The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to provide alternative education for her children and delayed assessing their special educational needs. There was fault in how the Council reviewed its decision following a mediation agreement and how it failed to consider its duty to arrange suitable alternative education. It agreed to apologise to Mrs X and her children, pay them a financial remedy and review its policy and practice.
- Mrs X complained the Council failed to provide alternative education for her children, B and C, when they could not attend school from 2019 and about delays in assessing their special educational needs. As a result, she said her children went without a suitable education and their mental health got worse. Mrs X also said she suffered worry and distress. She wanted the Council to make a payment to recognise the missed education and the distress.
What I have investigated
- I have investigated:
- how the Council decided to assess B’s special educational needs between September 2019 and July 2020; and
- how the Council considered Mrs X’s requests for alternative education for B and C between September 2020 and July 2021.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
- 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)
How I considered this complaint
- I considered:
- the information Mrs X provided and discussed the complaint with her;
- the Council’s comments on the complaint and the supporting information it provided; and
- relevant law and guidance.
What I found
Education Health and Care plans
- Children and young people aged up to 25 who need more support to access education may have an Education Health and Care (EHC) plan. This identifies their educational, health and social care needs and sets out the support required to meet those needs.
- 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 Special Educational Needs (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; and
- when deciding whether to undertake an EHC needs assessment it should pay particular attention to:
- evidence of a child’s academic attainment and rate of progress;
- information about the nature, extent and context of the child’s SEN;
- evidence of the action already being taken by a school to meet a child’s SEN;
- evidence that, where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided; and
- evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet those needs by other agencies.
- Under section 19 of the Education Act 1996 councils have a duty to arrange 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.
- The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
- Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
- 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’)
- We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
- We made six recommendations. Councils should:
- consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
- decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
- keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
- adopt a strategic and planned approach to reintegrating children 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.
- Mrs X has two children who now have EHC plans:
- B who is 15 years old and at the time of the complaint was at secondary school; and
- C who is 10 years old and at the time of the complaint was at primary school.
September 2019 – June 2020
- In September 2019, Mrs X asked the Council to carry out an EHC assessment for B. Mrs X told the Council that B was reluctant to attend school and she felt this was because B had special educational needs (SEN).
- The Council contacted B’s school for its views on B’s needs. The school told the Council that B was not on the school’s SEN register and it had no concerns about B’s learning or behaviour in school.
- The Council decided, in October 2019, not to assess B’s needs. It told Mrs X this was because it did not believe there was enough evidence to show that B had special educational needs.
- Mrs X challenged the Council’s decision and asked the Council to arrange mediation. At the mediation meeting in November 2019, the Council agreed to review whether it could reconsider Mrs X request for an assessment without any evidence from B’s school.
- Mrs X and the Council exchanged several emails between November 2019 and May 2020 about reviewing the Council’s decision. Mrs X gave the Council a copy of a private report she arranged about B’s needs. The Council told Mrs X it would ask B’s school for more information “so that [it] can review the decision”.
- In May 2020, the Council told Mrs X that its “decision will remain the same” because B’s school felt that it could meet any needs B had through the funding it already received. Both Mrs X and an adviser from the Council’s SEN advice and support service asked the Council for a new decision letter, so Mrs X could appeal. However, the Council refused to provide this and instead referred Mrs X to its letter from October 2019.
June 2020 – July 2021
- By June 2020, both B and C were often refusing to attend school. Mrs X says this was mainly due to anxiety.
- Because Mrs X was out of time to appeal the Council’s October 2019 decision, she formally asked the Council again for an EHC assessment of B. She also asked the Council for an EHC assessment for C, who she also believed had SEN.
- In July 2020, the Council refused to assess B and C because:
- it believed B’s needs could be met by B’s school; and
- it was not satisfied there was enough evidence to say C had SEN.
The Council’s October 2019 decision
- The Council’s October 2019 decision was more than 12 months before Mrs X’s complaint to the Ombudsman, so her complaint about this is late. However, considering the delays following the mediation and Mrs X’s expectations the Council would review its decision, I am satisfied there are good reasons Mrs X did not complain sooner so I will consider how the Council made that decision now.
- At the time of Mrs X’s September 2019 request, there was limited evidence of B’s difficulties. Records from the time show B was attending school regularly and was performing well academically. When the Council asked B’s school for its views, the school told the Council it had no concerns about B’s progress or behaviour.
- It is not our role to decide if B had special educational needs or whether the Council should have assessed B’s needs; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
- I am satisfied there was no fault in how the Council made its October 2019 decision not to assess B’s needs. It considered the evidence available to it and explained the reasons for its decision to Mrs X. I appreciate Mrs X disagrees with the Council’s decision, but we cannot question the Council’s professional judgement where decisions were made without fault.
- Mrs X had the right to appeal this decision, so we would not usually investigate how the Council made it. However, for the reasons given in the next section of this decision, I am satisfied the Council led Mrs X to believe it would reconsider the decision during mediation. Therefore, I am satisfied Mrs X’s decision not to appeal was reasonable.
Council’s decision following mediation
- Following the October 2019 decision, Mrs X asked for mediation. At the mediation meeting, the Council agreed to look into whether it could review the decision without evidence from B’s school. I am satisfied the subsequent emails it sent to Mrs X let to her having a reasonable belief the Council would do this, particularly in light of the private report she sent it.
- I am also satisfied the Council did review its decision. It referred to both the private report Mrs X provided and asked B’s school for its views in light of that report. I am satisfied the Council effectively agreed to make a new decision, based on that updated evidence.
- However, the evidence shows the Council took several months after it received that report to ask B’s school for more information and to review its decision. By this time, Mrs X was out of time to appeal to the tribunal. The Council also refused to provide Mrs X with a fresh decision letter so that she could appeal the Council’s latest decision. I am satisfied both the delays in making the decision and the Council’s refusal to issue a fresh decision letter was fault. This caused Mrs X avoidable worry and frustration for several months and meant she had to ask for a further EHC needs assessment for B.
The Council’s July 2020 decision
- For the reasons given in the final section of this decision, I cannot investigate how the Council made its July 2020 decisions not to assess B and C’s needs.
- The evidence shows both B and C’s school attendance significantly reduced between September 2019 (when they were both attending school mostly full time) and December 2020 (when they were hardly attending school at all).
- The Council said neither school referred the children to its education team because of their reducing attendance and that it provided some support through various programmes to support the children to return to school. However, this does not absolve the Council of its duties to consider whether it needed to make alternative arrangements under section 19 of the Education Act.
- It was unlikely the Council had reason to consider this duty before September 2020. There had been no referral from the schools, which were both approving B and C’s absences and there is no evidence of the falling attendance being drawn to the Council’s attention in other ways. However, Mrs X explicitly asked the Council to arrange alternative education for both children in September 2020.
- Mrs X’s request was clear; she told the Council that both children were attending school very rarely and were effectively missing from education because they were too anxious to attend. However, there is no evidence the Council considered its section 19 duties either when Mrs X asked it to, or on the several later occasions it was made aware the children were not receiving an education.
- Throughout much of this period, the Council still held the view that either the children had no SEN or that their needs could be met by their current schools. Yet, when presented with evidence that the children were not attending school, the Council did not consider its duty to arrange a suitable education for them. I am satisfied that failure was fault which led to B and C not receiving a suitable education from September 2020.
- For the reasons given in the final section of this decision, I have not considered any missed education after July 2021.
- This leaves 10 months where I am currently satisfied the Council failed to consider or make alternative arrangements for B and C’s education. Considering the ages of both children, the amount of education the evidence suggests they would likely have engaged with and our Guidance on Remedies, I am satisfied the Council should pay £300 a month for each child to recognise the education they missed during that time.
- Being out of education also had a significant impact on both B and C, and Mrs X was caused avoidable distress, time and trouble pursuing her complaints to the Council during that time. The Council should pay a further financial remedy to recognise the personal impact on Mrs X and her children.
- Mrs X said both schools told her the Council would not arrange alternative education because she did not have medical evidence from a consultant or mental health professional. She said she was told the Council would not accept the advice of the children’s GP.
- Since there is no evidence the Council considered its section 19 duty, there is no evidence it rejected evidence Mrs X’s GP was willing to provide. However, I am satisfied the insistence on having evidence from a consultant or mental health professional came from the Council’s practices. This is not consistent with the guidance, or the approach we have recommended councils take. Councils should not insist on evidence from a particular health professional, instead they should consider all the evidence available and reach their own view in each individual case.
- Within one month of my final decision the Council will:
- Apologise to Mrs X, B and C for the fault I have identified following the mediation and failure to consider arranging suitable alternative education.
- Pay Mrs X £7,750, made up of:
- £250 for the distress and inconvenience caused by the delays following the mediation agreement;
- £6,000, to be used for B and C’s educational benefit, to recognise the education they missed between September 2020 and July 2021;
- £1,200 to recognise the distress and personal impact on Mrs X, B and C due to the missed education; and
- £300 for the avoidable time and trouble caused by Mrs X having to complain to the Council and the Ombudsman.
- I have completed my investigation. There was fault in how the Council reviewed its decision following a mediation agreement and how it failed to consider its duty to arrange suitable alternative education. It agreed to apologise to Mrs X and her children, pay them a financial remedy and review its policy and practice.
Parts of the complaint that I did not investigate
- I have not investigated how the Council made its July 2020 decision not to assess B and C. Mrs X appealed this decision to the SEND tribunal and I cannot consider matters where someone has appealed.
- I have also not considered any missed education after July 2021. Mrs X appealed the schools named in B and C’s EHC plans to the SEND tribunal. The courts have previously held that we cannot consider the consequences of council decisions which have been appealed, even if the appeal will not provide a complete remedy. I cannot consider any missed education from when Mrs X had the right of appeal in July 2021 because this is directly related to which schools the Council named in the EHC plans.
Investigator's decision on behalf of the Ombudsman