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Solihull Metropolitan Borough Council (19 017 443)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 Aug 2021

The Ombudsman's final decision:

Summary: There was fault by the Council in failing to put in place suitable full-time education when Y was unable to attend school due to bullying and anxiety. There was also fault in the Education, Health and Care (EHC) needs assessment and delay in issuing an EHC plan. This caused Y to miss out on full-time education for a period of eighteen months. Recommendations for an apology, financial remedy payment and service improvements are made.

The complaint

  1. Ms X complains on her own behalf and on behalf of her child whom I shall refer to as Y. Ms X complains the Council:
    • Failed to provide suitable alternative education when Y was unable to attend school due to bullying and resulting anxiety from July 2018 until February 2020
    • Delayed issuing Y’s Education, Health and Care (EHC) Plan which prevented Y starting at a new school until February 2020
    • Failed to obtain suitable evidence for:
      1. A Medical tuition panel and, a
      2. Statutory EHC assessment
    • Refused to issue an EHC Plan but then reversed this decision when it obtained further evidence, evidence it should have obtained during the original assessment
    • Offered a financial remedy for forty-five hours lost education which was inadequate because:
      1. It did not cover the full period of loss;
      2. It was based on 8.5 hours of one-to-one tuition per week being equivalent to full-time group-based education for GCSE years;
      3. Did not allow for any catch-up provision;
      4. Did not recognize the scale of impact on Y, Ms X and the whole family from Y being out of school for an extended period.
  2. Ms X says the alleged fault placed the whole family under significant stress. Ms X has several children, including others with additional needs. Ms X says she had to transport Y to the library for tuition, provide additional care supervising tutors at home and provide care to Y. Ms X also says she was put to unnecessary time, trouble and distress pursuing the complaint and getting the right services in place.

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The Ombudsman’s role and powers

  1. 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)
  2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  4. 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

  1. I have considered information provided by Ms X and the Council including:
    • Complaint documents
    • Special educational needs documents
    • Alternative education documents
    • Y’s social care file
    • The Council’s policy for medical tuition.
  2. I have considered relevant legislation and statutory guidance:
    • The Education Act 1996
    • The Children and Families Act 2014 and supporting Regulations and Code of Practice
    • Statutory Guidance: Children missing education; Education for children with health needs who cannot attend school; Alternative Provision.
  3. I have considered guidance produced by the Ombudsman:
    • Guidance on Remedies
    • Three Ombudsman Focus Reports: EHC Plans: our first 100 investigations; Not going to plan? EHC plans two years on; Out of school, out of mind?
  4. 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.
  5. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Alternative Education

Chronology

  1. Y attended school until early July 2018 when, due to bullying and anxiety about this, she stopped attending.
  2. On 26 September 2018 Ms X made an in-year school admissions application so Y could change schools. At that point Y was in Year 9. The Council’s notes show that it was aware at that time Y had been absent from school for medical reasons since July and had a nil attendance for the 2018/19 academic year. This was recorded in the notes held by the Council’s special educational needs (SEN) team. The notes show the Council sought clarity from Y’s current school about the request to change schools. The School said Y had moved to a new address and as far as school was aware this was the reason for changing schools. The School was unaware of bullying and did not consider Y required SEN support.
  3. A managed move began at a different school on 3 December. This was unsuccessful. The Council’s managed move panel was notified on 7 December the move had ended.
  4. On 21 February 2019 Ms X applied for an EHC assessment stating that Y should have received alternative education when she was unable to attend school for medical reasons, but this had not happened because Y’s school had been told they could not refer Y for medical tuition until a sick note from mental health services was received. Y was on the waiting list for services.
  5. On 25 February 2019, the Council asked Y’s original school if she had returned there.
  6. On 5 March 2019, the Education Welfare Officer (EWO) supported Y on a visit to school, but she felt unable to attend. The original school then made an application for Y to receive medical tuition. The School’s application said Y could not attend school due to distance and past bullying on social media.
  7. The Council’s process for medical tuition requires the School to submit supporting medical evidence. While the School did submit evidence Y had some SEN, this did not confirm an inability to attend school, so the Council’s panel declined medical tuition. This decision was overturned when further medical evidence was obtained on 9 April confirming Y was too anxious to attend school. The Council offered an alternative placement on 12 April, but Ms X refused this as a pupil who had bullied Y also attended.
  8. In July 2019, the medical tuition service signed a contract with Y’s original school, where she remained on roll, and tuition started.
  9. The Council says that when its panel allocated an alternative placement in April it did not know that a pupil there had been involved in bullying Y. It said it provided tuition to Y from July 2019 for 8.5 hours per week and Y had 83% attendance. The Council told Ms X during the complaint process that 8.5 hours of one-to-one tuition was equivalent to full-time group provision.
  10. The Council told the Ombudsman that:
    • the 8.5 hours reflected Y’s health needs and anxiety and that Y wanted to do six GCSE subjects;
    • it did not know Y was out of school between July 2018 and March 2019 as the school had been authorising the absence;
    • Y was also attending extra-curricular arts tuition at weekends.
  11. The Council says Y started a new school in February 2020 and has been placed in the year below her chronological age (Year 10) to allow time to catch up before taking five GCSE’s.

Law and Guidance

  1. Section 19 Education Act 1996 places a duty on councils to provide suitable alternative education for children of statutory school age who cannot attend school because of illness, exclusion or ‘otherwise’.
  2. The courts have found that ‘otherwise’ is intended to cover any situation in which it is not reasonably possible or practicable for the child to take advantage of existing suitable schooling.
  3. The Guidance Children Missing Education says that when the reason why a child has stopped attending a school is not known the Council should investigate the case and satisfy itself that the child is receiving suitable education.

Analysis

  1. The Council says it only knew about Y’s absence from school in March 2019 and then referred the matter to the medical tuition panel which allocated a placement quickly. It says when it found out the second placement was also not suitable it then put in place tuition in July 2019. The Council therefore says there was no delay on its part.
  2. I find the Council did know about Y’s absence from late September 2018 when Ms X made an in-year admission application. It noted Y’s attendance for that school year was zero. In line with the guidance Children Missing Education the Council did make enquiries of the school, however, the Council did not make enquiries of the family, relying on information from the school the non-attendance was due to a change of address. It is not clear what happened to the admission request, but I would have expected an Officer responsible for children missing from education to have followed up whether Y was promptly offered and admitted to a new school. It is clear this did not happen as a managed move was instead tried, unsuccessfully, in December.
  3. The Council was aware from 7 December the managed move had ended but it did not make enquiries of the original school until 25 February. This delay was fault.
  4. The original school made an application for medical tuition which was initially rejected due to lack of evidence. This did not alter that the Council had a duty to provide suitable alternative education for reasons other than medical, for example where bullying meant it was not reasonably practicable for a child to attend the school where they were on roll.
  5. Our Focus Report Out of School…Out of Mind? (2011) identified common errors by councils and included a case study of a child who refused to go to school / was ‘school-phobic’ (or too anxious to attend) as well as a case study where a child could not attend school due to bullying. In such cases the Council must consider if the child is medically fit to attend school, but even where there is no medical evidence to support this, the Council will still need to provide alternative education if there are other reasons why it is not practicable for the child to attend. Councils must either try to resolve the problem, for example through the EWO or SEN team, but if the child cannot be reintegrated, or the school is unsuitable, the Council has a duty under s.19 Education Act to offer an alternative.
  6. I am therefore satisfied that irrespective of whether Y had medical needs that meant she was unfit to attend school, the Council had a responsibility to explore whether it was reasonably practicable for Y to attend her original school where the bullying had occurred or provide a suitable alternative. The EWO was involved in a trial visit in March 2019, but this was far too late. This action should have started in Autumn 2018 when the Council was aware Y had not returned to school after the summer holidays and when she was not permanently admitted to a new school.
  7. I find that there was delay by the Council:
    • Between 26 September when the Council was aware Y had stopped attending school and early December when the managed move was arranged. If there was delay in arranging the managed move the Council should have provided suitable alternative education for Y in the interim.
    • Between 7 December when the managed move failed and 12 April when the Council offered an alternative placement.
    • Between April 2019 when the alternative placement was declined as unsuitable and tuition starting in July 2019.
  8. It is unclear when the Council was aware the placement offered in April 2019 was unsuitable, but I consider that if the Council had been actively case-managing the matter from Autumn 2018, as it should have been, it would have been aware of this promptly and could then have put forward other options.
  9. The Guidance for children with health needs says that when a council has identified a child requires alternative education, whether due to health needs or ‘otherwise’ it should ensure it is arranged as soon as possible and that it appropriately meets the needs of the child. Councils should also have a named officer to oversee cases where a child is missing from education. The Guidance says councils should work with health professionals and the family (my emphasis) and consider the medical evidence to identify what provision is appropriate.
  10. I have seen little evidence other than the EWO visit in March 2019 that the Council engaged with the family directly to discuss placements or identify what the difficulties with Y attending school were. This was fault. The Council should have provided a named officer to engage directly with Ms X and oversee Y’s absence. If it had done so, it would have been immediately aware of the problems that occurred with the managed move and alternative placement suggested without needing to rely on different departments within the Council to share this information.
  11. Councils should arrange full-time education in line with what would be available within a school unless full-time provision would not be in a child’s best interests, for example because there is medical evidence that states a lower number of hours is necessary.
  12. The Council has not provided medical evidence to support its view Y’s education needed to be restricted to 8.5 hours per week. Y was working towards six GCSE’s and would have received 25 hours per week teaching in school. One-to-one teaching is more intense and individualised, and therefore can be considered equivalent to a higher number of hours of group teaching. However, I am not persuaded 8.5 hours per week was sufficient to meet the requirements set out in the Guidance to provide good quality education that would allow Y to take appropriate qualifications in six subjects and prevent Y slipping behind her peers. I am also not persuaded Y’s involvement in extra-curricular activities at weekends should limit the amount of tuition she received during the school week for her GCSE’s. Ms X told me that Y attended one free arts workshop run by the Council not regular classes.
  13. In summary, I find the Council failed to provide suitable alternative full-time education to Y from Autumn 2018 until February 2020. This was fault. I acknowledge that Y has been allowed to repeat a year now that her EHC plan has been issued but this does not alter that Y is now taking fewer GCSE subjects that most of her peers and that she expected to take. Y lost out on a significant amount of education at a key phase of her education. Y had to change her GCSE subjects mid-year when she started school and will need to complete new subjects in a shorter period. I am not satisfied that repeating a year therefore remedies the previous lost provision. Before these events Y was working at age-appropriate levels and her School did not consider she required SEN support.
  14. The Ombudsman’s Guidance on Remedies suggests a remedy payment of between £200 to £600 per month is appropriate for lost education depending on the child’s SEN, what alternative provision was provided and whether it was a significant time in a child’s school career.

EHC plan

Chronology

  1. On 21 February 2019 Ms X made a parental request for a statutory EHC assessment. The Council agreed to assess and sought advice from health, Y’s school, educational psychology and social care.
  2. The educational psychologist (EP) referred to advice from a clinical psychologist in March 2019, occupational therapy (OT) in 2017, school reports in 2016 and 2017 and letters from the paediatrician in 2018 which set out diagnoses of conditions which may cause SEN.
  3. The paediatrician replied to the request for advice that Y did not require a medical appointment at that time, but paediatrics would input into statutory assessment if a referral was made from the general practitioner or the school. The Council accepted this response which meant that no updated advice about Y’s SEN was obtained from health.
  4. Social care advice was not forthcoming within the assessment period.
  5. No advice was received by the Council directly from mental health services or OT for the purposes of the EHC assessment.
  6. At the end of the statutory assessment in June 2019, the Council decided Y did not require an EHC plan as her needs could be met in a mainstream school.
  7. Ms X complained to the Council and stated Y would not be returning to the previous school which she had not attended since July 2018.The SEN team felt this was a matter for school admissions as a different school could be allocated.
  8. Social care started an assessment in August 2019 and noted Y was on the waiting list for OT and mental health services. Social care provided emergency short break funding of four hours per week pending the outcome of the assessment.
  9. The Council held complaint / informal mediation meetings with Ms X in July and August. Initially this was to discuss a ‘way forward’, that is support available to Y without an EHC plan. The Council instead agreed in July 2019 to seek further advice from OT and mental health services.
  10. A formal request was made for such evidence on 17 July. The Council internal records refer to evidence that might have been ‘missed’ during the statutory assessment.
  11. The Council reversed the decision to issue an EHC plan on 21 August after a second informal ‘mediation’ meeting with Ms X. The Council told Ms X in its complaint response that this meeting reset the timeframe for issuing an EHC plan. It said it had five weeks from 21 August to issue a draft plan and eleven weeks from 21 August to issue a final Plan. The Council acknowledged it missed these dates with the draft being issued on 13 January instead of by 25 September and the final Plan being issued on 20 February instead of by 6 November.
  12. The Council acknowledged this delayed Y’s start at her new school from November to February. It said the 8.5 hours tuition Y received, together with weekend arts tuition, was equivalent to 20 hours group provision. It said if Y had been in school she would have received 25 hours. It offered a payment for the delay equivalent to the cost of a tutor (£30 per hour) for five hours missed per week for a 12 week period (allowing for holidays), that is £1350 for 45 hours lost education. Ms X refused this offer.

Law and guidance

  1. Section 6(1) of the Special Educational Needs and Disability (SEND) Regulations 2014 says as part of an EHC assessment Councils must obtain:
    • Educational advice from the school or setting
    • Medical advice from a health care professional identified by the responsible commissioning body
    • Psychological advice from an educational psychologist
    • Advice from social care
    • Advice from any other person the Council considers appropriate
    • Advice from any person the child’s parent reasonably requests the Council seek advice from.
  2. Advice should be provided within six weeks.
  3. The SEND Code of Practice says the Council should consider with the parent or young person the range of advice required to enable a full EHC needs assessment to take place. It says the family should be supported to understand the range of assessments available so they can take an informed decision whether existing advice is satisfactory. The Council must not seek further advice if such advice has already been provided and the Council, family and person providing the advice agree existing advice is satisfactory for the assessment process.
  4. If a Council decides not to issue a plan after an EHC needs assessment then it must notify the parent, giving reasons for its decision, within 16 weeks of the initial request and advising that the parent has a right of appeal (SEND Regulation 10). SEND Regulation 10(4) sets out exceptions to this timescale.
  5. If the Council decides to issue a Plan this should be issued no later than 20 weeks from the date of the initial request (SEND Regulation 13).
  6. There is a right of appeal against a decision not to issue an EHC Plan to the SEN Tribunal. Parents can take part in mediation before a possible appeal. Mediation in this context is a formal process involving the use of a mediator who is independent of the Council (The Code 11.15). If during mediation the parties reach agreement, for example to issue an EHC plan, a mediation agreement is issued and the Council should then comply with the time limits set out in SEND Regulation 44 as thought the mediation agreement were a formal order of the Tribunal. A council would need to issue a draft plan within 5 weeks and a final plan within 11 weeks of the mediation agreement.

Analysis

  1. There is no evidence the Council discussed the range of advice with Ms X or discussed with her or the OT whether relying on OT advice from 2017 was satisfactory. This was fault.
  2. The Council did not obtain advice from ‘health’ for the EHC needs assessment. It obtained a letter from health stating Y did not require an appointment and a view health could input into an assessment in future if required. This is not advice that is compliant with the SEND Regulations. This was fault.
  3. The Council did not obtain advice from social care for the EHC needs assessment. A social care assessment was not started until August, after the Council decided not to issue a plan. This was fault. Social care should have started the assessment in February. Emergency funding for short breaks would then, on the balance of probabilities, have started sooner.
  4. The Council’s EHC needs assessment was not compliant with the SEND Regulations or the Code as the full range of advice was not obtained. As a result, the Council failed to capture important information about Y’s OT and mental health needs. This was recognised by the Council in July, as it acknowledged some information may have been ‘missed’ during the assessment it had just completed.
  5. The Council held two meetings with Ms X. These were not mediation meetings as defined in the Regulations and Code. This was not formal mediation with an independent mediator, therefore the time limits in SEND Regulation 14 do not apply, and nor do any of the exemptions in SEND Regulation 10.
  6. The Council met Ms X to discuss a ‘way forward’ for Y without an EHC plan. During these meetings it recognised it needed more evidence from OT and mental health services. This is evidence it should have obtained during the EHC needs assessment. I find the Council would, on the balance of probabilities, have obtained this evidence during the original assessment had it properly discussed the range of advice to be sought with Ms X and the relevant professionals.
  7. The Council argues that informal resolution resets the clock in the same way formal mediation does. I disagree, the Council reversed its decision on 21 August before it obtained any new evidence. There was no mediation agreement. I find on the facts of this case the Council’s revised decision to issue a Plan is still to be regarded as a response to the initial request and thus subject to the original 20 week timescale.
  8. The request for statutory assessment was made in late February 2019. The final plan should have been issued by mid-July 2019. It was not issued until mid-February 2020, a delay of seven months. This was fault.

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Agreed action

Within four weeks of my final decision:

  1. The Council will apologise to Ms X and Y for the faults identified in this decision.
  2. The Council will pay Y:
    • £4000 for the loss of education between October 2018 to June 2019 (taking into account holidays and that there were periods when other placements were offered / tried).
    • £300 for the reduced provision offered during July 2019.
    • £1500 for the reduced provision offered between September 2019 and Y starting school in late February 2020. Y’s EHC Plan should have been in place for September 2019 allowing her to return to school at that point.
    • The above payment of £5800 should be made to an account in Y’s name over which parents have control and used for Y’s benefit.
  3. The Council will pay Ms X £1000 to acknowledge the loss of social care short breaks due to the social care assessment not starting until after the EHC assessment was complete, as well as the time, trouble, inconvenience and distress caused by the faults I have identified. This acknowledges the impact to the whole family of Y being at home for an extended period.

Within four months of my final decision:

  1. The Council will review its procedures for children who are out of education to ensure that:
      1. The Council tracks such pupils until it is satisfied they have returned to full-time education. It is apparent different officers and departments within the Council knew throughout the period September 2018 to July 2020 that Y was not in suitable education but this information does not appear to have been properly recorded at a central point.
      2. The Council is aware of its responsibilities to, and makes provision for, children who are absent for reasons otherwise than exclusion or health reasons.
      3. The Council does not limit the amount of tuition to less than equivalent to full-time without clear medical evidence supporting that that this in the child’s best interests.
      4. The Council engages directly with families where a child is absent from education to ensure it has a clear picture of what the problems are.
  2. The Council will review its processes for EHC needs assessments to ensure:
      1. The range of advice to be sought is always discussed with families and professionals;
      2. All mandatory advice is sought in every assessment and the advice provided checked to ensure it is sufficient to support robust decisions;
      3. Officers know that reversal of decisions will not necessarily reset the clock for EHC time limits especially when the reversal arises from fault by the Council and is not due to new evidence or one of the exceptions set out in the SEND Regulations.

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Final decision

  1. I have completed my investigation. There was fault by the Council in failing to put in place suitable full-time education when Y was unable to attend school due to bullying and anxiety. There was also fault in the EHC needs assessment and

  2. delay in issuing an EHC plan. This caused Y to miss out on fulltime education for a period of eighteen months. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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