Summary: Ms X complained that the Council failed to provide suitable education for her son who has an Education Health and Care (EHC) Plan after she withdrew him from school because of bullying. The Council failed to deal properly with reviews of his EHC Plan and failed to take sufficient action to ensure he received education. This resulted in a loss of opportunity for Ms X to appeal about the placement and lack of education for her son. The Council has agreed a remedy including an apology and a payment for loss of opportunity to appeal and loss of education.

The complaint

1. Ms X complained that the Council has failed to provide suitable education for her son, Y, who is autistic and has an Education Health and Care Plan, since October 2016 when she withdrew him from his school because of bullying. As a result she says he received no education for two years and his mental health has suffered.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
3. 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. 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)
6. 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)
7. 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

8. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I spoke to a manager in the SEN casework team over the telephone. I considered relevant law and guidance on special educational needs and children out of school. I shared my draft decision with the Council and the complainant and considered their responses.
9. I have investigated matters from January 2017. I have exercised discretion to go back to this date because it is one year before Ms X made her complaint to the Council. When she complained to the Council the alleged fault, the lack of education for her son, was still continuing. She continued to complain after that and there were delays in the complaints process before she approached the Ombudsman. I have provided information about events before January 2017 as background to the complaint.
10. 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

Education Health and Care Plans

11. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child's needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section I names the placement or type of placement the child is to attend. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
12. The parent or young person may appeal against the provision set out in the EHC Plan, the placement named, or a decision not to amend a Plan following a review.
13. Local authorities have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Reviews

14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. It deals with reviewing plans as follows.
15. Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review. They may carry out a review earlier.
16. The review meeting should consider how appropriate the EHC Plan is in the light of the child or young person’s progress or any changes of circumstances.
17. Reviews must be undertaken in partnership with the child and parent or young person and must take account of their views, wishes and feelings.
18. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
19. If the council decides not to amend the EHC Plan it must write to the parent or the young person with its decision and tell them about the right of appeal.
20. If the Plan needs to be amended the council should start the process of amending it without delay. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments
• tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
21. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

School attendance and children out of school

22. Parents have a duty to ensure their child receives efficient full-time education suitable to the child's age ability and aptitude and any special educational needs the child has, either at school or elsewhere. (Education Act 1996, section 7)
23. Councils have a responsibility to ensure the child receives an education. They may take legal action against parents to enforce attendance at school through school attendance orders, penalty notices or prosecutions. (Education Act 1996, part VI, chapter 2)
24. A parent may choose to educate their child at home, taking responsibility for the provision. But if the child attends a special school named in their EHC Plan, this can only be done with the council’s permission.
25. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
26. This applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
27. The Ombudsman issued a focus report in September 2011 amended in June 2016, “Out of sight…. 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. The report made six recommendations for Local Authorities, including that they:
• 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;
• adopt a strategic and planned approach to reintegrating children back 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.

Background

28. Ms X has a son, Y, now aged 17. Y has a diagnosis of Autistic Spectrum Disorder (ASD) and severe learning disabilities. He has an EHC Plan which in 2016 named School 1. This is a specialist school for pupils with special educational needs, mainly for those with severe learning difficulties. Provision in the EHC Plan included help with managing emotions and social interaction, and small group and 1:1 support with literacy and comprehension.
29. Children’s social care was also involved with the family. Ms X was receiving direct payments for three hours a week for a personal assistant to help support Y with independence skills.
30. In October 2016 Ms X decided to stop sending Y to School 1 because she said he was being bullied. She made a complaint to the School governors and then to Ofsted. Their conclusions were that the School had managed the incidents properly.
31. In November 2016 Ms X wrote to the Council to say she had withdrawn Y from school because of the bullying incidents.

Events from Jan 2017

32. In mid-January 2017 the Council discussed the situation with the Headteacher of School 1. The Council’s records say the School explained that Y had not attended since October 2016 despite an agreement following a governors’ meeting in December that he would return. Ms X had not provided a medical note from Y’s GP as requested and had refused a referral to the Child and Adolescent Mental Health Service (CAMHS). The note said Ms X did not want an Annual Review as she did not want another school.
33. Later in January 2017 Ms X had a meeting with the Council and asked about the possibility of education at home or the hospital school. The Council explained that to access the hospital school she would need a referral by CAMHS or a medical professional.
34. Ms X says she sent in a medical letter. She has provided a copy of a letter from Y’s GP in January 2017 which says Y had been hearing voices and having nightmares because of bullying at school, but this stopped when he stopped attending school. It said when Ms X sent him back to school his symptoms returned when the bullying started again. So Ms X had decided to try home schooling as Y seemed to be calmer outside the school environment. The Council has provided a chronology which says in early February 2017 “doctor’s note received saying [Y] not fit for school”. When asked for the evidence, the Council said this entry in the case notes is wrong and based on a misunderstanding of information provided by another body. It says it has never received any letter from a medical professional saying Y is not medically fit to attend school. However Ms X has also provided a copy of an email from the Council in early February 2017 asking her whether the GP had offered a review date to see when Y might be fit for school.
35. Ms X wrote to the Council in February 2017 asking for home education, saying she wanted to take responsibility for Y’s education herself. The Council’s response was that the Council would need to agree a request at a panel following the Annual Review meeting set for March.
36. The Annual Review meeting took place in March 2017. Ms X did not attend. She says this was because of short notice and the School would not change the date. The record of the meeting notes the following.
• It had not been possible to get any views from Y as he had not attended since October 2016.
• There were no views from the family submitted for the meeting.
• Y “needs to attend school”.
• The School had made a referral for a mental health assessment as Ms X had said Y was hearing voices, but then she cancelled the appointment. After an appointment in January 2017 CAMHS felt Y was “medically fit and well” and “strongly encouraged [him] to engage with school”.
• Ms X was asking to home educate Y. “All professionals involved with [Y] do not think this would be in [his] best interest”.
37. Although it noted this request, at the same time it recorded that there was no request for a change of placement. The recommendation was to amend the EHC Plan to update the content.
38. The Council wrote to Ms X after the meeting to say it would be issuing an amendment notice shortly with proposed changes to the EHC Plan. Ms X says she received a draft amended Plan and sent in a response but did not hear any more. The Council says there is no evidence it amended the EHC Plan as proposed, or sent Ms X a final Plan.
39. In mid-May 2017 there was a meeting arranged at School 1 with Ms Y, Y’s social worker and the Headteacher to discuss arrangements for a phased return to school. The record says the Council “decided to prosecute for non-attendance”. However the School was still hoping Ms X would agree to return Y to school.
40. At the end of June 2017 Ms Y wrote to the Director of Education asking the Council to consider another school, School 2, or to allow her to educate Y at home. She followed this with another letter asking to take Y off roll at School 1.
41. The Council told her there would be a review meeting held in mid-July 2017. Ms X said she would not be able to attend. An Interim Review meeting took place as arranged. Ms X says she could not attend as she was out of the country. Again the record notes no views submitted from Y or Ms X and that Ms X was asking for home education but the professionals did not agree. The Council says it decided it did not need to amend the EHC Plan. It has not provided evidence that it wrote to Ms X to tell her the decision.
42. Also in July and August 2017 Ms X discussed possible alternative school placements with her SEN Caseworker and social worker. The Council told her about offers of school visits. The Council consulted some schools in October. None of these potential places materialised. One school was in special measures, one told Ms X it had no places available, there was one Ms X could not visit on the date offered as she was ill, and one she felt was too far from home and it made Y anxious when she discussed it with him.
43. The Council continued to discuss Y’s transfer to a new placement for his post-16 education from September 2018 and consult with schools and colleges. In early November 2017 a further education college (‘the College’) confirmed it could meet Y’s meet needs and offer him a place from September 2018.
44. In late January 2018 Ms X attended a Child in Need meeting with Y’s social worker and SEN Caseworker. They discussed Y’s transition to post-16 education. The record of the meeting notes the following:
• School 1 and the Council considered the School could meet Y’s needs so the Council could have considered prosecution. Instead the Council says it worked with Ms X to try and find an alternative placement but she would not engage.
• Ms X’s view was that Y’s anxiety was related to going to School 1 as the issues there were not resolved. She did not want any other support for Y with his anxiety.
• The professionals present felt Y did need help with his anxieties and wanted to support the transition back to formal education. If the service Y had been referred to did not meet his counselling needs the Council would need to refer him to CAMHS or alternative provision.
• An independent mentoring organisation was providing eight hours tuition a week and Y was attending a youth club.
• If Ms X did not visit one of the placements suggested the Council would name the College in the EHC Plan.
• If Y continued not to access education the SEN Team would refer the matter to the Education Performance and Inclusion Team.
45. The Child in Need Plan in January 2018 noted concerns that Y was not in education. It said “plans were promoted for him to return to [School 1]”. But “this is no longer felt to be in his best interests”. Therefore “plans need to be created to ensure he can access appropriate education”. There was also concern about his level of anxiety. It said he needed education tailored to his special needs.
46. At the end of January 2018 the Council sent Ms X an amendment notice proposing to name the College in the EHC Plan and giving her 15 days to respond.
47. Ms X made a formal complaint to the Council at the beginning of February 2018 about lack of education for her son since October 2016. She did not wish him to return to School 1 because she did not feel the School could keep him safe. She described why the possible alternative placements suggested had not materialised. She said Y was asking about going to the College but she was not sure he would cope there. She said she had started taking him to a social group to build up his confidence. She said he been out of school for too long, and had become very anxious and lost confidence.
48. The Council issued an amended final EHC Plan on 23 February 2018 naming the College from September 2018, and School 1 up to the end of the current academic year.
49. Ms X wrote to the Council in March 2018 saying she did not agree the College would be able to meet Y’s needs. She did not appeal.
50. Later in March 2018 the Council replied to Ms X’s complaint. It said it had tried to help her find a new school for her son but she had either declined visits or said she could not attend at the times offered. It said it had now named the College from September 2018. But in the meantime it said it did not agree she could withdraw Y from the roll at School 1 and home educate him. It reminded Ms X of her responsibility to ensure Y attends school and said councils may consider legal action where parents are not taking reasonable steps to ensure their child is receiving full-time education. The Council urged her to accept offers to visit alternative school placements, or to return to School 1 which still believed it could meet Y’s needs and would help him transition to the College. Alternatively the Council said it could work with her and Y to identify a different special school that could meet his needs. It said “it is however imperative for [Y] that we resolve this without any further delay”. The Council offered to meet Ms X to discuss alternative placements or return to School 1.
51. Ms X replied in April 2018. She did not agree the School had dealt properly with the bullying incidents or that the Council had offered suitable help with finding alternative school placements. She explained why she had not been able to attend certain school visits and why other schools had not been able to offer places. She said she had asked for alternative provision for children struggling with school but the Council had refused. She said she had asked about hospital education and been told had to send in a doctor’s letter. She said she had done so but had heard nothing more. She felt the Council had ignored her son and left him without education.
52. The Council responded in early May 2018. It said until she expressed a preference for an alternative school and the Council established it could meet Y’s needs it would have to continue to keep the placement at School 1 for him, “regardless of whether he wishes to attend”. It said she had not yet indicated a preference for an alternative placement it could name on the EHC Plan. It said unfortunately it was not possible to name School 2 or the alternative education provider she had asked for. It said the Council accepted she would not return Y to School 1 and said as it was now so late in the academic year there may be limited benefit in him starting elsewhere.
53. Ms X continued to pursue her complaint asking to take it to stage 2 of the Council’s complaints procedure. She first wrote in early June 2018. After further correspondence the Council sent a stage 2 response at the end of September 2018. Regarding the education provision for Y it said it had tried to help her consider alternative placements to School 1, suggesting specialist post-16 settings to minimise the number of transitions for Y. It said School 2, her preferred placement, had closed in April 2018. It said Y now had a place at the College from September 2018 and the Council would attend his first Annual Review meeting there to update his EHC Plan.
54. At the end of each complaint response the Council said Ms X could contact the Children’s Complaints Manager if she wished to take the complaint further.
55. Y started at the College in September 2018.
56. Ms X also continued to ask for changes to the EHC Plan over the next few months. The Council issued final amended Plans in late October 2018 and mid-January 2019. In February 2019 she contacted the Council to say Y was struggling at the College and was not attending. The Council suggested she ask the College for an emergency review meeting. Council records say Ms X said she did not wish to do this as she had been asking for it since Y started at the College. She asked for the Council to pay for the provision she was sending Y to at the social club. The Council declined saying it was not a registered education provision and it considered the College could meet Y’s needs.
57. In March 2019 Ms X asked to take Y off roll from the College. An Annual Review meeting was arranged for the end of March, but Ms X did not attend. The Council did not write to Ms X to tell her the outcome.
58. In April 2019 Ms X wrote to the Council saying she wanted to home educate.
59. After further discussions the Council agreed to amend the EHC Plan to name Education Other than at School (EOTAS), with funding for the organisation Ms X was already sending Y to for activities. It sent the amendment notice to Ms X at the end of October 2019 and issued the final EHC Plan in November 2019 with funding for the EOTAS provision for one year.

Analysis

Ombudsman’s jurisdiction

60. I will only make findings on events starting from January 2017 for the reasons I have explained above.
61. Once a council issues a final amended EHC Plan the Ombudsman normally cannot investigate the education provision as there is a right of appeal that the parent can use, unless it is not reasonable to expect them to do so. In this case when the Council issued the final EHC Plan in February 2018 it named the existing placement at School 1 to continue until the end of the academic year and the placement at the College to start from September 2018 when Y transferred to post-16 provision.
62. If Ms X did not agree with the named placement from September 2018, I would expect her to have appealed when she received the final EHC Plan in February 2018. So I will not consider Ms X’s disagreements with the education provision from September 2018. From that point the Council explained that if Ms X was unhappy with the provision she could seek an emergency review, which Ms X says she did. Also the Council continued discussing EHC Plans with Ms X and issuing amended Plans. If she did not agree with the final Plans she could have appealed.
63. However I have decided to exercise discretion to investigate the question of the education provided from February to September 2018 as I do not consider it reasonable to expect Ms X to have appealed for a different placement to be named for this period. This is because it is unlikely an appeal hearing would have taken place before September 2018. Or if it had, it is unlikely it would have been held in time to have allowed Y to attend another placement for any significant length of time.
64. So I have looked at the way the Council dealt with the provision of education and the review of the EHC Plan from January 2017 to September 2018.

Was there fault causing injustice?

Reviews

65. Essentially there was a dispute between Ms X and the Council about whether School 1 was suitable for Y and could meet his needs. The School and the Council considered it was. Mrs X said she would not return Y there because she felt it could not keep him safe and she wanted alternatives, whether another school placement, home education or alternative out of school provision. It is not for the Ombudsman to say what provision is appropriate for a child. The way to seek another placement to be named in an EHC Plan is through the review process.
66. I consider that the Council was at fault in the way it dealt with this process. After the Annual Review meeting in March 2017 the Council wrote to Ms X to say it would be issuing an amendment notice. I have not seen a copy of this notice or a proposed amended Plan. So I do not know if the Council explained she had a right to request a change of placement. But the Council has confirmed there is no record it amended the EHC Plan. It can find no evidence that it issued a final EHC Plan following this review. Mrs X says she did not receive one. The failure to send a final Plan was fault.
67. Ms X suffered an injustice because of this as she lost the opportunity to appeal.
68. I find that the Council was also at fault after the Interim Review meeting in July 2017 in failing to write to Ms X to tell her it would not be amending the EHC Plan. Although Ms X did not attend the meeting, she had made it clear by then that she did not wish Y to attend School 1. The failure to notify her of the decision denied her the right of appeal.
69. I do not know whether Ms X would have appealed if she had been advised of her rights at the appropriate times. She did not appeal against the final EHC Plan in February 2018 even though she did not consider the College was a suitable placement for Y’s post-16 education. But the lack of opportunity is an injustice in itself.

Education provision

70. The key issue in the complaint is the allegation that the Council failed to provide education for Y after Ms X removed him from School 1.
71. In early 2017 the Council understood that Ms X was going to try to return Y to school in a phased way. It also gave appropriate advice to her that if she wanted Y to access the hospital school she would need to provide a letter from a medical professional saying he was unfit to attend school. Ms X has confirmed she provided a letter about her son’s mental state. This supported her view that Y was calmer when he was not attending School 1. It did not specifically say Y was medically unfit to attend school and the Council says it did not receive any such letter. But the evidence Ms X has provided (see paragraph 34 above) shows that the Council was aware the GP was reviewing whether Y was capable of attending school.
72. If the Council did not consider the evidence Ms X provided was sufficient to support a referral to the hospital school, it should have explained this to her. If it did not have sufficient evidence that Y could not attend school for medical reasons and it still considered School 1 an appropriate placement, it had a duty to consider whether to take enforcement action against Ms X for non-attendance or to ensure Y received education by other means. This could be by making sure School 1 was sending work home or by exercising its duty itself to provide alternative education under section 19 of the Education Act 1996 if it considered Y was unable to attend school for reasons other than illness or exclusion. The Council also had a duty to ensure Y was receiving the special educational support set out in his EHC Plan.
73. I have not seen any evidence that the Council took steps to check if School 1 was providing any means for Y to receive education at home when he did not return. Information from the Council says in mid-May 2017 it decided to prosecute Ms X. But it has now confirmed it considered this but decided not to go ahead with the action. It has not been able to provide any evidence showing why it took this decision, or what alternative steps it decided to take at that point to ensure Y received education.
74. The Council has said it tried to help Ms X look for alternative placements. There is a dispute between Ms X and the Council about the detail of the visits offered and taken up. Regardless of this, the fact that the Council was suggesting other school options indicates in my view that it accepted there were doubts about whether School 1 was a suitable placement and understood Ms X would not be returning Y there. By January 2018 this was stated explicitly in the Child in Need meeting and plan.
75. At that meeting professionals expressed concerns that Y was out of school for so long and that he needed provision tailored to his needs. If this was case and other school placements had not been forthcoming, in my view the Council should have considered alternative provision out of school while Ms X was looking for another school placement. Ms X asked for this and Council refused. It has not explained why. In any event my understanding is that the other schools the Council was suggesting were for places starting in September 2018.
76. In the period covered by this investigation Y received no education between January 2017 and July 2018 apart from a few hours tuition from a mentoring organisation. The Council was aware Y was out of school for the whole of that period, and from at least February 2017 that Ms X did not wish him to return to School 1. Both Ms X and the Council had a duty to ensure Y received suitable education. But if the Council was not going to take enforcement action for non-attendance it should have taken steps to ensure Y received education by other means. Instead it allowed the situation to drift. I consider this was fault.
77. From January 2018 when there is evidence the Council accepted School 1 was no longer suitable and it needed to seek alternative tailored provision, I find that Y missed out on education as a result of the Council’s failure to take action. It should provide a remedy for this loss of education. Up till that point the Council still considered School 1 was a suitable placement but it did not properly consider what steps it could take to ensure Y received an education and whether it had a duty under section 19 to arrange alternative provision. I do not know what decision it would have taken if it had considered the matter properly. But the lack of action and the failure to deal with the review of the EHC Plan properly resulted in a loss of opportunity to have Y’s needs considered.

Complaint handling

78. I consider there was some fault in the complaint handling. There was a delay in sending out the stage 2 response. Also the Council did not say when the process had ended and signpost Ms X to the Ombudsman. I have taken this into account in deciding to exercise discretion on how far back to investigate.

Agreed action

79. The Council has agreed that to remedy the injustice to Ms X and Y it will take the following steps within one month of the decision on this complaint:
• Apologise to Ms X for not taking sufficient action to ensure her son received education.
• Make a payment to her of £500 to recognise the loss of opportunity to appeal and the loss of opportunity to have alternative provision considered up to January 2018.
• Pay her £300 per month for the six month period from January to July 2018 (excluding school holidays) to recognise the lack of alternative educational provision for Y. This is a total of £1,800.
80. These sums should be used for the benefit of Y’s education.
81. The Council has also agreed that within three months of the decision it will:
• draw up a plan, to be shared with the Ombudsman, to show how it will deal with similar cases in future to ensure drift does not occur when a child is out of school. This should set out a clear pathway for taking timely action to decide whether to either take enforcement action for non-attendance, plan for re-integration into school, seek an alternative placement, or offer alternative provision for medical or other reasons;
• ensure it has procedures in place for checking it takes the necessary action following review meetings to issue amendment notices and draft and final EHC Plans.

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Final decision

82. I have found fault in the way the Council dealt with Y’s education. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Parts of the complaint that I did not investigate

83. I did not investigate the allegations of lack of education before January 2017, because the events occurred too long ago, or after September 2018, because Ms X had a right of appeal which I would have expected her to use. These issues are therefore outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman