Summary: Mrs X complained the Council made false statements about her and behaved unprofessionally during a multi-disciplinary meeting regarding her son Y’s educational needs, failed to provide a suitable alternative education for Y between June 2020 and February 2021 and did not provide social support Y was entitled to during summer holidays. She said the Council’s actions have resulted in financial loss and mental stress for her and her family. There was fault when the Council delayed arranging social care support for Y but this did not cause him a significant injustice.

The complaint

1. Mrs X complained the Council:
• made false statements about her and behaved unprofessionally during a multi professional meeting;
• failed to provide a suitable alternative education for her child Y, when he was unable to attend school between June 2020 and February 2021; and
• found Y was entitled to social support during the summer but failed to arrange this.
2. She said this negatively impacted Y’s educational development and has caused her significant distress and inconvenience.

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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 a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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.
8. 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

9. I spoke to Mrs X and discussed her view of the complaint.
10. I made enquiries of the Council and considered the information it provided. This included Y’s 2020 EHC Plan, the multi professional meeting notes, complaint correspondence between Mrs X and the Council,
11. I wrote to Mrs X and the Council with the details of the draft decision. I considered their comments before I made the final decision.

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What I found

Law

12. Councils have a duty to arrange suitable alternative provision 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”.
13. 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.
14. 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)
15. The Special Educational Needs Code of Practice 2015 (the Code) is statutory guidance which councils must have regard to. I have summarised relevant paragraphs below:
• Assessment and issue of a final EHC plan must take no longer than 20 weeks from the date of a request for an assessment (9.40)
• The council must gather advice from relevant professionals about the child’s education, health and care needs, desired outcomes and any provision that may be required (9.46)
• Advice and information must be sought as follows (9.49):
1. Medical advice and information from health care professionals involved
2. Psychological advice and information from a council-employed or commissioned educational psychologist who should consult with any other psychologists known to be involved with the child
3. From any person requested by the child’s parent where the council considers it reasonable to do so.
16. This complaint involves events during the COVID-19 pandemic during the first national lockdown. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
17. The SEND (Coronavirus) (Amendment) Regulations 2020 were in force from 1 May until 25 September 2020. Councils did not have to comply with time limits in the Code (see paragraph 23) in relation to completing EHC assessments and plans if it was impractical to do so because of a reason relating to coronavirus. In relation to cases where the EHC process was partly complete on 1 May, if the 20 week time limit had already passed, we are likely to take our usual approach to assessing the impact of the delay and failure to arrange provision.
18. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty to secure or arrange SEN provision was modified to a requirement to use ‘reasonable endeavours’ to do so. This change did not cover any other education areas – for example the duty to arrange alternative education provision (see paragraph 17.) If a council had been arranging alternative provision for a child before 1 May, we would expect the provision to continue as previously arranged. Our view is if the provision was reduced or changed, there would need to be clear and cogent reasons to justify this.
19. Supporting vulnerable children and young people during the coronavirus outbreak – actions for educational providers and other partners (in force between March and August 2020) said education providers and councils should identify vulnerable children and young people, (including those not in education, those with EHC plans and those who are classed as vulnerable at the discretion of the council) and consider how best to support their welfare and education both remotely and on-site. There should be a risk assessment to determine whether attendance is safe or not.

What happened

Background

20. Mrs X’ child Y is autistic and suffers with anxiety.
21. In October 2019 Y became unwell and could no longer attend school. The Council carried out a needs assessment in December 2019 and decided Y was entitled to a EHC Plan.
22. Mrs X and Y’s private clinical psychologist met with Y’s school in January 2020 to discuss Y returning to school. Following the meeting, Y began receiving one hour per week of alternative provision with Access to Education (A2E), a Council support service for children and young adults unable to attend school due to illness.
23. At the start of lockdown A2E carried out a risk assessment for Y and decided he was not a high priority student and could access his provision via laptop.

Mrs X’s complaint

24. The Council finalised Y’s EHC Plan on 10 June 2020.
25. Amongst other things the Plan stated Y should receive:
• access to a specialist placement;
• sessions with an occupational therapist;
• support from a staff member trained in how to support autistic children; and
• school intervention visits to assess Y’s needs
26. Mrs X was unhappy with the contents of the plan and appealed it at Tribunal.
27. On 19 June 2020, Mrs X wrote to the Council to advise that Y was struggling to engage with the A2E sessions as tutors could not access the house due to the COVID-19 restrictions and he was not able to .
28. A multi-professional meeting attended by Mrs X, a social worker and the Council took place on 23 September 2020. The attendees discussed Y’s struggle to engage with provision. A doctor who attended the meeting said Y’s anxiety had increased and he could not access any form of education at this point. It was noted that Y needed put provision in place, but his anxiety needed to improve. During the meeting, a senior Council employee said that Mrs X was not engaging with the assessment process for Y.
29. A further meeting was held on 7 October 2020. The Council agreed that a short-term package of support for Y should be finalised by the following week. It was noted that A2E could not offer home visits due to COVID-19 restrictions and sessions would need to take place in the garden.
30. Mrs X was unhappy with the minutes recorded at the meeting and wrote to the Council to complain and provide amendments she wanted made regarding her characterisation.
31. Mrs X sourced and began paying for a tutor for Y in November 2020 because he was still not engaging with the A2E provision. On 2 November A2E contacted Mrs X to discuss visiting her home to carry out a risk assessment, so it could begin delivering 5 sessions a week of care, tailoring the provision to Y’s needs as necessary. Mrs X said she wanted to discuss the provision A2E could offer before it carried out the assessment. Talks between A2E and Mrs X were ongoing but eventually communication between the two broke down due to disagreement on how to proceed.
32. The Tribunal concluded on 4 January 2021 and decided Y could not cope with a mainstream school setting. Mrs X wrote to the Council on 8 January 2021 to advise that the tutor she had found had developed a good working relationship with Y and she wanted a personal budget to enable the tutor to continue working with Y. The Council advised it would issue Y’s plan within 5 weeks and a personal budget could be agreed later.
33. The Council issued an amended EHC Plan for Y on 13 January 2021. The Plan stated Y should receive:
• 10 hours a week of SEN provision at home during term time;
• 12 hours a week social care provision during the holidays; and
• a therapist to assess and recommend home based equipment to meet Y’s needs
34. Mrs X asked the Council to provide a personal budget to enable Y to continue working with the tutor she had sourced as to change tutors would damage his mental health. She also asked the Council to reimburse her for the two months of tutoring she had already paid for.
35. The Council’s governance board met to discuss Mrs X’s request. The board said it needed more information regarding other options before deciding whether to grant Mrs X a personal budget.
36. Mrs X complained to the Council on 4 February 2021. She said:
• statements made during a multi-professional meeting wrongly indicated Mrs X was not cooperating with the process and had declined an assessment for Y;
• the Council failed to make reasonable effort to ensure Y received provision between 10 June 2020 and February 2021 by offering provision Y could not access due to being unable to leave the house; and
• the Council failed to ensure Y received social care support despite identifying in July 2020 he needed this support due to confusion as to which department should fund this.
37. On 24 February 2021, the governance board approved Mrs X’s personal budget application and agreed to provide funding and backdated payments for Y’s tuition.
38. Mrs X brought a complaint to the Ombudsman about the Council’s failure to arrange appropriate education provision for Y between October 2019 and July 2020. The Ombudsman did not find the Council to be at fault.
39. On 27 April 21, the Council responded to Mrs X’s complaint. The Council said A2E had offered to facilitate Y’s provision, but Mrs X had declined this in favour of private tuition. The Council acknowledged it had delayed responding to her personal budget application but said it had generally fulfilled its responsibility towards Y.
40. Mrs X escalated her complaint on 28 April 2021. An independent manager (IM) investigated the complaint and sent their Stage 2 response on 1 July 2021.
41. The IM found:
• the comments Mrs X referred to during the September 2020 meeting were opinions and it was open to Mrs X to make a request for rectification;
• the issue of Y’s lack of provision had previously been addressed by the Ombudsman. The IM also noted the impact of COVID-19 meant A2E could only offer garden visits; and
• neither Mrs X or Y had been disadvantaged by the delay in arranging Y’s social support during the summer term.
42. The IM concluded the report stating that save for some delays the Council had discharged its duty to arrange suitable alternative education for Y and it was not at fault.
43. Mrs X opted to refer the complaint to the Ombudsman as she remained unhappy with the Council’s response.

Findings

multi-disciplinary meeting and unprofessional behaviour

44. Mrs X is unhappy with comments regarding her engagement with the assessment process made during the September 2020 meeting. She also remains unhappy with the conduct displayed by Council employees during the meeting. The Council has offered Mrs X the opportunity to add her views to the meeting notes and to request rectification. It is not possible to make a finding on whether the Council is at fault as I cannot know the context in which the comments Mrs X disagrees with were made. Likewise, I cannot comment on the behaviour Mrs X has complained about. I do not have evidence that shows these comments or behaviour significantly impacted the proceedings however I do appreciate they caused Mrs X distress. I consider the offer the Council has made to Mrs X to include her views on records to be a suitable one. It is open to Mrs X to pursue this further by requesting the rectifications she requires.

alternative education

45. Mrs X is unhappy the Council did not consider other providers to deliver Y’s education between June 2020 and February 2021, leading her to privately source a tutor. The Council said A2E was able to offer the provision Y needed but unable to enter the home due to COVID-19 restrictions. The Council has also said A2E wanted to carry out a risk assessment but communication between Mrs X and A2E eventually broke down and the assessment did not happen. The law at the time required the Council to make reasonable effort to find a provider who could work with Y alongside the COVID-19 restrictions. It is also important to consider the restrictions were likely to have impacted other education providers. Whilst I cannot see that the Council considered alternative providers, I also have not seen evidence that Mrs X suggested any. In any event, I do not consider it fair to criticise the Council for failing to pursue another provider as the evidence indicates it did not carry out the risk assessment necessary to determine whether A2E could provide suitable provision and Mrs X opted for private tuition which she was later reimbursed for. There was no fault in the Council’s actions.

social support

46. Mrs X has complained the Council delayed arranging social care support for Y during summer term due to inter departmental confusion regarding funding. The Council has conceded that there was some delay, but it had concluded the matter within 9 days of receiving the request. This is fault. We would expect the Council to act within a timely manner and I imagine this caused Mrs X frustration. However, there is no evidence to suggest that this delay caused Mrs X or Y a significant injustice.

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Final decision

47. There was fault when the Council delayed arranging social care support for Y. There is no evidence this caused an injustice to Mrs X or Y. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman