Summary: Miss X complained the Council did not meet her child, Y’s special educational needs and failed to provide a suitable alternative education when they were out of school from April 2016. The Council was at fault for not arranging an alternative education for Y, for failing to issue an amended Education, Health and Care plan after agreeing to do so in 2018, and for delays in the complaints process. It should make a payment to remedy the lost education and review its processes.

The complaint

1. Miss X complained the Council:
• wrongly stopped her child’s statement of special educational needs in December 2014;
• wrongly refused to carry out an assessment of her child’s special educational needs in 2016;
• delayed in issuing an Education, Health and Care (EHC) plan after agreeing to do so in March 2017 and failed to deliver the provision set out in the plan;
• failed to provide a suitable alternative education for her child when they were out of school from April 2016 onwards.

She also complained about multiple changes of caseworker and delays in the Council’s complaints process.

2. Miss X says as a result of the Council’s failings Y missed out on most of their secondary education with all that entails for social interaction as well as learning. In addition, Miss X says this caused difficulties for the whole family and she was put to the time and trouble of repeatedly contacting the Council to try to resolve the situation.

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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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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’))
8. Miss X complained about the way the Council acted in connection with an appeal to the SEND tribunal in 2017. I have not investigated this complaint because I cannot consider any complaints that are closely related to a tribunal case.
9. Miss X is unhappy with the special educational provision set out in the various EHC plans and with the educational setting named in the original plan. I have not investigated these complaints because these are matters for the SEND tribunal to determine.
10. 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)
11. 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

12. I considered:
• the information Miss X provided;
• the Council’s replies to my enquiries;
• a report prepared by an independent investigator appointed by the Council as part of its complaints process;
• the Council’s response to that report and Miss X’s comments on that response;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
13. Miss X and the Council commented on three draft decisions and I considered all the comments I received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

14. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. We can consider the other sections of an EHC plan. We do this by checking the council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
16. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
17. Councils must review EHC plans at least every 12 months. It should consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan and consider whether the outcomes and supporting targets remain appropriate. These requirements still apply where the child or young person is not attending a school or college.
18. The special educational needs and disability code of practice: 0 to 25 years (January 2015) says councils must decide within 6 weeks of a request whether to carry out an EHC assessment. If it decides not to carry out an assessment it should write to the parents with its reasons and explain the appeal rights. Where the council agrees to issue an EHC plan it should do so within 20 weeks of the original request for an assessment and plan. Councils should review EHC plans annually or sooner if circumstances change.
19. Before the January 2015 Code, a child with special educational needs may have a statement of special educational needs (statement). The government issued non-statutory guidance for councils in August 2014, which said councils should transfer children with statements to an EHC plan where they met the criteria for an EHC plan. The guidance said no-one should lose their statement and not have it replaced with an EHC plan simply because the system was changing.

Child out of school

20. The law says councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests. (Section 19 of the Education Act 1996, as amended).
21. Statutory guidance says education should be provided as soon as it is clear the child will be away from school for 15 days or more, and should address the needs of the individual child. (Statutory guidance: Ensuring a good education for children who cannot attend school because of health needs, 2013).

Child and Adolescent Mental Health Service (CAMHS)

22. CAMHS is a health service for children, and their families, who need support for mental health issues. CAMHS also carry out assessments for conditions such as autism.

Early help

23. Early help is a term used to describe support that is offered at an early stage. The hope is that early support will prevent problems escalating to the point where formal social care support is needed, such as a child in need plan.

Child in need

24. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
25. A child is in need if:

• They are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; or
• Their health or development is likely to be significantly impaired unless the council provides support: or
• They are disabled.

What happened

Background and overview

26. Y’s parents are separated. Miss X is Y’s mother and Y lives with her. Y was diagnosed with autism and had a statement of special educational needs (statement) at primary school.
• Y’s statement ended following an annual review in June 2014.
• Y moved to secondary school in September 2015 and stopped attending school in April 2016.
• Two requests for an Education Health and Care (EHC) plan assessment were made in 2016, both of which were refused by the Council.
• Miss X lodged an appeal in February 2017 against the second refusal.
• The Council agreed to issue an EHC plan in late March and issued a final EHC plan in July 2017.
• The Council reviewed the EHC plan in February 2018 and April 2019 but did not issue an amended plan. It issued an amended EHC plan in April 2020.
• Home tuition was arranged in June 2019 and an alternative learning programme from September 2019 but Y was not able to engage with them.

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What happened – special educational needs

Complaints I am not investigating further

27. The Council ended Y’s statement following an annual review in June 2014. It told Miss X about her right of appeal to the SEND tribunal. Miss X says she did not appeal because the school 1 (Y’s primary school) told her she would not be successful.
28. Miss X requested an EHC assessment in June 2016, which the Council refused. It told her about her right of appeal. Miss X says she did not appeal because a Council officer advised her she would not be successful.
29. The Council strongly refutes the suggestion that either the school or its officers advised Miss X not to appeal.
30. I am not able to establish what was said after the length of time that has elapsed. My review of the records does not indicate any fault by the Council in how it decided to end the statement or how it considered the request for an EHC assessment in June 2016. However, I do not consider it is now possible to make a robust and defensible decision in relation to those matters.

Second request for EHC assessment – September 2016

31. School 2 requested an EHC assessment in September 2016. Y had not attended school since April 2016. School 2 said its attempts to reintegrate Y into school were not successful and it did not consider Y could return there. It said it was unable to meet Y’s needs and it considered a mainstream school was not appropriate. It had made referrals to an educational psychologist and to CAMHS.
32. The Council refused to assess. Its decision letter dated 11 November 2016 stated “From the evidence available to us at this stage, [Y] does not meet the criteria to start an assessment”. It advised Miss X about her right of appeal to the SEND tribunal.
33. Miss X complained about the way the Council handled the appeal and, in particular, that it did not consider medical evidence she requested, which it received shortly after it decided not to assess, until after she lodged her appeal in February 2017. Although the Council accepted during its complaints process that it had delayed, I am not making any finding since this was inextricably linked to the appeal.

Complaints I have investigated

Y’s first EHC plan

34. The Council agreed to carry out an assessment on 27 March 2017 and it issued a final EHC plan 14 weeks later on 7 July 2017.
35. The EHC plan stated Y’s needs could be met in a mainstream school with support from a teaching assistant for 15 hours per week if they were attending full time. It set out the support Y would need. Miss X says she was not happy with the support set out in the EHC plan and did not agree Y’s needs could be met in a mainstream school. She considered Y needed a specialist provision as indicated by school 2. The medical adviser did not comment on the type of provision.
36. Miss X decided not to appeal to the tribunal. She hoped she could negotiate a solution with the Council that would meet Y’s needs.
37. The Council was not able to deliver the support to Y because he was not in school. This will be considered further below.
38. The Council reviewed the EHC plan in February 2018 at Miss X’s request and agreed to amend it. Its letter to Miss X on 21 March 2018 said it was enclosing a draft amended EHC plan. This was within four weeks of agreeing to amend the EHC plan. Miss X says it did not enclose an amended EHC plan and, despite many attempts to contact the Council about this, a final EHC plan was not issued. I have not seen evidence to show a final amended EHC plan was issued.
39. The Council issued a draft amended EHC plan in early May 2019. Miss X said she was not happy with it as it contained out of date information and did not include information from the educational psychologist’s report. The Council said her concerns could be discussed at a review meeting once Y had started attending an alternative learning provision, which it had arranged from September 2019. The Council issued a final amended plan in May 2019.
40. The Council issued an amended final EHC plan for Y in April 2020. Y was no longer of statutory school age from June 2020.

My findings

41. The Council issued an EHC plan for Y within 20 weeks of agreeing to carry out an assessment. It was not at fault.
42. Miss X was unhappy with the type of placement named in the EHC plan issued in July 2017 and the support the Council said Y needed. These are matters for the tribunal to determine and I cannot comment on them.
43. The Council had not consulted with possible schools before issuing the final EHC plan, which we would usually expect to happen. However, since there was a dispute about the type of school Y needed, which may have required a determination by the SEND tribunal, I am not making a finding of fault about that.
44. The Council reviewed the EHC plan in February 2018 and although it agreed to amend the plan, it did not do so. That was fault. If it had done so Miss X would have had another opportunity to appeal to the tribunal, which she may have done given that Y was still out of school and she had not agreed to plan with the Council for Y to access education.

What happened - Child out of school

45. Y did not attend school from April 2016. The Council’s SEN team was aware of this in June 2016 when it refused the first request for an EHC plan. At that point it understood the school 2 was attempting to reintegrate Y back into school.
46. Y was attending a school in a different council area and, at the time, did not have robust arrangements with neighbouring authorities to address cases of non attendance where the child was placed at a school outside its area. The Council has made changes to its protocols as a result of this case and has recognised that it needs to do further work to ensure it quickly identifies children who are not attending schools outside its area and works with the relevant neighbouring council to address this. It also recognised that different teams within the Council need to work more closely together in these situations.
47. By September 2016 it was clear Y was not able to return to school 2 and school 2 said it could not meet their needs. The records suggest school 2 had agreed to arrange home tuition for Y. At the review in February 2018 school 2 said it had offered home tuition but Miss X had refused it. Miss X has consistently disputed this. She says it was offered but then she heard nothing more about it.
48. At the review the Council agreed to consult possible schools and the records show it consulted with three schools in April 2018.
49. In June 2018, a school with some experience of reintegrating children back into education, offered a “small steps” assessment place. Miss X told the school she did not want to pursue this. The records show she expressed a preference for school 3. A staff member from school 3 made two home visits to assess whether the school could meet Y’s needs. In June 2018, a clinical psychologist for school 3, considering reports of those visits, said ““I understand social care have said this is about educational placement but from our observations he is not in a place to access education currently”. Around this time a referral was made to CAMHS for support with Y’s anxiety. The child psychologist also said: “We also feel there is a role for social care. Mum needs to be supported to manage [Y] … and [Y] needs support to engage … (possibly a youth worker”.
50. I note there was some social care involvement in the early part of 2018 when a child and family assessment was completed. The assessment noted that Y was not attending school. It suggested the family may benefit from social care support but Miss X said she did not want this.
51. In November 2018, Y’s case was considered by a Council panel. The panel did not agree Y need specialist provision and asked officers to consider other options. The Council consulted three more schools but did not identify a suitable placement for Y.
52. In December 2018, Y’s case was considered by the Council’s persistent non-attendance panel, which recommended a referral for Early Help and a multi-agency meeting to discuss the case. It said Y should remain on the roll for school 2 until a new placement was found.
53. The Council arranged a multi-agency meeting in January 2019. The record of this meeting states an Early Help worker had met Y three times and was working to help Y to access some form of education but that Y needed to be “at a level where [Y] is able to access education before a setting can be found”. The record also says Y had refused to take medication and had not engaged with therapy so CAMHS was closing its case. There was some discussion about possible part-time educational options but Miss X did not agree to the proposals for various reasons. It was agreed there would be only one person working with Y because too many people visiting the family home was detrimental to Y’s wellbeing.
54. In April 2019 there was a further multi-agency meeting. The records state a new family support worker was appointed who would try to build a relationship with Y and the family. The Council also said it would try to deliver tutoring for Y from June 2019 and, in the meantime, would look at updating the EHC plan. However, it did not consider there was any value in carrying out an annual review of the plan since Y was not in school.
55. The Council issued a final amended plan in May 2019 and provided rights of appeal information. Miss X did not appeal.
56. A tutor did visit the family home in June 2019 for one session but Y would not engage with them. The tutor suggested that 15 minutes sessions were not sufficient and that the sessions would need to continue through the summer holidays to allow time for them to build a relationship with Y. It is not a requirement for tuition to continue in school holidays and the Council eventually decided in July that the sessions should not continue over the holidays because an alternative provision was planned to start in September.
57. Y was not able to engage with the alternative learning provision, which was arranged from September 2019. The Council reviewed the EHC plan as part of a multi-agency meeting in September 2019. Miss X asked the Council to carry out a fresh assessment of Y’s needs. She reported that Y would not leave the family home and would no longer get in the car with her.
58. The Council completed a fresh needs assessment in late 2019 but Y would not engage with the professionals so Miss X provided all the information. The Council said Miss X was not allowing access to Y. Miss X said Y did not want to speak to the professionals. In December 2019 the Council agreed it would:
• liaise with CAMHS for more involvement;
• refer to continuing healthcare for an assessment;
• amend the EHC plan in light of the professionals’ advice; and
• continue to offer the alternative learning provision with advice from an autism specialist.

My findings

59. The Council accepts it should have been more proactive in June 2016 when it first became aware Y was out of school. It should have referred the case to the neighbouring council so the two councils could work together to address the non attendance. The failure to do this was fault. This meant the Council lost the opportunity to act swiftly to try and reengage Y back into education.
60. Since Miss X complained, the Council has taken steps to develop a closer working relationship with neighbouring councils to improve cross border working. It plans to carry out further work to address the issue of children placed in schools outside its area, who are not attending school, including improving the way its own teams work together in this area.
61. The Council also accepts it was under a duty to provide alternative education for Y when they were out of school. I consider it was under a duty to provide this from October 2016 because school 2 told it in September that Y could not return there. The Council did arrange home tuition in June 2019, although only one session was delivered, and arranged an alternative learning provision from September 2019. Therefore, I consider the Council should make a payment for the lost education between October 2016 and May 2019, almost three academic years. This was most of Y’s secondary education. I must also take account that Y may have struggled to engage with any education offered, based on the evidence seen.
62. I note school 2 did agree to provide home tuition for Y on two occasions. This was not provided and there is a dispute about the reasons for this that I cannot resolve. However, there is no record the Council checked whether it was being provided. I am aware Miss X said Y did not want to be educated at home as they preferred to keep home and school separate but it is possible this objection could have been overcome if the Council had arranged support at an early stage. Therefore, I have not excluded those periods when calculating the payment due.
63. I have also not excluded the period from June 2018 when the clinical psychologist said Y was not able to access school. This is because although Y’s anxiety was preventing them from accessing school, this does not mean the Council did not need to take action. It should have considered some form of alternative education for Y, which did not need to be home tuition but could have been support to encourage Y to engage with education through social care, as suggested by the clinical psychologist.
64. Overall, the Council was not sufficiently proactive between October 2016 and May 2019 in:
• arranging alternative educational provision for Y and ensuring it was delivered;
• considering Y’s special educational needs, including any changing needs over time, and identifying a suitable longer term placement; and
• providing social care support to assist Y to return to some form of education.

If the Council had been proactive in supporting Y and the family soon after it became aware he was not attending school in June 2016, it might not have got to the point that Y was not able to engage with any professionals later on.

The Council said that at times it considered Miss X was a barrier to Y accessing education and, if that was the case, it could have considered formal action to address that.

Multiple changes of caseworker

65. Miss X complained there were six different officers involved with Y’s EHC plans. The Council accepted there were many changes of officers working with Y and the family over the period under investigation. It has apologised for this. It is inevitable there will be changes over such a long period and it was necessary to involve officers across different teams. Therefore, I do not consider this warrants a formal finding of fault.

Complaints handling

66. Miss X made a formal complaint in May 2019. The Council’s investigation of her complaint was not completed until early October 2019.

My findings

67. The Council accepted there were delays in its complaints handling. This was fault. This caused further distress and inconvenience for Miss X.

Agreed action

68. Within one month of the date of the final decision the Council will:
• Apologise to Miss X for its failure to issue an amended EHC plan after the review in February 2018 causing Miss X to lose her right of appeal to tribunal, the failure to arrange an alternative education for Y between October 2016 and May 2019, and delays in the complaints handling process;
• Pay her £600 for the inconvenience, and time and trouble caused, including the lost opportunity to appeal to the SEND tribunal;
• Pay her £7,200, for the benefit of Y, to remedy the lost education caused as a result of the Council’s delay in acting on its duty to arrange alternative education for a child out of school. This is based on £300 per month for 24 months. In considering the amount per month I have taken into account Y missed out on most of their secondary education during that period and has special educational needs but may not have been able to access full time education due to their anxiety.
69. Within three months of the date of the final decision the Council will:
• review its processes to ensure that alternative educational provision is provided in line with the statutory guidance; and
• review its processes to ensure that following an annual review, it either issues a decision to stop or maintain the EHC plan or it issues an amended EHC plan, as appropriate, and that it provides information on appeal rights.

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Final decision

70. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
71. 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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Investigator's decision on behalf of the Ombudsman