Summary: Mrs X complains the Council has failed to provide education and SEN provision to her son Y, resulting in Y missing out and causing her stress. The Ombudsman finds the Council at fault and recommends it provides an apology, payment for loss of education, payment for uncertainty and distress and, acts to minimise the risk of recurrence.

The complaint

1. Mrs X complains the Council has failed to ensure her son, Y, has received suitable education and SEN provision since March 2017, causing Y to miss out. Mrs X says she has also struggled without any respite.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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.
8. 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

9. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

10. An Education, Health and Care Plan (“EHCP”) is a legal document that describes a child’s special educational, health and social care needs. It explains the extra help that will be given to meet those needs.
11. The SEND Code of Practice, issued by the Department for Education, provides statutory guidance for councils.
12. Councils must review an EHCP at least every 12 months.
13. Within 2 weeks of the meeting the school must provide a report setting out any recommended amendments to the EHCP to the council.
14. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
15. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
16. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
17. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
18. Where the council does not agree the suggested changes it may still issue the final EHCP.
19. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Right to Education

20. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full time education at school or otherwise. A failure to meet this duty on the parent’s part is an offence under Section 444.
21. Sections 436 to 447 cover councils’ duties and powers under the Act.
22. Section 436 of the Act says councils must identify children not receiving an education.
23. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (“SAO”) where parents fail to satisfy them.
24. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
25. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them. This duty applies to all children, whether or not they are on the roll of a school, and whatever type of school they attend.
26. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
27. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
28. Where a council maintains an EHCP then, unless a child’s parent has made suitable arrangements, the council must also arrange the special educational provision specified in the EHCP.
29. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council 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;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Home-educated children with SEN

30. Under Section 7 of the Education Act 1996 parents have the right to educate children, including children with SEN, at home.
31. In cases where councils and parents agree home education is the right provision for a child with an EHCP, the plan should make clear the child will be educated at home. If it does then the council, under Section 42(2) of the Children and Families Act 2014, must arrange the special educational provision set out in the plan, working with the parents.
32. In cases where the EHCP gives the name of a school or type of school and the parents decide to educate at home, the council is not under a duty to make the special educational provision set out in the plan if it is satisfied the parents’ arrangements are suitable.

Personal budgets

33. The child’s parent or the young person has a right to request a Personal Budget to secure the provision agreed in the EHCP. If the council refuses a request, it must set out reasons in writing and inform the child’s parent of their right to request a formal review of the decision.

What happened

34. Mrs X’s son, Y, started in Reception at a mainstream primary school on a part time basis in September 2015.
35. The Council issued Y’s first EHCP in January 2017. This named the type of provision only, as mainstream education. The Council said it would continue to work with Mrs X to find an appropriate placement.
36. I note Y’s EHCP sets out how Y’s needs can be supported within the school. It does not provide for any additional therapies.
37. The Council held a meeting with Mrs X at the end of January to consider Y’s provision. The Council’s records show both Mrs X and the school felt the school was not suitable for Y. Mrs X asked the Council for a personal budget to support Y outside of school. She wished for him to attend Forest School and have hydrotherapy.
38. The Council says Mrs X asked for an update on her request for a personal budget, in February 2017.
39. On 15 March Mrs X told the Council she planned to withdraw Y from school to home educate him. The Council asked her to put her request for a personal budget in writing and provide further details of the services sought and costings. I have not seen any evidence to suggest Mrs X then did so.
40. The Council says it was informed Mrs X would home educate Y in May 2017. It then asked Mrs X for details of her home education programme to ensure it was suitable before it updated Y’s EHCP. However, Mrs X explained she was only home educating Y due to lack of alternatives.
41. The Council considered a referral to GROW, an alternative education provider, with tuition in the meantime.
42. The Council arranged tuition within the community to start from the end of June. Its records show this was for one hour per day, three times per week, with a view to increasing these hours. However, Mrs X says Y attended only one hour per week.
43. From September 2017 Y attended GROW alternative provision for 1.5 hours per day. The Council says Mrs X agreed for Y to start on reduced hours as he was nervous about attending.
44. On 20 November 2017 Mrs X told the Council she was withdrawing Y from GROW as she felt it was unsuitable for him. The Council says Y did not return to GROW for the rest of the term but GROW sent work home on several occasions.
45. The Council reviewed Y’s EHCP in January 2018. During the review meeting, on 16 January, Mrs X said Y would not return to GROW. She asked the Council to consult with School A and to provide tuition in the interim.
46. In February the Council told Mrs X it intended to amend Y’s EHCP. It consulted with School A and other schools.
47. In March the Council offered Mrs X home tuition for Y in the interim. It says Mrs X refused this as she wanted tuition in the community, but the Council felt this was too high risk in terms of managing Y’s needs and keeping him safe.
48. I note the Council has provided copies of internal emails which show Mrs X refused tuition as she was hopeful the Council would soon secure a place at School A for Y. Mrs X explained she would accept tuition if the placement could not start until September.
49. In March School A said it could not meet Y’s needs.
50. The Council wrote to Mrs X on 20 March. It explained School A had refused to accept Y. It said home tuition was agreed and it expected her to be in contact with the relevant agency to arrange this. It also enclosed a draft amended EHCP and asked Mrs X to name her preferred school and return the forms by 4 April.
51. Mrs X returned the form on 2 April to say she did not agree with the amendments and wanted a meeting with the Council. She explained there were no schools that could meet Y’s needs and she wanted a personal budget to provide a tailored programme for Y. She also enclosed her plans for this programme. I note Mrs X did not confirm if she had arranged home tuition for Y.
52. The Council met with Mrs X at the end of April. It agreed to consider her request for a personal budget and contact another school.
53. The Council consulted with schools but found none could meet Y’s needs.
54. The Council has provided its notes of a phone call with Mrs X in early June. The Council suggested a residential school, School B for Y but says Mrs X did not want Y to attend a residential placement. Mrs X also told the Council Y was unable to attend school currently due to anxiety. The Council says it asked Mrs X for evidence of this but such was not provided.
55. At the end of June Mrs X contacted the Council as it had still not issued a final EHCP and she remained unhappy with the contents of the draft. She said the Council had a duty to ensure Y received education through school or direct payments.
56. The Council apologised for the delay and explained it was following up an apparent discrepancy in the reports provided towards the EHCP. It also confirmed it was still investigating provision.
57. Mrs X pointed out Y had been out of education for eight months.
58. The Council told Mrs X it would refer the case to its Complex Case Forum to consider other options for education.
59. On 18 July Mrs X formally complained the Council had not yet finalised Y’s EHCP. Y had been out of school so long she felt he would not return and the only option was to agree direct payments for a flexible education programme.
60. On 19 July the Council contacted an alternative education provider, but they were unable to take Y.
61. On 25 July Mrs X’s MP asked the Council to look into her concerns and enclosed correspondence from her. In summary, this said:
• Y had been out of school for 8 months due to the lack of suitable provision and slow EHCP process.
• The Council had not found a school place or offered tuition in the interim.
• The Council had only suggested a residential placement that Mrs X did not want.
• Mrs X was trying to meet Y’s needs at home but could not afford his therapy.
• She was unhappy with Y’s EHCP, which was too vague to provide support.
• The Council’s social care department was unable to offer any additional help.
• No-one would refer Y for an assessment of his learning disability.
62. The Council responded on 2 August. In summary, it explained:
• Mrs X took Y out of school to home educate him in early 2017 but in May 2017 asked the Council to arrange educational provision.
• It offered tuition but Mrs X declined.
• Y started attending GROW from September 2017. The Council felt this met all Y’s needs however the placement broke down and Y stopped attending.
• It held an annual review in January 2018.
• Since then it has explored all locally available educational options, though it is sorry this has taken some time. Some settings are not suitable and others Mrs X has refused to consider.
• It offered tuition pending a placement but Mrs X declined this.
• It is now considering providing Mrs X with a personal budget to provide a home based educational programme for Y.
• It is obtaining further reports to add to Y’s EHCP at Mrs X’s request.
• Mrs X declined social care support.
63. On 10 August 2018 the Council’s Complex Case Forum considered Y’s case. It declined a personal budget as it felt Y would benefit from a schools based programme so that he could learn to function in a group environment and develop social skills. It decided to consult with a residential school, School B, although it knew Mrs X was unhappy with this.
64. The Council says it asked Mrs X to reconsider tuition for Y, during a phone call on 16 August 2018. However, Mrs X did not want tuition until Y had received results from medical tests.
65. At the end of September the Council told Mrs X that School B would not take Y as it felt unable to meet his needs. It asked Mrs X for further information to support her request for home education supported by a personal budget. It recognised she had provided details previously but explained it needed up to date information.
66. Mrs X told the Council she did not wish to home school Y permanently but felt forced, as it had not identified a school placement.
67. The Council responded to explain it understood her preference was to educate Y out of school based on her response to the draft EHCP, but if she could confirm her preference it would pursue a weekly residential placement out of its area.
68. The Council contacted an alternative education provider, but it had no space for Y.
69. Mrs X again told the Council if it could not provide a suitable school place within the area she had no choice but to educate Y at home supported by a personal budget.
70. At the end of October Mrs X complained to her MP about inaccuracies in the Council’s August response. In summary, she said:
• Y attended tuition in June 2017 for one hour per week.
• She had asked for tuition in the community and not received a response.
• Y’s EHCP is vague and she disputes the content.
• She asked for a personal budget in November 2017 and this was refused. Yet the Council is now asking her to provide information to support another request.
• She is unhappy with the service provided by children’s social care and the actions of a hospital in destroying Y’s records.
71. Mrs X’s MP passed her concerns onto the Council.
72. The Council responded on 4 December 2018. In summary, it said:
• It is trying to amend Y’s EHCP but still needs reports from the professionals currently working with him.
• It cannot identify any further possible placements until appraised of Y’s needs, particularly if these have changed.
• Mrs X has not shared recent medical reports.
• It is considering Mrs X’s request for a personal budget, though it thinks Y would benefit from a school setting. This is subject to information from professionals about Y’s current needs.
• Mrs X refused home tuition. It would be prepared to reconsider community tuition subject to a risk assessment.
• It notes Mrs X has raised a complaint with the social care team and she should complain to the hospital direct.
73. The Council says it then spoke to Mrs X who explained Y was undertaking assessments due to concerns over his mental health. Mrs X also said the risk was too high for a tutor to work with Y and she would look into online learning.
74. The Council held a meeting with Mrs X and other professionals in February 2019. The Council again suggested the residential school, School B, but Mrs X had reservations.
75. Following further discussion with Mrs X in April, the Council consulted with School B.
76. Mrs X contacted the Ombudsman in June 2019 and said Y had been out of education since March 2017. She wanted a personal budget to support Y at home.
77. In July 2019 School B again said it could not meet Y’s needs.
78. In August 2019 the Council discussed Y at a Complex Case Forum. It agreed to look for a 38 week placement outside of its area but would consider Y returning to education locally in Key stage 3. It told Mrs X and asked if she wanted tuition from September 2019 in the meantime.
79. The Council consulted with further schools in September 2019 however it received negative responses from all.
80. In October, in response to my enquiries, the Council said:
• Mrs X has agreed for it to arrange a male home tutor for Y.
• It is continuing to look for a school place and has extended its search area.
• It will be arranging an annual review.
• It has been unable to amend or update Y’s EHCP because medical professionals are providing updated reports and it is seeking an out of county placement for Y.
81. In response to enquiries the Council has provided a copy of a psychiatric report in which NHS professionals considered whether they could diagnose Y with a learning disability. The report is undated but references show it was written after January 2019.

Findings

82. The Council should have been looking for a suitable school placement for Y from January 2017. While I acknowledge the Council has made attempts to identify a suitable school, there was one year (from September 2018) when it did not consult with any schools and, it has not looked further afield until recently. I therefore consider the Council has delayed in finding a suitable school place for Y. This is fault.
83. The Council could have agreed home education supported by a personal budget, named a school or, named a type of provision in order to issue a final EHCP within the statutory timescales (i.e. by the end of May 2018). However, the Council failed to issue a final EHCP within 8 weeks of issuing a draft. I note the Council delayed pending professional reports however I would expect the Council to issue a Plan based on the information available, rather than wait two years for further medical information. The Council’s delay to issue a final EHCP is fault.
84. From June 2018 the Council knew Y was not attending school, it should have known Y was not in receipt of any alternative provision and, it had not agreed to support home education with a personal budget. However, the Council did not take steps to ensure Y received education or, take steps to ensure Mrs X ensured Y received suitable education, until September 2019 when it offered tuition again. This is fault.
85. The Council delayed considering Mrs X’s request for a personal budget from April to August 2018. And I have not seen any evidence it decided on a personal budget after raising this again in September 2018. These delays amount to fault.
86. The Council did not respond to Mrs X’s request for a learning disability assessment, however I note such is provided by the NHS rather than the Council. I therefore find the Council’s oversight does not amount to fault causing injustice.
87. Because of the Council’s fault, (identified at paragraphs 82 to 85), Y has been out of education and missed out on SEN provision over approximately 18 months. In considering a remedy I am mindful that Y is of primary school age, that he previously attended school on a part time basis and that his EHCP did not provide for any specific SEN support, such as Occupational Therapy.
88. Mrs X has suffered stress due to having to care for Y at home while he has not been in school or education. Y is reported to have emotional behavioural problems and can be aggressive. Mrs X has therefore struggled to have him at home full time. However, in considering a remedy for distress, I am also mindful that the Council has at times offered alternative provision to Mrs X that she declined.
89. Mrs X has also suffered uncertainty due to the Council’s delays in considering her requests for a personal budget.

Agreed action

90. To remedy the injustice set out above I recommend the Council carry out the following actions:
91. Within one month:
• Provide a written apology to Mrs X for the identified faults;
• Issue a final EHCP for Y;
• Pay Mrs X £2600 for Y’s loss of education and SEN provision;
• Pay Mrs X £500 for the distress and uncertainty suffered by her and Y;
92. Within three months:
• Provide training to staff on the SEND Code of Practice and the Council’s duties under the Education Act 1996 to ensure awareness and compliance with legal obligations.
93. The Council has accepted my recommendations.

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Final decision

94. I find the Council failed to provide suitable education to Y, causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman