Summary: The Council was at fault for failing to provide suitable education to Ms X’s son. This has resulted in Ms X’s son falling behind in his education. The Council also delayed in providing Ms X’s family with social care support. The Council agreed to apologise to Ms X, make a payment to Ms X to reflect the loss of educational provision to her son and for delaying in providing social care support.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council:
• Failed to provide care and support following her son’s discharge from a mental health unit.
• Delayed allocating a social worker and providing her with direct payments until September 2019.
• Failed to identify a school setting or provide appropriate education following her son’s discharge from the mental health unit.
• Failed to implement her son’s education, health and care plan.
2. Ms X says her son has missed out on education and fallen further behind. In addition, the situation has also affected the family relationship and caused Ms X distress.

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What I have investigated

3. I have investigated matters from when Ms X’s son was discharged from the mental health unit. I have not investigated events prior to this.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
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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How I considered this complaint

7. As part of this investigation I considered the complaint made by Ms X and the responses from the Council. I discussed the complaint with Ms X via telephone. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
11. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them. This duty applies to all children, whether or not they are on the roll of a school, and whatever type of school they attend.
12. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
13. Statutory guidance ‘Alternative Provision’ says where full time education would not be in the best interests of the child because of medical reasons, councils should provide part-time education on a basis they consider to be in the child’s best interests. Where health needs are a consideration, guidance refers to allowing as much education as the child’s health allows.
14. Where a council maintains an EHC plan, and unless a child’s parent has made suitable arrangements, the council must also arrange the special educational provision specified in the EHC plan.

Background

15. Ms X’s son, Y, suffers with Autistic Spectrum Disorder (ASD), Severe Social Anxiety, Severe Performance Anxiety and Sensory Processing Disorder. He is registered at School A, a mainstream school, but has not attended since October 2017.
16. In November 2018 Y was admitted into a specialist mental health unit for eight weeks. During his time here Y received schooling at the mental health unit. When he was discharged the mental health unit recommended Y receive an EHC plan, and specialist ASD educational provision. They also recommended ongoing support to Y’s parents to implement strategies and structure with their home life.
17. Prior to being discharged from the mental health unit the Council referred Y to its Education Support for Medial Absence team (ESMA). This service supports children who have or are going to have time off school due to a health condition.
18. After the mental health unit discharged Y, ESMA started to work with him and put in place two tuition sessions per week of one hour each. The Council also started the process of assessing Y for an EHC plan.
19. In December 2018 Ms X took Y to accident and emergency after he attacked Ms X and her husband, Mr X. The hospital raised a child protection referral with the Council. The Council contacted Mr and Ms X and carried out a children and family assessment. The assessment found Mr and Ms X were finding Y’s behaviour difficult to manage and this was impacting on their family life and needs of their other children. The assessment recommended that the family would benefit from a social worker, community activities and for Mr and Ms X to have respite.
20. In February 2019 the Council issued an EHC plan for Y, naming School A as the placement. Among the provision listed in the plan was:
• A careful transition plan for Y to move into an educational setting.
• An emotional literacy programme delivered for 20-30 minutes 1-2 times per week.
• A targeted social skills intervention, delivered on a weekly basis. This will involve using social scripts and role playing.
21. In March 2019 the Council’s Provision panel considered Y’s case. The Panel looked at what type of school placement would be suitable for Y. The Panel decided a specialist learning disability school would not be appropriate but rather Y was suited to a school for children with social, emotional and mental health issues (SEMH). The Council has six SEMH schools listed in its admissions guidance.
22. In May 2019 the Council consulted with School B, a SEMH school listed in its guidance. The Council also declined Ms X’s request for direct payments for respite and closed the social care case. The Council’s reasons were that the main issues with the family relate to Y’s education.
23. On 4 June 2019 a meeting took place at School A, attended by the headteacher, Council and Mr and Ms X. The notes from the meeting show:
• Y continues to receive two sessions per week from ESMA. ESMA said they were looking for a space where they could tutor a small number of children together.
• The family is struggling with Mr X’s health.
• The Positive behaviour, Autism, Learning Disability and Mental health Service (PALMS) are assessing Y but believe the family need more support.
24. On 24 June 2019 Ms X reports to the Council she is struggling and needs someone to come and look after Y so she can have respite and spend time with her other child. The Council held another meeting on 27 June 2019 with those engaged with the family. At the meeting the Council agreed to continue the current tutoring but to look at a weekly timetable to enable teaching outside of Y’s home.
25. In late June 2019 School B confirmed they could not meet Y’s needs. This was after being sent a copy of his discharge report from the mental health unit.
26. ESMA provided feedback about the sessions with Y in July 2019. ESMA said they did not think Y was ready to start reintegration sessions as he is still too unwell. The ESMA teacher said she was almost providing a social care role in her support of Y’s parents and there needs to be support around the family for Y to access his education.
27. Ms X contacted the Council in July 2019 to explain she is struggling and asked the Council for direct payments for respite. Mr X’s doctor also made a referral to children’s services for support for the family as they are struggling with Mr X’s health.
28. The Council carried out a children and family assessment and placed Y on a child in need plan in August 2019. The Council also agreed 10 hours of direct payments per week to employ someone to come and look after Y and give Mr and Ms X a break. At this point the Council allocated the family a social worker.
29. In November 2019 Ms X and the Council visited School C. This was an independent specialist school. Ms X did not think School C was suitable for Y as it was too far away, and he would find the drive difficult to cope with. In addition School C catered for children suffering from mental health which Y would find distressing.
30. The Council carried out a review of the ESMA support in November 2019. This found Y was performing 1-2 years below his age group. The Council agreed to look at a plan to move the tutoring sessions to a neutral venue. The Council also carried out an annual review of Y’s EHC plan. At the annual review the Council were not able to measure Y’s progress against the outcomes of the plan as he was not attending school. The annual review mentioned Y sometimes struggled to engage with ESMA sessions but he was starting to go out into the community and engage with small groups.
31. In February 2020 Y’s ESMA sessions were put on hold as he was struggling to engage with them. The Council sought to arrange an internal meeting with the professionals involved with Y’s family as School A was still named on his EHC plan and ESMA were no longer providing support to reintegrate Y back to school.
32. On 2 March 2020 Ms X raised a formal complaint. Ms X complained:
• The Council did not put in place the provision in Y’s EHC plan.
• Ms X’s family and Y received no support after the mental health unit discharged him.
• The Council did not provide suitable education to Y and the two hours tutoring he did receive has stopped.
33. On 27 March 2020 the Council provided its response to Ms X’s complaint. The Council said:
• It partially upheld the complaint and said its service had at times fallen short. The Council apologised for any impact this may have had on Ms X.
• Y was unable to attend school due to mental health reasons so has not been able to access his school place since his EHC plan started.
• Y is no longer engaging with the ESMA teacher. The Council has arranged a meeting to discuss the best way to move forward.
34. The Council held a meeting with the professionals involved with Y’s family. At this meeting they discussed Y’s reintegration into school and explored options for Y to visit School A.
35. On 1 April 2020 Ms X asked the Council to progress her complaint to stage two. Ms X said she is unhappy the investigation only partially upheld the complaint. She is also unhappy the Council has not found a suitable school placement for Y after the mental health unit recommended a specialist school.
36. The Council provided its stage two response on 5 May 2020. The Council said:
• It partially upheld Ms X’s complaint about Y being registered at a mainstream school but said it could not find an alternative placement.
• It regularly reviewed the provision offered by ESMA and considered this appropriate.
• It is looking to put provision in place for Y at School A and considering options to help him engage with this.
37. School A put in place some support for Y’s family. This included weekly email/telephone contact with the family. In addition School A made some home learning available for Y and offered for him to visit.
38. Y started to visit School A in May 2020 and started to partially attend following engagement with the headteacher of School A. The headteacher provided weekly updates to the Council about Y’s attendance and engagement with School A.
39. By June 2020 Y started to attend two sessions per week at School A and by September 2020 Y attended School A three mornings per week and two full days per week.

Analysis – Educational provision and SEN provision

40. Ms X says the Council did not provide adequate education to Y after he was discharged from the mental health unit. She also says he did not receive the provision listed in his EHC plan.
41. After the mental health unit discharged Y, the Council put in place two hours per week of home tutoring and assessed him for an EHC plan. The Council named School A, a mainstream school, in Y’s EHC plan, however it then put his case to the provision panel who decided Y was best suited to a SEMH school. Following the provision panel’s decision the Council did not review Y’s placement. While it consulted with one SEMH school to see if Y could have a placement there it did not consult with any other schools after School B said it could not accommodate Y. This is despite the Council having a further five SEMH schools listed in its guidance. This is fault.
42. After putting in place two hours of home tutoring for Y in December 2018, the Council did not review this arrangement until June 2019. This is also fault. Given that Y was a child unable to attend his school placement due to medical reasons, was not receiving full time education, and had special education needs, I would have expected the Council to keep his provision under review.
43. When the Council did review Y’s tutoring in June 2019 it said it was looking for a space where it could tutor a small number of children together. The Council also said it would plan a weekly timetable to enable teaching to take place outside of Y’s home. Following on from this the Council did not put in place these measures.
44. In November 2019 the Council carried out an annual review of Y’s EHC plan. The Council said it could not assess him against the outcomes in the plan as Y was not attending his school placement. In addition, the Council did not discuss or follow up, as part of the annual review, on the provision panel’s recommendation that Y was suited to a SEMH school not a mainstream school.
45. Over the latter part of 2019 and 2020 the Council did hold meetings to review Y, however I cannot see that it put in place a reintegration programme for him or discussed how it would put in place suggestions such as small group teaching to get him back at school. During 2019 and most of 2020 Y was only receiving two hours of home tutoring per week and not receiving the provision listed in his EHC plan. This is fault.
46. Y’s tutoring stopped in February 2020 due to engagement issues and he had no provision. Y was still on the role of School A and they were not providing any integration education to support him returning. It was not until May 2020 that Y started to visit School A. From February 2020, the Council did not put in place any further provision for Y after his tutoring stopped. Y only started visiting School A again after the new headteacher worked hard to engage with him and accommodate his needs.
47. As I have found fault I now need to consider whether this caused injustice. Failure to review the provision panel’s recommendation and consult with other SEMH schools as well as put in place an adequate reintegration programme has resulted in Y not receiving adequate education. In addition Y has not received the special educational provision listed in his EHC plan. The result of this is Y has fallen behind at school.
48. In calculating a remedy for the injustice to Y, I consider the Council could have put in place a reintegration programme, consulted with several SEMH schools and reviewed the tutoring by July 2019. Given that Y did not start back at School A until September 2020 I consider he has not received adequate provision from July 2019 until September 2020.

Analysis – Social care support

49. The Council was at fault for delaying in putting in place support for Ms X and her family. When Y was discharged from the mental health unit, the unit recommended ongoing support for the family. The family were referred to the Council’s social care team in December 2018 but the team decided in April 2019 not to provide support as the issues related to education.
50. Ms X continued to ask the Council for respite provision. In addition Y’s tutor said they were providing social worker type support to the family and the family needed support. The Council did put in place a social worker for the family and direct payments for respite provision in September 2019, however it should have done this sooner. The family’s circumstances had not changed since they were initially referred to the Council in December 2018. The view of the Council’s education department was that the family needed social care support, however the social care team viewed the issues as education related. As a result the Council delayed in putting in place provision for the family until September 2019.
51. Had the Council put this support in place sooner this may well have helped the family to cope better with Y’s behaviour and Mr X’s health issues.

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Agreed action

52. Within four weeks of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for the faults identified.
• Pay Ms X £4,500 for the benefit of Y’s education and to reflect the loss of education and special educational provision to Y. I have calculated this at £1,500 per term for three terms. When coming to this figure I considered the Ombudsman’s guidance on remedies.
• Pay Ms X £400 to reflect the distress and anxiety caused by the time taken to provide her family with a social worker and respite provision.

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Final decision

53. I have completed my investigation and found the Council at fault for not providing Y with suitable education and special educational provision. The Council was also at fault for delaying in providing social care support to Ms X’s family. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman