Summary: Ms X complains the Council has failed to identify or offer appropriate education for her son. The Council’s failure to provide Y with alternative educational provision for an academic year amounts to fault. The delays in the annual review process and the failure to issue a final ECHP also amount to fault. These faults have caused Ms X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complains the Council has failed to identify or offer appropriate education for her son. It has failed to accept her son has been too unwell to attend school since September 2018 and has not offered any alternative provision.

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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. 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)
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.

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How I considered this complaint

• As part of the investigation, I have spoken to Ms X about to the complaint and considered the information she provided. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also considered:
• The Education Act 1996
• The Special Educational Needs and Disability Code of Practice January 2015 (“the Code”)
• Ensuring a good education for children who cannot attend school because of health needs, Statutory guidance for local authorities
1. I sent a statement setting out my draft decision to Ms X and the Council and invited their comments.

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What I found

Special Educational Needs

9. A child with special educational needs 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. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Annual reviews

10. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the EHC plan. Schools are responsible for convening a review. Paragraph 9.173 of the Code says councils and schools must cooperate to ensure a review takes place. This includes attending the review when requested to do so. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan.

EHC plan timescales

11. Within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is; amend the plan; or cease to maintain the plan. It must then tell the child's parent and the school its decision.
12. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
13. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.

Education for children out of school

14. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
15. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education (Statutory Guidance 'Children Missing Education'). If a parent withdraws a child from school without another place for them to go to, they are taking responsibility for the child’s education. If parents are not home educating, the council has responsibility for the child’s education.
16. If a child of school age cannot attend school for reasons of illness, exclusion from school or otherwise, the Council must arrange to provide suitable education at school or elsewhere (for example, at home). The provision must be suitable for the child’s age, ability and aptitude, including any special needs. Statutory guidance on alternative education provision says the provision should start as quickly as possible.
17. When a child refuses to attend school or appears to have a phobia about attending, councils must consider whether they are medically fit to attend school. If not, they need to decide how many hours of what type of education they should provide.
18. Where full-time education would not be in a child’s best interests for physical or mental health reasons, councils should provide part-time education based on what they consider to be in the child's best interests. Councils should periodically review the suitability of the education the child is receiving, to consider how much education the child could cope with.
19. Our Focus Report, Out of school…out of mind?, gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:
• consider the individual circumstances of each case and be aware that, potentially, 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 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.

Alternative provision

20. Alternative education covers a range of provision including classroom-based
21. teaching in a pupil referral unit or 1:1 tuition in the family home or a community venue.
22. In considering alternative education local authorities should not:
• have processes or policies in place which prevent a child from getting the right type of provision and a good education; and
• have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
23. A judicial decision (R (on the application of G) V Westminster Council [2004] EWCA Civ 45) says that where a pupil is not attending school and remains on the school's roll the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.

What happened here

24. Ms X’s son, Y has an Education Health and Care (EHC) Plan which names School 1. Ms X states Y was unhappy at School 1 and wanted him to change schools. The Council held an annual review in April 2018 which recommended some changes to Y’s EHC plan. Ms X was concerned about the suitability of School 1, but the Council states School 1 confirmed it was able to meet Y’s needs and resolve Ms X’s concerns. In July 2018 the Council proposed to amend Y’s EHC plan.
25. Ms X decided in September 2018 that Y should not return to School 1. She states Y had been physically restrained while at a mental health unit and was traumatised by the experience. He witnessed other pupils being restrained at School 1 which caused him extreme distress and anxiety. Ms X states Y’s anxiety about returning to School 1 was causing him to self-harm and have suicidal thoughts.
26. She arranged for a private assessment with a clinical psychologist who advised that Y was medically unfit to attend school full time. The psychologist recommended a reduced and flexible school timetable and a key person in school who was trained and experienced in working with Pathological Demand Avoidance.
27. School 1 introduced a part time programme, but Y was unable to engage with this.
28. An education welfare officer visited Ms X to discuss Y’s absence from school. The officer also spoke to School 1. The officer’s notes state that as Ms X had medical evidence to support the view that Y could not return to school full time, the Council would not seek to prosecute her.
29. In November 2018 the Council arranged a review meeting. The Council’s notes state it was agreed at this meeting that CAMHS (Child and Adolescent Mental Health Services) would carry out a functional analysis to understand Y’s behaviours. This work may take until January 2019 and would then help form a reintegration plan for Y to return to school. School 1’s notes of his meeting record that it would send a blank timetable for Ms X and Y to work on for Y’s return to school in January 2019. It notes that other than this timetable, the school would have no contact with Ms X until January 2019.
30. On 12 November 2018 the Council then sent Ms X a proposal to amend Y’s EHC plan. Ms X had asked the Council to consult with School 2. The Council did not consider School 2 could meet Y’s needs, but in line with Ms X’s request, it contacted School 2.
31. In early December 2018 Ms X chased the Council for a copy of the draft EHC plan. She wanted to visit School 2 but could not until the Council finalised the draft EHC plan. Ms X was also concerned that Y had been out of school for three months. In early January 2019 the social worker confirmed School 2 had seen the annual review paperwork and had confirmed Y did not meet the school’s criteria. School 2 had suggested Y’s needs would be best met in a SEMH (Social, Emotional and Mental Health) setting like School 1.
32. Ms X disagreed with this view and said Y’s mental and physical health had improved since he stopped attending School 1. Ms X asserted SEMH settings were not suitable for Y and asked the Council to consider School 3, at least on a short-term basis, until a suitable placement could be found.
33. The Council held a meeting in late January 2019 with School 1 and CAMHS. CAMHS were continuing their work with Ms X and Y and did not consider returning to School 1 would be in Y’s best interests. In subsequent correspondence CAMHS stated there had been such a relationship breakdown with School 1 that it would not be in Y’s best interests to return given how distressed he becomes with just the mention of School 1. They suggested School 1 was not the best provision at that time.
34. The Council states School 1 had contacted School 3 who did not consider they would be a suitable setting and could not provide anything that could not be better provided by School 1.
35. In February 2019 Ms X asked the Council to take Y off School 1’s register so that she could educate him at home. The Council advised Ms X that if she wanted to educate Y at home she would need to provide details of how she would provide the provision identified in his EHC plan. The Council noted it was in the process of amending Y’s EHC plan so this would need to include the additional provision identified. In addition, the Council advised Ms X it would need to agree that it was in Y’s best interest to be educated at home.
36. The Education Placement Panel considered Ms X’s request and supporting information in March 2019. It considered Y’s placement at School 1 was suitable and should be maintained. The Panel refused Ms X’s request for elective home education. The Council advised Ms X that School 1 would facilitate any manner of transition planning with Ms X and Y.
37. Ms X was disappointed by this decision as she understood that CAMHS had prepared a report confirming Y was not medically fit to return to School 1. Ms X states the Council did not tell her why she could not educate Y at home. At a meeting in April 2019 it was agreed it was unlikely Y would return to School 1, and there should be a review of his EHC plan. The Council would try to identify a school that could match Y’s needs and look at Home Learning Credits. The Council would also arrange a Child in Need meeting. Ms X states the Council did not set up a Child in Need meeting or provide any details of home learning credits.
38. An annual review of Y’s EHC plan took place in May 2019. Ms X requested a reassessment as she considered Y’s EHC needs had changed. The Council states the statutory reassessment started on 24 June 2019. Allowing the maximum timeframe of 14 weeks, the Council had to issue the final EHC plan by 29 October 2019.
39. Ms X has asked the Ombudsman to investigate her complaint. She had made a formal complaint to the Council stating she did not want Y to attend School 1 and complaining he had not been offered any alternative education. The Council’s final response in March 2019 confirmed the Council considered School 1 was an appropriate school for Y. The Council noted that CAMHS had not agreed that Y could not return to school.
40. In relation to Ms X’s request for a place at School 3, the Council confirmed the SEN team could not access School 3. School 3 can only be accessed by a referral from schools. It stated School 1 had looked into this but advised it would not be appropriate.
41. The Council also acknowledged it had a responsibility to offer alternative educational provision, but this applies in cases where the pupil has been excluded. As Y had not been excluded this option was not available.
42. Since Ms X complained to the Ombudsman, School 1 has made a referral to School 3. School 3 has offered Y a place and Y has been attending since September 2019. The initial timetable was for an hour a day. The intention is that the timetable will increase as Y becomes less anxious about attending.
43. Ms X maintains Y has been too unwell to attend School 1 since September 2018. She complains the Council has repeatedly told her she must make Y attend school and has refused to provide any alternative educational provision. Ms X states this has had a detrimental effect on Y’s and her own mental health. Ms X feels the Council dismissed her concerns and behaved in a judgemental and intimidatory manner.
44. In response to my enquiries the Council states that both it and School 1 consider Y’s needs can be met at School 1. Y’s current EHC plan identifies his primary need as SEMH, and School 1 is a specialist setting for pupils with SEMH. School 1 has experience in meeting the needs of pupils with autism spectrum disorder. It can meet the needs of pupils who display sensory seeking behaviours and sensory defensiveness. School 1 also has experience of working with pupils with demand avoidance behaviours.
45. The Council states that save for School 3, which is not accessible to the SEN Assessment, it has explored Ms X’s requests for alternative placements via the EHC plan consultations. The Council also states it has made suitable education provision for Y at School 1. It considers School 1 is the most appropriate setting for Y as it meets his SEMH needs. Y has refused to attend school and Ms X has refused for him to return. The Council notes to it the parent’s statutory duty to ensue their child attends school.
46. The Council states that save for a short period in late 2018 Y has not been absent from school due to illness and being unfit for school.

Analysis

47. Based on the information available I consider the Council had a duty to provide alternative education from September 2018 when there was evidence Y was medically unfit to attend School 1 full time. It was therefore fault not to provide alternative education.
48. It is of concern that the Council advised Ms X its duty to provide alternative educational provision only applied to pupils who had been excluded, and was therefore not an option for Y. This is not an accurate representation of the Council’s duty and suggests the Council has not taken account of Y’s individual circumstances.
49. The Council asserts it has made suitable education provision for Y at School 1 in line with section 19 of the Education Act 1996. It also asserts that aside for a short period in late 2018 Y has not been absent from school due to illness or being unfit. The documentation provided does not support this view.
50. To provide alternative education, either on health grounds or on other grounds, councils require evidence the school is unable to meet the child’s needs and they are unable to attend. There was medical evidence in the form of the clinical psychologist’s report in September 2018 that Y was medically unfit to attend School 1 full time. Although School 1 had offered a part time timetable Y had not been able to return. This was discussed at a meeting in November 2018 and it is clear from the records that all parties were aware Y would not return to School 1 until at least January 2019 when CAMHS had completed its assessment and advised on a reintegration plan.
51. The education welfare officer considered this sufficient to justify Y’s absence and did not seek to prosecute Ms X for Y’s non-attendance.
52. CAMHS also advised the Council in early 2019 that it was not in Y’s best interests to return to School 1. Given CAMHS view, it is of concern that the Council appears to have advised the Education Placement Panel in February 2019 that School 1 was still a suitable placement. And it repeated this view in March 2019 in its response to Ms X’s complaint. It is unclear why the Council would maintain this position, contrary to medical advice.
53. The Council appears to have accepted it would not be in Y’s best interests to return to School 1 in April 2019 but has not made any alternative arrangements for Y’s education.
54. This failure to provide an alternative education is compounded by failings in the way the Council reviewed Y’s EHC plan in 2018. Following the annual review on 24 April 2018, the Council should have written to Ms X by 22 May 2018 with its decision whether to amend the EHC plan. There is no evidence it did this. The Council should then have started the process of amendment without delay. The Council states there was a proposal to amend Y’s ECH plan in July 2018 but has not provided evidence of this.
55. The Council then wrote to Ms X on 12 November 2018 with a proposal to amend Y’s EHC plan. This is almost seven months after the annual review and represents a significant and unacceptable delay. It is of concern that this delay was then further compounded by the Council’s failure to issue a draft or final EHC plan.
56. There is no evidence the Council had completed the annual review process and issued a final ECH plan by the time it held Y’s next annual review on 23 May 2019.
57. These delays and the failure to issue a final EHC plan are fault. The Council was aware Ms X fundamentally disagreed with its view and should have issued the amended plan without delay and engaged Ms X’s appeal rights.
58. Having identified fault I must consider whether this had caused Y and Ms X an injustice. The Council’s failure to provide alternative provision after September 2018 meant Y has lost out on a suitable education for a full academic year. That is a significant injustice.
59. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
60. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
61. In considering an appropriate remedy I am mindful that Y could not have coped with full time education in September 2018. His placement at School 3 was initially for an hour a day with the intention this will increase over time. Had the Council made alternative arrangements earlier in the process, Y may well have been better able to cope with more hours by now.
62. The delays and then failure to issue a final ECH plan following the review in 2018 have also caused an injustice. Ms X was denied the right to appeal to the SEND Tribunal and Y has missed out on additional provisions.

Agreed action

63. The Council has agreed to apologise to Ms X and Y for its failure to provide alternative education for Y since September 2018, and the failure to issue a final EHC plan following the annual review in April 2018.
64. The Council has also agreed to pay Ms X:
• £2200 to be used for educational purposes, for the missed year of education;
• £150 in recognition Ms X missed out on the right of appeal against the EHC plan;
• £200 to acknowledge the distress and anxiety they experienced, and the time and trouble Ms X was put to in trying to resolve this matter.
65. The Council should take his action within one month of the final decision on this complaint.

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Final decision

66. The Council’s failure to provide Y with alternative educational provision for an academic year amounts to fault. The delays in the annual review process and the failure to issue a final ECHP also amount to fault. These faults have caused Ms X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman