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Northamptonshire County Council (20 009 296)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 19 Jul 2021

The Ombudsman's final decision:

Summary: The Council was at fault because it did not take timely action to respond to Mrs X’s concerns about her daughter Y’s non-attendance at school. The delay caused Y a loss of three months’ education. To remedy the injustice, the Council will apologise and make payments set out in this statement.

The complaint

  1. Mrs X complained Northamptonshire County Council (the Council) did not follow relevant law and statutory guidance when assessing her daughter Y’s needs and issuing Y’s education, health and care plan (EHC plan). Mrs X also complained the Council took no action despite being aware Y’s placement at school was breaking down.
  2. Mrs X said Y lost out on education, the family suffered avoidable distress and she was put to unnecessary time and trouble as a result of the Council’s failings.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. The SEND tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. Complaints about Education, Health and Care Plans (EHC plans) may be within our jurisdiction depending on the complaint. We can investigate a complaint about an EHC plan if:
    • The action relates to an administrative function of the council
    • The action is taken by or on behalf of the council
    • The action is not excluded by the provisions in paragraphs 4 or 6.
  6. 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 a copy of the final decision statement of this complaint with Ofsted.
  7. 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)

The period I have investigated

  1. The timeframe for this investigation is June 2019 to June 2020. Mrs X had a right of appeal to the SEND tribunal from April 2020 and she appealed. So we cannot investigate events after the appeal and I have mentioned these events by way of background only.

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How I considered this complaint

  1. I considered:
    • Mrs X’s complaint to the Council and its response
    • Documents from the Council set out later in this statement
    • Comments from the Council.
  2. I discussed the complaint with Mrs X.
  3. 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

Relevant law, guidance and policy

  1. A council may take action against parents where it is not satisfied their child is receiving suitable education and it considers the child should be attending school. The council may prosecute the parents. Before doing so it must consider whether to apply to the courts for an Education Supervision Order instead. It is a defence to a prosecution that the child’s absence is due to sickness or an ‘unavoidable cause’. (Education Act 1996, sections 437-447)
  2. The Council’s Education Inclusion Partnership (EIP) service is responsible for investigating cases of irregular attendance, providing advice to schools on managing attendance and if necessary, legal enforcement.
  3. Guidance in force during the events of this complaint (until August 2020) ‘Ensuring Children’s Right to Education’ said a council’s role included:
    • Co-ordinating multi-agency interventions including agreeing roles and responsibilities, organising meetings and securing agreement to implement identified solutions
    • Working with stakeholders (including schools) by communicating reasoning for decisions clearly
    • Keeping schools’ systems for managing absence under review
    • Ensuring there is a clear system to measure the impact of actions and interventions short and long-term (paragraph 23)
  4. Supporting pupils at school with medical conditions (April 2014) is statutory guidance for schools and non-statutory advice for local authorities. It says there should be collaboration between the school, the council, healthcare professionals and social care staff to ensure the needs of pupils with medical conditions are met effectively.
  5. Councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19) Statutory guidance ‘Alternative Provision’ says this duty applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
  6. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says while there is no legal deadline to start provision it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one to one), which is intensive, need not be full-time. It also says provision offered must be similar to what is offered in school.
  7. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….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 based on good practice. It said 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;
  • choose, based on all the evidence, whether to enforce attendance 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.
  1. On receiving a request for an Education, Health and Care (EHC) needs assessment, a council must determine whether an assessment is necessary. (Children and Families Act 2015, section 36)
  2. The council must prepare an EHC plan if, after a needs assessment, it is necessary for special educational provision to be made. (Children and Families Act, section 37)
  3. The Special Educational Needs and Disability Regulations 2014 say:
    • If a council refuses to carry out an EHC assessment but then the SEND tribunal orders them to do so, then they must either decide not to issue an EHC plan within 10 weeks or issue a final EHC plan within 14 weeks of the order. (Regulation 44(2)(b))
    • If a council carries out an EHC needs assessment but refuses to issue an EHC plan and is then ordered to issue a plan, they must issue a draft plan within 5 weeks and final plan within 11 weeks of the date of the order. (Regulation 44(2)(c))

What happened

  1. Y is a secondary age pupil with a physical condition which causes chronic pain in the joints. She also has anxiety and sensory and language difficulties. She was diagnosed with autism shortly after the Council issued her final EHC plan.
  2. Y went to a mainstream secondary school in 2019. She was struggling with her physical health and with anxiety and the school placed her in a small teaching group. Mrs X asked the Council for an EHC needs assessment for Y at the start of June 2019. The Council refused so Mrs X appealed to the SEND tribunal. The Council conceded the appeal and signed a consent order to carry out an assessment in the middle of September.
  3. The school disbanded the small teaching group at the end of the Autumn term and Mrs X told me Y struggled to cope at school with high anxiety. Mrs X also told me the school often called her to collect Y and her teacher in the small group was also off sick frequently and Y could not cope with any alternative staffing arrangements.
  4. Mrs X emailed the SEN caseworker in October saying Y was not able to go to school and was refusing to go in on some days. Mrs X said she had had a call from the small group teacher asking her to collect Y early.
  5. The EHC panel refused to issue an EHC plan in the middle of November, saying Y’s needs could be met by the school. The Council notified Mrs X.
  6. Mrs X appealed to the SEND Tribunal in November. She put on the appeal form that Y was not accessing any mainstream lessons and was struggling to attend school.
  7. The Council conceded the appeal in January 2020 and agreed to issue an EHC plan.
  8. Mrs Y contacted the EIP service in January 2020 saying Y had not been in school since before Christmas. An officer from the EIP service spoke to Mrs X and emailed her to say the school could apply for funding to support Y or contact the Council’s hospital and outreach education service if Y could not access mainstream education. The EIP service took no further action and the records suggest the service closed Y’s case due to a lack of contact from Mrs X.
  9. The Council issued a draft EHC plan at the start of February. Mrs X made comments including that the SEN provision was not specific enough. She asked the Council to identify a school for Y and said she did not want it to be a mainstream school.
  10. Mrs X emailed the Council at the start of March saying Y had been out of school since December 2019, could not attend because the small group had ended. Mrs X went on to set out the Council’s responsibilities under section 19 of the Education Act 1996. An EHC officer replied saying the school was responsible for Y’s education. So she, (Mrs X) should discuss the options with the school.
  11. An EHC officer met with Mrs X at school in the middle of March. An undated note suggests the EHC officer spoke to the school saying Y should be receiving education having been out of school for longer than 5 days.
  12. The EHC team approved funding for individual tuition for Y at the end of March. This started at the beginning of April. The weekly hours were increased from 10 to 15 in May.
  13. The Council issued a final EHC plan in April.
  14. The Council consulted with schools for Y including Mrs X’s preferred school. That school initially refused to accept Y because she had not yet been diagnosed with autism.
  15. Mrs X complained to the Council raising the same issues as in her complaint to us. The SEN manager responded to the complaint at the end of May saying:
    • She was sorry for the difficulties with timeliness and clarity of information received from the EHC team
    • Y was having 15 hours’ a week of tuition and this would continue until a school place was secured. The Council was consulting with an independent specialist school. Once a school was secured, there would be a transition plan
    • The Council would get a new OT assessment and amend the plan following the OT report as required
    • The Council would audit the process and plan for Y and any recommendations made would be discussed and amendments made to the plan as necessary
    • The Council would update her once it had done the audit.
  16. In June Mrs X appealed to the SEND Tribunal to challenge the contents of the EHC plan, in particular the lack of specificity of speech and language therapy, physiotherapy and occupational therapy. Mrs X and the Council agreed amendments to the plan in June and July. The Council continued to consult with schools and in August, the preferred school offered Y a place (her autism diagnosis had been confirmed). Y started at the school in September. Mrs X told me she had settled well and was attending full time.
  17. The SEN manager emailed Mrs X in October 2020 saying she had carried out an audit of Y’s EHC plan and accepted the plan lacked specificity. The email went on to say that any remaining areas would be addressed by a review of the plan and the complaint was now closed.

Was there fault?

Complaint: The Council did not follow relevant law and statutory guidance when assessing Y’s needs and issuing Y’s education, health and care plan (EHC plan).

  1. The Council conceded the appeal against the decision not to conduct an EHC assessment in September 2019. The SEN Regulations required it to complete an assessment within 10 weeks and decide to issue an EHC plan or refuse. The Council decided not to issue a plan in November. This was within the statutory time frame and so there was no fault.
  2. The Council conceded the appeal against the decision not to issue an EHC plan in January 2020. So, the SEN Regulations required it to issue a draft plan within 5 weeks. It issued a draft plan at the start of February, so within the required timeframe. The Council was also required to issue a final plan within 11 weeks of conceding the appeal – so by the end of March/start of April. It also met this timescale (or with a short delay which was not long enough to be fault or to have caused significant injustice).
  3. The Council accepted the plan was flawed because the SEN provision was not specific enough and agreed amendments to the plan with Mrs X after she lodged an appeal to the SEND tribunal. As I explained in paragraph 10, complaints about issues where people have used their right of appeal, are outside our jurisdiction. So I have not made any findings on issues after June 2020.

Complaint: The Council took no action despite being aware Y’s placement at school was breaking down

  1. Mrs C discussed concerns about Y’s attendance with the EHC caseworker in October 2019 and put on her appeal form to the SEND tribunal in November 2019 that Y was not attending school. So, the Council was aware that Y’s attendance was an issue in the autumn term of 2019. Knowing of the attendance issue, the Council should have taken further steps in October 2019 to establish the reason for Y’s non-attendance and to explore the options which included enforcement for non-attendance or securing alternative provision or taking some other steps to improve matters if the view was Y’s non-attendance was for health reasons. Mrs X also told the EIP team in January 2020 that Y was not attending school. In response, the EIP team put the onus on the school to make suitable provision. This was fault because section 19 of the Education Act 1996 says a council is required to make alternative provision. That Y was still on the roll did not absolve the Council of its responsibilities under section 19. The Council did not act in line with the guidance set out in paragraphs 16 to 19 or with the recommendations in our Focus Report. In particular, the Council failed to:
    • co-ordinate a meeting until March (some 5 months after Mrs X first raised the issue)
    • work with stakeholders in a timely manner to ensure Y’s needs associated with her medical condition were met effectively.
  2. On a balance of probability, had the Council acted in a timely manner, Y would have been able to access tuition or some other alternative provision available by January 2020. The delay meant she lost out on a term’s education.

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Agreed action

  1. The Council will, within one month of my final decision:
    • Apologise to Mrs X and pay her £250 to reflect her avoidable distress and time and trouble complaining.
    • Pay Y £1200 to reflect the loss of three months of alternative education that the Council should have arranged for her. This is in line with our Guidance on Remedies.

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Final decision

  1. The Council was at fault because it did not take timely action to respond to Mrs X’s concerns about her daughter Y’s non-attendance at school. The delay caused Y a loss of three months’ education. To remedy the injustice, the Council will apologise and make payments set out in this statement.
  1. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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