Summary: Ms Y complains the Council failed to provide her son, G, with appropriate educational provision in line with his Education, Health and Care (EHC) Plan. She says this resulted in him missing two years of education. We find fault by the Council in how it applied its policy on alternative provision and the lack of education provided to G. We recommend the Council apologises, pays G a financial remedy to be used for education, social and mental health purposes, pays Ms Y a financial remedy for distress, time and trouble and looks at lessons that can be learnt from this case.

The complaint

1. Ms Y says the Council failed to provide her son, G, with appropriate educational provision in line with his Education, Health and Care Plan. She also says the Council has failed to provide alternative education for G whilst he has been off school.
2. Ms Y says this means G has lost out on two years of education and caused her stress.
3. Ms Y also says the Council failed to deal with her complaint.

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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. 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

6. I considered Ms Y’s complaint and the information she provided.
7. I considered the Council’s response to my enquiry letter.
8. I have read relevant legislation, statutory guidance and policies.
9. I invited Ms Y and the Council to comment on the draft decision and considered responses made.

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What I found

10. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what must be done to meet those needs by education, health and social care. This can include support needed in school.
11. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
12. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Alternative provision

13. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This 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.
14. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the Council’s duty to provide full-time education from 1 September 2011.

The Council’s Access to Education for Children and Young People with Medical Needs Policy

15. The Council’s policy details what actions should be taken for children unable to attend school due to medical conditions. It sets out each involved parties responsibilities.
16. The responsibilities of the School
17. It is the responsibility of the school to complete the Surrey County Council Request for Involvement Form. Request for Involvement should be made by the school/academy as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative and should be sent to the relevant A2E Area Lead. If the child or young person is not on the role of a school the referral may be made by Admissions or SEN. This does not apply to children who are Electively Home Educated

It will be the responsibility of the school to:

• Provide evidence, with the Request for Involvement Form, from either a Consultant Child Psychiatrist, Paediatric Consultant or Developmental Paediatrician, detailing the medical issues that beset the child and providing sufficient detail about the child or young person to assist in planning provision and his/her eventual return to school.
• Arrange a multi - agency initial review meeting with the child or young person, their family, Access to Education and health and any other professionals working with the child.
• Arrange regular review meetings at regular intervals with the child or young person, their family, Access to Education and health and any other agency working with the child.
• Ensure appropriate work is provided for the child.
• Loan resources and materials which may include laptops and textbooks.
• Make arrangements for examinations.
• Provide a named contact for parents and professionals.
• To meet the costs incurred by the child accessing the Surrey Online Service

18. The responsibilities of the Local Authority
19. Access to Education acknowledges that, whenever possible, children and young people should continue receiving their education from their mainstream school. The key objective of Access to Education involvement should be around supporting children and young people back into their school at the earliest opportunity. Access to Education will:

• Ensure that children and young people with diagnosed medical needs have access to a suitable education as is appropriate to their needs;
• Support the reintegration of children and young people back into school at the earliest opportunity;
• Work with schools to ensure the continuity of education, including access to public examinations;
• Work in partnership with children and young people and their parents and carers, keeping them fully informed in both process and decision making with regard to delivery of provision and progress;
• In partnership with schools and health professionals, to ensure, where possible, that children and young people with recurring conditions are provided with suitable education;
• Ensure appropriate links are maintained with other services and partners to support the child or young person’s eventual reintegration.

20. The responsibilities of Parents / Carers

• To ensure their child attends the agreed provision.
• To attend planning and review meetings.
• To ensure that their child attends appointments with health and follow any recommendations that the health professionals give.
• To support the agreed reintegration programme.
• To keep the school and Access to Education up to date with any changes/new information.

21. The responsibilities of Health services

• Provide consultant level health information to schools to support a request for involvement from Access to Education This will be from a Consultant Paediatrician, Developmental Paediatrician or CAMHS practitioner, endorsed by a Consultant Child Psychiatrist;
• To inform A2E and the relevant schools of the medical interventions needed to ensure the child returns to school
• Support the review process with written updates if attendance at review meetings possible;
• Work collaboratively with education and any other agencies involved.
• Provide a named contact, i.e. the Designated Doctor, for each child and a medical care plan.
• Support protocols agreed between health and education, particularly in relation to tertiary units outside Surrey for young people with complex mental health needs.

What Happened

First EHC Plan and School A

22. Ms Y has a son, G, who has a diagnosis of Autism Spectrum Disorder (ASD) and other learning difficulties. He also has high levels of anxiety. Between September 2018 and January 2019, G attended a mainstream infant school (School A) with an EHC plan. He was five years old when he started at School A.
23. The EHC Plan said G should have a dedicated Teaching Assistant (TA) across the whole school day. It said the TA should be trained and experienced in working with children with ASD and demand avoidance.
24. The EHC Plan also said G should have an occupational therapy programme, designed and monitored by an Occupational Therapist (OT) and delivered by education staff. The ECH Plan also contained a number of other provisions and recommendations to assist G at school.
25. School A was able to meet the provision contained in the EHC plan.
26. In January 2019 G stopped attending School A. Ms Y said this was due to G’s high levels of anxiety. Ms Y said G was signed off from school by a GP, but no alternative education was provided.
27. The Council said School A had advised it that GPs were no longer able to provide medical evidence to show pupils are unfit to attend school. It said G did not meet the criteria for Access to Education support as there was not sufficient medical evidence.
28. In response to my enquiries, the Council added “The Council has never been presented with evidence that G has been too ill to attend school that would have been sufficient for Access to Education to be involved. The Council were provided with a GP letter. Ms Y was subsequently informed by the Education Welfare Team that this was not sufficient and advised of what would be needed.”
29. Also in January 2019, the OT provider had to terminate their contract and was unable to provide any further service to G.
30. The Council said that later in January 2019 it offered Ms Y an alternative OT provider but that she declined this and requested a reassessment of G’s EHC Plan.
31. In February 2019, Education Welfare (EW) became involved and tried to contact Ms Y to arrange a meeting. There was dialogue between EW and Ms Y but a meeting never took place.
32. Between February and June 2019, the Council contacted three ASD special schools and nine mainstream schools with specialist centres, but none were able to accommodate G.

First amendment of EHC Plan

33. G’s EHC Plan was amended in June 2019 following a reassessment. The type of school G will attend was listed as Specialist school environment with ASD provision that can meet speech, language and communication needs. No school was listed.
34. The provision for a TA throughout the whole school day was removed and replaced with “to be completed in the final plan”.
35. Ms Y appealed the amended EHC Plan and requested to go to a tribunal.
36. The Council said it offered Ms Y’s son G 6 hours a week with a tuition company to start in September 2019, but she refused it as she did not feel 6 hours a week with no transport was acceptable.

Tribunal and School B

37. A tribunal hearing took place in December 2019, but no evidence was heard. It was thought the Council and Ms Y had agreed on a school placement (School B) for G.
38. In January 2020, G started at School B. Ms Y said the school was not right for G and by the end of the same month, the placement had broken down and G was no longer attending. Ms Y said the Council should have ensured the school could meet all of G’s needs prior to placing him there. She says the Council should have engaged in the tribunal process and agreed to Education Other Than In School (EOTIS) from June 2019.
39. A further tribunal hearing took place in June 2020. Ms Y’s appeal was allowed in part. The order was as follows

In Section F, by replacing the existing wording in the EHC Plan with the amendments set out in the attached working document v7 and with the following further amendments under the subsection already headed “EOTIS”:

a. The delivery of G’s EOTIS programme will be supported by a Learning Support Assistant with experience of working with children who have ASD and PDA for 30 hours per week to facilitate learning of a programme devised by the Tutor, therapeutic provision and the additional educational activities specified.

b. A named provider will co-ordinate the delivery of G’s programme of EOTIS including the provision of therapy and a Learning Support Assistant time. This will include appropriate staffing levels to reflect safeguarding requirements and ensure that all elements of the EOTIS programme are delivered effectively and independent of parental input or time.

c. The EOTIS programme will be monitored at half-termly planning and review meetings with staff and parents.

d. G will be provided with an appropriate electronic device – laptop or tablet – as an alternative method of recording his learning.

In Section I, by replacing the existing wording with the following:

“A Special School for children with Autistic Spectrum Disorder”

Second Amendment of EHC Plan

40. Following the tribunal decision, a second amended version of G’s EHC Plan was issued in August 2020. This included the EOTIS provision ordered by the tribunal.
41. In September 2020, an education provider took responsibility for G’s education provision and began to provide some of the requirements. A tutor began to work with G but much of the other provision was not yet being provided, although the Council said efforts were being made by the provider to acquire the remaining provision.
42. In October 2020 the education provider told the Council it was no longer able to meet the required provision.
43. Ms Y arranged her own Speech and Language Therapist (SALT) for G from the end of October 2020 until March 2021. The Council said it paid the provider directly for this provision from January 2021.
44. The Council took responsibility for sourcing the provision in G’s EHC Plan from October 2020. It says provision of a Learning Support Assistant (LSA) began in February 2021. It said animal therapy was also sourced around the same time. The Council said it also tried to source some other provision at the time but was unsuccessful.
45. In February 2021 a third amendment to G’s EHCP took place and listed provision as “A state funded High COIN special school” from September 2021.

Complaints

46. Ms Y also complains the Council has not responded to her complaints. She says these were acknowledged but she has not received formal responses.
47. The Council said that when complaints were made, it was during other ongoing action such as an appeal to tribunal or having been issued pre-action legal letters. It said it paused the complaints process whilst these issues were ongoing as to deal with complaints about the same issues would hinder the Council’s ability to deal with the issues being pursued. The Council said it would respond to any remaining matters at the conclusion of the other proceedings.

Analysis

First EHC Plan and School A

48. When G stopped attending School A, Ms Y provided two GP’s letters to say he was unfit to attend school due to high anxiety. School A is a mainstream school and provision contained within G’s EHC Plan was being supplied there. The Council said School A made it aware of the Council’s policy, that a GP letter was no longer sufficient. The Council also said Ms Y has never provided the necessary medical evidence that G is too unwell to attend school, despite being informed of what would be required. The Council said its Access to Education service was not involved due to this. Instead, it chose to involve Education Welfare due to G’s non-attendance at School A, although no formal action was taken against Ms Y.
49. The Council’s policy, as detailed earlier in this statement, does not put the responsibility on a parent / carer to obtain such medical evidence, only that they should ensure they attend appointments with health professionals. The Council knew that G had a diagnosed condition which was included as part of the EHC Plan.
50. The policy was applied incorrectly, and no action was taken to provide G alternative provision when he was too unwell to attend school. If the Council or School A did not accept the GP letters provided by Ms Y, they should have arranged other medical assessments in line with the policy. This was fault that meant between February 2019 and June 2019 G was not provided with alternative educational provision to meet what is included in his EHC Plan.
51. It should be noted the Council did contact a number of schools to enquire about whether they could provide provision for G, but they were unable to do so.

First amendment of EHC Plan

52. The amendment to G’s EHC Plan said G should attend a specialist school but did not specify any such school.
53. An offer of some limited provision with a tutor company was made in September 2019, but Ms Y said it was unsuitable due to no transport being provided.
54. Between the amended plan being issued in June 2019 and the end of December 2019 the Council did not provide the provision detailed in G’s EHC Plan or provide sufficient alternative provision. This was fault that meant G did not have access to the required education provision during this period.

Tribunal and School B

55. It was agreed between Ms Y and the Council that G would attend School B from January 2020. The tribunal hearing was adjourned because of this. Ms Y stopped G attending by the end of January 2020 as she did not feel it was right for him. She said this was the Council’s fault for not ensuring the school was appropriate prior to G attending.
56. I do not find fault with the Council’s actions in G attending School B. It was an agreement between Ms Y and the Council.
57. From February 2020 to June 2020, when a tribunal did take place, G did not receive educational provision either at a suitable school or alternative provision. No new medical information was provided about G to suggest this was due to a specific illness. However statutory guidance says “education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.”
58. G’s absence from School B was, according to Ms Y, because School B could not meet his needs as detailed in his EHC Plan. This would fall into the “other reasons” part of statutory guidance and means the Council should have provided G alternative provision to meet his EHC Plan and referred him to its Access to Education department. To not do so was fault by the Council resulting in G missing education between February 2020 and June 2020.

Second Amendment of EHC Plan

59. The Tribunal order said education should be provided in the form of EOTIS provision. Some of G’s provision was met by an education provider but this stopped in October 2020, after the provider withdrew.
60. The Council took responsibility for sourcing the provision again, but this did not materialise until February 2021.
61. The Council has responsibility for the provision of education. It is acknowledged the education provider was unable to source all the requirements despite it originally agreeing to do so, however the responsibility remains with the Council. The fact some provision was only provided for a short period of time, and then none at all was provided is fault by the Council. This resulted in G having limited access to his provision in his EHC Plan for one month, and then no provision from November 2020 to February 2021.

Complaints

62. I do not find fault with the Council’s decision to pause the complaint process whilst other matters were ongoing. It was right for a tribunal and legal action to take precedence, and to deal with a complaint at the same time may prejudice such processes.

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Agreed action

63. To remedy the injustice set out above, the Council has agreed to undertake the following within one month of a final decision:
1. send a written apology to Ms Y for the lack of provision provided to G,
2. pay G £7162.50 to be used for educational, social and mental health purposes, for his lost education and SEN provision between February 2019 and February 2021,
3. pay Ms Y £500 in recognition of her distress and frustration for the lack of education provided to G and her time and trouble pursuing the matter,
4. ensure appropriate provision is now in place for G in line with his EHC Plan.
64. I also recommend the Council considers lessons it can learn from this case. Within one month of a final decision the Council should remind relevant staff of its Access to Education policy and what responsibilities are placed on each involved party. It should also write to School A to ensure it properly understands the policy for any future similar situations.

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Final decision

65. I uphold this complaint finding fault by the Council causing injustice to Ms Y and her son G. I have set out recommendations for actions I want the Council to take to remedy that injustice, which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman