Summary: the complainant complained the Council failed to provide suitable alternative education while her son remained out of school. The Council says it offered alternatives and re-integration, but the student could not engage with it. It then approved specialist provision. We find the Council acted with fault causing injustice, and the Council agrees with the remedy recommended.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to:
• Without avoidable delay arrange suitable educational provision to meet her son, Y’s, special educational needs resulting in him missing school without support;
• Assess and issue an Education, Health and Care Plan (EHC Plan) without delay; and
• Provide the educational provision set out in the EHC Plan.
2. Mrs X says this resulted in Y missing a year without educational support when preparing for his GCSEs. Mrs X wants the Council to provide the services including private tuition to help Y recover and catch up on the missed education.

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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. If satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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.

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How I considered this complaint

8. In considering this complaint I have:
• Contacted Mrs X and reviewed the information presented with her complaint;
• Put enquiries to the Council and reviewed its response;
• Researched relevant law, guidance, and policy;
• Shared with Mrs X and the Council this draft decision so they now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
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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What I found

The law, guidance, and policy

10. A child or young person has a special educational need (SEN) if they have a learning difficulty or disability which calls for them to receive special educational provision. A mainstream school or college setting may provide this as SEN support.
11. The Children and Families Act 2014 (the Act), the Special Educational Needs Code of Practice 2015 (the Code) and the Special Educational Needs and Disability Regulations 2014 (the Regulations) contain detailed guidance to councils about how they should manage the EHC Plan procedure.
12. The Code also says the Council should not take longer than 20 weeks from the date the child’s parents ask for an assessment to assess a child’s needs and issue a final EHC Plan. The Regulations also set out the time limit at Regulation 13(2).
13. Section 19 of the Education Act 1996 imposes a duty on councils to provide suitable education for:

“…those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.

14. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ and ‘Alternative Provision’ say councils should:
• Provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school
• if a child receives one to one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated
• good alternative provision is that which appropriately meets the needs of pupils and:
1. enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology)
2. meets specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress
3. have clearly defined objectives including the next steps such as reintegration into mainstream education.

What happened

15. An Educational Psychologist assessed Y at primary school and noted he suffered from anxiety. Following his move to secondary school Mrs X says this became more pronounced and his attendance fell. During 2017 Y’s attendance at school (the School) declined further. Y stopped attending the School in April 2018.
16. The Council says its Attendance Team and the School followed up Y’s declining attendance. The School offered support at home through work sent for Y to complete. Mrs X says the Council and School failed to provide support with which Y could engage resulting in him missing important educational provision. In commenting on my draft decision Mrs X says the School did not provide support, indeed, Mrs X says the Attendance Team told the School not to. Further, Mrs X says, until November 2018 the Council treated this as an attendance issue and threatened her with legal action several times. Following Y’s referral to the Children and Adolescent Mental Health Service (CAMHS) Y’s school anxiety did not improve so Mrs X commissioned private therapists to work with Y.

EHC Plan assessment and issue April to November 2018

17. When Y stopped attending the School in April 2018 the School’s SEN officer suggested Mrs X apply for and EHC assessment. The Council says it received Mrs X’s application for an EHC Plan assessment on 17 July 2018. It agreed to carry out an assessment and following that it issued a draft EHC Plan on 30 October 2018. The Council issued the Final EHC Plan on 14 November 2018. Applying the time limits set for responding to applications for an EHC needs assessment the Council says it issued a decision to assess Y in three weeks. That is within the six-week target. Similarly, the Council says it issued the Final EHC Plan on 14 November 2018, within 17 weeks meeting the 20 weeks target.
18. Mrs X disagreed with the EHC Plan, therefore, she appealed to the Tribunal.

Educational provision for Y- April to November 2018

19. In May 2018, the Council considered Y’s attendance at a Team around the Family (TAF) meeting. Those present at the meeting noted the School had intervened before April 2018 to help Y improve attendance. The meeting noted the School also provided support through sending work home for Y to complete.
20. The TAF meeting noted the School had offered programmes to support Y recommended by an Educational Psychologist. Y did not use this programme. The TAF meeting decided sending more work home would have a negative impact on Y’s emotional wellbeing and on the family. The Council says the School had tried this before without success.
21. Mrs X told the Council Y did not use the online literacy programme and still refused to go to school.
22. The School says in line with its duty to support Y, it actively monitored Y’s ability to engage with further provision. The School says staff did this through telephone contact, email, and meetings with Mrs X. In June 2018, the School followed up on a suggestion by the Council’s Attendance Officer and tried to refer Y to a local learning centre for a medical placement. However, the Council says Mrs X had withdrawn Y from the CAHMS service, and so it could not provide the necessary support for the referral.
23. Y did not return to the School in September 2018. The Council says it did not arrange any alternative provision for Y because it believed the education available at the School met his needs if he could attend. The Council says without medical evidence showing he could not attend the Council continued to treat this as an attendance issue. Mrs X says the Educational Psychologist had found Y suffered anxiety and therefore a reason for him not attending school. By July 2018, the School decided it would mark Y’s absence as due to illness.
24. In the EHC Plan issued in November 2018, the Council offered Education Otherwise Than at School through on-line learning and a local centre for one day a week. Y could not attend the local centre due to his anxiety. The Council considered him for other placements but decided these could not provide him with what he needed.
25. Mrs X says the Council failed to provide any suitable provision for Y while absent from the School between April and November 2018. Mrs X says the School failed to provide suitable work for Y with which he could engage.

Educational Provision July 2019 to July 2020

26. Following the Tribunal’s Order, the Council issued an EHC Plan in July 2019 which says among other support Y shall receive:
• A gradual transition back into education.
• Until Y can attend an appropriate school, the Council will provide him with a full and comprehensive education package at home for at least 12 hours per week for 38 weeks of the year.
• Y will receive teaching across all the areas of the curriculum, with an increased focus on those subjects of interest to Y, which have been selected as Year 9 subject options.
• Y will receive 1 session of 60 minutes per week with a teacher qualified and experienced in teaching children with Specific Learning Difficulties.
27. In November 2019, the Council agreed in principle to fund tutors Mrs X had sourced to deliver home tuition to Y through a personal budget. The Council approved this in December 2019. Mrs X suggested the personal tutoring be suspended because Y felt it may be too much for him. The Council engaged an online company in January 2020 to tutor Y in his GCSEs. The Council says this company provides all Y needs in the EHC plan.
28. In February 2020, the Council bought a subscription to the online and tutoring service for Y until the end of Year 11. Following an approach by Mrs X in May 2020 the Council arranged further ASD teaching support in June 2020.

Analysis – was there fault causing injustice?

29. My role is to decide if the Council assessed and provided educational support for Y without fault. It is not to decide what Y’s needs are or how the Council should meet them. If I find the Council acted with fault, I must consider the impact of that fault and what the Council should do to put it right.
30. This complaint falls into two separate time periods. April to November 2018 and July 2019 onwards. The law prevents me commenting on the period between Mrs X’s right to appeal the EHC Plan issued in November 2018 and the Tribunal Order in July 2019. Therefore, I must split my consideration between these two periods.
31. The Council met the 20-week statutory time target for issuing a EHC Plan. I find the Council acted without fault in meeting the timescales for issuing the EHC Plan.
32. If a council arranges suitable education for a child in school and it remains available, but the child does not attend, that does not automatically mean the Council must provide alternative education. However, if there is no suitable education available to a child then under Section 19 of the Education Act the Council must arrange an alternative. The Ombudsman will not usually say the Council owes a duty where a child not attending school for a short time does so without a medical certificate. However, a prolonged absence should prompt the Council to consider if its duty under Section 19 has engaged.
33. Alternative educational provision can include on-line learning. However, this is an educational tool and not a full replacement for education equivalent to attending school as recommended in the statutory guidance.
34. Councils must address the needs of the individual child in arranging provision. Given Y’s age and ability the Council should have sought Y’s own views about how much education he could manage and subjects he would like to study.

Assessment and alternative provision between April and November 2018

35. By April 2018 when Y stopped attending the School his attendance had declined significantly. Without medical reasons for the non-attendance the Council through the TAF meetings should have considered if Y may need an EHC assessment not left it to the School or Mrs X to refer him. I find the Council at fault for not formally considering a referral earlier in the procedure which may have resulted in an assessment before the end of the school year.
36. Although the TAF meetings recognised he had difficulty with anxiety the Council did not see Y as having a medical diagnosis, despite the Educational Psychologist report saying Y has anxiety. Therefore, the Council did not believe its Section 19 duty to provide alternative education arose. It did not actively review this, it should, and particularly after the School began recording the absence as due to illness in July 2018. I find that failure to continually review whether it had a duty as a fault.
37. This resulted in delay to the Council considering alternative provision such as personal tuition which it then included in the November 2018 EHC Plan. I must consider if that caused a significant injustice. It is difficult to know whether Y would have engaged with personal tuition in September 2018. Even so the Council should have considered it. I find the Council at fault for not doing so. I have considered if the Council should offer a financial payment for the fault. That should reflect the injustice caused. I have recommended a payment based on our Guidance on Remedies at the lower scale of £150 per month for two months because:
• The School had in place arrangements it believed would help Y catch up;
• The Council had put in place a programme available on-line recommended by the Educational Psychologist;
• No medical professional involved with Y, had recommended home tuition rather than attending or returning to school;
• Y’s health at the time makes it uncertain whether he could have managed home tuition.
38. The Council continued to treat Y’s lack of education as an attendance issue even while it assessed his ECH needs and prepared to issue an EHC Plan. The Council continued to threaten court action until November 2018. I find the Council failed to properly consider withholding further threats of court action. This caused avoidable distress and mixed messaging to Mrs X.

Provision July 2019 to July 2020

39. The Council knew Y had missed significant parts of his education when the Tribunal issued its Order in July 2019. It says it had liaised with Mrs X to identify a custom-made package for Y in April 2019. The Council did not have in place specialist provision for Y by the start of the autumn term 2020. It should.
40. It then took the Council until January 2020 for a package of learning to start. It may not have been possible to provide the provision immediately the Tribunal issued its order with the school year ending in July 2020. However, it should have been in place by September 2020. Therefore, I find the Council at fault for the delay and that Y missed a term of bespoke education during a significant year for him.
41. Having considered our Guidance on Remedies I propose recommending the Council pay £350 per month for three months. This represents the lack of this provision from September to December 2019, set at the higher end of our scale because this is a significant year for Y.

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Agreed action

42. To address the injustice arising from the faults I have found I recommended, and the Council agrees within four weeks of this final decision to:
• Apologise in writing to both Mrs X and Y;
• Pay Mrs X on Y’s behalf £1,350 in recognition of the missed provision
• Pay Mrs X £300 in recognition of the impact on her in providing support for Y during the period he had no educational provision at home.

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Investigator's decision on behalf of the Ombudsman