The Ombudsman's final decision:
Summary: Mrs B complained that the Council failed to provide suitable alternative education for her daughter C when she was unable to attend school due to anxiety. We found the Council failed to provide C with suitable alternative education, between October 2019 and March 2020. The Council has agreed to apologise to Mrs B, pay her £2000 to remedy the impact on C and a further £300 for Mrs B’s time and trouble in pursuing the matter. It has also agreed to review its policy, provide training and check alternative provision for other children in similar circumstances.
- Mrs B complained that Suffolk County Council (the Council) failed to provide suitable full-time alternative education (in accordance with government guidance) and SEN provision for her daughter, C, between September 2019 and September 2020. This meant C missed a significant period of education, felt isolated and missed out on social opportunities. It also caused Mrs B significant stress trying to educate her at home. The Council also delayed in responding to her complaint which caused her time and trouble.
What I have investigated
- I have investigated the period from September 2019 (when C stopped attending school) until 17 March 2020 (when C’s final Education, Health and Care (EHC) plan was issued and the right of appeal arose).
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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.
What I found
Special educational needs (SEN)
- A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and the arrangements which 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.
- 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.
- The Education Act 1996 (Section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
- 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.
- 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.
- Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states “LA’s should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
- We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including they:
- 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;
- choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
- adopt a strategic and planned approach to reintegrating children back 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.
- Mrs B’s daughter C was diagnosed with autistic spectrum disorder (ASD) in May 2019. Mrs B requested a special educational needs assessment. The Council refused and Mrs B appealed to the SEND tribunal.
- In September 2019 C became increasingly anxious about attending school and within a few weeks of the start of term had stopped attending. The school had implemented a part-time timetable: C attended school for three lunchtimes a week and had the option of attending PE once a week. Mrs B had referred her to Mental Health Services and the child psychology team, for which there was an 18-week waiting list.
- The school also referred C to the Council’s Inclusion Support Service (CISS) for help with increasing her attendance. A worker from this service (Officer Z) took on the case. She first met with Mrs B and C at school in October 2019. She recommended making small increases to the part-time timetable and reviewing progress every two weeks. The school was providing work for C to complete at home.
- Mrs B complained to the Council on 21 October 2019 that C had been unable to attend school for several weeks and it had been over 15 days since C had received a suitable full-time education.
- Officer Z met C at school in November 2019 and held a review meeting on 21 November 2019. C was attending the three lunchtime sessions and an additional art and crafts session. She was not attending PE and was too anxious to attend a 1:1 session with her class-teacher to explain the work to be completed at home. The school referred C to the Inclusion Facilitation Team who offered therapeutic support to children with high anxiety.
- The SEND Tribunal ordered the Council to do an assessment of C. The Council started this process on 19 November 2019 asking a number of professionals for their views on C’s needs.
- At the beginning of December 2019 Officer Z held another review meeting, which C joined reluctantly. The lunchtime and craft sessions were going well but C was still not attending the 1:1 sessions. Officer Z suggested introducing a trusted adult at the end of the arts and crafts session.
- As part of the assessment process a primary mental health worker said that Mrs B rejected Cognitive Behavioural Therapy (CBT) for C because her son had received CBT and Mrs B had tried all the techniques with C, but they did not work. Mrs B wanted a more ASD-specific approach and so the worker referred C back to the community paediatrician.
- The Council responded to Mrs B’s complaint on 19 December 2019. It said it was aware C was not attending school. It noted C had a place at the school considered it was a suitable educational placement. She was receiving a part-time timetable to ensure she had access to a level of education she could manage. The Council went on to say:
“However if C is under the care of relevant health professionals who are providing written advice that she is unwell and cannot attend school then she could be entitled to alternative tuition to further support her reintegration to school.”
- Mrs B was unhappy with the response and escalated her complaint to stage two of the Council’s complaints process.
- An educational psychologist provided a report on 6 January 2020. They noted that C was currently working with Officer Z on a fortnightly basis rather than the more typical half-termly approach. They also noted that C had been referred to the Inclusion Facilitator, but the case had not yet been allocated. They advised a reintegration programme with the aim of full-time attendance by the end of year six.
- In mid-January 2020 Officer Z held another review meeting. She noted positive improvements in terms of C being able to freely access more areas of the school without anxiety. Mrs B raised the issue of transition planning for secondary school and said she would like C to be back in school full-time for several weeks before September. Mrs B stated her preferred secondary school (a mainstream secondary school). Officer Z agreed to try and include additional 20-minute sessions in the timetable and gradually expose C to group activities led by adults. Officer Z also planned to offer direct 1:1 work with C around transition and liaise with the school.
- The Council issued a draft EHCP on 17 January 2020, having consulted with schools including C’s current school. It named C’s current school for the summer term, and a specialist unit within a mainstream secondary school from September 2020.
- A week later C was too nervous to attend the new session and Mrs B said the part-time timetable was not working. She asked for an alternative plan. She also asked the Council to consult with specialist provisions.
- In February 2020 the Inclusion Facilitator held two sessions with C at home. At the review meeting Officer Z arranged some extra sessions for C at school. Mrs B suggested an alternative therapeutic provision and asked about alternative education in the meantime. On 26 February 2020 she requested an independent school for 7 to 18 year olds.
- The Council responded to Mrs B’s further complaint on 25 February 2020. It acknowledged it could have been more proactive in helping Mrs B obtain medical evidence, so it could be used to help decide the most suitable provision for C at that time. It apologised for the failure to do so and said it was taking steps to review its policies and procedures.
- The Council issued the final EHC plan on 17 March 2020 naming a place for C in a specialist unit to start in September 2020. Mrs B appealed against parts of the EHC plan in June 2020.
- The Council was aware in October 2019 that C had a diagnosis of ASD and was only able to attend school for three lunchtimes and one art and craft session, due to anxiety. It also knew she had been referred to mental health services and the child psychology team. It was also aware there was an 18-week wait for a psychology appointment. The school was sending work home, but no other education was provided. I consider the Council had sufficient information to provide alternative education after C had been unable to attend the school premises for 15 days.
- I accept the Council was making significant efforts to reintegrate C back into school, but it should also have provided some alternative education for C during this period. I do not consider that the part-time arrangements were sufficient or suitable. C was unable to attend school due to anxiety, but the Council has not provided any evidence that she was unable to cope with tuition at home or some other alternative provision.
- The Council accepts it should have done more to assist Mrs B provide medical evidence to support C’s non-attendance and I agree this was fault. But its view that C would only have been entitled to alternative provision if she had provided medical evidence is wrong. The legislation is clear: the Council has a duty to provide alternative education where a child is unable to attend school due to illness, exclusion or otherwise (my emphasis). The Council was aware and accepted C was unable to attend school due to anxiety and that the part-time timetable only involved one 30-minute session of teaching (art and craft). So, it should have provided alternative education after C had missed 15 days of school or obtained evidence to show she was not able to cope with any more education even at home.
- The Council also took too long to respond to Mrs B’s complaints and failed to take the opportunity to put matters right even after Mrs B had pointed out the fault.
- The failure to provide any alternative education was fault which meant C missed out on at least 5 months of education during a key period and Mrs B was caused significant distress and time and trouble trying to educate C herself at home.
- I understand C did not receive any alternative education after 17 March 2020 but I am prevented from considering this period as it was after Mrs B’s right of appeal to the SEND tribunal arose
- In recognition of the injustice to C and Mrs B, I recommended the Council (within one month of the date of my final decision) should:
- apologise to Mrs B;
- pay Mrs B £2000 to remedy the failure to provide education to C between October 2019 and March 2020. Mrs B can use this as she sees fit to meet C’s educational, social and mental health needs; and
- pay Mrs B £300 for her time and trouble in pursuing the complaint with the Council and then with us.
- ensure it has a policy in place for providing alternative education to children out of school, which complies with section 19 of the Education Act 1996;
- provide training and/or guidance to all relevant staff on its policy; and
- review the educational provision in place for children of compulsory school age who are on the roll but have not attended school for more than 15 school days and where alternative provision is not being supplied, to ensure there is an assessment of their educational needs and how these needs are being met.
- I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman