Summary: Mr G complained the Council delayed finalising his daughter’s, X, Education Health and Care Plan. He said it failed to provide her with suitable alternative provision when she was out of school due to ill health. Mr G also complained about the Council’s delay in dealing with his complaint. The Council was at fault for the delays in the Education Health Care Plan completion and dealing with Mr G’s complaint. This has caused Mr G’s family significant distress and time and trouble. The Council will take action to remedy the injustice.

The complaint

1. Mr G complained of the Council’s:

• delay in finalising his daughter’s, X, Education Health and Care Plan by eighteen weeks
• failure to provide X with suitable Alternative Provision from October 2018 to January 2020 when she stopped attending school due to ill health
• delay in dealing with his complaint.

2. Mr G says the Council’s failings have caused his family significant distress, time and trouble and financial loss.

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What I have investigated

3. I have investigated whether the Council met its statutory responsibilities for X’s Education, Health and Care Plan and providing her with Alternative Provision when she was absent from school. I have also investigated whether the Council followed its complaints procedure.
4. I have not investigated the actions of the school. School matters are not within our jurisdiction.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions/service of the organisation, I have made recommendations to the Council.
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

11. I discussed the complaint with Mr G and considered the information he provided. I considered the information the Council provided in response to my enquiries.
12. I referred to the Council’s policies and procedures on education for children with medical needs and considered relevant legislation.
13. I sent Mr G and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

14. 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. A parent, education provider or the young person (when aged over 16) can ask for an EHC needs assessment.
15. If the Council agrees to complete an EHC assessment and decides to issue an EHC Plan, it must complete that process within 20 weeks of receiving a request for an EHC needs assessment.

Alternative Provision and Law

16. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
17. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
18. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school. (Government guidance, Ensuring a good education for children who cannot attend school because of health needs)
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
20. The Courts have said that it is for a council to determine what is ‘suitable education’.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.
22. Mr G’s daughter, X, has physical and mental health conditions. X’s health conditions, in particular her anxiety began to heighten and her attendance at school deteriorated. In October 2018, X stopped attending school due to her ill health. Mr G said he asked the school for some learning materials to support X while she was at home and he was given some online links. Mr G said this was not appropriate for X. He arranged alternative online resources and some face-to-face tutor sessions for X from October 2018 onwards.
23. In November 2018, X’s school held a meeting with X’s parents and various health professionals to discuss X’s general health and its impact on her school attendance. At the meeting, Mr G identified X’s mental health was the main reason for her school absence. The school offered X the use of some resources including weekly wellbeing sessions. X refused all offers the school proposed.
24. At the meeting, the school also made a referral to the Medical Education Team (MET). The MET discharges the Section 19 duty of the Council. It ensures suitable arrangements are in place for children who are unable to attend school because of their medical needs so they can have appropriate and ongoing access to education. The MET requested medical evidence from X’s consultant indicating how her health conditions affected her ability to attend school full time.
25. In January 2019, a multi-agency meeting was held which led to a Child and Adolescent Mental Health Services (CAMHS) referral request. X was assessed at the end of January 2019 and placed on CAMHS waiting list for support with her anxiety.
26. Following medical reports stating it was not appropriate for X to be in school due to the complexity of her case but with the aim of integrating her back into school in the future, the MET accepted X’s referral in March 2019. The MET offered X either a “one-to-one” or a small “in-group” place within a MET teaching unit. Mr G said the MET staff told X she would be the youngest person in the unit. He said this statement worsened X’s anxiety so Mr G and X refused the in-group MET offer. Mr G told the MET they were willing to explore all other possibilities to ensure X achieves her full potential while she was still awaiting to get support from CAMHS for her anxiety.
27. In response, the MET suggested X’s parents visited the medical school to discuss the offer and take some photos to show X as she was unwilling to attend the unit. The MET also suggested it could offer some one-to-one sessions to X until she felt comfortable attending the unit. Mr G said he and X’s mother tried to encourage her but she was unwilling to engage. The MET agreed to visit Mr G at his home to spend one hour with X and do some schoolwork with her. It was hoped this would encourage X to accept the alternative provision offer at the unit. Mr G rejected this offer because of the negative impact the previous meeting had on X. He also said X could not cope with this because she was going through a number of medical assessments during that period. There is no evidence the MET provided or offered X any further alternative education. Also, there was no evidence to show X’s school or her parents requested further MET involvement. Mr G continued paying for X’s private tuition.
28. In March 2019, X’s school requested an EHC Plan needs assessment and in April 2019, it requested an EHC Plan for X. The Council agreed an assessment was necessary. In July 2019, the Council issued X’s draft EHC Plan. X’s parents raised concerns about X’s draft EHC Plan with the Council and a meeting was held in September 2019 to discuss it. When Mr G had not received any update on X’s EHC Plan by mid October 2019, he made a formal complaint to the Council about its delay in finalising her plan. He also complained the Council had failed to provide X with alternative education for a year.
29. In its stage one response, the Council apologised to Mr G for its delay in responding to his complaint and in finalising X’s EHC Plan. It explained the delays were due to the complexity of the case and pressure on staff. Mr G considered the Council’s explanation for its delays and apology were unacceptable. He also said the Council failed to fully address his complaints, in particular, its failure to provide X with alternative education from October 2018. Mr G escalated his complaint to stage two of the Council’s complaints process in November 2019.
30. X’s EHC Plan was finalised at the end of January 2020. Her EHC Plan stated X would be supported with learning from home with a Personal Education Budget. Due to the Council’s delay in allocating an investigator, an Independent Investigation into the complaint was completed in March 2020. The Independent Investigation Officer’s (IIO) Report stated the Council breached the 20-week statutory timescale in finalising X’s EHC Plan. However, Mr G’s complaint about the Council’s failure to provide X with suitable alternative education was not upheld. The IIO found the learning materials X’s school provided to her when she was absent from school were sufficient. It also concluded the MET offers were appropriate and suitable until X’s EHC Plan was finalised with details of her needs fully identified. Mr G said the Council reimbursed him for X’s private tuition from September 2019 to January 2020. This was to cover the loss of provision X would have received if not for the delay with her EHC Plan, which should have been finalised in August 2019. Mr G believes the Council should also reimburse him for the cost of the tuition from March 2019 to August 2019.
31. The Council issued its final response to Mr G in April 2020. It upheld the IIO Report findings. Mr G remained dissatisfied and made a complaint to the Ombudsman.

Analysis

Delay in finalising X’s EHC Plan

32. The law requires the Council to issue a final EHC Plan within 20 weeks of receiving the request for a needs assessment. The request for X’s EHC Plan needs assessment was made in March 2019. The Council did not finalise the EHC Plan until end of January 2020. This was a total of 46 weeks, therefore, a delay of approximately 26 weeks. This amounts to fault. The Council’s delay caused Mr G’s family significant distress and the time and trouble they went to in chasing the Council and complaining. Mr G’s family also funded the cost of X’s private tuition during the period of delay which caused injustice. The Council has recognised this and it has provided a suitable remedy for the injustice caused. The Council reimbursed Mr G the costs from September 2019 to January 2020.
33. The Council accepted it delayed finalising X’s EHC Plan. It has apologised to Mr G. The Council has also confirmed at the end of 2019 it implemented a process for monitoring EHC Plans at key points of the application process. This is to ensure it adheres to the statutory timescales and it has recorded an improvement in finalising EHC Plans within the 20-week timeframe to date.

Failure to provide X suitable Alternative Provision from October 2018 to January 2020 when she stopped attending school due to ill health

34. Councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’.
35. The Council’s policy states “alternative provision for children with medical difficulties can be arranged by a school or by the Local Authority…. This provision is likely to include sending work home and/or enabling access to online learning. In cases where the child is not able to attend school for long periods it may be necessary for Worcestershire Children First to make arrangements through the Medical Education Team.”
36. When it became apparent X would be absent from school for a long period due to her ill health, the school made a referral to MET in November 2018. The MET accepted X’s referral in March 2019, upon receipt of medical evidence in accordance with the Council’s policy. It offered X some “one-to-one” or small “in‑group” alternative education at the MET teaching unit but Mr G felt both offers were not suitable for X at the time. The MET also offered some tutoring for X at home, again Mr G and X rejected the offer.
37. The Courts have said it is for a council to determine what is ‘suitable education’. Given the MET offered X alternative education at its teaching unit and it suggested on different occasions other means of adapting its offer to suit X, on balance I find the MET discharged the Council’s duty in March 2019. This was not fault. It ensured arrangements were in place for X to have appropriate and ongoing access to education. If Mr G remained dissatisfied, he could have contacted and requested further support from MET to support X’s learning.
38. Evidence shows the Council became aware X was not attending school in November 2018, when the school made a MET referral. Following the Council’s policy, the MET did not accept or arrange alternative education for X until March 2019 when it received medical evidence to support X’s referral. This is in breach of the statutory guidance which states councils should provide education as soon as it is clear the child will be away from school for 15 days or more. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. This was a delay of approximately four months, and this is fault.
39. However, given X was unwilling to engage with the provisions the MET offered in March 2019, it is unlikely X and her family would have accepted the MET offer, if it had provided X alternative education before March 2019. Therefore, there was no significant injustice caused to X due to these delays.

Delay in dealing with Mr G’s complaint

40. According to the Council’s complaints procedure, complainants should receive a full written explanation in response to complaints made within 20 working days at stage one and 25 working days at stage two.
41. While the Council met the timescales in issuing its stage one response to Mr G, there was a four-month delay with its stage two response. Mr G escalated his complaint to stage two in November 2019 and the Council sent its final response on 17 April 2020. I find fault with the delay caused by the Council’s lack of resources to deal with Mr G’s complaint at stage two and the non-compliance with its complaint procedure timescales. Mr G was put to time and trouble pursuing outcomes to his complaints.

Agreed action

42. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:

Within a month of the final decision:

• apologise again in writing to Mr G and X for the delays in finalising X’s EHC Plan.
• pay Mr G £300 for the delay in finalising X’s EHC Plan to acknowledge the distress this caused to Mr G’s family.
• pay Mr G £200 in recognition for the avoidable time and trouble caused to him by the delay in responding to his stage two complaint.
• by training or other means remind staff of the importance of meeting the Council’s complaint procedure timescales.

43. Within two months of the final decision:

• review the Council’s alternative provision policy to ensure it is in line with the Statutory Guidance. This should include a review of the Medical Team’s function in discharging the Council’s duty to ensure there are no delays in making alternative provision when a child is out of school for 15 days due to health needs.

44. To confirm the improvements the Council has recorded since the end of 2019 to date in complying with the 20-week statutory timeframe for finalising EHC Plans. Within three months of the final decision:

• undertake a further audit of 25% of EHC Plan assessments completed in the last 12 months as part of the monitoring process to ensure the process have become embedded and issues of delays have been addressed.

45. The Council should provide the Ombudsman with evidence that the above actions have been completed.

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Final decision

46. I find evidence of fault by the Council causing injustice to Mr G’s family. The Council has agreed to take action to remedy the injustice.

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Parts of the complaint that I did not investigate

47. I have not investigated the actions of the school. School matters are not within our jurisdiction.

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Investigator's decision on behalf of the Ombudsman