Summary: Mr and Mrs F complained how the Council has handled their son’s educational needs and education provision. They say the Council failed to provide suitable provision when their son could not attend school for medical reasons. We find the Council was at fault for how it handled Mr and Mrs F’s son’s educational needs when he was too unwell to attend school. It also delayed issuing the final Education, Health and Care plan and it delayed responding to their complaint. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr and Mrs F complained how the Council has handled their son’s (G) special educational needs and education provision. They say the Council failed to provide suitable provision for G when he could not attend school for medical reasons and it delayed issuing G’s Education, Health and Care (EHC) plan after an annual review. They also say the Council delayed responding to their complaint and the conduct of officers from the education welfare service was inappropriate. They add the process followed by the Council’s advisory service for children on the autistic spectrum was poor and the Council failed to properly address their concerns about it.
2. Mr and Mrs F say the matter has caused distress and upset. They say G has missed a significant amount of education because of the Council’s failures.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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

7. I considered information from Mr and Mrs F. I made written enquiries of the Council and considered information it sent in response.
8. Mr and Mrs F 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

Education, Health and Care plans

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Annual reviews

11. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
12. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
13. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
14. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.

Alternative provision

15. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
16. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.

The Council’s complaints procedure

17. The Councils aims to respond to respond to complaints at stage one and stage two within 15 working days.

What happened

18. This chronology provides an overview of key events and does not detail everything that happened.
19. Mr and Mrs F’s son, G, has special educational needs and an EHC plan.
20. The school G was attending referred him to the Council’s Autism Advisory Service (AAS) in December 2021. The role of the service is to work alongside staff in school to help meet the needs of children and young people with autism. Mr and Mrs F said they wanted some support and advice on the signs of pathological demand avoidance (PDA) G was showing. PDA is a profile on the autism spectrum. The officer from the AAS observed G in school.
21. G stopped attending school in January 2022 because he was distressed and anxious. The school sent some work home for G to complete.
22. The officer from the AAS had a meeting with Mr and Mrs F at the end of January. She said she was satisfied the teaching assistant at G’s school allowed him flexibility and she also allowed him additional processing time. She gave some advice on how to deal with G when he was anxious and distressed. Mr and Mrs F said they were concerned the officer’s advice would not work with G’s high level of anxiety. They said G was showing signs of PDA. The officer said G was also presenting like many children who have autism.
23. The Council spoke with G’s school on 11 February. The school explained G had not attended for three weeks. The Council decided to make a referral to its education welfare service because of G’s poor attendance.
24. Mr and Mrs F wrote to the Council on 22 February. They said G was too unwell to attend school and he had not received any education for over a month. They asked how it would meet its statutory requirements to provide him with education.
25. The Council wrote to Mr and Mrs F at the beginning of March and said it was concerned about G’s low attendance at school. It said unauthorised attendance was a serious matter which could warrant legal action against them.
26. Two officers from the Council’s education welfare service had an unannounced visit at Mr and Mrs F’s house a few days later. They said if Mr and Mrs F were not happy with the school, they could ask for an emergency annual review. Until that time G should be in school.
27. Mr and Mrs F complained to the Council at the end of March. They said it failed to respond to their communication on 22 February and provide any education. They said the approach from the education welfare service was heavy handed and the home learning sent from the school was not personalised for G’s needs. They raised further concerns in a follow up email and said the officer from the AAS was dismissive of their reports of G’s anxiety at school and that he was showing signs of PDA. They said a private specialist psychiatrist had recently diagnosed G with PDA.
28. The Council responded to Mr and Mrs F’s complaint in April. It apologised for not responding to their initial contact in a timely way. It accepted its visit and letter from the education welfare service did not align with their expectations. It said the officer from the AAS was experienced and had a vast knowledge of autism. Finally, it said it was not within its scope to quality assure the work the school provided.
29. Mr and Mrs F asked to escalate their complaint to stage two of the Council’s complaints procedure at the beginning of May. They said their main concern was the Council was still failing to provide G with appropriate educational provision. They also re-iterated their concerns about the education welfare service and the AAS.
30. The school held an annual review of G’s EHC plan on 23 May. The Council agreed to amend G’s EHC plan.
31. Mr and Mrs F had discussions with the school about the educational provision it could provide for G. G started receiving one to two hours of tutoring a week in mid-June.
32. The Council sent Mr and Mrs F G’s draft EHC plan on 22 June. After further communication with Mr and Mrs F, the Council sent an amended draft EHC plan in July.
33. Mr and Mrs F had a meeting with the Council at the beginning of August to discuss their complaint.
34. Mr and Mrs F sent in detailed comments on G’s draft EHC plan the same month. They asked for G to receive Education Otherwise Than at School (EOTAS).
35. The Council discussed G’s case at its panel. The panel decided G needed a structured school environment.
36. The Council consulted with several schools in September. All the schools replied and said they could not meet G’s needs.
37. G started receiving two hours of animal therapy a week in September and two hours of tutoring. This gradually increased in October and November.
38. The Council issued its stage two response to Mr and Mrs F’s complaint at the beginning of October. It said the officer from the AAS was suitably qualified. It apologised the letter they received from the education welfare service caused distress. It also said they provided enough information about G’s medical needs, and therefore he should have been recorded as absent for medical reasons from January until June 2022. It said it would reimburse them for the costs incurred in delivering tuition to G from 22 February to 4 June 2022. It asked for the costs with associated receipts.
39. Mr and Mrs F exchanged emails with the Council about the matters they believed were outstanding and their remedy expectations. They said there was uncertainty about whether the officer from the AAS had received information about their situation from the school, including the parental questionnaire, before the meeting. The Council agreed to investigate the issue further.
40. The Council agreed to Mr and Mrs F’s request for EOTAS. It issued G’s final amended EHC plan on 12 December.

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Analysis

41. The Council accepted in its stage two complaint response it had enough information about G’s medical needs, and therefore he qualified as being absent from school for medical reasons. The Council therefore had a duty under section 19 of the Education Act 1996 to provide G with alternative provision as he could not reasonably attend school. The school told the Council on 11 February G had not attended for three weeks. Mr and Mrs F also made the Council aware of G’s struggles with school on 22 February. Despite this, the Council failed to intervene and provide any provision for G. This is fault. G did not receive any education from February until June. While the school did send some work home for him, the Council failed to check whether this was suitable for his needs and in line with section F of his EHC plan. Work set by a school to be done at home is not the same as teaching and therefore does not count.
42. The school provided G with some alternative provision from June onwards. However, this was not full-time education. By December 2022, G was receiving around eight to nine hours of provision a week, which is significantly short of the full time equivalent he was entitled to. There is no evidence the Council assessed G to determine how much education he could cope with or checked the provision the school was providing was suitable for him. G also did not receive the provision set out in his section F of his EHC plan. The Council has a legal and non-delegable duty to provide this provision.
43. The Council failed to finalise G’s EHC plan within statutory timescales. It should have finalised the plan within 12 weeks of the annual review meeting. It did not do so until nearly seven months later. I appreciate Mr and Mrs F made significant amendments to the EHC plan, but even taking this into consideration, the delays in this case were excessive.
44. The Council’s faults have caused G a significant injustice. Children have a right to an effective education and any time they miss is difficult to replace later. G received disruption to his education. The Council’s delay in finalising his EHC plan means he also missed out on provision that should have been in place sooner. The Council’s faults have also caused Mr and Mrs F distress, upset and frustration. They have had to constantly raise these issues with the Council, and it has been distressing G did not receive the education and provision he was entitled to. Mr and Mrs F also took responsibility for finding suitable provision for G and facilitating his education which placed a significant burden on them. This affected their employment and their ability to pursue their hobbies.
45. The Council apologised to Mr and Mrs F the letter from its education welfare service caused upset and distress. I welcome this. The Council could have avoided this action if it contacted Mr and Mrs F before sending the warning letter to fully explore the issues they were having with G attending school. It told Mr and Mrs F in its unannounced visit G had to be in school. It has now accepted there was enough evidence for G not to be in school. This is a contradiction. Its failure to fully explore the issues before pursuing the school attendance route caused unnecessary upset.
46. The Council told Mr and Mrs F it would investigate their outstanding issue on whether the officer from the AAS was given a parental questionnaire before the meeting. The Council did make internal enquiries on this issue and the officer stated she did not receive a parental questionnaire. The school has accepted there was no evidence it shared the questionnaire with the officer. The Council failed to follow up its internal enquiries with Mr and Mrs F which caused them frustration.
47. Mr and Mrs F say the officer from the AAS was dismissive of their reports of G’s anxiety at school and that he was showing signs of PDA. I have seen notes of the meeting but there is no recording. Therefore, I cannot reach a finding on the officer’s tone and whether it was appropriate or not in the circumstances.
48. The officer observed G in school and provided her advice. While the officer told Mr and Mrs F she knew a little about PDA, the Council has since confirmed the officer attended several courses where PDA was discussed and she kept up to date with research.
49. The Ombudsman is not an appeal body. We do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. In this case, I find no fault in how the officer considered this matter. Therefore, I have no grounds to criticise the outcome. I appreciate Mr and Mrs F disagree with the advice provided and they have also provided me with correspondence from a PDA practitioner which disputes the advice from the officer. However, the fact there are two differing opinions does not mean the Council was at fault.
50. The Council significantly delayed dealing with Mr and Mrs F’s complaint. They referred their complaint to stage two at the beginning of May, but the Council did not issue its response until the beginning of October. This is significantly outside of the 15 working day timescale. I appreciate Mr and Mrs F raised several issues they wanted the Council to consider, but the delays in responding to the complaint is excessive. This caused Mr and Mrs F frustration and they were put to time and trouble chasing a response.

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Agreed action

51. To address the injustice caused by fault, by 11 September 2023 the Council has agreed to:

• Apologise to Mr and Mrs F.
• Pay Mr and Mrs F £500 for their distress, frustration, upset and time and trouble.
• Reimburse Mr and Mrs F for any reasonable educational material and resources they used to educate G from February to December 2022 (on receipt of copy invoices provided by Mr and Mrs F).
• Pay Mr and Mrs F £3,950 for the lost education and provision from February to December 2022. We would suggest they use this for G’s educational benefit.

52. By 9 October 2023 the Council will send written reminders to relevant staff to ensure they are aware of:

• The Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• The statutory timescales to finalise an EHC plan after an annual review.
• The Council’s legal and non-delegable duty to secure the specified special educational provision in an EHC plan for the child or young person.

53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. There was fault by the Council, which caused Mr and Mrs F and G an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman