Summary: Mrs X complained the Council failed to ensure her daughter, Y, received suitable alternative education when she was unable to attend mainstream school due to her anxiety. She also complained that when the Council arranged tuition for Y it was not sufficient to address Y’s needs. She said this has affected Y’s mental health and negatively impacted her development. There was fault when the Council did not arrange tuition for Y for several weeks after it became aware she was no longer attending school. The Council has agreed to pay Mrs X £500 in recognition of the injustice Y suffered when she did not receive an education for two months.

The complaint

1. Mrs X complained the Council delayed providing Y with suitable education when she stopped attending school in May 2019.
2. Mrs X also complained that when the Council arranged tuition for Y it was not sufficient for her needs.
3. She said this has caused her distress and Y has lost out on education and opportunities for social development.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
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

8. I contacted Mrs X and discussed her view of the complaint.
9. I considered the Council’s submission which included the complaint correspondence, the Council’s chronology of events, Y’s tutor report, Mrs X’s complaint form and Y’s EHC Plans.
10. I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment before I made the final decision.

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What I found

Education, Health and Care Plan

11. A child with special education needs or disabilities (SEND) 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.
12. The Council is responsible for making sure 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.
13. The Council should monitor the provision and support needs of the child regularly and carry out a review of the plan on an annual basis.

Alternative education and law

14. The Education Act 1996 states 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.
15. Councils have some flexibility regarding the time taken to set up alternative provision. However, they must arrange provision in medical cases where it is clear the absence is for more than 15 school days.
16. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the child is thought to be unable to cope with full-time provision, the council may decide to arrange part-time provision but there must be a clear medical reason for this.
17. The law also allows councils to consider one-to-one provision as worth more than provision delivered to a group.
18. The Children and Families Act 2014 makes clear that councils must consider the views, wishes and feelings of the child/young person and the child’s parents when carrying out their functions under the Act.

Council SEND Panels

19. All decisions relating to EHC needs assessments are made by a multi-agency panel comprising of representatives from health, social care, mainstream and special schools, and an educational psychologist.

Background

20. Mrs X’s child Y is of secondary school age and has been diagnosed with autism. Y also suffers with anxiety, which can be triggered if she believes she is being treated differently to her peers.
21. Y did not attend school between March 2018 and November 2018 due to anxiety. Mrs X complained to the Council that Y did not receive suitable alternative education during this period.
22. The Council upheld Mrs X’s complaint and arranged online and physical tuition for Y in September 2018. The Council finalised Y’s EHC Plan in November 2018.
23. Y’s EHC Plan sets out the following:
• Y requires personalisation of her timetable and flexibility around the curriculum on offer.
• Y needs time to process information and can become overwhelmed by language. Scribe support may benefit Y, but this support should be delivered keeping in mind Y’s concerns about appearing different to her peers.
• Y may benefit from 1:1 support to allow her to develop her social skills.
• Y requires structure and routine to help her build confidence around predictability and permanency.
• Y’s family and all professionals involved need to liaise together to ensure Y has consistent, structured, and a relevant approach across all settings.
• Y should be fully involved in decisions regarding a suitable school. Y should also be allowed regular access to friendship groups and social interactions.
24. Mrs X chose not to progress with the complaint and Y joined a new school in November 2018.

Mrs X’s current complaint

25. In mid May 2019, Y stopped attending School A because she was suffering from anxiety. Mrs X contacted the Council to confirm Y would not return to the school and suggested School B as a potential school placement. The Council told Mrs X it would discuss this at a SEND panel.
26. At the time, School A told the Council and Mrs X it wanted Y to return and offered Y a reduced timetable, more support and 1:1 tuition. However, Mrs X confirmed Y was not willing to return.
27. In early June 2019, Mrs X contacted the Council to discuss home tuition and a permanent school placement for Y. School A again told Mrs X it could meet Y’s needs and offered Y a reduced timetable. Mrs X did not accept this offer and asked the Council to place Y at School B as she had received information indicating the school had availability. The Council asked School A to provide the information needed to consider Mrs X’s request at the next SEND panel. The Council also emailed School B to ask if it could offer Y a place.
28. In early July 2019, the Council held a SEND panel and the panel agreed to pursue a placement for Y at School B. Mrs X contacted the Council in July and August 2019 to request an update. The Council informed Mrs X that School B had not responded to its email. The Council chased School B and sent a second request for a placement for Y in late August 2019.
29. In early September 2019, the Council asked School A to arrange English and Maths tuition for Y as soon as possible. The Council met with Y, Y’s grandmother, and Y’s tutor to discuss what support she required and the level of tuition she could handle. It was agreed Y would receive 2 x 1 hour sessions a week for the first week, 3 x 1.5 hour sessions a week in her second week and 4 x 2 hour sessions per week from then onwards. The Council advised Y’s tuition would gradually increase to make sure she did not become overwhelmed.
30. In mid-September 2019, School B agreed to offer Y a trial place with her tutor and asked for a review of Y’s EHC Plan. Y began receiving 8 hours a week of 1:1 tuition with a tutor, which took place in a separate room at School B. Shortly afterwards School B confirmed the trial was going well and it was prepared to offer Y support that would enable her to join the school on a long-term basis.
31. Mrs X complained to the Council shortly after this. Mrs X reiterated her upset regarding the education Y received during her first period of absence in 2018 and complained that Y did not have a permanent school placement, which was affecting her mental health and social life.
32. The Council investigated Y’s two periods of absence. The Council responded to Mrs X at Stage 1 of its complaint process in late September 2019, stating it could not investigate the first period of absence because it was outside the Council’s remit.
33. With regards to the second period of absence, the Council said there were delays arranging Y’s permanent placement partly because of the summer holidays and because the Council wanted to create a support package specific to Y’s needs. The Council recognised Mrs X’s frustration but said it was important to arrange a placement which would not fall through again. The Council concluded its letter by inviting Mrs X to a meeting to discuss the matter further.
34. In early October 2019 Mrs X escalated her complaint to Stage 2 of the complaints process as she was unhappy with the Council’s response. The Council acknowledged Mrs X’s complaint but informed her it would need to take some time to reply whilst it investigated her concerns.
35. In mid-October 2019, Y’s tutor wrote a report on Y’s development confirming she was working hard but frustrated she could not attend school. The tutor said Y was benefitting from the intensive nature of the 1:1 sessions but found it difficult to process and retain information. The tutor explained the lessons were tailored to Y’s needs and the busy nature of a classroom could disrupt Y’s learning process. Because of this, the tutor said Y would need to be gradually reintroduced to a classroom environment to limit her anxiety. Y’s tutor also said Y could have successfully taken her English and Maths GCSE if she had continued with tutoring.
36. Mrs X and the Council met with two employees at School B in late October 2019 to discuss Y’s progress. Mrs X asked that Y be allowed to join mainstream classes. School B confirmed it would continue working with Y on a trial basis but could not accept her into mainstream classes because she was behind her peers and would take up a disproportionate amount of teaching time. School B also said Y would likely need to restart the school year because she had missed so much schooling. Y became distressed by this.
37. The Council confirmed another school in the area had offered to provide Y with work experience and support during the afternoon. However, Y did not want to attend a meeting to discuss this. Mrs X did not believe the school was suitable for Y and she declined the offer. The Council then sent a formal application to School B to accept Y on a permanent basis. At this time Y began refusing to attend School B for tuition and would not allow her tutor to visit her at home.
38. In early November 2019, School B responded to the Council’s formal request saying it could not offer Y a permanent place because it could not meet her needs.
39. The Council responded at Stage 2 of its complaints process in November 2019.
    It said it previously upheld her complaint regarding the lack of education Y received between March and November 2018 and addressed this by arranging an online tutor for Y. The Council said it had offered several options to ensure Y received a suitable education, but Mrs X had not accepted these options. The Council reiterated its previous comments regarding the delay in finding a permanent placement for Y. The Council did not uphold this part of Mrs X’s complaint.
40. In January 2020, the Council met with Mrs X to discuss the situation. The Council said Y was still entitled to eight hours of 1:1 tuition per week but Mrs X said Y would not engage with this. The Council and Mrs X discussed other potential suitable schools in the area and alternative methods of education which might suit Y’s needs. The Council also agreed for Y to receive support from a youth support service.
41. The Council contacted schools in Y’s area to discuss whether they could offer Y a place, but one did not have availability and the other could not accept Y on her desired course because she did not have the required qualifications. Y began online tuition in March 2020, and this remains in place to the present date.
42. During the investigation, the Council confirmed Y’s EHC Plan is due to be amended following the last annual review meeting, which took place in February 2020. The Council recognised and apologised for the delay in reviewing Y’s plan and advised it is still working towards finding Y a suitable placement.

Findings

43. Mrs X complained the Council unnecessarily delayed arranging alternative education for Y when she left School A in May 2019. The evidence shows the Council was notified of Y’s absence in May 2019 and liaised with School A to encourage Y to return. When it became clear Y would not return to School A, the Council contacted School B to discuss a permanent placement. However, there were approximately eight weeks before the school holidays where Y did not receive tuition and did not have a school placement. The Council has not explained why it did not arrange tuition for Y until September 2019. This is fault. Because of the Council’s delay, Y missed out on education at a pivotal point in her development and Mrs X had to spend time chasing the Council. The Council should make a financial payment to remedy this injustice to Y.
44. Mrs X complains tuition arranged by the Council was not sufficient to address Y’s needs and did not allow Y to socialise with her peers as set out in her EHC Plan. The evidence shows Y was initially responding well to the personalised nature of the tuition she was receiving. The Council met with Y and took her views into consideration when deciding how much tuition was suitable. Y’s tutor also noted it was likely Y could become overwhelmed if introduced into a mainstream setting too soon. I am satisfied the Council considered Y’s needs and concluded 8 hours tuition per week was appropriate for her. The Council offered Y the opportunity to work with another school on a part time basis and School A offered Y a reduced timetable. Either option would likely have given Y opportunities to socialise. Y refused both options. I cannot criticise the Council for this. There is no fault in the Council’s actions.
45. Y later went on to refuse to engage with the tuition provided either at home or in school. There is therefore nothing to suggest increased tuition would have been beneficial for her. School B decided it could no longer accommodate Y in a mainstream setting due to the education she had missed out on. This was the decision of the school and I cannot hold the Council responsible for this. The Council has made considerable efforts to procure a mainstream placement for Y and continues to do so. These efforts have not been successful due to lack of availability and Y’s lack of schooling. There is no fault on the part of the Council.
46. The school requested a review of Y’s EHC plan and the Council has confirmed it did not immediately act on this request. The EHC Plan was due to be reviewed in November 2019 but the Council has confirmed it did not carry out the review until February 2020. This is fault. However, there is no evidence indicating this delay has made a significant difference to the process of securing a placement for Y.

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Agreed actions

47. Within one month of the date of my final decision, the Council has agreed to pay Mrs X £500 to remedy the injustice Y experienced when she missed out on education between May and September 2019. The money should be used as Mrs X feels best for Y’s educational benefit.
48. Within one month of the date of my final decision, the Council has agreed to confirm it has amended Y’s EHC plan.

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Final decision

49. There was fault when the Council unnecessarily delayed arranging tuition for Y. The Council has agreed to pay Mrs X £500 in recognition of this. The Council has also agreed to amend Y’s EHC plan. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman