Summary: There was fault in failing to ensure a young person with special educational needs, who could not attend school due to anxiety, received suitable education and a successful transition to post-16 learning. This caused distress and uncertainty about whether, but for the fault, the young person’s outcome may have been different. Recommendations for an apology and financial payment are made.

The complaint

1. Ms X complains the Council delayed in assessing whether her son has special educational needs (SEN) which required an Education, Health and Care (EHC) Plan and failed to plan how to reintegrate him into formal education.
2. In particular, Ms X complains:
• The Council advised her son’s school should apply for an EHC needs assessment in October 2018 and offered to attend a meeting with the school, but then did not do so.
• In December 2019 the Council said it would arrange a meeting of professionals about the EHC needs application, but did not do so.
• In February 2021 the Council said it had not received any paperwork about an EHC needs assessment application.
• The Council took three years to provide her son with an EHC plan which delayed his access to suitable post-16 provision.
• The Council failed to plan how to reintegrate her son back into formal education, despite this being an agreed action in a previous Ombudsman investigation.
3. Ms X says that because of the alleged fault:
• Her son has missed out on SEN provision at a crucial time leading up to his GCSE’s. He was unable to take GCSE’s, only entry level qualifications.
• Poor transition planning meant the post-16 placement failed.
• Her son is now not in education or training (NEET) and not receiving the support in his EHC plan.
• The family has experienced distress and unnecessary time, trouble and uncertainty. Ms X has struggled to fit her work around her caring responsibilities and her son has become socially isolated.

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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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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.
8. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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

10. I have considered information provided by Ms X and the Council including:
• EHC assessment documents
• A previous Ombudsman decision
• Documents relating to alternative education
• Tribunal documents
• Complaint documents.
11. I have considered relevant law and guidance.
12. I have spoken to Ms X by telephone.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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.

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What I found

Chronology of events

15. Ms X’s son stopped attending school in 2017 due to anxiety. Ms X considered her son needed to move to a different type of school. Ms X thought this would be a ‘managed move’. She did not understand an EHC plan was needed to attend the type of school she considered suitable.
16. The Council became aware of the absence in July 2018 but did not put alternative education in place.
17. In October 2018 the General Practitioner stated Ms X’s son was ‘not well enough to attend school due to his anxiety’.
18. In October 2018, the Council suggested the School apply for an EHC assessment and said it would arrange a joint meeting. Ms X says the School did not apply. Ms X says the joint meeting also did not happen although the Council did tell her that she could apply for an EHC needs assessment herself.
19. Ms X considers this was a missed opportunity for the Council to raise the issue of an EHC plan with the School.
20. In July 2019 the Council says Ms X’s son was offered full-time education at a short-term provision centre but did not attend. Ms X says due to anxiety and the distance her son was unable to attend.
21. The Council instead started to provide two hours per week home tutoring, which it intended to be a short-term measure until Ms X’s son could be reintegrated into a setting. By this time Ms X had complained to the Ombudsman about the lack of education.
22. In December 2019 we completed our previous investigation and issued a final decision finding the Council at fault for failing to provide Ms X’s son with appropriate full-time education. The Council agreed a recommendation that it would develop a plan for a reintegration back into education and provided a financial remedy for the period up to July 2019.
23. The Council told Ms X on 11 December 2019 it would arrange a meeting with school, mental health services, the general practitioner and the ‘educational psychologist leading the EHCP application’ in January 2020. It said the aim was to reintegrate Ms X’s son back into formal education in mainstream or ‘any future provision identified if the EHCP is confirmed’.
24. The review meeting notes for 17 December 2019 say Ms X was asking about an EHC plan now but the School thought a diagnosis and medical input was needed before a request could be submitted. The School sent minutes of the meeting to the Council and suggested the Council arrange a meeting to ‘explore SENDIAS input re SEN assessment’ (SENDIAS is the SEN information advice service).
25. In January 2020 mental health services confirmed an educational psychology assessment would be helpful. Ms X shared this information with the Council. The mental health specialist also stated anxiety would increase if Ms X’s son were to return to school and therefore ‘I feel it would be in…[Ms X’s son’s] interests to continue home schooling’.
26. Ms X thought the EHC process was starting in January 2020 but this did not happen.
27. The School sent a request for assessment to the Council in November 2020. The Council told Ms X in February 2021 it had not received this paperwork.
28. The Council says it received a request for statutory assessment in March 2021, which it agreed. It issued a draft plan in May 2021 and a final plan in July 2021
29. Ms X said her son was due to move to post-16 provision in September 2021. They accepted a place at a local college because the EHC plan was not finalised and there was no alternative. In September 2021 Ms X says her son was unable, due to anxiety, to take up the place. Ms X says the placement was not suitable and there had been inadequate transition planning after such a long period out of school.
30. Ms X appealed the final EHC plan to the SEND Tribunal to request an independent special school. This appeal is pending. In the meantime, the Council has reinstated tuition.
31. The Council’s complaint response upheld ‘there had been a lack of clarity in relation to how to make a formal request for needs assessment in relation to an EHCP’. The Council said Ms X had believed a recommendation for an Educational Psychology assessment would automatically instigate an EHC needs assessment, but this wasn’t the case.
32. Ms X says the part-time nature of the home tuition provided had an impact on her employment as well as her son’s educational outcomes.

Council’s response to my enquiries

33. I raised enquiries of the Council to check whether our previous recommendation of a reintegration plan was followed given Ms X’s son was now NEET.
34. The Council told me a reintegration plan was put in place following recommendations in our previous investigation. In December 2019 this led to tuition being increased from five to seven hours per week. It says COVID-19 affected the reintegration plan from March 2020 but it provided online tuition, reverting to home tuition when schools reopened. It says Ms X’s son had access to enrichment trips and pastoral support from school.
35. I asked the Council why it had not considered starting an EHC assessment on its own initiative. The Council told me such decisions are made by its Special Educational Needs Assessment and Review team (SENAR). Ms X’s son was not known to this department until 24 February 2021 as the agencies involved from 2018 to 2021 did not tell SENAR an EHC plan may be required.
36. The Council confirmed it has no medical evidence supporting the number of hours per week of education Ms X’s son could manage. The evidence just said his anxiety prevented school attendance.
37. The Council told me the school had made a referral to social care in 2019, but Ms X declined further social care involvement at that time.

Relevant law and guidance

38. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
39. The statutory assessment timeframe for an EHC plan is twenty weeks (SEND Regulations 2014, Regulation 13) unless special circumstances apply.
40. The EHC needs assessment can be triggered in two ways:
• by the Council receiving a request to assess a young person
• by the Council becoming responsible for the young person in accordance with section 24 of the Children and Families Act 2014 (‘The Act’).
41. Under s.24 of The Act, a Council is responsible for a young person if he lives with the authority’s area and has been:
1. identified by the authority as someone who has, or may have special educational needs, or
2. brought to the authority’s attention by any person as someone who has or may have special educational needs
42. A Council is not obligated to commence a statutory assessment every time a young person is brought to its attention, if it considers that it is not necessary for special educational provision to be made via an EHC plan. However, it must decide whether an assessment is necessary and provide the family with a right of appeal against any refusal.
43. There is also a right of appeal to the SEND Tribunal about the contents of a final EHC plan, including the placement named.
44. Where there is an appeal to the SEND Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision.
45. Under Section 19 Education Act 1996 councils are responsible for arranging suitable education for pupils of compulsory school age who – because of illness or other reasons – would not receive suitable education without such arrangements being made. A suitable education means full-time education unless the physical or mental health of the young person meant full-time is not in their best interests.
46. Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says where medical evidence is not available quickly councils should ‘consider liaising with other medical professionals…and consider looking at other evidence to ensure minimal delay in arranging appropriate provision’. The Government does not expect Councils to become involved in arrangements made by a School unless it has reason to think the education being provided ‘was not suitable or, while otherwise suitable. was not full-time or for the number of hours the child could benefit from without adversely affecting their health’.
47. Our Focus Report ‘Out of sight…out of mind? How councils can do more to give children out of school a good education’ says councils should consult all relevant professionals and take account of the evidence to inform decisions. Twenty-five hours per week group provision is the expected amount of education for a year 11 pupil.

Analysis

Scope of investigation

48. I have not investigated the period prior to July 2019. Our previous investigation references the discussions about an EHC plan in October 2018. Ms X could have asked us to consider delay in starting the EHC process at that time. We provided a remedy for lost education for the period up to July 2019. I do not consider it appropriate to re-investigate this period.
49. Ms X has appealed the July 2021 final EHC plan to the SEND Tribunal. Her son has not attended the named placement. The decision (here the naming of a college Ms X considers unsuitable) and the consequence (loss of education) are ‘inextricably linked’. This means we cannot investigate or provide a remedy for lost education provision from the date the appeal right was provided. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
50. I have considered whether there was delay in the EHC assessment and whether our previous recommendations on s.19 education and a reintegration plan were followed by the Council.

EHC needs assessment

51. Ms X’s son was brought to the Council’s attention in 2017/18 as someone who may have special educational needs, however I cannot reconsider this period.
52. He was again brought to the Council’s attention in late 2019.
53. Between October and December 2019 there was communication between Ms X, the Council and school about the need for an EHC needs assessment. I am satisfied the Council had become responsible for Ms X’s son under s.24 of The Act as he was someone who lived in the authority’s area who may have special educational needs. Ms X’s son had been out of education for over two years by this point and an educational psychology opinion was considered necessary.
54. The Council should have decided under s.24 whether to start an EHC needs assessment even though it had not received a request from the school or Ms X. That does not mean the Council would necessarily have agreed to assess before further advice was available, but the Council was at fault in failing to make and issue a decision.
55. That the SENAR department was unaware of the situation does not alter my view. The Ombudsman views the Council as one corporate body. It is the Council’s choice to organise its education functions into different departments but in doing so it should ensure internal referrals are made where specialist advice or consideration is required.
56. If the Council had decided to assess, the process would have started by January 2020 instead of March 2021. If it had refused to assess then Ms X would have obtained a right of appeal against this decision in early 2020.
57. I acknowledge Ms X was sent a weblink about how to make a parental request in 2018, however the advice in 2019 was that the request should come from school and that further advice needed to be collected before a request could be made. It is understandable Ms X was confused and did not go ahead and make her own request in late 2019. Ms X also would not have expected it to take another year to secure advice from an educational psychologist. The Council has acknowledged in its complaint response it did not give clear advice to Ms X about the EHC assessment.

Implementation of our previous recommendations

58. We criticised the Council in 2019 for failing to secure alternative education under s.19 Education Act when Ms X’s son was unable to attend school. This legal duty applies to young people of statutory school age (up to 16). The Council agreed to put in place alternative education and a plan of how Ms X’s son could be reintegrated into formal schooling.
59. The Council held a meeting to set a reintegration plan in December 2019, which led to tuition increasing from five to seven hours. There is no evidence the Council continued to review the plan regularly. This is fault and a failure to follow our previous recommendation. There is no evidence the Council considered whether tuition should be further increased or a plan of how Ms X’s son would make a successful transition to a post-16 college.
60. The Council has confirmed to me the medical evidence is sparse and does not address the issue of how much education Ms X’s son could manage.
61. The legal duty is on the Council to secure suitable provision. It is often not within the gift of a parent to obtain detailed medical evidence. The onus is on the Council to obtain sufficient evidence from relevant professionals to reach a decision about the type and amount of education to be provided.
62. The Council failed to obtain evidence about the amount of home tuition that Ms X’s son could manage. This was fault.
63. In the absence of evidence supporting a lower amount of education the presumption should have been full-time education or equivalent.
64. As no-one obtained detailed medical evidence we simply do not know whether seven hours was the maximum amount of education Ms X’s son could benefit from or whether he could have managed more education.
65. I acknowledge the Council offered full-time provision at a centre in July 2019 and the reasons why this was not taken up are disputed between the Council and Ms X. The Council says its view, that of the school and other educational professionals was that Ms X’s son could have attended the centre and received full-time education there. The events up to July 2019 are not within the scope of this investigation. While I acknowledge the Council intended home tuition to be short-term, mental health services advised in January 2020 home tuition should continue and the Council did not challenge that view at the time. It continued to provide home tuition. Having agreed to provide home tuition and having taken no steps to challenge the medical view, or enforce school or centre-based provision, the Council should have ensured the home tuition was equivalent to full-time education.
66. Ms X’s son’s reintegration plan should have continued to be reviewed with a view to a successful transition into post-16 education by September 2021. While the Council initially met the Ombudsman's previous recommendations it did not sustain this action. This was fault.
67. The Council has informed me that the school did make a referral to social care, but Ms X did not agree to an assessment. Social care would have been the appropriate route for Ms X’s concerns about her employment and her role as a parent carer to be considered.

Injustice

68. The Ombudsman considers if maladministration has caused injustice. There must be a causal link between the fault identified and the injustice claimed.
69. There was fault and delay in considering if an EHC assessment was required. We cannot say the Council would have decided to assess in 2019 / 2020, but there was a lost opportunity and Ms X lost a right to appeal at that time. This is an injustice.
70. It is speculative to say whether this would have led to Ms X’s son receiving different provision sooner. It seems likely Ms X’s son would have continued to receive tuition during COVID-19 and until he was due to transition to post-16 education. While an EHC plan may have allowed the family to explore specialist placements sooner, this does not mean the Council would have agreed to such a placement. As I understand it the Council’s position during the current appeal is that needs can be met in mainstream. Therefore, while there was fault and delay in the EHC process it is uncertain what difference this has made to the placement.
71. For the reasons given above I cannot provide a remedy for the period after the final EHC plan was issued in July 2021.
72. The lack of medical evidence for restricting education to seven hours means there is uncertainty about whether Ms X’s son received all the education he could have benefitted from. This uncertainty is an injustice.

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Agreed action

Within four weeks of my final decision:

73. The Council will apologise to Ms X and her son for the fault I have identified.
74. The Council will pay Ms X’s son £2000 to acknowledge the distress, uncertainty and loss of education between July 2019 and July 2021.
75. The Council will pay Ms X £300 to acknowledge the impact on her of the fault, to include the distress and uncertainty caused.
76. The Council has recently been reinspected by OFSTED which has found insufficient progress in all but one of thirteen areas of weakness it previously identified. A Commissioner has been appointed to oversee this process by the Government. The Council says the fault identified in this case is being addressed via this process and it is not necessary for the Ombudsman to make further recommendations. I agree.

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Final decision

77. I have completed my investigation. There was fault in failing to ensure a young person with special educational needs, who could not attend school due to anxiety, received suitable education and a successful transition to post-16 learning. This caused distress, uncertainty and on the balance of probabilities contributed to the risk the young person would become NEET.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman