Sheffield City Council (21 000 113)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 23 Aug 2022

The Ombudsman's final decision:

Summary: There was fault by the Council, because it did not take steps to secure alternative provision for a period of time when a child was not in education because of health reasons. The Council has agreed to remedy the injustice this fault caused. The Council was also at fault for a small delay in issuing the child’s education, health and care plan, but this did not cause a significant injustice.

The complaint

  1. I will refer to the complainant as Miss T.
  2. Miss T complains the Council failed to make adequate alternative provision for her son, despite the fact he was unable to attend school due for health reasons. She says the result of this is that he has missed a significant proportion of education, as well as becoming socially isolated, and that this has had a consequent impact on her too.

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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 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)
  3. 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.
  4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

  1. I reviewed Miss T’s correspondence with the Council, F’s EHC plan, and a chronology and comments provided by the Council.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. Miss T’s son, F, has been diagnosed with autistic spectrum disorder (ASD).
  2. In September 2017, F began secondary school. Miss T says he attended for the first day, but since then has refused to go back.
  3. In 2018 and 2019, Miss T asked the Council to assess F for an Education, Health & Care (EHC) plan. The Council considered this twice, but made a decision F did not need an EHC plan both times. After the second decision, Miss T appealed to the SEND Tribunal, which upheld her appeal and ordered the Council to issue an EHC plan in November 2019.
  4. The Council issued F’s EHC plan in February 2020. Since September 2019, he had been attending an alternative provision centre for children too unwell to attend school; but the EHC plan named his mainstream school as his educational placement, because the Council considered this was an appropriate placement for him once he was well enough to return to school.
  5. In July 2020 an annual review of F’s EHC plan took place.
  6. F did not return to the alternative provision centre once the new school year started in September 2020. The Council says the centre tried to get F to re-engage with his education, offering small group interventions.
  7. In January 2021, the Council issued F’s new EHC plan, which still named the mainstream school as his placement. Shortly after this, the alternative provision centre discharged F and informed the Council of this.
  8. Around the same time, and at Miss T’s request, the Council sent a consultation to a specialist school. The school responded in February to say it could not offer F a place.
  9. In March, Miss T attended a meeting with the Council and F’s mainstream school. It noted there was no evidence F could not attend school, and that he had begun to form a positive relationship with a support worker.
  10. In April, Miss T made a complaint to the Ombudsman. We wrote to her to establish whether she had first made a formal complaint to Council, but we received no response from her at that time.
  11. At another meeting in May, Miss T presented a recording of F, where he said he would “only work with someone 1:1 and was interested in ICT and computers”. Miss T requested the Council provide a package of education other than at school (EOTAS).
  12. In June, the Council provided Miss T with information about EOTAS packages which could potentially be put in place. A package was later agreed, to start on 1 September.
  13. In September, Miss T made a complaint to the Council with the assistance of a solicitor. She said the Council had been F was not receiving proper education in early 2019, but failed to intervene or investigate further. She also complained the Council had taken too long to issue F’s EHC plan after the Tribunal had upheld Miss T’s appeal.
  14. Miss T asked the Council to accept responsibility for its failings, including the delay in issuing the EHC plan and its failure to arrange alternative provision between 2017 and 2019, requested compensation for the impact of this. Miss T also asked the Council to fund F’s ICT course as he did not have access to a computer.
  15. The Council responded in November. It said it had first become aware of F in August 2018, when it received a request to assess him for an EHC plan. The Council had refused this request.
  16. The Council said it received a second request in June 2019. It refused this again, but the decision was overturned by the Tribunal in November 2019. It said that, although it was aware of concerns about F’s education between 2017 and 2019, this was a matter for his school to address as he had been on roll there.
  17. The Council acknowledged there had been delays in issuing the EHC plan and apologised for this. It said that it had attempted to “meet [F’s] needs by working with the appropriate teams”, including the alternative provision centre, but apologised again if Miss T “felt [its] actions did not go far enough”.
  18. The Council said the provision of ICT would depend on which EOTAS package Miss T had employed. However, it invited her to contact the Council again if the package or funding did not cover the cost of ICT equipment.
  19. Later in November, Miss T escalated her complaint. She said she had evidence the Council had been aware of F’s situation in December 2017, not August 2018; and complained the Council had refused to support F with an EHC plan, despite the evidence it was necessary.
  20. Miss T confirmed ICT was now part of the EOTAS package, but said the tutoring had only started recently. However, she said her complaint was actually about the previous lack of support. She also said the Council had not addressed the list of desired outcomes she had included in her original complaint.
  21. The Council responded in December. It acknowledged it had discussed F informally in 2017, but said this was not part of the needs assessment process, and it first received a request to assess F in August 2018. The Council reiterated Miss T should discuss any concerns about F’s education between 2017 and 2019 with the school.
  22. The Council said the school had recorded F’s absences as ‘authorised’ during this time, which meant it had not triggered action from the Council’s attendance team. But the Council said it was aware the school had ensured “support was made available through the [Council’s] Early Help service”. The Council then noted F had begun attending the alternative provision centre in 2019.
  23. The Council said its original response had addressed Miss T’s points about timescales, provision between 2017 and 2019, and ICT at home. It said it was unclear what Miss T meant about the Council not fulfilling legal requirements, but acknowledged again there was a delay in issuing F’s EHC plan, and said it now had processes in place to ensure this happened within the 20 week deadline.
  24. However, the Council said it was “not in a position” to offer any financial compensation to Miss T.
  25. In January 2022, Miss T referred her complaint to the Ombudsman again.

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Legislative background

EHC plans

  1. A child with special educational needs may have an 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.
  2. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
  • where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
  • the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
  • the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
  • councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative provision

  1. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
  2. 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))
  3. 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)
  4. 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’)

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Analysis

  1. Miss T’s complaint covers several different points, but our jurisdiction does not allow us to consider all of them.
  2. First, the law says a person should approach the Ombudsman within 12 months of becoming aware of the issue they wish to complain about – this is called ‘the permitted period’.
  3. Miss T first approached the Ombudsman in April 2021, although she did not pursue her complaint with us until January 2022. Technically the permitted period should run from January 2021, therefore, although it could be argued it should run from April 2020. Either way, this would exclude a significant proportion of the matters Miss T complains about.
  4. However, we are able to disapply this rule, if we are satisfied a person had a good reason for their delay in approaching us, and if we consider we can still carry out a fair and robust investigation. Miss T has described the stress and pressure she has been under with F not attending school, and I am conscious this would make it more difficult to pursue a complaint. I am therefore satisfied there is a good reason for some delay here.
  5. But, equally, I do not consider I can practically investigate matters going back as far as 2017 and 2018. Given the passage of time I could not be satisfied any evidence relating to this period is reliable, and we must also consider the principle of natural justice and the fairness of investigating what are now historic matters.
  6. I have therefore decided to compromise here and begin my investigation in November 2019, at the point the Tribunal upheld Miss T’s appeal. Anything which happened before this will not form part of my investigation.
  7. Second, and putting the time question to one side, a significant part of Miss T’s complaint covers the Council’s two decisions not to issue an EHC plan for F, despite the existence of what Miss T considers to be evidence showing it was necessary.
  8. The decision whether to issue an EHC plan carries a right of appeal to the Tribunal. The law says we should generally not investigate a complaint, where the complainant has such a right. We are also barred absolutely from investigating a complaint where a complainant has used their appeal right.
  9. Both points apply here. Miss T had the right to appeal against the Council’s original refusal to issue an EHC plan for F, and (given she subsequently did use her appeal right) I consider it would have been reasonable for her to use this. I will not, therefore, investigate the original refusal.
  10. And I cannot investigate the second refusal, because it was considered by the Tribunal.
  11. Therefore, my investigation here will consider the following points:
  • whether the Council failed to arrange suitable alternative provision for F after November 2019; and
  • whether there was a delay in issuing the EHC plan after the Tribunal decision in November 2019.

Arrangements for alternative provision

  1. F has been on roll at a secondary school since September 2017, but has refused to attend there since his first day.
  2. Where a child of compulsory age is not attending school, there are broadly speaking two ways the local authority can approach the matter. If there is a legitimate reason for the child not to attend school, such as serious health issues, then the authority has a duty to make alternative provision – such as tutoring – for them, and it must do so as soon as it becomes clear the absence will be for 15 days or longer. We refer to this as councils’ ‘s19 duty’.
  3. The alternative provision may be a short-term arrangement, until the child’s health improves enough to allow them to return to normal schooling, or a longer-term arrangement, if the prospects of improvement are less encouraging.
  4. Alternatively, if there does not appear to be a compelling, legitimate reason for the child not to be attending school, the authority should consider treating it as an attendance matter (‘truancy’), for which it has powers of enforcement. This can include prosecuting the child’s parents or legal guardians.
  5. In any particular case, it is a matter of professional judgement for the relevant council to decide which approach is most appropriate.
  6. In this case, the Council has explained that the purpose of referring F to the alternative provision centre was to eventually reintegrate him into full-time education at his mainstream school. Children referred to the centre will remain on roll at their normal placement, as F did. The Council says F had been making progress but this was interrupted by the COVID-19 pandemic, when the alternative provision centre closed, and after it reopened he did not return.
  7. The Council has also stated clearly that it referred F to the centre because it considered he was too unwell to attend his mainstream school, and for this reason, it did not consider it appropriate to use its enforcement powers here.
  8. On this basis, I accept the Council considers its s19 duty has been triggered by F’s absence from his mainstream school.
  9. The s19 duty also says any alternative provision arranged for a child out of school should generally be the equivalent of a normal full-time education. However, councils should also have a mind to what is suitable for each individual child; and so for some children, measures such as a reduced timetable may be appropriate.
  10. At the start point of my investigation, November 2019, F was attending the alternative provision centre. The Council has explained that, as part of its role, the centre works with other professionals “to determine what constitutes ‘suitable’ and ‘full time’ provision for each individual pupil”.
  11. In F’s case, this initially involved working 1:1 with a member of staff, exploring his interests and assessing his basic academic skills. The centre then tried to move F into a small group setting, but he did not respond well to this and was absent for a period. He had just begun attending again for a small number of weekly sessions at the centre when it was forced to close because of COVID-19.
  12. I am therefore satisfied the Council appropriately discharged its s19 duty during this period. It was entitled to rely on the centre to identify the most appropriate level of provision for F, and it appears this was mostly successful before the centre’s closure. Although F was then unable to attend the centre for the remainder of the 2019-20 academic year, the same was true for most children of school age in the country. The Council has also explained that, while the centre reopened in June 2020, this was only for Year 10 pupils, which F was not.
  13. F was due to return to centre in September at the beginning of the next academic year, but did not. The Council says the centre tried to re-engage him with small group interventions, but this was unsuccessful, and in January it contacted the Council to take F off its roll.
  14. F therefore did not receive any form of provision during the 2020-21 autumn term. Despite this, the Council had made arrangements for his provision at this time, and the centre itself was actively trying to bring F back in. I am therefore satisfied the Council continued to discharge its s19 duty during this period, even accepting F was not actually attending the provision.
  15. However, the Council has said that, after the centre discharged F in January 2021, its “level of challenge and response … was insufficient” and, as a result, no provision was made for F for the remainder of 2020-21 academic year. The Council has accepted it was at fault for this and offered to pay a financial remedy of £1200, which is £200 for each month of missed provision from February to July inclusive.
  16. I will return to this point presently.
  17. F’s EOTAS package started in September 2021. As I understand it this involves tuition in IT, maths and English, over six hours per week, but with the aim of increasing this to ten hours once F is able to sustain this. The Council is funding the package through direct payments to Miss T, who is using this money to purchase the tuition.
  18. I am conscious this appears a relatively limited package, but equally that F has been out of mainstream education for what should have been his entire time at secondary school; and that he has previously struggled to sustain his attendance at the alternative provision centre when it attempted to make progress with him.
  19. Taking all this together, I consider the Council was at fault for failing to make arrangements for alternative provision for F between the period he was discharged from the centre, and the period his EOTAS package began. For the remainder of the period I am investigating, I consider the Council discharged its s19 duty.
  20. The Council’s offered remedy is based on the tariff published in the Ombudsman’s Guidance on Remedies, at a rate of £200 for each of the six months from February to July inclusive.
  21. The Ombudsman’s Guidance on Remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as … the child’s SEN [special educational need] [and] whether additional provision now can remedy some or all of the loss.”

  1. F has well-documented SEN, and on this basis I consider a higher tariff than the basic £200 per month to be justified. And, while I am conscious F is now receiving an EOTAS package, which would limit the scope for additional provision, I still consider it likely he will benefit from additional funding at some point in the future. I therefore consider a tariff of £400 per month to be more appropriate here.
  2. I should also note, however, that the period of February to July is actually five (school) months, not six. This is because it includes the two-week Easter holiday and two half-term weeks.
  3. I make a recommendation to this effect.
  4. I find fault causing injustice in this element of Miss T’s complaint.

The delay in issuing the EHC plan

  1. Miss T also complains the Council took too long to issue F’s EHC plan, after this was ordered by the Tribunal in November 2019.
  2. By the SEN Code of Practice, councils have a maximum of 20 weeks, running from the date they receive a request for an assessment, to issue an EHC plan (if this is what they decide to do). If there is an intervening Tribunal appeal, this ‘stops the clock’, but it resumes once the appeal is decided.
  3. I do not have the exact dates for when Miss T asked the Council for an assessment in 2019, nor for when the Tribunal decided her appeal. However, I note the Council accepted it took too long to issue the plan, and confirmed it had taken steps to improve its timeliness, and so for this reason I will accept the total time was more than the statutory 20 weeks. This, therefore, is fault.
  4. However, the Council issued the plan on 18 February 2020. This is between 11 and 15 weeks from November 2019 (depending on the exact date in November). Regardless of how much over 20 weeks the entire process took, I am not persuaded this represents a major delay in producing the EHC plan.
  5. I find fault which did not cause injustice in this element of Miss T’s complaint.

Remedy

  1. As I have explained, I consider the Council should offer a remedy to F of £400 for each of the five months he was without provision. This makes a total of £2000.
  2. As this money is intended to remedy a loss of education, I consider it important that F use it for an appropriate purpose. The Council is already making direct payments to Miss T for his EOTAS package, and as the extent of the package must be carefully managed, it does not appear that simply adding more money to this fund would be of particular benefit to him.
  3. Rather than immediately paying the money to F, therefore, I consider it would be better for the Council to discuss with Miss T and F, to decide the most suitable way for him to spend the money. Miss T has commented that F may wish to purchase additional computer equipment as part of his IT training, or take driving lessons to help him gain independence, both of which appear potentially appropriate.
  4. Once this has been settled, the Council should then release the money to F at the appropriate juncture.

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Agreed action

  1. Within one month of the date of my final decision, the Council has agreed to:
  • confirm it has put aside £2000 to release to F as appropriate, once it has agreed with him and Miss T what the best use of the money will be; and
  • arrange a date and time to discuss this with Miss T and F.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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