Summary: Miss X complains the Council has not dealt properly with her son Y’s education. The Council did not properly consider whether it needed to provide alternative education for Y. Miss X and Y suffered avoidable distress and uncertainty, were subject to unnecessary child protection proceedings and Y lost educational provision. The Council should apologise to Miss X and Y, pay Miss X £9,600 in respect of Y’s lost educational provision, pay Miss X £1,100 for avoidable distress and provide training to staff.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains that the Council has not dealt properly with her son, Y’s, education and SEN provision because:
• It did not properly consider whether it should have provided s19 Alternative Education provision after March 2019;
• It has not made the necessary assessments to determine her son’s needs; and
• She has been accused of imagining conditions which have later been proved to be true, which has delayed the recognition of her son’s special educational needs.
2. Miss X says the Council has failed to carry out the appropriate assessments of her children and therefore they have been left without suitable support. She has had to pay for private assessments. She has been subject to accusations about her parenting that have been unfounded and caused significant distress.

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What I have and have not investigated

3. I have investigated that part of Miss X’s complaint about the provision of s19 alternative education provision from March 2020.
4. I have not investigated any aspect of Miss X’s complaint relating to:
• alternative education provision before March 2020 as Miss X’s complaint specifically referenced this was the time Y stopped attending school. Miss X could also have complained earlier about periods of time in 2019.
• alternative education provision after 7 September 2022 as this is out of my jurisdiction because of a current SEND Tribunal appeal.
• the refusal of an Education, Health and Care Needs Assessment (EHCNA) in September 2019 because this is out of my jurisdiction as it has already been considered by SEND Tribunal.
• the decision not to proceed with an Education Health and Care Plan (EHCP) in October 2021 because this is out of my jurisdiction as it has already been considered by SEND Tribunal.
• Those matters relating to assessments of Y’s needs where they are or have been subject to Tribunal proceedings.

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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 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)
7. 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.
8. 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)
9. 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

10. I spoke to Miss X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

Education Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. Where a local authority maintains an EHCP 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)
15. If a local authority decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for a EHC needs assessment.

Alternative Education

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened?

19. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
20. In early 2019 Y was being assessed for ASD (Autistic Spectrum Disorder). Miss X requested home tuition for Y on medical grounds.
21. The assessment concluded that Y did not meet the criteria for ASD in May 2019. Miss X did not agree with the outcome.
22. The Council considered Y’s circumstances at School Inclusion Panel (SIP). Information about Y was available from medical professionals.
23. Miss X requested the Council complete an Education, Health and Care Needs Assessment, (EHCNA), in September 2019. In December 2019 the Council declined to complete an EHCNA. Miss X appealed to SEND Tribunal.
24. Y stopped attending school in March 2020. Y’s school said it was meeting his needs and provided a summary of actions and interventions in place to support him.
25. The Tribunal dismissed Miss X’s appeal against the Council’s decision not to complete an EHCNA in August 2020.
26. The Council sent Miss X a warning about potential legal action regarding Y’s non-attendance at school in October 2020.
27. Miss X asked the Council to provide alternative education provision for Y as he couldn’t attend school. The Council told Miss X that alternative education would not be available as Y did not have an EHCP.
28. Miss X complained to the Council, asking for home tutoring, assessment to be carried out, an EHCNA and a social worker to be assigned.
29. The Council placed Y under a child protection plan.
30. In February 2021, Miss X obtained a private assessment report which diagnosed Y as having ASD and recommended access to alternative provision with a differentiated curriculum. Miss X sent the report to the Council.
31. The Council did not uphold Miss X’s complaint.
32. In March 2021, Miss X again requested the Council complete an EHCNA for Y. The Council agreed to complete an EHCNA and sought professional advice.
33. In April 2021, Miss X obtained a second private assessment report which diagnosed Y as having ASD.
34. The Council decided not to issue an EHCP for Y in late September 2021 and informed Miss X of this in October. Miss X appealed to Special Educational Needs and Disabilities (SEND) Tribunal about the Council’s decision not to issue an EHCP.
35. In January 2022, the Council received advice from health professionals that they would not dispute the diagnosis of ASD for Y which was made in Miss X’s first private report.
36. Further independent reports from Speech and Language Therapist, Occupational Therapist and Educational Pyschologist became available which included recommendations for SEN provision for Y.
37. The Council did not uphold Miss X’s complaint at stage two of its complaints process and did not grant the outcomes she requested. The Council said mainstream education could meet Y’s needs.
38. The Council stepped Y down from Child Protection plan to a Child in Need plan.
39. SEND Tribunal decided in June 2022, that the Council should issue an EHCP for Y.
40. In September 2022, the Council issued a final EHCP for Y. Miss X was unhappy with the EHCP and appealed to SEND Tribunal.
41. In October 2022, the Council withdrew the court action for Y’s non-attendance at school.
42. In February 2023, Miss X’s representatives asked the Council to again provide alternative education, providing a doctor’s letter stating Y could not attend mainstream education. The Council referred Y to alternative education provision for a package of tuition.

Analysis

43. It is clear that there has been conflicting professional opinion regarding Y’s circumstances.

March 2020 to October 2020

44. Evidence shows the Council were aware of the following information about Y:
• An assessment report regarding autism;
• Letter about visual impairment;
• Letter from Child and Adolescent Mental Health Service (CAMHS);
• Occupational Therapy discharge letter;
• Engagement with school;
• Case heard at SIP;
• Report from school saying it was able to meet Y’s needs;
• Tribunal decision in favour of the Council about completing an EHCNA; and
• Court warning notice sent to PA
45. Miss X asked the Council for home tuition for Y. The Council considered Miss X’s request at SIP. There is no evidence to show the Council did not take account of the information available to it. This is not fault by the Council.

October 2020 to March 2021

46. During this time the Council was responding to Miss X’s complaint.
47. The Council also started to take child protection proceedings against Miss X.
48. Evidence shows the Council were aware of further information about Y Sunshine report available, which included an ASD diagnosis. The Council also had available a response from Y’s school to the report.
49. The Council says in its stage 1 complaint response that it considered requests for alternative education provision. However, emails show the Council told Miss X that Y was not eligible because he did not have an EHCP.
50. There is no requirement for a child to have an EHCP in order for a Council to consider provision of alternative education under s19. The Council did not properly consider whether Y required alternative educational provision. This is fault by the Council. Miss X and Y remain uncertain whether the Council would have provided alternative education for Y.
51. On the balance of probabilities, had the Council properly considered the evidence available, I consider the Council would not have made alternative provision for Y at this time as the differing professional opinion was evenly balanced.

March 2021 to September 2021

52. The Council agreed to complete an EHCNA.
53. The Council continued the child protection proceedings against Miss X.
54. Evidence shows the Council were aware of the following further information about Y during this time period:
• An assessment report which identified Y had Autism with Pathological Demand Avoidance (PDA);
• CAMHS rejected Y’s diagnosis of ASD;
• Occupational therapist’s advice for the EHCNA which stated Y had autism with PDA;
• Social advice;
• CAMHS statement that it was unable to assess the private diagnosis as it hadn’t seen it;
• Educational Pyschologist’s report – this was based on outdated incomplete information as it didn’t correctly summarise the most recent reports.
55. There was now additional professional information to show Y’s needs, albeit within the context of differing professional opinions.
56. There is no evidence the Council considered whether it needed to provide alternative education for Y on the basis of this newer information. It should have done so. This is fault by the Council. Miss X and Y remain uncertain whether the Council would have provided alternative education for Y.
57. On the balance of probabilities, had the Council properly considered the evidence available, I consider it would have made alternative provision for Y from April 2021 as the differing professional opinion was weighted towards the now accepted outcome that Y has been diagnosed with ASD. Y therefore lost educational provision as a result.
58. The child protection proceedings were centred around concerns about Y not attending school. On the balance of probabilities, if the Council had made alternative education provision for Y as outlined in paragraph 56 above, the child protection proceedings would have been stepped down earlier in April 2021, instead of May 2022. Miss X suffered avoidable distress for 11 months.

September 2021 to January 2022

59. The Council decided not to issue an EHCP for Y. It considered his needs could be met within a mainstream school. Miss X appealed to SEND Tribunal.
60. The Council’s response to the Tribunal outlines its rationale for why it did not think Y required an EHCP. The Council’s rationale included the previous Tribunal decision in August 2020 (as referred to in paragraph 43), and the flawed Educational Psychologist’s report (referred to in paragraph 53).
61. On the balance of probabilities, the Council exhibited confirmation bias by jumping to the conclusion that the ASD diagnosis was likely invalid, on the basis of historic and flawed information, that was contradicted by more recent information.
62. There is no evidence the Council considered whether it needed to provide alternative education for Y on the basis of this newer information. It should have done so. This is fault by the Council. Miss X and Y remain uncertain whether the Council would have provided alternative education for Y.
63. On the balance of probabilities, had the Council properly considered the evidence available, I consider it would have made alternative provision for Y at this time as the differing professional opinion was weighted towards the now accepted outcome that Y has been diagnosed with ASD. Y therefore lost educational provision as a result.

January 2022 to February 2023

64. CAMHS wrote to the Council stating it would not challenge the earlier private diagnosis of autism for Y.
65. Evidence shows the Council were aware of the following further information about Y during this time period:
• Private Speech and Language Therapy, Occupational Therapy and Educational Psychologist reports which included recommendations that Y needed SEN provision to be made.
66. There is no evidence the Council considered whether it needed to provide alternative education for Y on the basis of this newer information. It should have done so. This is fault by the Council. Miss X and Y remain uncertain whether the Council would have provided alternative education for Y.
67. On the balance of probabilities, had the Council properly considered the evidence available, I consider it would have made alternative provision for Y at this time as the differing professional opinion was further weighted towards the now accepted outcome that Y has been diagnosed with ASD. Y therefore lost educational provision as a result.
68. Miss X won her Tribunal appeal referred to in paragraph 57. The Council was required to issue an EHCP for Y. A final EHCP with appeal rights was issued by the Council for Y on 7th September 2022. As identified in paragraph 17 above, I am unable to consider any injustice after this date.
69. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.”

EHCNA process

70. During this investigation, it has become apparent that there was a delay to the Council’s decision concerning Y’s EHCNA in 2021.
71. Miss X requested an assessment in March 2021. The Council should have informed Miss X of its decision not to issue an EHCP by 1 July 2021, after 16 weeks.
72. The Council actually informed Miss X of its decision not to issue an EHCP for Y on 11 October 2021. This is fault by the Council. Miss X suffered a three month delay to her right to appeal the decision.
73. Miss X subsequently appealed the Council’s decision and won her appeal. The Council issued an EHCP for Y and Miss X appealed to Tribunal about the provision it contained. This appeal is yet to be heard.
74. Although the Tribunal proceedings themselves are outside the Ombudsman’s jurisdiction, it is clear that there has been a consequent three month delay in her being able to bring her current appeal. Miss X may make a further complaint to the Ombudsman after the outcome of the pending Tribunal decision regarding this delay.

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Agreed action

75. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X and Y for the fault identified;
• Pay Miss X £9.600 in respect of Y’s lost educational provision. I have calculated this over 4 terms between April 2021 and September 2022 at the higher end of the scale; and
• Pay Miss X £1,100 in respect of avoidable distress caused by unnecessary child protection proceedings;
• Provide training to all relevant staff about the Council’s duties in relation to s19 alternative education provision and their responsibilities in respect of this, including awareness of issues around neuro diversity, autism/PDA and ADHD.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. I have found fault by the Council, which caused injustice to Miss X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman