Summary: There was fault in the way the Council carried out a statutory assessment for special educational needs and in failing to provide suitable full-time education when a pupil was unable to attend school due to anxiety. This caused distress, uncertainty and led to the child missing out on education for an extended period. The Council will apologise, make a financial payment and carry out service improvements.

The complaint

1. Mrs X complains about the way the Council has dealt with matters related to her son’s (whom I shall refer to as Y) special educational needs (SEN), social care needs and home to school transport.
2. Mrs X says the Council:
1. Failed to provide suitable education when her son was out of school between January 2018 and July 2019.
2. Wrongly refused to undertake a statutory assessment of his education, health and care (EHC) needs, although it later reversed this decision.
3. Failed to conduct the EHC assessment correctly by:
1. Not seeking the correct evidence
2. Not meeting statutory timescales
3. Making amendments to the Plan between draft and final without giving her an opportunity to comment.
4. Failed to ensure special educational provision in the EHC plan it issued was secured, in breach of section 42 of the Children and Families Act 2014.
5. Had inadequate joint working arrangements with other services, in particular it included provision in Section G of the EHC plan that Children and Adolescent Mental Health Services (CAMHS) would provide support, when this had not been agreed with CAMHS, Y was not under the care of CAMHS and CAMHS had not agreed to do so.
6. Delayed in dealing with her complaint, did not follow its own complaint process and did not offer a suitable remedy for faults identified.
7. Failed to comply with a subject access request and may have breached her privacy.
8. Generally failed to communicate with her in a timely way.
9. Failed to provide or fund home to school transport.
3. Mrs X says the above faults have led her son to miss out on education and caused the entire family significant distress. Mrs X says the fault has put her to unnecessary time pursuing the Council and left her in a position where she had to pay for some assessments privately.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
• We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
• We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data handling. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have investigated

7. I have investigated the above complaint issues except for:
• The complaint about home to school transport. Mrs X has applied to court about this matter and the court has reached a decision. I cannot investigate a matter which has been settled via court proceedings.
• The handling of the subject access request and alleged data breach. It would be appropriate for Mrs X to refer this part of her complaint to the Information Commissioner if she is unhappy with the recommendations of the stage two investigator.
• Non delivery of CAMHS provision in the EHC plan. This is health provision and in Section G, not Section F of the EHC plan. As such responsibility for this provision lies not with the Council but the local health commissioning body. (Section 42(3) of the Children and Families Act 2014) I will consider the circumstances in which CAMHS provision was included in the EHC plan.
• Making amendments to the Plan between draft and final without giving Mrs X an opportunity to comment. The stage two investigator found there was insufficient evidence to make a finding on this issue. Having considered the documents available, I agree it is not possible to reach a finding or add to what is known about this matter.
• Loss of social care provision. Mrs X is pursuing a separate complaint about children’s social care, which is currently at stage two of the children’s social care statutory complaint process. It is therefore premature for the Ombudsman to consider this. Mrs X can bring this matter to the Ombudsman if she remains dissatisfied with the outcome of that complaint process.
8. I also cannot investigate where Mrs X has used her right of appeal to the SEND Tribunal about the same injustice. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal has not provided a complete remedy for all the injustice claimed. The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
9. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) This means where a council issues an Education, Health and Care (EHC) Plan and fails to name a specific school, and also fails to meet its duty to provide alternative education for the child, the Ombudsman cannot provide a remedy if the parents have appealed to the SEND Tribunal. The decision (failing to name a school) and the consequence (failing to provide education) are ‘inextricably linked’. This means we cannot consider the period from when the decision giving the right of appeal was made until the date the appeal was concluded.

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How I considered this complaint

10. I have considered the information Mrs X and the Council have provided to the Ombudsman including:
• the Council’s response to the complaint and correspondence with Mrs X
• details of the EHC process and educational provision made
• the independent stage two complaint investigator report
• the Council’s policies.
11. I have considered the relevant law and statutory guidance.
12. 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.
13. Mrs 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

Independent stage two investigation

14. The Council appointed an independent complaint investigator at stage two. The Ombudsman would not necessarily re-investigate issues that have already been independently investigated, unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation. Where the local complaint investigation has led to findings of fault and a remedy has been offered, we would consider if we could add to any previous investigation or remedy offered. We would not intervene where a suitable remedy for injustice had already been offered.
15. In this decision statement I will not therefore revisit matters where I cannot add to the previous investigation or where I see no basis to depart from the previous findings.

Refusal of statutory assessment

What happened

16. Mrs X applied for an EHC assessment and the Council received the request on 18 May 2018. The Council refused the request on the basis that there was there was ‘insufficient evidence to commence an assessment’. A panel decision record of 12 June says that more information was to be gathered to evidence the school’s graduated approach and the support arrangements in place as there was ‘a lack of evidence to show that needs cannot be met within the core offer’.
17. Mrs X consider this was an incorrect basis on which to refuse assessment.
18. The Council overturned the decision not to carry out an EHC assessment on 11 July 2018 following receipt of further information from Y’s school.

Analysis

19. The Children and Families Act 2014 says that a local authority must secure an EHC assessment if, after having regard to any views expressed and evidence submitted, the authority is of the opinion that:
• The child has or may have special educational needs (SEN)
• It may be necessary for special educational provision to be made for the child in accordance with an EHC plan.
20. The SEN Code of Practice says in considering whether an EHC assessment is necessary the Council should consider whether there is evidence that despite the education setting having taken relevant and purposeful action to identify and meet the child’s SEN, the child has not made expected progress.
21. The Council must decide whether to proceed with an EHC assessment within six weeks of receiving the request. This meant the Council had until 29 June to reach a decision.
22. The Council had not received sufficient evidence from school to reach a decision when its panel considered the request on 12 June. It should have sought this evidence before issuing a decision. Failure to do so was fault.
23. I disagree with the independent stage two investigator that the legal test was correctly applied. An assessment could only be refused if the Council was satisfied the child either did not have SEN or that it was not necessary for special educational provision to be made via an EHC plan. If the Council was uncertain that was a reason to do the assessment, not a reason to refuse it. That Y had not attended school on a full-time basis for many months should have been a compelling reason to carry out an assessment.
24. The Council reversed its own decision on 11 July, a delay of twelve days over the six-week maximum timescale.

Timescale for completing assessment

What happened

25. The Council received the request on 18 May 2018 and issued a final plan on 25 January 2019.

Analysis

26. The EHC process should be completed within a maximum of twenty weeks from the date the request is received until any final EHC plan is issued (The SEND Regulations 2014, Regulation 13(2)).
27. The stage two investigator has suggested that the timescale for issuing the EHC plan started after the reversed decision in July and, as the assessment period straddled the summer holidays, could be extended to twenty-four weeks due to the school being shut during that period (The Code of Practice 9.42). It is suggested that the Council therefore had until December to issue a final plan and only slightly missed this target by issuing the plan in January.
28. I disagree:
• The Ombudsman would not consider the reversal of the initial refusal on 11 July to ‘re-start the clock’. This is information that should have been sought within the initial six-week period. This scenario is not one of the legal exceptions which would allow the timescale to be reset. The twenty-week start date therefore remained 18 May.
• The exemption to extend the period for four weeks over the summer holidays applies only to advice from the educational setting, not other partners. The school provided its evidence in June and did not provide further evidence. This exemption does not therefore arise.
29. To be issued within twenty weeks of 18 May, the final Plan should have been issued no later than early October. I find there was a delay of four months. This was fault.

Seeking the correct evidence

What happened

30. SEND Regulation 6(1) requires councils to seek evidence in an EHC assessment from:
• The young person or their parent
• Education setting or other person with suitable experience of SEN
• Medical advice from a health professional identified by the responsible commissioning body
• Psychological advice from an educational psychologist
• Social care
• Anyone else the Council considers appropriate
• Any person the parent or young person reasonably requests the Council seek advice from.
31. The SEN Code of Practice requires the Council to discuss with the parent which advice to seek.
32. The Council requested evidence:
• On 20 July from health (paediatrics), provided on 6 September. This stated Y was under the care of CAMHS
• On 31 July from educational psychology, this was received on 21 September.
• On 10 September from CAMHS.
33. The CAMHS request said that the Council understood a referral had also been sent (I assume by health / paediatrics) to speech (SLT) and occupational therapy (OT).
34. In an email dated 27 November 2018 between the SEND Service and OT it states “An EHCP request was received in July 2018 however the needs outlined did not indicate need for OT assessment. The predominant need seeming to be in relation to a CAMHS remit”. On that basis the request for statutory advice was not progressed
35. A further referral was made to the SLT Service on 22 October 2018 with advice that followed dated 26 November 2018.
36. The response to the request for statutory advice from Children’s Social Care stated: “not known to this service”.
37. Mrs X says her son was not under CAMHS at the time the request for advice was made and that the Council should have sought a new CAMHS assessment.
38. While the Council requested advice from CAMHS on 10 September it does not appear to have followed this up and none was provided.
39. The Council told the Ombudsman the legal requirement was to seek advice from ‘health’ or persons Mrs X reasonably asked it to, which it did, and it was not within its remit to make referrals to CAMHS which would need to be made by a school, GP or paediatrician. The Council however included support from CAMHS in Section G of the EHC plan it issued in January 2019.
40. Mrs X has provided evidence from a complaint response from the Clinical Commissioning Group that the Council did not send a copy of the final EHC plan to ‘Health’ and that the provision set out in Section G was therefore not agreed with ‘Health’.

Analysis

41. The “not known to this service” response from children’s social care is not compliant with SEND Regulation 6(1). The Government issued guidance SEND: guide for social care professionals in 2014 which made clear social care must provide advice and information. Further guidance has been provided by:
• The Council for Disabled Children: Securing good quality social care advice for EHC plans
• The Ombudsman in our Focus Report: EHC plans our first 100 investigations.
42. In our Focus Report we said the EHC assessment must include an assessment of care needs. Where a child already has a care plan, providing advice will be straightforward. Where a child is not already known to social care, the Council must identify whether they have social care needs. Sometimes it may be necessary to proceed to formal assessment to determine this.
43. A social care assessment did not start until 2020. Mrs X has made a separate complaint about the impact of this delay and this complaint is ongoing. It is therefore premature for the Ombudsman to comment further on this part of the complaint. (Local Government Act 1974, section 26(5))
44. The stage two investigator found that there was poor communication with Mrs X at the start of the EHC assessment. Mrs X made several requests which were not responded to. This caused delay in obtaining relevant advice which was fault. I agree with this finding.
45. The stage two investigator recommended the Council reimburse Mrs X for OT advice she obtained privately as this was not obtained during the statutory timescale (based on the stage two investigator's calculation the final plan was due in December).
46. Mrs X paid:
• £875 for SLT advice in December 2018
• £450 for OT advice in July 2018.
47. Mrs X says the Council has only offered £350 of the OT cost.
48. The Council has told me it would consider increasing the offer for OT to £450 if Mrs X provides the required invoice. The Council has now seen this.
49. As I have found the statutory twenty-week period should have been completed by October, then I consider the Council should reimburse both SLT and OT advice in full. But for the Council’s fault SLT advice would have been available before Mrs X sought her own.
50. Mrs X has raised concerns advice received was inadequate. As Mrs X subsequently appealed to the SEND Tribunal, I will not comment on this further. Mrs X had the opportunity to ask the Tribunal to comment on any inadequacies in the Council’s advice and the resulting content of the EHC plan.

51. The law and guidance is unclear about what should happen when a new assessment is needed to inform an EHC plan. The Council is correct to say the Code of Practice does not specifically address this issue. It is unlikely new assessments would be available within the six-week window for providing advice envisaged by the Government. The law and guidance indicate it is for the relevant health commissioning body to decide which health professionals should provide health advice, not the Council. The Council however maintains overall responsibility for ensuring EHC plans address all areas of need so has some responsibility for seeking the advice it needs to write a robust plan.
52. The Council obtained advice from Health (paediatrics) in August 2018 which indicated Y was under the care of CAMHS and was receiving ongoing support. The Council therefore included this provision in the EHC Plan issued in January 2019. However, this advice was incorrect as Y was not under CAMHS at that time.
53. The Council also wrote directly to CAMHS in September 2019 seeking specific advice. It failed to follow this up when no advice was received. This was fault. Including CAMHS provision in Section G of the EHC plan caused unnecessary confusion. While the onus was on Health, not the Council, to deliver provision in Section G, the Council did not check with CAMHS before including the provision and does not appear to have shared a copy of the final plan with CAMHS. CAMHS was therefore unaware that the Plan stated it should deliver ongoing support. When Mrs X tried to get the CAMHS provision delivered, CAMHS refused. I find the Council’s failure to follow up with CAMHS wrongly raised Mrs X’s expectations provision was going to be offered.
54. Mrs X and the Council addressed the CAMHS issue in formal mediation when it was agreed Mrs X would seek a referral to CAMHS via the GP. Mrs X also appealed the final EHC plan to the SEND Tribunal. The Tribunal can (under a pilot scheme) consider health matters, which I believe it went on to do. It is not for the Ombudsman to say whether Y required support from CAMHS, only Health or the Tribunal could decide this.

Delay consulting schools

What happened

55. The Council says that due to the amendments Mrs X required to the draft EHC plan issued in October 2018 it could not consult schools until it had received the amendments. Mrs X provided these on 17 November, three weeks after the draft was issued on 26 October.
56. The stage two investigator found fault that the Council did not start to consult schools until 12 February.
57. The Council issued a final EHC plan in January 2019 which named a type of school, not a specific school. Following appeal to the Tribunal, a specific school was named on an amended Plan issued in July 2019.
58. The stage two investigator found that consultation should have started as soon as the amendments were received and there was therefore a delay of eleven weeks. The stage two investigator found the Council should make a financial payment in line with Ombudsman Guidance on Remedies to reflect three months lost education at £450 per month on the assumption if consultation had started in December, that Y could have started his school place at Easter 2019 not September 2019.
59. I am not necessarily persuaded that consultation must wait until draft plan stage. While formal consultation may need to wait until then, discussions and informal enquiries should have been taking place earlier in the EHC assessment, especially once advice was available (within twelve weeks). The Government timescale of twenty weeks does not allow for much time between draft and final plans, so leaving any discussion about schools until this point is likely to lead to timescales being missed.
60. I cannot however comment on the loss of education caused between January and June 2019 as during this period the case was under the jurisdiction of the SEND Tribunal. The failure of the Council to name a school in the January 2019 EHC plan, and the loss of education are “inextricably linked” and outside the jurisdiction of the Ombudsman.
61. I also cannot question the financial offer of £1350 for the period Easter to September 2019. As the Council has chosen to investigate this period, the Council should honour its offer.
62. I have found the EHC plan should have been issued by early October 2018 and consultation of schools should have started no later than September 2018. It is however uncertain whether, if consultation had started earlier, the Council would have named a specific school in the Plan, or named a type of school (as it did in January). I acknowledged that Mrs X will always have uncertainty as to whether if the EHC assessment process had been handled in a timely or robust way, Y would have had a school place from October 2018. This uncertainty is an injustice.

Loss of education January 2018 to January 2019 (while on roll at School A)

What happened

63. Mrs X has complained about loss of education for the above period while Y was attending School A.
64. Mrs X says that:
• From 08/01/18 to 26/01/18 Y was absent for 12 of the 15 school days in this period with anxiety; the absence was unauthorised, not marked as illness.
• From 29/01/18 to 20/07/18 Y was on a reduced timetable.
• From 04/09/18 to 26/09/18 Y was marked absent due to illness and received no education.
• From 27/09/18 to January 2019 Y received online lessons in English, Maths and Science for a total of 9 hours a week via an Online School.
65. Mrs X says that she contacted the Council’s Education Welfare Officer (EWO) on 22 January 2018, concerned Y was missing out on education due to “unmet” special educational needs and mental health / anxiety. The School also made a referral to EWO in January.
66. The Council told me that its Inclusion Service received a referral on 16 January 2018, but as Y was on a part-time table and had been referred for online school due to his anxiety, it regarded this as an “open and shut case”. Alternative education was in place and absence was authorised. It closed its file.
67. Mrs X says a reduced timetable was agreed for a six-week period with the objective of Y returning to full-time education by 9 March 2018. Mrs X says the reduced timetable was extended beyond this without her agreement.
68. In March, the School sought advice from a specialist outreach team based at another school. At that time Y was attending school two hours per day, but only within the School’s specialist base and sometimes he was too anxious to leave reception. Even in the base he sometimes wasn’t able to complete work set. It was advised to involve Y in choosing which lessons he should attend to give him some control and lessen his anxiety. The advice suggested this continue for the next half term. Once Y was attending lessons he enjoyed this should be extended to some less preferred lessons.
69. This arrangement continued not just for the next half term but until the end of the academic year and into the next. Y never returned to this school full-time.
70. Mrs X says the Council’s EWO told her in March that as a reintegration plan was in place there was nothing further the Council could do except continue to monitor Y’s attendance. Mrs X says this monitoring did not happen and instead Y’s case was closed in April. Mrs X applied for an EHC assessment in May 2018 to address her concerns about unmet SEN. Mrs X says that throughout the EHC assessment she raised concerns Y was not receiving full-time education. Mrs X says the Council told her the School should be providing work for Y to do at home and a referral could be made for virtual learning, but only if the school was willing to fund it.
71. The Council told me the School provided advice for the EHC assessment in June which said it was providing a reduced timetable to support Y’s attendance back into full-time school. The advice said that Y had not attended school that half term and it could not provide progress data after December 2017 due to low attendance.
72. Mrs X says she contacted the EWO again in July but was again told the Council could not assist as Y would need to be medically signed off by CAMHS to qualify for alternative education and until then remained the responsibility of school.
73. Mrs X made a formal complaint on 11 August 2018 that the School was proposing to continue with a part-time timetable. On 24 September the School registered Y with the Online School. Mrs X says Y received nine hours per week tuition in English, Maths and Science only, not a broad and balanced curriculum. Mrs X says although Online School was supposed to be a short-term intervention it was the only education Y received until he started a new school a year later.

Analysis

74. Councils must arrange suitable full-time education for children of compulsory school age who because of illness, exclusion, or otherwise may not for any period receive suitable education unless such arrangements are made for them (s.19 Education Act 1996, ‘Ensuring a good education for children who cannot attend school because of health needs’). A Council’s section 19 duty applies when no such arrangements have been made by the school.
75. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
76. The education provided by a council must be full-time unless a council determines this would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
77. There is no statutory requirement when full-time education should begin for absence not due to exclusion, but Councils should ensure children are placed as quickly as possible (‘Statutory Guidance: Alternative Provision’) and as soon as it is clear the absence will last more than 15 days. It should aim to do so on the first day of a planned absence and at the latest by the sixth day.
78. While full-time is not defined in law, pupils in alternative education should receive the same amount of education as they would receive in a maintained school.
79. Statutory Guidance School Attendance says that as a rule schools should not place pupils on part-time timetables and this should happen in very exceptional circumstances and should be temporary, for example as part of a re-integration package after illness. Part-time timetables should not be treated as a long-term solution and should have a time limit by which time the pupil should have returned to full-time school or been provided with alternative provision.
80. Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs says:
• Children unable to attend school due to health needs should access suitable and flexible education appropriate to their needs and that the education must be responsive to what may be a changing health status.
• Where medical evidence for example from CAMHS is not available the Council should consider liaising with other professionals and consider looking at other evidence to ensure minimal delay in arranging suitable provision.
• The Council should have a named officer responsible for children with health needs and parents should know who that person is.
• Councils should review the provision regularly to ensure it continues to be appropriate and that the Council is providing suitable education.
• Councils should work with schools to complement the education a child receives if they cannot attend full-time but are well enough to have education in other ways.
81. The Council’s policy Access to Education for Children and Young People With Medical Needs (2018) says the Council would not expect to become involved in arrangements unless the education being provided by a school was not suitable or “not full-time or for the number of hours the child could benefit from without adversely affecting their health”. The policy applies to children with a health need confirmed by a NHS Consultant paediatrician or consultant psychiatrist.
82. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
83. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
84. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
85. The initial decision to try and reintegrate Y back into school via a part-time timetable was not fault.
86. The Council told me Y received both a part-time timetable / reintegration strategies and online school during this period. This is incorrect. Online school did not start until September 2019.
87. It was fault for the Council to close the case when Y had not yet returned to full-time school. Councils have a duty to provide as much education as a child’s medical condition (here anxiety) would allow. This did not all have to take place within school, the guidance permits that education can be provided via a mix of in-school and off-site provision. The Council’s duty was to ensure Y received as much education as possible to prevent him falling behind his peers. The Council’s policy supports this. We expect Councils to keep part-time timetables under review until a pupil has successfully returned to full-time education and ensure that a time limit is set for when the part-time arrangement should end. The Council should have continued to play an active part in regularly reviewing Y’s education, including seeking medical advice about the amount and type of education he could manage. It should have considered providing education to complement what Y was able to access in school. Failure to do so was fault.
88. There is no medical evidence indicating that Y could not have managed home tuition or online school in addition to trying to attend some lessons within school. The evidence has been that he managed this successfully when it was provided.
89. It was not fault for the school to have sought external advice, but this did not remove the duty of the Council to make its own decision whether Y was receiving the maximum of amount of education he could manage. I find the Council failed to seek evidence, follow its own policy or consider Y’s individual circumstances.
90. As the Council had, wrongly, closed the case, it failed to intervene when the part-time timetable continued past Easter. At that point, after a further half term of no progress towards full-time reintegration despite following specialist advice, it should have been apparent that Y was not going to be able to return to full-time school soon.
91. A policy that a parent must have evidence from CAMHS to support medical tuition is fault. It is rarely within a parent’s gift to obtain medical consultant evidence where that professional is not already involved with the child. This should never be a barrier to a child getting their educational needs met. It was for the Council to seek alternative evidence if medical consultant evidence was not available, as per the Statutory Guidance, not use this as a way of gatekeeping medical tuition.
92. It is also fault for Councils to advise that alternative education can only be provided if a school decides to fund it. This is not what the law or guidance says. The legal duty under s.19 lies firmly with the Council. The Council may delegate funding for providing alternative education to schools, but it cannot delegate the legal duty.
93. From 27 September 2018 Y started to receive online lessons in English, Maths and Science for a total of nine hours a week via an Online School. This was not on a par with what he could expect to receive in mainstream school. The Council has provided no medical evidence to support a decision that Y could only manage nine hours per week or that he could not manage any face-to-face tuition. The presumption should therefore have been for full-time education.

Loss of education January 2019 to July 2019

What happened

94. From January to July 2019 Y continued to receive nine hours a week of education via an Online School.
95. Mrs X complains Y did not receive suitable full-time education and the Council did not secure provision of special educational provision (in Section F) of the EHC plan from when it was issued in January 2019 until Y’s School place was available in September 2019.

Analysis

96. The Ombudsman cannot consider the period from when the appeal right arose in January 2019 until the amended EHC plan was issued in July 2019. The loss of education for this period is “inextricably linked” to the Council’s decision not to name a specific school in the EHC plan of January 2019, which Mrs X appealed. Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)

Loss of education September 2019 (Y was on roll at School B)

What happened

97. The EHC Plan issued after the SEND Tribunal in July 2019 named a new placement (School B) for Y to start in September.
98. Mrs X complained in November 2019 that Section F provision was not in place and there had not been a proper transition plan to integrate Y into school.
99. In December 2019 Y’s annual review was held. Y was having difficulties using school transport which was restricting his access to school. Y continued to have anxiety at school and was not accessing a full timetable. It was suggested he attend two days per week.
100. Mrs X said it became apparent at annual review the School was working to an outdated EHC plan and this jeopardised the success of the placement. However, the Stage two investigator found evidence the Council had sent the correct version to the School in July.
101. Mrs X said that inflexibility around transport arrangements made it difficult for Y to attend according to his anxiety levels.
102. Y stopped attending School B on 10 December 2019. Mrs X requested a change of placement as she felt Y needed to be educated otherwise than at school.
103. In December 2019 School B referred Y to an outside agency which provided a mentor / tutor 4 hours per week, as part of a reintegration plan. There was a delay before this support started in February 2020. Y also required therapeutic support.
104. This support was not successful at reintegrating Y back into school.
105. Mrs X says OT and SLT in the July 2019 EHC plan was not put in place until June 2020, because the Council said these had to be provided in school, but Y was too anxious to attend.
106. The Council says updated OT advice in November 2020 made recommendations to reflect Y’s targets at that time. The Council says this advice took into account the previous provision (or lack thereof). The Council says School B tried to time OT for when Y was in school. Mrs X said Y received only two OT sessions in 2019/20.
107. The Council says the EHC plan did not require direct speech therapy but a SLT to provide advice to the School, and this would not have been possible to provide at home.
108. Y’s attendance at School B for 2019/20 was 2.5%.
109. In April 2020, the Council issued an amended final EHC plan which stated that Y would come off the roll of School B in June 2020 and access Education Otherwise than at School. Mrs X appealed the contents of the Plan and the appeal was determined by the SEND Tribunal in Spring 2021.

Analysis

110. Councils have a non-delegable legal duty to ensure that the special educational provision in section F of the EHC plan is secured (s.42 Children and Families Act 2014). Councils may expect a school named in the EHC plan to do this, but if the pupil is not attending a school, or the school does not do so, the Council must step in and provide what is possible when a pupil is not attending school.
111. There is evidence to show that some OT and SLT provision was in place in Autumn 2019, although Y’s attendance was low during this period. Y stopped attending school completely in December and never returned.
112. The duty to provide Y with suitable full-time education lay with the Council if the school did not make suitable provision. As Y now had an EHC Plan, the Council also had a duty to ensure he received that provision.
113. From February 2020 the School put in place four hours per week home tuition. A social care assessment in June 2020 says at that point Y was getting OT, SLT, art therapy and home tuition.
114. There is little evidence during this period of the Council taking an active role or regularly reviewing whether Y was receiving suitable education. The Council does not appear to have considered if it should complement the education being provided by School. This was fault.
115. A mediation meeting was held in March 2020 when the Council agreed to increase tuition from four to fifteen hours per week and to consider if SLT and OT could be provided outside of school. I can see no reason why this amount of tuition and the therapies could not have been provided sooner. There is no medical evidence stating that Y could only manage four hours per week. I am not persuaded recommendations made about the amount of OT Y required in November 2020 made up for the provision that was lost before that.
116. I find that Y did not receive suitable full-time education or provision in his EHC plan between December 2019 and April 2020.
117. I cannot comment on the provision in the April 2020 EHC plan. Mrs X appealed the contents of this EHC plan to the SEND Tribunal and it subsequently determined the level of tuition and therapy that is appropriate. I cannot therefore consider any injustice arising after April 2020.

Injustice

118. As a result of the faults I have identified above, and taking into account the limits on the scope of my investigation, I find that:
• The statutory assessment was delayed by four months and was completed without consulting any schools, causing uncertainty whether a school place could have been identified sooner.
• The Council failed to follow up advice sought from CAMHS which meant inaccurate information was included in Section G of the EHC plan that suggested Y would receive ongoing support from CAMHS. This caused unnecessary confusion, wrongly raised expectations and caused additional time and trouble to Mrs X resolving this issue.
• Mrs X unnecessarily paid for SLT and OT advice in 2018 that should have been provided via the statutory assessment.
• Y lost out on education between March 2018 when his part-time timetable / reintegration plan had failed and September 2018 when online schooling started.
• Y missed out on suitable full-time education between September 2018 and January 2019 as only nine hours tuition was provided and none of this was face-to-face.
• Y missed out on suitable full-time education from December 2019, when his new placement was failing, until April 2020 when an amended EHC plan was issued. He received only four hours tuition from February 2020.
119. The Council has additionally identified that Y missed out on three months provision between Easter and September 2019 and offered a payment of £1350 for this period. This should be honoured in addition to the agreed actions below.

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Agreed action

Within four weeks of my final decision:

120. The Council will apologise to Mrs X and Y for the additional faults I have identified compared to the stage two investigation.
121. The Council will reimburse Mrs X the full cost of the SLT (£875) and OT (£450) reports.
122. The Council will pay Mrs X £300 for her time and trouble bringing the complaint. This is the figure recommended at stage two and is in line with the Ombudsman’s Guidance on Remedies.
123. Between March and September 2018 Y was attempting to attend some lessons. Y had already attempted a part-time timetable between January and March which had failed. The Council should have considered if it could provide alternative education to complement what Y was receiving in school. I acknowledge that this may have been difficult to fit around the lessons Y felt able to attend but consider that some tuition or online learning could have been made available. Within four weeks of my final decision the Council will make a financial payment to Y of £1500 to acknowledge that more education should have been provided during this period.
124. Y received only nine hours tuition between September 2018 and January 2019. The stage two investigator considered a payment of £450 per month was appropriate for the period Easter to July 2019 when Y’s school place was delayed (this took into account the nine hours education provided). £450 per month is in line with Ombudsman guidance and I see no basis to set a different amount. The Council will make a financial payment to Y of £1800 (£450 for four months) for the period September 2018 to January 2019.
125. Between December 2019 and April 2020 Y received very little education. Again the Council should have considered complementing the provision School was making to ensure Y’s education was suitable, including for his SEN as set out in his EHC plan. The Council will make a financial payment to Y of £1800 for this four month period.
126. The stage two investigator recommended the Council pay Mrs X £300 for distress and Y £1000. The Council accepted these figures. While I have identified additional fault and delay which has led to further uncertainty about what might have happened ‘but for’ the Council’s fault, I see no basis to intervene in the distress payments previously offered. This is in line with Ombudsman guidance.
127. Payments to Y should be made into a savings account in Y’s name but over which parents have control.

Within two months of my final decision:

128. The Council will review its EHC process and training to ensure:
• Officers are aware that inadequate evidence is not a legal basis for refusing an EHC assessment
• Correct advice is sought and obtained during the EHC assessment
• Requests for advice are followed up when no response is received
• Statutory timescales are adhered to and exemptions applied correctly
• Potential schools are discussed as early as possible and consultations made promptly.
• Final EHC plans are shared with the relevant CCG (9.129 of the SEND Code of Practice).
129. The Council will review its process and training for officers responsible for children missing education due to health needs to ensure:
• Officers are aware its s.19 Duty cannot be delegated to schools and the Council must intervene where education provided by a school is not suitable including where it is not as full-time as the child can manage. The Council’s policy provides for part-time education to complement school provision but this policy was not followed in Y’s case.
• The onus for obtaining evidence to decide whether the s19 duty is engaged lies with the Council (where evidence is not readily available from other sources).
• Alternative education should be on a par with what would be provided within a school unless that is not in the child’s best interests.
• When a pupil is on part-time timetable and reintegration is being trialled, the Council has an ongoing duty to regularly review the position until such time as the child returns to full-time education or alternative education is provided. Such cases should not be closed.
130. The Council will review its own medical tuition policy to clarify what should happen where medical advice from a NHS Consultant paediatrician or consultant psychiatrist is not available.

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Final decision

131. I have completed my investigation. There was fault in the way the Council conducted Y’s EHC assessment and in the way it considered its duties to provide suitable education. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman