Summary: Ms X complained the Council failed to provide her son Y with a suitable education after he stopped attending school because of anxiety. She said it also failed to review his Education, Health and Care plan to consider whether his needs had changed. The Ombudsman finds the Council was at fault. It failed to provide alternative provision for Y or meet his special educational needs after he stopped attending school. The matter also caused Ms X avoidable distress and time and trouble in raising her complaint with the Council. The Council has agreed to financially remedy Ms X and Y for the injustice caused.

The complaint

1. Ms X complained the Council:
1. Failed to provide suitable education for her son Y when he could not attend school because of anxiety.
2. Refused to complete an interim review of Y’s Education, Health and Care Plan (EHC Plan) after he stopped attending school.
3. Did not complete a children’s social care assessment as part of Y’s annual EHC Plan review in September 2019.
4. Failed to properly address her stage two complaint.
5. Has failed to work with her as per its ‘co-production charter’.
6. Failed to issue an EHC plan that fully assessed and made provision for Y’s special education needs (SEN), preparation for adulthood and independent living
2. Ms X said she had to give up work to support Y when he could not go to school. She had to provide him with daily educational support as he cannot learn independently. She said the stress, pressure and emotional toll caused by the Council’s failures and lack of support has been almost unbearable.
3. Ms X said Y had been working towards six GCSE subjects and a BTEC before he stopped attending school but was eventually entered for only four. Ms X said Y did not achieve as well as he had hoped.

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What I have investigated

4. I have investigated the complaints outlined in a) to e) above. The reasons for not investigating complaint f) is explained at the end of my decision statement.

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The Ombudsman’s role and powers

5. 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)
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. 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)
9. 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

10. I discussed the complaint with Ms X and considered the Council’s response to her complaint.
11. I made enquiries of the Council and considered its response including its case records for Y and his EHC Plan.
12. I referred to the relevant law and statutory guidance, and the Council’s policies and procedures.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision. The Council did not agree with all the findings as set out in my draft decision; however I was not persuaded to change my view. The Council did agree to comply with the recommendations.

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What I found

Education Health and Care Plans

14. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils must review EHC plans at least yearly. However, councils should also complete interim reviews if a child’s educational needs change throughout the year. This is to make sure any educational provision continues to meet the needs of the child. When a child or young person’s needs change significantly, the Council may decide to complete a reassessment of their needs.
15. Councils have a legal duty to ensure the special educational provision in section F of an EHC plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.
16. The statutory guidance requires councils to get ‘information and advice’ from social care when it completes an EHC needs assessment. It does not state the Council must complete a social care assessment.
17. Parents of children with SEN can access support from SENDIASS (SEND Information Advice and Support Service) if they have concerns about educational issues.

The Council’s co-production charter

18. The Charter sets out how it works with people using its SEN services. That says the Council will:
• Listen to everyone- and that no-one “should feel that they have to fight to be heard”,
• empower people,
• co-produce from start to finish,
• be person centred and solution focussed,
• enable everyone to take part.

Children missing from education

19. Under Section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
20. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests. It must be suitable for the child’s age, ability and aptitude, including any special needs.
21. Ensuring a good education for children who cannot attend school because of health needs 2013 states electronic media can be used to complement face-to-face learning but should not be the sole provision. It states councils should be ready to take responsibility for any child whose illness will prevent them for attending school for 15 or more school days where a suitable education is not otherwise being arranged.
22. If a pupil is unable to attend school for other reasons, the Alternative Provision 2013 statutory guidance applies. That states alternative education should be provided “as quickly as possible”.
23. The Ombudsman expects councils to provide an education that is ‘on a par’ with what is offered in school.

The Council’s policy

24. This states the Council will make arrangements for alternative education after a pupil has had a health-related absence of more than 15 days, verified by a medical doctor. It says that provision will commence ‘as quickly as possible’. It states in some circumstances suitable alternative education may already be in place and in these circumstances it will not intervene.
25. The Council’s Education Welfare Service (EWS) has a key role in identifying attendance issues related to medical issues. The policy states where EWS feel the needs of a pupil of medical need are not being met, it will ask the school to complete a referral for the Hospital Education Service (the HES) to carry out an assessment of need.
26. The Council requires details about the health problem including a treatment plan and states this information must be provided by a suitable medical professional. However, “where suitable medical evidence is not available quickly, the local authority will liaise with other medical professionals (eg the child’s GP), so that provision of education is not delayed”.

Background

27. Ms X adopted Y when he was ten months old. Y has needed support with his special educational needs since he was in reception.
28. The Council issued an EHC plan for Y in September 2018, when he was fourteen years old. The plan said Y was two years behind his peers academically and that he needed to be “supported heavily to follow school task instructions”. It said he “struggled to navigate around simple visual scaffolds such as task sheets and work sheets”. It states he “he does best when taught in a 1:1 situation or in a small group”. The provision in the EHC plan was based on Y being in school and described Y needing a high level of interactive support from teaching staff.
29. Y’s EHC plan describes him experiencing anxiety and makes provision for weekly support with his emotional literacy.

What happened

30. Y attended a mainstream school, School A. From November 2018, Mrs X said Y began to struggle with attendance because of anxiety. Ms X took Y to see his doctor who referred him to CHUMS- a service that provides mental health support to children and young people.
31. Y stopped going to school at the end of March 2019 when he was in Year 10. School A had regular contact with Ms X and tried to encourage Y to return. It sent work home to Y to complete and provided him access to on-line learning. A tutor from School A visited Y at home between April and May 2019.
32. Ms X spoke to Y’s paediatrician in April 2019. They wrote to her at the start of May 2019 recommending she contact the Council’s Education Welfare Service (EWS) and follow up Y’s appointment with CHUMS. CHUMS completed Y’s initial assessment on 10 May 2019.
33. On 14 May 2019, Ms X spoke to the Council’s EWS about Y not attending school. The EWS emailed School A and the Council’s SEN team suggesting an emergency EHC plan review to see if Y’s plan was working.
34. School A responded. It said it had:
• tried to support Y to attend school but could not get him across the threshold;
• sent work home to Y for six weeks but that was not sustainable; and
• considered a referral for medical needs but did not understand the criteria for the service.
• It stated Y’s anxieties were ‘so extreme’ that an interim review of Y’s needs would help identify other avenues of support for Y. It concluded by stating “We really need some support with this young man”.
35. School A had authorised Y’s absence due to his illness. The EWS responded to School A and said if it unauthorised 10% of Y’s absences it could support them.
36. The Council’s SEN service considered whether to hold an interim EHC plan review but suggested a referral to the Hospital Education Service (HES). In an email to School A the SEN service said “I am not sure that an EHCP review would yield anything really at this point- the plan is pretty good, but only once he is in school, and that’s not something the SEND can really do much about”. It said School A should get advice from Y’s doctor.
37. School A asked Ms X to complete the medical needs referral form to access the HES. Ms X had the referral form signed that week by Y’s paediatrician who he saw about his attention deficit hyperactivity disorder.
38. Ms X met with School A, an officer from SENDIASS and the EWS on 7 June 2019. The SENDIASS records of that meeting state School A would ‘look to provide appropriate work to suit Y’s learning style’. At that meeting the EWS advised School A to make a referral to Early Help, and a referral to the Children Adolescent Mental Health Service (CAMHS).
39. The Council received the medical referral for Y mid-June. That was passed to the Hospital Education Service (HES) 17 June 2019.
40. The HES stated it had concerns about the medical referral form because:
• it was completed by a paediatrician dealing with Y’s ADHD and not his mental health;
• the paediatrician had no plans to review Y’s case for six months; and
• there was no treatment plan to deal with Y’s anxiety.
41. The HES said it attempted to contact the paediatrician to discuss the referral over several weeks but they failed to respond. It said it also contacted the ‘single point of entry’ for CAMHS and CHUMS who stated they did not have a referral for Y.
42. At this time, internal emails indicate School A attempted to commission alternative provision off the HES but it was ‘reluctant’ to provide the service.
43. At the start of July 2019, Ms X complained to the Council. She said she had not received support from the Council after Y stopped attending school because of anxiety. She said the Council was neglecting its duties under section 19 of the Education Act.
44. On 10 July 2019, the HES spoke to Y’s ADHD paediatrician. They told the HES that they had told Ms X they should not complete the referral form to sign off Y because they were not treating him for his anxiety.
45. Following that discussion, the HES decided that Y did not meet its criteria for education because he did not have a medical need preventing him from attending school. The HES suggested that as Y had an EHC plan, it could offer Y a package of educational support paid for by School A. School A agreed to fund the package of support on 18 July 2019 for Y’s educational provision for September 2019.
46. That month, the Council responded to Ms X’s complaint. It said that:
• School A had sent work home and Y had access to online learning sites. It said School A had provided a tutor that Ms X had stopped in May 2019. It referred to school A stopping provision because Ms X said Y felt ‘swamped’.
• “school are key here and if you feel he has not been provided with an appropriate education, you can raise your concerns directly with them and follow their complaints procedure if necessary”.
• The HES had trouble contacting the paediatrician who signed Y off school. As the paediatrician had not signed Y off for mental health issues, they said they could not support a referral to the HES.
• School A was aware of its “continuing responsibility to provide an education for your son” and it expected to have a package in place for Y at the beginning of the September term.
• Ms X could appeal to Tribunal if unhappy with Y’s EHC plan and the named school placement.
47. There were several emails between Ms X and the Council as she was dissatisfied with its response. She said she asked for the home tutor to stop visiting because of how they had spoken to Y. She said it was School A’s decision not to reinstate the tutor to support Y after the summer half term.
48. Ms X met with the Council at the start of August 2019. In that meeting the Council agreed to:
• Follow up Y’s referral to CAMHS, who had not accepted the previous referral.
• Develop a mental health support plan for Y with input from Early Help and CAMHS.
• Arrange education with the HES and hold a meeting the first week of September.
• Offer Y an updated Educational Psychologists assessment.
49. Ms X asked the Council to escalate her complaint to stage two the same day. She complained the Council:
• Failed to acknowledge its section 19 responsibilities in its stage one response by placing responsibility for Y’s education on the school and not considering statutory guidance.
• Blamed her and Y for the fact Y was not in education.
50. She said there were systemic failings in the Council’s processes for children out of education because of medical needs who were not getting support from CAMHS or SEN Services. She asked for home tutoring for Y or financial compensation so she could source teaching independently.
51. Y started to access support from CAMHS at the end of August 2019. The Council held Y’s annual review of his EHC plan at the start of September and the HES attended that review. Y started accessing education with the HES the same week. Following consultation with CAMHS, School A and the family the Service Y was assessed as needing one hour each week in Maths, Science and English and three hours physical activity.
52. The Council provided a stage two response to Ms X in September 2019. It summarised her complaints as:
• “An issue about whose responsibility it was to secure education provision for [Y].
• Difficulties in securing CAMHs support for children in [Y’s] position.
• View on the guidance about the law for children like [Y]”.
53. In response to these complaints it said:
• School A should have held an emergency EHC plan review for Y as that would have provided greater clarity for how to move Y’s education forward. It said “reviews for EHCP’s are the delegated responsibility of the school”.
• Y’s educational needs were being met through the school in partnership with Ms X and Y.
• It accepted there “may” have been delays caused by getting clarity on details on the medical referral, but that all parties were “trying to understand how best to manage Y’s needs with an intention to secure a helpful outcome for [Y]”.
54. It partially upheld the first part of Ms X’s complaint and apologised for “some communications issues”.
55. The Council went on to state that CAMHS was not commissioned by the Council. In response to the third complaint, it listed statutory legislation about education. That included guidance for children who had been excluded from school. It did not include the statutory guidance Ensuring a good education for children who cannot attend school because of health needs 2013.
56. The Council sent Ms X Y’s amended EHC plan. Ms X disagreed with the content. At the start of November 2019, the Council decided to reassess Y’s EHC needs. The Council’s asked its social care service for advice. As Y was not known to the Council’s children with disabilities social care team, the request for information was passed to the post-adoption team. That team did not identify any social care needs for Y.
57. Ms X raised her concerns about the lack of social care assessment with the Council. It directed her to self-refer for a statutory social care assessment.
58. Ms X further complained to the Council in February 2020 that the Council had failed to take advice from social care about Y’s needs as part of the EHC needs reassessment. The Ombudsman agreed to investigate this new complaint as part of our ongoing investigation.
59. The Council issued Y’s final EHC plan on 18 February 2020. That specified Y needed one-to-one tuition, and support to enable him to access learning outside of the home. On 24 February 2020, the Council met with Ms X and Y to start the social care statutory assessment.

My findings

Alternative provision

60. The law is clear that where a child would not otherwise receive a suitable education because of exclusion, illness of ‘otherwise’ the Council must intervene and make suitable arrangements itself. Suitable means suitable to the child’s age, ability and aptitude, including any special needs. It should be full-time unless the Council considers that would not be in the pupil’s best interests.
61. When a school or parent reports problems with a child’s education, the Council must be able to demonstrate it has checked the child is receiving a suitable education. If not, the Council must make arrangements for the child’s education itself. The Council must do this even if the child is on roll at a school, and regardless of whether the child has a diagnosis. The only exception is where the child’s absence is unauthorised, or where the Council’s enquiries satisfy it that somebody else has already made suitable arrangements. If no arrangements have been made, then the Council is responsible.
62. The Council states there was no evidence to assume Y was not receiving a suitable education when it learnt he stopped attending school in May 2019. It states that in addition to access to on-line learning, School A provided Y a tutor, once a week between April and May 2019. It said School A provided work in line with Y’s SEN and it stopped the tutor because Y felt ‘swamped’.
63. The Council’s response is retrospective, made following Ms X’s complaint. I have seen no evidence in the email exchange between School A and the Council in May 2019 that the Council gave full consideration of the suitability of education provided to Y.
64. Furthermore, the Council failed to take into account the following relevant information:
• Ms X told me she contacted the Council in May 2019 because Y was out of school and she felt the work sent home from the school did not properly take account of Y’s special educational needs.
• School A told the Council it was providing online learning and worksheets. As Y’s EHC plan states he needs supporting “heavily to follow school task instructions”, and he struggles “to navigate around simple visual scaffolds such as task sheets and work sheets”, it is not clear how the Council considered these teaching methods supported Y’s SEN.
• School A said it ‘really needed some support’ when it emailed the Council but the Council did not provide any support or satisfy itself the school was able to provide suitable education for Y
• The SENDIASS officer’s records of the meeting at the beginning of June 2019 refer to School A needing to provide work appropriate to Y’s learning style- indicating this was a problem.
• The Council states the Service reminded School A to provide a teaching assistant on 2 July 2020.
65. The Council had evidence in May, June and July 2019 to indicate that Y was not receiving a suitable education.
66. There is disagreement between Mrs X and School A about why it stopped the tutor in May 2019. As there was no assessment of Y’s needs when he stopped going to school, there is nothing to state he could not engage in face-to-face tuition.
67. The Council’s lack of intervention at the outset delayed Y’s access to a suitable education. That meant the Council did not consider the suitability of Y’s education until July 2019- two months after it learnt he stopped attending school.
68. The guidance for alternative provision, states alternative provision should start as ‘quickly as possible’. Given the time Y had already been out of school and his SEN, the Council should have acted expediently when it learnt of Y’s missed education. Allowing two weeks for the Council to arrange education, the provision the Council put in place in September should have been in place at the start of June 2019.

EHC Plan

69. In addition to the above, Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC plan. This duty is non-delegable.
70. The provision in Y’s EHC plan is written based on him being within a classroom environment. The EHC plan describes him needing a significant amount of support from a teacher. Therefore the provision specified in Y’s EHC plan was not available after he stopped attending school.
71. Councils hold the statutory responsibility for EHC plans and must review the plan every twelve months. They can ask schools to hold review meetings on their behalf, but they cannot delegate the responsibility to the school.
72. Instead of reviewing the EHC plan when Y stopped going to school, the Council’s SEN Service told School A to refer Y to the Service and for Ms X to speak to Y’s doctor. It stated Y’s EHC Plan was ‘pretty good’, depending on him being in education.
73. In its stage two complaint response the Council said an emergency EHC plan review should have taken place but “reviews for EHCP’s are the delegated responsibility of the school”.
74. It was the Council’s responsibility to hold the emergency review for Y not school A’s. The Council’s understanding of the statutory guidance is incorrect. The Council was at fault as it failed to review the EHC plan after identifying the need to do so.
75. If the Council has completed the EHC plan review sooner, it is likely Y would of started to access appropriate education quicker as the Council accepts that his needs had changed.

The social care assessment

76. The statutory guidance states the Council must take information and advice from children’s social care as part of an EHC needs assessment. However, there is not a duty on the Council to complete a social care assessment.
77. The Council took advice from the post-adoption team when it completed its assessment of Y as that was the service who knew him. The Council was not at fault.
78. The Council has completed a statutory assessment following a referral from the SEN team.

The Council’s stage two response

79. Ms X said the Council’s stage two response did not properly consider the complaints she raised. I have considered Ms X’s written complaint to the Council and its response. The Council’s response failed to properly address Ms X’s complaints about:
• its responsibilities to provide education under section 19 of the Education Act;
• the lack of suitable education in place for Y since May 2019; and
• the Council’s processes for providing suitable education to children out of school because of medical needs who were not getting support from CAMHS or SEN Services.
80. In addition, the Council’s complaint response included guidance on children who had been excluded from school. Ms X feels particularly upset by this as it demonstrates the Council’s lack of understanding about Y’s situation.
81. The Council’s handling of Ms X’s stage two complaint was poor. It should have contacted her for clarity if it did not understand her complaint and it should have addressed her complaint raised. Where it identified fault with delays it offered no apology and took no responsibility.
82. I have set out in this statement why the Council was at fault in the way it responded to Y’s absence from school. The Council failed to recognise this when it considered Ms X’s complaint. That caused Ms X additional frustration and avoidable time and trouble bringing her complaint to the Ombudsman.

The Council’s ‘co-production charter’

83. The Council’s charter sets out how it will work with families with SEN. It describes a collaborative approach to working with families that aims to empower people and ensure their voice is heard. It specifically sates that no-one “should feel that they have to fight to be heard”.
84. Mrs X feels that she has had to battle with the Council and that it has not listened to her views. Taking into consideration Mrs X’s wider experiences of the Council, including how it has dealt with Y’s lack of education and its responses to her complaints, it is clear why Mrs X feels the Council has not worked effectively with her. However, in terms of the EHC plan review process, the case records show the Council has met with Ms X, responded to her emails and involved her in the co-production of the EHC plan. The Council was not at fault.

Injustice to Y

85. Where a child has not received a suitable education the Ombudsman’s guidance on remedies recommends a payment of between £200 to £600 a month to acknowledge the impact of that loss. We consider the impact on the child, the severity of their special educational needs and the amount of provision that they could have managed.
86. The Council’s inaction in arranging alternative education meant Y missed just over half a term of education. Given that Y was in year 10 and already academically behind his peers, that loss of education is likely to have caused a significant injustice.
87. That loss of education means Y also missed out on his SEN support. Once the Council arranged suitable education for Y in September 2019, he accessed 6 hours of at home, face-to-face provision a week.

Agreed action

88. Within two months of my final decision the Council has agreed to:
• Remind staff of the Council’s duty to identify and provide a suitable education for children who are not attending school because of medical need and ‘otherwise’; and
• Ensure it keeps case records to demonstrate how it has considered those pupil’s educational needs.
• Apologise to Mrs X and pay her £200 to recognise its poor handling of her complaint, and the avoidable distress and frustration Y’s lack of education has caused her.
• Pay a financial remedy of £600 to Y for half a term’s missed education. Mrs X can use that payment to make up for lost education. The payment should be outside of any provision allocated in Y’s EHC Plan.

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Final decision

89. The Council was at fault for failing to provide Y a suitable education after he stopped attending school. The Council has agreed to my recommendations to remedy the fault prevent a recurrence; therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

90. I did not investigate Mrs X’s complaints about the EHC plan she can appeal these to Tribunal.

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Investigator's decision on behalf of the Ombudsman