Summary: Mrs X complained about the Council’s actions in relation to her child (Y) who has special educational needs and an Education, Health and Care Plan (EHC Plan). The Council was at fault. It did not take action sooner to arrange alternative provision for Y when they were unable to attend school and it did not review the matter. The Council was also at fault for delaying issuing the final EHC Plan before Y moved to post-16 education. The Council has agreed to apologise to Mrs X and Y and give them a symbolic payment for the frustration and uncertainty the matter caused them. The Council will also make service improvements to prevent a recurrence of faults.

The complaint

1. Mrs X complained about the Council’s actions in relation to her child, Y, who has special educational needs. She said the Council:
1. did not provide home tuition to Y when they were unable to attend school due to mental health reasons from October 2019 to March 2020;
2. did not put in place specialist therapy which a teacher advised Y needed to help them access their education;
3. delayed preparing Y for transition to adulthood; and
4. delayed issuing a final EHC Plan during Y’s transfer year from school to college in 2021.
2. Mrs X said this has negatively affected Y’s learning and social development as well as their mental health. She wants the Council to provide a financial remedy for the education Y missed. She also wants the Council to arrange specialist therapy for Y.

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What I have and have not investigated

3. I have investigated sections A and D of Mrs X’s complaint. This covers the period between October 2019 and October 2021 which is when the Council provided a final response to Mrs X’s complaint.
4. I have not investigated section B of Mrs X’s complaint. This is because there was no specialist therapy in Y’s EHC Plan at the time and so we would not find fault. Mrs X had the right to appeal to SEND Tribunal which she had exercised. We cannot investigate matters which have been appealed to a tribunal.
5. I have also not investigated section C of Mrs X’s complaint. This is because the matter Mrs X complained of occurred somewhere between September 2018 and July 2019, before the period covered by this investigation which begins from October 2019.

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The Ombudsman’s role and powers

6. 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)
7. 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. In this case, I have investigated back to October 2019 as complaint A was an ongoing matter and Mrs X complained to the Council in September 2021. However, the further we go back in time, the more difficult it is to establish the material facts with reasonable confidence. It can be difficult for us to achieve a meaningful remedy, establish the connection between any fault and the injustice caused and whether there were any contributing factors by the complainant or others, given the amount of time that has passed. Therefore, I have not investigated events prior to October 2019. (Local Government Act 1974, sections 26B and 34D, as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
10. 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.
11. 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)
12. 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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How I considered this complaint

13. I spoke with Mrs X and considered the information she provided.
14. I considered the information the Council provided.
15. I considered our ‘Guidance on remedies’ and our 2022 focus report on children out of school, “Out of school, out of sight”.
16. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

17. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Alternative provision

18. Under section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children of statutory school age who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. The only exception to this is where the physical or mental health of the child is such that full-time education would not be their best interest.
19. The statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs 2013’, states that 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.
20. Our 2022 focus report on children out of school, “Out of school, out of sight” highlights the duty of councils to arrange alternative provision when a child of compulsory school age cannot go to a school. In such cases, councils should keep all plans for the young person under review and not allow them to drift.

Post-16 – review, provision and naming a placement deadline

21. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer. If a parent or young person goes on to appeal an EHC Plan at this stage of the phase transfer, the tribunal service usually prioritises such appeals so they are completed before the start of the next term.

What happened

Home tuition

22. Mrs X’s child, Y, has special educational needs and an Education, Health and Care Plan. Y attended a school, School A which provided Y with a bespoke package of support at the site, to meet their educational needs set out in the EHC Plan.
23. Due to Y’s mental health needs, they struggled with attending school. By October 2019, Y stopped attending School A. The School placed Y on a reduced timetable to help them reintegrate back into school however, this was unsuccessful. A youth worker from the School informed the Council of Y’s lack of attendance and engagement with the School in November 2019.
24. In January 2020, during Y’s absence from School A, a specialist support worker visited Y in their home with a view to help them reintegrate back into school. Mrs X said the specialist support worker only visited Y once. The Council’s Special Educational Needs and Disability Team and Youth Service also worked with School A and Mrs X to ensure Y received support. The Council felt School A was best placed to provide any tuition to Y. However, School A said it did not provide home tuition in general as it was not a specialist school. School A told the Council it would not be providing any home tuition to Y.
25. In a meeting in late January 2020, the Council discussed with Mrs X home tuition options for Y. The Council’s records of this meeting state Mrs X did not want home tuition for Y as Y was not prepared for it. Mrs X provided her own records taken by her advocate at the time that state Mrs X said, “[Y’s] anxiety too high to do anything, even learning in [their] room” and “Re Home Tuition, I’d like decision made once [specialist support worker] thinks [Y] is ready”. A few days later, Mrs X emailed the Council and said, “talking with [Y] I think [Y] would like to try and study”.
26. In February 2020, while Y remained out of school, Mrs X told the Council that Y’s needs could not be met by School A. Following this, the Council liaised with a specialist school, School B, for it to provide Y with suitable education going forward. Later in February 2020, the Council agreed to fund Y’s placement at School B. Y’s placement at School B started at the beginning of March 2020.

Post-16 education

27. Y was due to start post-16 education in September 2021. Y was no longer of statutory school age.
28. Between 2020 and 2021, the Council arranged meetings with Mrs X and Y to support Y’s preparation for adulthood transition as a young person with an EHC Plan. During these meetings, the Council discussed with Mrs X and Y what Y wanted to do and achieve when they left school.
29. The Council held a transition review in February 2021. It was established Y wanted to complete further education at a college. The Council was to arrange support for Y to help them recognise what their options were once they had completed their education at school. Y applied for a placement at a college and was successful. The Council’s Youth Support Service supported Y with the transition period. Following the review, the Council issued a final amended EHC Plan in July 2021 which included Y’s placement.
30. Mrs X was unhappy with the final EHC Plan. In September 2021, Mrs X appealed the final EHC Plan to the SEND tribunal. In July 2022, the SEND tribunal agreed to suggested amendments in the EHC Plan proposed by Mrs X and the Council which included the Council providing Y with Speech and Language Therapy (SALT) provision. Mrs X said following the hearing at the SEND Tribunal, the Council issued an amended final EHC Plan in October 2022 and Y had their first assessment for SALT provision in January 2023.
31. In her complaint to us, Mrs X said the Council’s delay in finalising the EHC Plan in 2021 delayed her right of appeal to the SEND Tribunal which as a result, caused Y to have incorrect support in place at college for a significant period of time.

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Findings

Home tuition

32. Y stopped attending School A in October 2019 however, the Council was not aware of this until November 2019. Therefore, I have looked at what the Council did from November 2019 until March 2020, when Y began their placement at School B.
33. The law states councils must arrange suitable educational provision for children of compulsory school age who cannot attend school because of illness or other reason. Statutory guidance states councils should arrange the provision as soon as it is clear a child will be absent from school for more than 15 days. Y was unable to attend school due to mental health reasons. Between November 2019 and January 2020, there was no evidence the Council offered alternative educational provision to Y. The Council was at fault. It did not act sooner than January 2020 to arrange alternative provision for Y as the statutory guidance requires.
34. If the Council had offered Y alternative provision before January 2020, on the balance of probabilities, it is unlikely Y would have engaged with home tuition at that time. This is because had struggled with a reduced timetable in October 2019 and evidence shows Mrs X later in January 2020 expressed doubt on whether Y could engage with home tuition at that time. However, Mrs X and Y were left with uncertainty that education might have been provided sooner, and Y might have engaged, if it were not for the fault.
35. Later in January 2020, the Council offered to explore home tuition options with Mrs X but Mrs X said Y was not ready for it. Mrs X disputes telling the Council this. I have considered the two records from the meeting. They differ slightly but on the balance of probabilities, I am satisfied there was sufficient doubt about Y’s ability to engage with home tuition at that time given the reports of their mental health. Therefore, at this stage, the Council was not at fault for not providing an alternative education as it appeared to agree to Mrs X’s view at the meeting that Y was not yet ready.
36. However, after the January 2020 meeting until March 2020, Y remained off school. Mrs X had emailed the Council a few days after the meeting to say Y would like to try and study. There is no evidence the Council kept the situation under review to decide what Y could cope with during this period. The Council was at fault. Y may not have been able to engage with alternative provision during this time however, the Council’s failure to keep Y’s need for alternative education under review left Mrs X and Y with uncertainty on whether they could.

Post-16 education

37. I have investigated matters in relation to this between the period October 2019 and October 2021
38. Between 2020 and 2021, the Council explored with Y what Y wanted to achieve after finishing school. I reviewed the meeting documents in relation to preparation for adulthood and the transition review document which showed the Council provided Y with appropriate support with their transition at that stage.
39. However, I found the Council failed to meet the statutory timescales in relation to finalising Y’s EHC Plan for transferring to post-16 education following the transition review in February 2021. The Council finalised Y’s EHC Plan in July 2021 rather than by March 2021. This was not in line with guidance or the law and was fault. Mrs X said as a result of the Council delaying the final EHC Plan, Y was without suitable support for a significant period of time. As outlined in paragraph 20, the SEND tribunal would have prioritised Mrs X’s appeal as Y was at the stage of phase transfer.
40. It is difficult to say what might have happened if Mrs X had been able to appeal earlier but I note the EHC Plan was amended and additional support for Y was put in place as a result of the case going to the tribunal. The delay in finalising the EHC Plan caused Mrs X delay of right of appeal. I cannot say, even on the balance of probabilities whether this meant Y missed on additional support they would have received earlier. This fault therefore caused additional frustration and uncertainty to both Mrs X and Y.
41. The Council already agreed to our recommended service improvement from a previous decision to ensure staff finalise EHC Plans by 31 March in the year of transfer, in relation to children moving from secondary school to a post-16 institution or apprenticeship. However, the Council also agreed to provide a personal remedy to Mrs X and Y to remedy the injustice caused to them.

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Agreed action

42. Within one month of the final decision, the Council has agreed to apologise to Y for the uncertainty the faults caused them. This is in relation to:
1. the alternative provision Y may have missed out on between November 2019 and March 2020; and
2. the Council delaying issuing the final EHC Plan which as a result delayed Mrs X to appeal to the SEND tribunal. Y may have received SALT provision sooner.
43. Within one month of the final decision, the Council has agreed to make a symbolic payment to Y of:
1. £100 to recognise the uncertainty caused by the alternative provision they may have missed out on between November 2019 and March 2020; and

2. £200 to recognise the uncertainty caused by the effects of the delayed final EHC Plan.

44. Within one month of the final decision, the Council has agreed to:
1. apologise to Mrs X and give her a symbolic payment of £200 for the frustration and uncertainty the matter caused her.
45. In addition, within one month of the final decision, the Council will:
1. review with its staff who oversee children out of education our 2022 focus report, “Out of school, out of sight” and discuss with them the importance of reviewing alternative provision plans made for children out of school.
46. The Council will provide us with evidence it has complied with the above actions.

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Final decision

I have now completed my investigation. The Council was at fault and has agreed to our recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman