Summary: Mr B complained about delay and fault by the Council in issuing an EHC plan for his son C and a failure to provide alternative education for C while he was unable to attend school. We found fault with the Council’s actions: it delayed in issuing the EHC plan and failed to provide education for C for 11 months. The Council has agreed to pay Mr B £4,500 for the benefit of C’s education and £500 to Mr B for his distress, frustration and time and trouble. It has also agreed to take steps to improve its procedures for the future.

The complaint

1. Mr B complained that the Council in respect of his son C:
• delayed excessively in issuing a final Education, Health and Care Plan (EHC plan);
• failed to share the draft EHC plan with Mr and Mrs B before consulting with schools and delayed making important changes to the document; and
• failed to provide alternative education for C since he was unable to attend school due to anxiety and wrongly attributed the responsibility for this to the school.
2. Mr B said C missed out on full-time education for approximately two years and Mr B experienced significant distress and uncertainty that the outcome for C could have been different if the delays and failures had not occurred, in addition to his time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 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.
7. 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

Special educational needs (SEN)

8. 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.
9. 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.
10. The EHC plan must be finalised within 20 weeks from the date of the assessment request.

Alternative education

11. 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.
12. 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.
13. 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. This should be a minimum of five hours a week. For secondary age children 24 hours a week of teaching is considered to be full-time education. One to one tuition is more intensive than class teaching and so fewer ours may be acceptable. A council should also consider whether a child’s health conditions limit the hours of education they can manage.
14. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. Government guidance says that a council must provide a strategic planning framework, designed to ensure a child’s education continues and the agencies involved liaise effectively. It should also review provision on a regular basis.
15. 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.
16. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

2018/19

17. Mr B’s son, C started attending School Z in September 2018. After a few months he began to experience bullying at school. His anxiety increased and he became reluctant to go to school. The school tried to resolve the bullying and attempted reintegrating C into the classroom, but this was not successful, and his attendance was intermittent. The school was sending work home, but C struggled to engage with it.
18. C was referred to the mental health service (CAMHS) for his anxiety and an assessment for autism.
19. Mr B first contacted the Council in April 2019 about C’s refusal to attend school. The Council did not respond to five emails from Mr B. The Council liaised with the school in April and May 2019. The school told the Council that C had not attended school since 25 February 2019, and it had been sending work home. The school’s intention was to gradually reintegrate C back into school, initially providing one to one learning support in a separate room, hopefully working towards going back into the classroom. Mr B said he was encouraged by the school’s approach. CAMHS said in early May 2019 that C could go back to school, but only if his parents accompanied him to and from school.
20. Mr B informed the Council that it may be some time before C could attend full-time and he asked about alternative tuition options. The Council did not reply to this request.
21. C continued to struggle to attend school for the rest of the summer term and into the autumn. When he was in school, he tended to be on his own in the learning support centre with no specific teaching.
22. In November 2019 C was diagnosed with autism. By this point he had stopped attending school completely. The school continued to send work home.

EHC assessment and plan

23. In early April 2020 Mr B requested an EHC needs assessment. On 18 May 2020 the Council agreed to this and started the assessment. It said it intended to issue the draft plan by 22 July 2020 and the final plan by 19 August 2020.
24. The Council requested reports from the relevant professionals but there were delays in receiving these, partly due to the COVID-19 pandemic.
25. In July 2020 Mr B asked the Council about alternative tuition because School Z had told him that C was not engaging in any of the work being sent home via the online portal. The educational psychologist also advised that C would benefit from specialist home tuition to help him catch up. The Council said in response:

“Regarding on-line tuition, once a draft is issued we will go through a formal process in identifying appropriate educational provision – whilst this process is carried out the current school will continue to be responsible for his education.”

26. The Council informed Mr B that it was taking C’s draft EHC plan to its resource panel at the end of August 2020. Mr B again asked about tuition for C. The Council responded:

“C is on roll at [School Z] and they continue to be responsible for his education. [School Z] can make a referral to the [alternative education centre](the Centre) if a student is unable to attend school for a number of reasons; the information about [the Centre] is on the Harrow Local Offer.”

27. Mr B replied asking whether the Centre could provide online rather than in-class sessions and stating that School Z could not provide special tuition for C in the interim; the work the school was posting online was too difficult as he was so far behind. The Council replied:

“As any other school [the Centre] is now closed until the start of term, but please be reassured panel will be made aware of your views and the issues you have raised so far.”

28. The Council sent a copy of the draft EHC plan to Mr B on the same day as the case was considered by the resource panel. Following the panel, the Council started consulting with mainstream and specialist schools. It also sent a referral form for the Centre to School Z to complete.
29. At the beginning of September 2020 Mr B contacted the Council querying why he had not had a chance to comment on the draft EHC plan before it went to the panel. He felt it needed a lot of amendments. The Council allowed him extra time to respond to the draft plan. He again queried alternative tuition. The Council said that School Z needed to make the referral to the Centre.
30. At the beginning of October Mr B sent detailed comments and suggested amendments on the draft plan to the Council. He also suggested a preferred specialist school (School Y). The Council worked with Mr B over the next few weeks on amending the draft EHC plan. An amended version was agreed in mid-November 2020. The Council consulted with five schools including School Y.
31. School Z offered C general online learning for students absent due to COVID, but with no support specific to his needs. In early January 2021 following the new lockdown restrictions C tried to join School Z’s online lessons but could not manage them.
32. After an initial refusal, School Y in February 2021 offered C a place to start in September 2021 and the Council issued the final plan naming School Z until the end of the summer term and School Y from September 2021.

Alternative education

33. The Council arranged home tuition for C which started in mid-March 2021. Initially he only received two hours a week, increasing to four at the end of March, to six in mid-April and nine in May 2021. The tuition continued through the easter and half-term holidays. Initially it only covered Maths, English and Science with Geography added later on. From the beginning of July 2021, he received 11 hours a week increasing to 13 from mid-July. The tuition carried on until the end of August 2021. Mr or Mrs B had to sit in on all the online lessons to support C.
34. C started at School Y in September 2021.

Complaint

35. Mr B complained to the Council in March 2021 about the delay in completing the EHC plan, the failure to share the content of the draft with them at an earlier point and the failure to provide alternative education. The Council responded in April 2021. It apologised for the delay in completing the EHC plan. It explained this was in part due to the COVID-19 restrictions and Mr B’s interventions at the draft stage. It apologised for taking the draft EHC plan to the panel and consulting on it before Mr B had seen it, but it was attempting to secure a place quickly. In respect of alternative provision, the Council said:

“Mainstream schools are funded to support children without an EHCP. The Code of Practice states that mainstream schools must ensure that a child with SEN gets the support they need. [Officer X] was correct to respond that the responsibility for [C’s] education was the responsibility of [School Z], as they were required to use their SEN funding to support pupils at SEN support, up until the point that he had an EHCP. Your complaint is about the Local Authority’s actions, so I am unable to comment on the actions taken by the school although I understand that they did make some provision for [C] including they made adjustments for [C’s] SEN which involved 1:1 sessions and some mentoring. I can also confirm that the school were informed of the need to make a referral to [the Centre] for tuition.”

36. Mr B escalated his complaint to stage two of the Council’s procedure. The Council responded in May 2021. It said:
• the communication in May 2019 with Mr B had been poor. It said Mr B misunderstood the role of the officer at that point, but more explanation could have elicited a better response and possibly lead to an earlier discussion about C’s difficulties.
• the EHC plan took too long to complete (45 weeks rather than 20).
• the draft EHC plan should have been seen by Mr B before being sent out for consultation.
• it only became responsible for providing tuition once the EHC plan became final.
37. The Council offered an apology and noted C was now in receipt of home tuition. Mr B said this was limited and not equivalent to a full-time education in a suitable school.
38. Mr B complained to us.

Analysis

delayed excessively in issuing a final EHC plan

39. The Council has a statutory duty to complete the EHC plan in 20 weeks. It took 45 weeks in C’s case. This was fault. I accept there were mitigating circumstances due to COVID-19 and delays in receiving the reports, but I consider the Council could have shared information with Mr B at a much earlier stage to incorporate his views and reduce the time taken at the end to negotiate an agreed version of the draft plan. This caused Mr B frustration and time and trouble and delayed the time it took to secure a school place for C.

failed to share the draft EHC plan with Mr and Mrs B before consulting with schools and delayed making important changes to the document

40. The Council accepted it should have shared the plan with Mr and Mrs B before consulting with schools. I agree it was fault not to do so which caused Mr B uncertainty about whether their input at an earlier stage would have speeded up the process of finding a school for C. Once Mr B submitted his comments, I consider the Council took appropriate action to incorporate his views, meeting with him and issuing two further draft plans.

failed to provide alternative education for C since he was unable to attend school due to anxiety and wrongly attributed the responsibility for this to the school

41. The Council has a statutory duty to provide education for a child who is out of school due to illness exclusion or other reasons, once it is clear the child will be absent for more than 15 days and the school is not providing suitable education.
42. Mr B first asked for alternative education in May 2019 when C was struggling to attend School Z. The Council did not respond to him but liaised with School Z over a reintegration plan. The Council did not explain its duties to Mr B in terms of alternative education or special educational needs. Neither did it maintain contact with School Z to check on C’s progress or formulate a strategic planning framework. The Council accepted fault for poor communication with Mr B during this period. I agree this was fault. I also consider it was exacerbated by the lack of follow-up on C’s situation.
43. Mr B has argued that the Council should have intervened at this point and arranged alternative provision for C. I can see the Council was aware that C had missed many more than 15 days of school due to anxiety. But School Z, in discussion with Mr B, had put a reintegration plan in place, CAMHS said C was fit to return to school and Mr B appeared happy with the approach. I consider it was reasonable to try this course of action in the first instance. However, the Council did not follow-up with the school to check C’s progress or respond to Mr B’s concerns about C’s education. The Council should have acted on these reports and reached a view regarding the suitability and extent of C’s access to education during this period. The failure to do so was fault which may have delayed the time it took to provide C with education.
44. From November 2019, C had stopped attending school. But the Council was aware of this until it received Mr B’s request for an EHC assessment in early April 2020. I cannot investigate the actions of the school throughout this period as it is outside our jurisdiction. From this point the Council was aware that C was not receiving education and it should have taken immediate steps to find alternative provision for him. It did not do so until March 2021. This was significant fault which meant C was without education for at least 11 months.
45. I am also concerned that the Council in this case appears to have misunderstood the law and its responsibility for education provision. Three different Council officers on at least four occasions, including in the complaint response, have stated incorrectly that it was School Z’s responsibility to ensure C was receiving a suitable education. This was fault. It is the Council’s responsibility to provide C with a suitable education and to take prompt steps to do so when it was aware he was absent from school and without education. It is also concerning that the Council in its complaint response confuses funding for extra support within schools with the clear statutory duty on the Council to provide education when children are absent from school due to illness, exclusion or otherwise.
46. Mr B said the home tuition provided from March 2021 was inadequate. C was receiving one to one tuition which is much more intensive than classroom teaching so fewer than the recommended hours is acceptable. The Council explained that C had been out of education for some time, and it wished to introduce formal teaching gradually. It reviewed the hours on a regular basis and increased them, along with the subjects covered. It also provided tuition throughout the holiday periods. I have not found fault with the Council’s actions in this regard.

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Agreed action

47. In recognition of the injustice caused to C and Mr B, I recommended the Council (within one month of the date of my final decision):
• pays Mr B £4,500 for the benefit of C’s education. This represents loss of education over 9 months @£500 per month taking into account the holiday periods;
• pays Mr B £250 for the uncertainty arising from the delays in the EHCP process and the poor communication with him in 2019; and
• pays Mr B £250 for his time and trouble in pursuing the complaint.
48. I also recommended (within three months of the date of my final decision) the Council:
• ensures 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;
• provides training and/or guidance to all relevant staff on its policy; and
• reviews 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.
49. The Council has agreed to my recommendations.

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Final decision

50. I consider this is a proportionate way of putting right the injustice caused to C and Mr B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman