Summary: The Council has accepted that it was at fault in the way it managed the complainant’s son’s special educational needs, resulting in him being without suitable education for a prolonged period. We have recommended a way to remedy this injustice and for the avoidable distress caused to his family. The Council has accepted the recommendations and therefore we are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council:
1. failed to provide appropriate education to her son, B, after he was asked to leave his independent special school, (School Z) in May 2019;
2. failed to hold an emergency review after B had left School Z and failed to hold an annual review in November 2019;
3. in October 2019, a possible placement at another special school was discussed (School Y) and Mrs X visited the school. But the complainant did not hear anything further from the Council;
4. in April 2020, the Council issued a final amended Education, Health and Care (EHC) Plan, naming a local College (stating the placement started in February 2020 but it had not). The complainant says that she was told that there would be a transition plan to help B move to the College. But the complainant says that there was no such plan, and subsequently the College stated it could not meet B’s needs; and
5. on 4 November 2020, the case was considered by the Care and Treatment Review (CTR) team, having been escalated by B’s Child and Adolescent Mental Health Service (CAMHS). The CTR recommended that B was reassessed because he had deteriorated since being out of school. The Council then delayed in arranging this reassessment and did not send out consultation letters until April 2021 and only after the complainant had chased up the matter. The complainant has only recently received a final amended EHC Plan.
2. Mrs X says that, because of the Council’s failures, in particular the lack of education and special educational needs provision for B, his behaviours deteriorated considerably. The complainant and her family have also suffered avoidable distress and time and trouble.
3. The Council accepted that it failed to provide a good service and has offered the complainant £250 for the injustice caused. The complainant considers that this is inadequate.

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What I have investigated

4. I have investigated events since May 2019 to September 2021. Matters, which I have not investigated, are set out in the last paragraph.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
9. If we are satisfied with an organisation’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 made enquiries of the Council and Mrs X provided comments in response. I also spoke to her on the telephone. As the Council has accepted fault and that B had not received appropriate education, I looked primarily at the injustice caused to B, and the family, as well as considering how best to remedy this. I issued a draft decision statement to the Council and to Mrs X and I have taken into account their additional comments before reaching my final decision.
11. 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

12. A child with special educational needs may have an Education, Health and Care Plan (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. Section F sets out the specified special educational provision required.
13. Where a council maintains an EHC Plan for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
14. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
15. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. The first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review.
16. Parents and young people can request councils provide a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))
17. A personal budget is an amount of money identified by the Council to deliver provision set out in the EHC Plan. Councils are under a duty to prepare a budget when requested.
18. The Code (9.186) says that there may be occasions when a reassessment becomes necessary, particularly when the child or young person’s needs have changed. The Code says (9.187) that councils must agree a reassessment if the parent, or the school or the local clinical commissioning group (CCG) request this unless there was a reassessment six months ago.
19. The council can also refuse a reassessment if it considers it is unnecessary. Councils must tell parents/carers its decision within fifteen days of the request. Councils must tell parents/carers of the right of appeal to the SEND Tribunal.
20. If the decision is to reassess, councils must issue a final amended EHC Plan within fourteen weeks of that decision.
21. The Care, Treatment and Review is a multi-agency forum which can make recommendations to councils for young people with ASD and whose behaviours mean that they are at risk of being detained in a mental health hospital. The aim is to make recommendations for better community support to prevent detention.

Children out of school because of medical needs

22. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
23. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education.

Case law regarding section 19 alternative educational provision

24. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

25. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.

Legislative changes due to Covid 19

26. On 1 May 2020, some aspects of the law on EHC needs assessments and plans changed temporarily due to the significant extra pressure put on local authorities because of Covid-19.
27. In recognition of this, the government implemented temporary changes until 25 September 2020 relating to the timescales for EHC needs assessment and plan processes. The change meant that, where a council decided it was necessary to issue an EHC plan, following an EHC needs assessment, but the incidence or transmission of Covid-19 made it impractical to do so within the 20 weeks, they were to discharge the duty as soon as practicable.
28. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties to provide returned.

The Council’s procedures

29. The Council’s procedures for children unable to attend school for medical reasons states that schools must satisfy themselves the pupil’s absence is due to ill-health before making a referral to the Council’s Inclusion Support Service (ISS). After 15 days of absence, schools are advised to contact the ISS for guidance.

Events of this complaint

30. B had a Statement of Special Educational Needs (now an EHC Plan) issued in 2008. He was diagnosed with autistic spectrum disorder (ASD) and developmental delay when aged three. B has no communication and uses gestures. B is very sensitive to noise.
31. The EHC Plan of November 2018 stated that B required frequent individual adult support and small group settings, speech and language therapeutic (SALT) strategies and occupational therapeutic (OT) strategies, and consistent routines at school and at home. The EHC Plan stated he was doing well at School Z
32. B has also been known to the Council’s Disabled Children’s Team as a child in need, and B and the family have received regular support. Mrs X has no complaints about the service she has received from Children’s Services.
33. In May 2019, School Z said that there was a serious incident at the school whereby B had to be physically restrained. He was sent home. He was fifteen. Mrs X says that she tried to ensure B could return. Mrs X says that she asked for an emergency review, but the Council told her this would only take place once B was placed in another school setting.
34. The Council consulted other schools, including School Y, Mrs X’s then preferred alternative. The Council says that Mrs X then said, after visiting School Y, that it may not be suitable and requested another school, which the Council consulted. The Council also approached a particular college of further education, the College.
35. Mrs X says that she heard nothing further from the Council about School Y.
36. In October 2019, the College said that it could admit B but not until it had appropriate staffing. Mrs X says that she felt she had to accept this placement as the Council told her there was nothing else available.
37. In November 2019, there should have been an annual review of B’s EHC Plan. The Council accepts that this did not happen. As B was not in school, it was for the Council to arrange this.
38. In March 2020, two members of staff from the College visited B at home as part of the transition plan. The Council says that further visits were offered but Mrs X declined these because of B’s ill-health. Mrs X says that this was not the case.
39. In April 2020, the Council issued a final amended EHC Plan naming the College. Mrs X accepted that this was the only placement on offer to B. Mrs X did not appeal the EHC Plan because she accepted the College placement.
40. Mrs X says that subsequently the College said that it could not meet B’s complex needs.
41. On 4 November 2020, the CTR recommended that B was reassessed because, by this stage, his behaviours were becoming very difficult. Mrs X says that B’s CAMHS’ worker escalated the case to the CTR. B was still not receiving any education and Mrs X says that he had not done so since September 2019.
42. On 3 December 2020, the Council sent out consultation letters as part of the reassessment.
43. In February 2021, the Council says that it started to provide some OT at home for B. In April, Mrs X asked for the Council to consider a residential placement for B. Mrs X says that B’s behaviours were very difficult to manage, and his self‑harm dangerous. She says that this adversely affected her, her husband and her younger daughter, who had to lock herself in her room to protect herself from B’s behaviours.
44. Mrs X and her husband had to reduce their working hours because they could not leave B at home on his own.
45. In September 2021, the Council issued a final amended EHC Plan, naming a residential placement.
46. The Council accepts that there was an extended delay in issuing the final EHC Plan and explains that this was because of a range of factors: number of assessments requested; the impact of Covid-19 and delays by professionals providing their advice.

Findings

47. It is to the Council’s credit that it has accepted fault in not arranging an annual review in November 2019, delays in the reassessment and a failure to provide alternative education in the knowledge that B was out of school. In addition, I consider that the Council was at fault in not arranging an emergency review in May 2019 when B was unable to return to School Z where he had been for many years.
48. I am also satisfied that the Council’s duty to provide alternative education was triggered in September 2019 when it was aware that B was not receiving education and School Z had no further responsibility.
49. The injustice caused to B is that he has been without appropriate education since September 2019 to September 2021. This is the equivalent of eighteen school terms of missed specialist education and SALT and OT support.
50. Mrs X says that B had done well at School Z. But, because B has not received education/support, there has been a serious deterioration in his behaviours and mental health, with serious self-harm, to the extent that, recently, B has been placed in residential care.
51. Mrs X and her family have also suffered avoidable distress over a prolonged period. Mrs X will always be left wondering whether there might have been a better outcome if B had received the education and the therapies set out in his EHC Plan. Mrs X wonders whether the need to place B in residential care could have been avoided.

How the Ombudsman remedies injustice caused by fault

52. The Ombudsman’s guidance on remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month.

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Agreed actions

53. The Council will within six weeks of the date of the final decision statement:
1. provide a further written apology for the faults and injustice identified in this investigation;
2. pay £3,500 to Mrs X for the seven months of a loss of suitable education for B between September 2019 to May 2020 (start of lockdown) at £500 per school month to be used for his educational benefit in a way which Mrs X considers appropriate. I have used this tariff level to recognize that the Council was attempting to find a suitable placement for B;
3. pay Mrs X £900 for the loss of education/support during the lockdown period of 1 May to July 2020 (three months at £300 per month). I have used a lower tariff because the Council had to make reasonable endeavors to provide SEN education;
4. pay Mrs X £5,400 for the loss of education between September 2020 to July 2021(nine months at £600 per month). I have used the highest tariff because the Council was not seeking an alternative placement or providing any alternative education when it became clear that B was not attending the College;
5. pay Mrs X £1,500 for her and her family’s avoidable distress by having to care for B full-time. In recommending this amount, I have taken into account that Mrs X was supported well by Children Services; and
6. the Council has brought in a number of procedural improvements over the past year and it is hoped that these will prevent a recurrence of the faults in this case. Therefore, I am not making any service improvements recommendations. But, one of the difficulties in this case (and may be in other cases for the Council) appears to be the lack of special school placements available. I would welcome the Council telling the Ombudsman what it might be doing to try to rectify this situation.

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Final decision

54. I consider there has been fault causing an injustice to B and to Mrs X and her family. The Council has accepted this and agreed a remedy. I am therefore closing the complaint.

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Parts of the complaint that I did not investigate

55. I have not investigated the actions of School Z because the Ombudsman does not have the jurisdiction to look at complaints about schools.

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Investigator's decision on behalf of the Ombudsman