Summary: The Council failed to provide suitable full-time education for Mr and Mrs B’s son, J, after he stopped attending school. It also delayed starting the process of amending J’s Education, Health and Care plan. We have recommended and the Council has agreed to apologise, make a payment and take action to prevent similar failings in future.

The complaint

1. Mr B is complaining on behalf of his son, J, who has special educational needs and an Education, Health and Care (EHC) plan. He complains that the Council:
• delayed telling Mr and Mrs B that it intended to amend J’s EHC plan, and then delayed finalising his amended EHC plan;
• failed to ensure J received full-time education while he was still attending school, and then failed to provide full-time alternative education after he stopped attending school;
• failed to ensure J received the specialist provision set out in his EHC plan; and
• has failed to properly communicate with Mr and Mrs B.

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What I have investigated

2. I have investigated Mr B’s complaints which relate to the period September 2019 to August 2020. The last section of this statement explains why I have not investigated matters outside of this period.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. We have no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on a draft decision. All comments received were considered before this final decision was issued.

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What I found

Relevant law and government guidance

Education provision

12. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
14. The education provided by the Council must be full-time unless the Council determines that full-time education 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)
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. 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)
17. 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 (except for 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.

Education, Health and Care plans

18. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
19. The procedure for reviewing and amending EHC plans is set out in legislation and Government guidance.
20. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (s20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
21. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
22. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
23. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (s22 (3) SEND Regulations 2014 and SEN Code paragraph 9.196)
24. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan.
25. The Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.

Overview

26. J is eight years old and has special educational needs. He has autism, anxiety and significant school refusal.
27. In December 2019, a meeting was held to review J’s EHC plan. The records show that J had only been attending school during the mornings and was often refusing to enter the classroom. He was receiving support from CAMHS (Child and Adolescent Mental Health Services) to help him with his anxiety around attending school. A plan was agreed to try to reduce J’s anxiety so that he was more able to engage with and access work. It was agreed that J would attend school each afternoon after Christmas, with a goal of moving to full-time by Easter.
28. The Council discovered in January 2020 that J had not been back to school since the review meeting. It asked the school to send J some work for him to complete at home.
29. The Council commissions a Home and Hospital Teaching service to provide education for pupils who are unable to attend school. In March 2020, Mr B told the Council that CAMHS had made a referral to the Home and Hospital Teaching service. The Council tried to confirm this with CAMHS because the teaching service said it had not received a referral. In June, CAMHS confirmed that it had made a referral and the teaching service started to provide J with some education later that month.
30. In April 2020, the Council wrote to Mr and Mrs B to advise that it intended to amend J’s EHC plan. It then issued a final EHC plan in August.
31. Mr and Mrs B appealed to the SEND Tribunal in September. They appealed the sections of the EHC plan which detailed J’s special educational needs, the provision required to meet those needs and the school which was named in the plan.
32. Mr B considers the Council delayed finalising J’s EHC plan which prevented him from appealing to the SEND tribunal. He says that if he had been able to appeal sooner, he would have appealed the school named in the EHC plan because he does not consider a mainstream school is suitable for J.

Analysis

Education provision

33. Councils must make arrangements for the provision of suitable full-time education and parents must ensure their child is able to receive suitable full-time education, by regular attendance at school or otherwise.
34. Before J stopped attending school, he was on a temporary part-time timetable and there was a plan to increase his hours to full-time. The Council had not been provided with any evidence to suggest the provision at school was unsuitable or that it would not be possible for J to start attending full-time after he had received support from CAMHS. There is no evidence of fault here.
35. When the Council discovered on 14 January 2020 that J had not been in school since 10 December, it should have decided whether to require J’s attendance at school or to provide him with suitable alternative education.
36. If a child cannot attend school because of a health problem, after 15 days the council must intervene and provide suitable education. When a child refuses to attend school, the council should consider whether he or she is medically fit to attend school. Even where there is no medical evidence to show that the child is not fit to attend school, councils still need to provide alternative education to children whose absences from school are for other authorised reasons. J’s absences were authorised; it was accepted that J needed support from CAMHS with his anxiety around attending school. The Council had a duty to provide alternative education once J had been absent from school for 15 days. It did not do so; this was fault.
37. J’s school provided some work for J to complete at home, once a week, between mid-January and the February half term. Then, when J’s school closed due to COVID-19 in March, it provided all children with activities to complete via an online learning platform. From late June, the Home and Hospital Teaching service provided J with two 45-minute sessions per week.
38. If there had been no fault by the Council, J would have received tuition at home from January 2020. This would likely have started on a part-time basis, gradually increasing to full-time. Between late March and July, the lessons would have been provided online due to COVID-19.
39. J missed out on suitable education between January and August as a direct result of the Council’s failure to arrange alternative education in January. I have not considered whether J received suitable education after August 2020 for the reasons explained in paragraphs 8 and 50 of this statement.

EHC plan

40. The Council should have notified Mr and Mrs B of its intention to make changes to the EHC plan within four weeks of the annual review meeting held on 10 December 2019. The Council notified Mr and Mrs B on 20 April 2020 of its intention to make changes and it provided a draft EHC plan with details of the proposed changes on 12 June 2020. The Council delayed starting the process of amending J’s EHC plan. This was fault.
41. I have considered how J was affected by this delay. If there had been no fault by the Council, it is likely that the EHC plan would have been finalised sooner, which would have enabled Mr and Mrs B to appeal to the SEND tribunal sooner.
42. The evidence I have seen shows that in June 2020, the school named in the EHC plan (a mainstream school) was Mr and Mrs B’s preferred school. In July, the headteacher of the Home and Hospital Teaching service and a CAMHS psychologist expressed concerns to the Council about a mainstream school being able to meet J’s needs. A meeting was then held in September, shortly before Mr and Mrs B appealed, where professionals agreed that mainstream education was no longer suitable for J.
43. On the balance of probabilities, I do not consider it likely that J would have been offered a placement at a specialist setting sooner if the Council had not delayed starting the process of amending his EHC plan. Also, as J was not attending school, it is unlikely that the delay caused J to miss out on any specialist provision. While I do not consider the delay caused J any significant injustice, it would have caused Mr and Mrs B some frustration. I am satisfied that the apology already given by the Council is sufficient to remedy this.

Communication

44. Mr and Mrs B say that the Council falsely claimed not to have received information from the CAMHS psychiatrist and the headteacher of the Home and Hospital Teaching service about the suitability of mainstream education. I have checked the Council’s records and while the Council could have been clearer with Mr and Mrs B about the information it had received, it did not provide them with false information.
45. There is no evidence of any significant delays by the Council in responding to emails or telephone calls from Mr or Mrs B.

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Agreed action

46. I recommended and the Council has agreed within four weeks to:
• apologise to Mr and Mrs B for the failings identified in this case; and
• make a payment of £1000 to J for the education he missed between January and August 2020. The money should be spent on something which will benefit J’s education. In reaching this figure, I have taken account of the education J received during this period, J’s special educational needs and the likelihood that it would not initially have been in J’s best interests to receive education on a full-time basis.
47. Within eight weeks, the Council will:
• ensure its procedures for arranging alternative education are clear and accessible to staff and parents;
• provide a reminder/training to ensure staff understand the Council’s duty to arrange suitable alternative education when children are out of school, and the procedures for doing so; and
• work with CAMHS to improve communication in relation to referrals for alternative education.

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Final decision

48. The Council was at fault which caused injustice. The Council has agreed to take the actions I have recommended. This will be sufficient to remedy the injustice.

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Parts of the complaint that I did not investigate

49. I have not investigated Mr B’s complaints about J not receiving suitable education before September 2019. This is because we will only consider complaints about matters that a complainant has become aware of in the preceding 12 months, unless there are good reasons why they did not complain sooner. I consider it would have been reasonable for Mr B to complain about earlier matters sooner, and there are therefore no grounds to exercise discretion to investigate them now.
50. I have not investigated Mr B’s complaints about J not receiving suitable education after August 2020. Mr and Mrs B had a right to appeal J’s EHC plan in August 2020 and they appealed the following month. The period from the date the right of appeal is engaged until the appeal is heard is outside the Ombudsman’s jurisdiction. We cannot investigate any loss of education or fault during this period which is a consequence of the decision being appealed, even though the Tribunal has no power to provide a remedy for lost education.

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Investigator's decision on behalf of the Ombudsman