Summary: Miss X complains the Council delayed reviewing her child’s Education, Health and Care plan, and did not provide adequate alternative education while her child was out of school. She says this was stressful and upsetting to her child and herself and meant she was unable to appeal to the tribunal. The Ombudsman finds the Council to be at fault. The Council has agreed a remedy to address the injustice caused to Miss X and her child.

The complaint

1. Miss X complains the Council incurred delays in reviewing her child’s Education, Health and Care (EHC) plan. Miss X complains the Council did not make provision for her child’s education while they were unable to attend school due to their health conditions.
2. Miss X says the Council’s actions caused unnecessary distress and upset to herself and her child. She says the delays prevented her from appealing to the tribunal about her child’s EHC plan and her child did not receive a structured education from the end of 2017.

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What I have investigated

3. The Council has upheld Miss X’s complaints. It says it will review its processes and provide training to the relevant team. I have investigated the injustice caused to Miss X and her child and whether the Council adequately addressed the fault it identified.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

6. 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.
7. 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.
8. 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)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. 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)
11. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
12. The courts have said where a complainant has appealed to the Tribunal, the Ombudsman cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
13. 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)
14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

15. I considered the information provided by Miss X and the Council’s response to her complaint.
16. I have considered the relevant legislation and statutory guidance, set out below. I have also considered the Ombudsman’s focus report, ‘Out of school…out of mind? How councils can do more to give children out of school a good education’, published September 2011.
17. Miss X and the Council had the opportunity to comment on a draft of this statement. I have considered all comments before I reached a final decision.

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What I found

What should have happened

18. The Education Act 1996 (section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
19. The only exception to this is under subsection 3AA of section 19 of the Education Act 1996, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
20. In 2013, the government published statutory guidance for councils about alternative provision. This says that while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.
21. The guidance says where full-time education would not be in the best interests of a child because of their physical or mental health, councils should provide part-time education on a basis it considers is in the child’s best interests.
22. The guidance says where a council has identified that alternative provision is needed, it should make sure it is arranged as quickly as possible and that it appropriately meets the needs of the child. The guidance says the law does not specify the point during a child’s illness when it becomes the council’s responsibility to secure suitable full-time education for the child.
23. The Children and Families Act 2014 (Part 3) says a local authority is responsible for a child or young person if he or she is in the authority’s area and has been identified by the authority as someone who has or may have special educational needs.
24. In 2015, the government published a Code of Practice which provided statutory guidance for organisations, (including Councils), which work with and support children and young people who have special educational needs.
25. The Code of Practice says some children and young people may require an Education, Health and Care (EHC) needs assessment for the Council to decide whether it is necessary for it to make provision in accordance with an EHC plan.
26. The purpose of an EHC plan is to make special educational provision to meet the special educational needs of a child or young person, and to secure the best possible outcomes for them across education, health and social care.
27. The Code of Practice says following a review of an EHC plan where a child or young person attends a school or other institution, Councils must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan within four weeks of the review meeting. The Council must notify the child’s parent, or the young person and the school or other institution attended.

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What happened

Background

28. Miss X’s child, Y, attended a mainstream school, school A. Y has autism and learning difficulties and was diagnosed with anxiety. The Council provided an EHC plan to provide support to Y.
29. From late 2017, Y was unable to attend school due to anxiety. Miss X asked for a placement at an alternative school and asked for the EHC plan to be reviewed to reflect the change in circumstances.
30. A review meeting was held in January 2018.
31. In July 2018, Y received an offer of a placement at school B. Y also retained their placement at school A.
32. Miss X says Y received some home tutoring from school B in July 2018, and again in September 2018 when the autumn term started. However, Miss X says this provision was sporadic.
33. In October 2018, Miss X says school B asked Y to attend its classes instead of providing home tuition. Miss X says Y was too anxious to attend classes and the provision of home tuition stopped.
34. In November 2018, Miss X says she told both schools she would be educating Y at home because of their continuing anxiety. School B withdrew its placement for Y.
35. In late November 2018, the Council issued the amended EHC plan following the meeting held in January 2018. The Council then began another review of the plan.
36. Miss X says she told the Council in January 2019 that school A was not providing any schoolwork for Y. Miss X says school A then started to send some worksheets for Y to complete by themselves. Miss X says the schoolwork provided was intermittent and the same as that previously taught to Y the year before. She says it was not the same as the work studied by Y’s peers at the time.
37. The Council issued the reviewed EHC plan on 1 July 2019. Miss X appealed to the First-Tier Tribunal (Special Education Needs and Disability) on 30 July 2019.
38. Miss X complained to the Council about the delay in completing the review of Y’s EHC plan. She said the delays meant she could not appeal to the Tribunal earlier because the Council had not finalised the plan.
39. Miss X also complained about the lack of suitable education provision offered to Y while they could not attend school due to their health conditions.
40. The Council replied in September 2019 and upheld Miss X’s complaints.

What happened next

41. The Tribunal hearing was held in December 2019 and the decision was made that a specialist placement was needed.
42. Miss X says Y was very anxious about re-entering a formal education setting. Therefore, she decided to continue to home educate Y.

The Council’s response

43. The Council reviewed its actions and produced a report in September 2019. The report addressed the following complaints:

• The Council did not allow a child with an EHC plan to be taken off roll of a mainstream school straight away so that home education could be provided;
• The Council decided a review of the EHC plan was required before it would give permission for a child to be home educated;
• In cases where a child was to be home educated, the Council had a policy requiring families to agree to conditions which were not part of the law, before the EHC plan process could be completed;
• The Council failed to adhere to timescales set out in government guidance for EHC plan reviews, thereby delaying parents’ right of appeal to tribunal, and
• Not providing sufficient suitable education when a child is unable to attend school because of anxiety.

44. The Council found it had not adhered to relevant regulations and statutory guidance. It found that a flowchart used by the Special Education Needs (SEN) team about elective home education (EHE) did not comply with the law as set out in the Pupil Registration Regulations.
45. The Council said the flowchart wrongly treated all pupils with EHC plans as though they were registered at a special school. It did not consider there are different processes depending on whether the child is a registered pupil at a mainstream or a special school.
46. The flowchart said there must be a review of the EHC plan before home education is “allowed”. The Council said this is not a legal requirement for a child that is attending a mainstream school. The Council said the flowchart was not a policy but was produced as staff guidance.
47. The Council acknowledged it told school A that Y should remain on roll despite this not being a statutory requirement under the circumstances. It also acknowledged it sent incorrect information to Miss X about this matter.
48. The Council also acknowledged significant delay in its decision making, particularly in relation to the EHC plan annual review. It also acknowledged it incurred unnecessary delay when it wrongly stated it required a review to allow Y to be taken off the school roll.
49. The Council upheld all the complaints listed at paragraph 43 but made no finding on the provision of suitable education while Y could not attend school. The Council said it could not assess the suitability of the schoolwork provided to Y but did acknowledge that Miss X felt it to be insufficient.
50. The Council made the following recommendations:

• To provide an apology to Miss X for the distress caused;
• To review current practice and ensure new processes are developed and adhered to whilst ensuring that staff within the SEN team no longer use the EHE flowchart previously referred to;
• To ensure training relating to EHE policy and practice is provided to all workers and managers in the SEN department;
• To undertake an audit of all EHE cases where a child has an EHC plan to ensure that practice is compliant with policy and guidance;
• To review internal processes relating to the timelines of annual reviews and identify any practice improvement required;
• To have a written policy statement on EHE which is clear, transparent and easily accessible and consistent with the current legal framework, and
• To consider as part of the alternative provision review and strategy those children who are not able to attend school due to medical or social emotional and mental health difficulties.

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Analysis

The Council’s actions

51. I have decided to exercise discretion and investigate the injustice caused to Miss X and her child dating back to 2017. This is because the Council upheld Miss X’s complaint in 2019, dating back to this period. My investigation focusses on whether the Council adequately addressed the fault it identified.
52. The Council has set out in detail its findings and has upheld Miss X’s complaints. I have therefore not further investigated the actions which led to the complaint as it is unlikely that we could add to the Council’s previous investigation.
53. The Council has itself identified systemic failings as part of its review of Miss X’s complaints. It has taken positive action to address the fault identified and to ensure that similar errors do not occur again.

The impact on Y

54. As stated at paragraph 9, we cannot investigate complaints about what happens in schools. The Ombudsman is therefore not able to comment about the quality or suitability of the work provided by the school(s).
55. From January 2018 to July 2018, Miss X says Y received no structured education. During this period of six months, she says Y received only one set of worksheets to complete at home. The Council says it cannot assess whether the worksheets where suitable for Y at the time but recognises that Miss X felt it was not sufficient.
56. During the following three months of term-time (July, September and October 2018), part time provision was made for a tutor to attend at Y’s home. In July, Y received a total of three hours tuition, and in September to October, a total of 13 hours tuition. One hour of this tuition was held at school B.
57. Miss X says no educational provision was made in November and December 2018, a period of two months.
58. From January to July 2019, Miss X says no direct tuition was provided to Y, and only infrequent worksheets were provided. This is a period of seven months with reduced educational provision.
59. Miss X says the lack of provision for the first half of 2018 was very destabilising for Y. She says it set back Y’s learning and knocked their confidence. Although part-time tuition was provided at home for a short period, Miss X says Y’s anxiety was made worse when school B said Y needed to attend its premises for tuition.
60. Miss X says Y fell further behind when no provision was made during November and December 2018.
61. Miss X says the school worksheet system in place from January 2019 caused additional stress to Y. This was because Y did not receive one to one support to explain the work.
62. Miss X says it was very distressing for her to witness the increased anxiety caused to Y because of the lack of suitable educational provision and support. She also says the inability to appeal the EHC plan because of the delays caused additional unnecessary stress.
63. Although there were periods when no educational provision was made to Y, it is acknowledged the Council did provide some provision at times during this period. There is a total period of ten months of term time when part-time or reduced/intermittent provision was made (July, September and October 2018, and January to July 2019).
64. There is a total period of eight months of term time when no provision, or next to no provision was made (January to July 2018 and November / December 2018). The lack of provision was particularly significant as Y was working towards GCSEs at the time.
65. The primary injustice is to Y due to the above mentioned 18 months of missed suitable education. It is acknowledged that some provision was made during this period, but generally, part-time provision should be on a temporary basis for exceptional and documented reasons, and part of a programme to return the child to full-time education.
66. It is noted the amended EHC plan was issued on 1 July 2019. The Ombudsman does not have jurisdiction to consider any injustice from this date until the Tribunal heard the appeal. Therefore, the total number of months of missed suitable education which can be considered is 17 months.
67. The failure to complete the review and issue the amended EHC plan in accordance with the statutory timescales prevented Miss X from challenging the Council’s view that mainstream education was appropriate for Y.
68. There is further injustice to both Miss X and Y caused by the uncertainty that Y may have been able to attend a specialist placement had they not been out of school for such an extended period.
69. It is positive the Council has acknowledged the systemic failings and fault in its actions regarding Y’s EHC plan. It has already agreed to review its processes and provide training to its SEN team. It has also agreed to undertake an audit of all EHE cases where a child has an EHC plan.
70. However, I do not consider the Council has adequately addressed the injustice to Y and Miss X stemming from the fault it has identified.

Agreed action

71. To address the injustice arising from the fault identified, the Council has agreed to take the following action:

• Within three months of the final decision, the Council has agreed to provide evidence to the Ombudsman of the actions it has taken regarding the review of its processes and the provision of training within the SEN team.

• Within three months of the final decision, the Council has agreed to provide the Ombudsman with the audit results of cases who may have been similarly affected, with evidence of what has been done to address any failings.

• Within one month of the final decision, the Council has agreed to make a payment of £5,950 to Y for the loss of alternative education. This is for the 17 month period previously referred to and is calculated at £350 per month. This payment should be used for the benefit of Y’s education.

• Within one month of the final decision, the Council has agreed to make a further payment of £200 to Miss X for the distress caused to her, and for the loss of opportunity to appeal earlier to the Tribunal.

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Final decision

72. I have completed my investigation and found fault causing injustice. The Council has agreed to take action to remedy this.

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Parts of the complaint that I did not investigate

73. I have not investigated the Council’s actions after July 2019. This is because Miss X had the right to appeal Y’s EHC plan at tribunal from the date the final plan was issued (July 2019).
74. As I have said above, we cannot investigate a complaint if someone has the right to appeal to a tribunal. So, the Council’s actions from July 2019 onwards are outside of the Ombudsman’s jurisdiction.
75. I cannot look at the school’s actions or the quality or suitability of the work provided by the school(s).

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Investigator's decision on behalf of the Ombudsman