at the higher end of the scale is not warranted. The £4,800 should be used to benefit Y’s education and be over and above that used to provide any ongoing, day-to-day support that he is currently receiving.
63. It is clear the Council’s faults also caused Mrs X injustice. Her efforts to secure her son alternative provision have not been addressed properly and this has caused her frustration and inconvenience as she has sought to rectify the matter. In addition, the fact that Y has not obtained the provision he needs have caused her considerable stress. Moreover, the Council’s delay in completing the EHC needs assessment and issuing the EHC plan prevented her from appealing to the SEND Tribunal sooner.
64. Our Guidance on Remedies says we can also recommend payments for distress, which includes inconvenience, frustration and stress. Therefore, given the prolonged nature of her distress, we recommend the Council pays Mrs X £500 to remedy the injustice it caused her.
65. In response to a draft copy of this statement, the Council has confirmed that it will offer a financial remedy. It has also explained that it is arranging occupational therapy and speech and language assessments following requests from the parents. Additionally, it has organised meetings between health professional, the SEN team, and Y’s school to discuss Y’s educational provision.

Agreed action

66. The Council has agreed to:

• allocate £4,800 of funding to be used to benefit Y’s education. It should consult him and his parents before deciding how this money should be spent. Importantly, this funding must be over and above that used to provide any ongoing, day-to-day support that Y is currently receiving.
• pay Mrs X £500 to remedy the distress it caused her.

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Final decision

67. I have decided there is evidence of fault which has caused an injustice. The Council has agreed to take appropriate action to put things right.

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Parts of the complaint that I did not investigate

68. As noted at the beginning of this statement, I did not investigate the part of Mrs X’s complaint about whether the Council sought the necessary information and input when conducting the EHC needs assessment.
69. In essence, this part of her complaint is about the Council not identifying the true extent of Y’s needs by conducting a full assessment and seeking input from a speech and language therapist or occupational therapist. The SEN Code of Practice states parents can appeal to the SEND Tribunal if they disagree with the description of their child’s needs in their EHC plan. In this case, the Council issued Y’s EHC plan in mid-June 2019 meaning Mrs X could have submitted an appeal to the Tribunal about this matter. Moreover, it has the power to direct that new assessments take place therefore it was able to provide the outcome that she desired.
70. Consequently, I did not investigate this part of her complaint as the law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a tribunal. I have found no reason why she could not appeal to the SEND Tribunal therefore I cannot investigate this part of her complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman