Summary: There was a five month delay in the Council completing an assessment for an Education, Health and Care plan, which in turn delayed when a child could start at their specialist school. There was also a failure to provide suitable fulltime alternative education promptly, at the right level, or to carry out reviews to increase the education on offer. This caused loss of education as well as distress, frustration, inconvenience, time and trouble. The Council will apologise and make symbolic payments to the child and parent carer.

The complaint

1. Ms X complains about delay in carrying out and completing an Education, Health and Care needs assessment and failing to provide suitable fulltime education when her child was too anxious to attend school.
2. Ms X also complains when tuition was provided this was only in three subjects, was only for three to six hours per week, and the tutor was not familiar with special educational needs so the sessions were rarely successful.
3. Ms X says she paid for a microscope and coding lessons to support her child in their education and asked the Council to pay for swimming lessons, but the Council refused.
4. Ms X also says the Council failed to keep her informed and failed to respond to emails.
5. Ms X said her child was too anxious to be away from her and she never got a break from caring. Her own mental and physical health suffered.
6. Ms X says her child was out of school and unable to access formal education for eleven months from Spring 2022, and became socially isolated.

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The Ombudsman’s role and powers

7. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. 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)
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 have considered information provided by Ms X and the Council including:
• Assessment documents
• Correspondence
• Tutor records
• Complaint records
• Consultations with schools.
11. I have spoken to Ms X by telephone.
12. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Education Act 1996.
• Statutory Guidance
1. Children Missing Education
2. Alternative Education
3. School Attendance / Working Together to Improve School Attendance
4. Education for children with health needs who cannot attend school
5. Summary of responsibilities where a mental health issue is affecting attendance.
13. I have considered guidance issued by the Ombudsman:
• Focus report ‘Out of school, out of sight?’, July 2022.
• Guidance on Remedies.
14. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

EHC plans

16. A child with special educational needs may have an Education, Health and Care (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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
17. 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).
18. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal.
19. The Code sets out the process for carrying out EHC assessments and producing EHC plans. 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.
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Alternative education

20. 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. (Education Act 1996, section 19) We refer to this as section 19 or alternative education provision. 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)
21. ‘Suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. The provision generally should be full-time unless this is not in the child’s interests due to their physical or mental health. (Education Act 1996, section 19).
23. The law does not define full-time education, but guidance says it should be equivalent to what a child would receive in school. If they receive one-to-one tuition the hours of face-to-face provision could be fewer as the provision is more concentrated. (Stautory Guidance ‘Education for children with health needs who cannot attend school’)
24. 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 sight? published July 2022. We say 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 when making decisions;
• consider (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

25. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure duties are properly fulfilled.
26. In Summary of responsibilities where a mental health issue is affecting attendance and Working together to improve school attendance the Government says professionals should provide cross-agency support through a ‘team around the family’ approach to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness. Schools should inform the Council where pupils are likely to miss more than fifteen days of education. Councils “must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education”.

Social care

27. Section 17 of Children Act 1989 requires local authorities to safeguard and promote the welfare of child who are in need in their area. Disabled children automatically meet the definition of a child in need, but it also includes any child who is unlikely to achieve a reasonable standard of health or development without support from the local authority. A ‘child in need’ assessment carried out by Childrens’ Social Care will identify the needs of the child to ensure they and their families are given appropriate support.
28. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on “the appearance of need”. The purpose of a Parent Carer Needs Assessment is to support parent carers to sustain their caring role and support them to work or access education, training or leisure facilities.

Factual Background

29. Ms X’s child had struggled to attend school due to anxiety and emotional-based school avoidance, so Ms X decided to home educate. After two years of home education Ms X decided she couldn’t continue this and arranged for her child to be registered with a school in 2021.
30. The transition back to school was not successful. Ms X’s child’s anxiety prevented them accessing mainstream lessons, although they sometimes managed time in the resource base. They had a very low rate of attendance. Sometimes they absconded from the school site.
31. In February 2022 Ms X says she contacted the Council’s special educational needs (SEN) advice service who advised her to contact the Council’s Children Missing Education (CME) team. Ms X says she did this but did not get a response at that time.
32. The Council told me in response to my enquiries it started to consider if alternative education was required in February but considered it needed more information from the school and due to the absence of a staff member, it did not get this until late March / early April. The Council told me it accepts it should have escalated the matter with the school. It says it held a panel meeting in early April when a decision to provide tuition was made, updated Ms X in mid-April and a tutor was in place in May. However, the Council has not provided evidence to support this chronology.
33. Ms X’s understanding was that medical evidence was required to obtain alternative provision / tuition. Ms X told me she tried to get evidence including from Child and Adolescent Mental Health Services (CAMHS) who had seen her child in 2021, but CAMHS could not assist. Ms X told me she also tried to get a second opinion so medical evidence could be provided to the Council to support s.19 education. In early April, Ms X’s Member of Parliament (MP) wrote to the Council on her behalf explaining CAMHS could not provide a medical report so Ms X’s child ‘has not been provided with support’. The Council has provided internal emails about the MP enquiry, but these only refer to Ms X having made a request for an EHC needs assessment and don’t mention that CME was involved or tuition was under consideration.
34. Ms X applied for the EHC needs assessment in March. The Council did seek evidence from the school in response to this request. The school provided this in early April stating it had not managed to get Ms X’s child to attend a lesson since they joined in 2021.
35. In late April, the Council refused the request for statutory assessment on various grounds, including that the school had not sought advice from external agencies. The Council’s decision letter stated as Ms X’s child was not attending school the SEN team would refer the case to CME to consider what provision should be put in place under section 19 Education Act 1996. The letter also stated if there was medical evidence to support absence then provision was available via the Medical Education team. The Council also referred Ms X and her child for an Early Help assessment.
36. When Ms X received the refusal letter, she explained to the Council the school could not access external professionals until at least September, so her child would be without education until then.
37. Ms X had a right of appeal against the decision to refuse the assessment. She asked the Council to mediate first. Ms X says she collected a lot of evidence to prepare for the mediation.
38. In May 2022, the Council agreed to provide tuition at home. This was initially four hours per week, increasing to six hours per week from September, in three subjects only.
39. In June 2022, the Early Help assessment found Ms X’s child had unmet needs due to being out of school, was very dependent on Ms X, and socially isolated. The outcome of the Early Help assessment was that Ms X should pursue her request for mediation to get the Council to overturn its decision and assess for an EHC plan.
40. The Council failed to arrange mediation within the timescale allowed. The day before the mediation meeting, a Council officer reviewed the file and spoke to the school. The officer decided the Council could not be confident without an assessment it clearly understood Ms X’s child’s needs. The Council reversed its decision and decided to assess. The Council counted the twenty-week assessment process from the date it advised Ms X it would assess, not from when it had received her request.
41. The Council gathered the required evidence. Early Help provided advice stating Ms X’s child had not engaged with Early Help and it had closed the case. Further social care advice was obtained in mid-August. This identified Ms X’s child was not currently accessing education, was isolated and spending large amounts of time at home. The outcome noted was for the application for an EHC plan to be successful so Ms X’s child could access suitable education provision. The assessment did not consider Ms X’s needs as a carer and determined no social care provision was required.
42. In September, Ms X asked the Council to pay for swimming lessons she had arranged for her child. The Council declined on the basis Ms X’s child should be accessing physical education (PE) in school. The Council says it did ask the school if Ms X’s child could access PE in school, however the Council did not tell me whether the school replied, and my understanding is no access to PE was provided. In the Council’s complaint response, it said swimming was declined as it was not a compulsory part of the curriculum.
43. The Council issued a draft EHC plan in late October. On receipt of the draft, Ms X expressed a preference for a specialist school. The Council’s panel decided mainstream schools with resource bases should be consulted first. The Council consulted several schools between October and December. The only school to offer a place was Ms X’s preference. The Council received all the school responses by early December.
44. Ms X complained about tutor hours and about delay in the EHC needs assessment. In gathering evidence to reply to the complaints, an officer advised that all resource bases were full until at least September 2023, and possibly longer. The Council agreed to name Ms X’s choice of school at the end of December.
45. The Council issued the final EHC Plan in January with Ms X’s child to start the new placement in mid-February.
46. The Council accepted fault in failing to issue the final EHC plan by October. It also accepted once the school advised external advice would not be available until September, it should have reversed the decision to assess immediately.
47. The Council accepted too few tutor hours had been offered and it had failed to keep the level of tuition under review, as was its usual practice. Council records show it considers 12-15 hours of one-to-one tuition to be equivalent to fulltime education. The Council said it offered extra tuition in late 2022 but Ms X declined. The records I have seen show it was the tutor who stated extra hours were not appropriate because, by Autumn 2022, Ms X’s child was not engaging in the tuition that was being provided. The tutor advised hours should be reduced from six to three per week because Ms X’s child’s heightened anxiety about the uncertainty over their next school placement was affecting their ability to engage.
48. Ms X says the tutor was not skilled at getting a child with SEN and anxiety to engage. By Autumn 2022 the tutor was only managing to get her child to do some cooking and tried to introduce some academic work into cooking classes. Ms X did say in one email that more tuition would not be successful, but I do not read this as Ms X declining extra tuition, more that the current tutor was not having any success.
49. The Council did not uphold delay in it consulting schools, stating it was appropriate for it to have consulted several mainstream schools and that some responses from schools had needed chasing.

Analysis

Fault

50. Where a Council reverses a decision to refuse a statutory assessment, and that is not based on new evidence, it is open to the Ombudsman to consider that the whole period of decision-making counts within the maximum twenty-week EHC needs assessment process. The twenty-week process is usually six weeks to decide whether to assess and fourteen weeks to carry out the assessment.
51. While the Council spoke to the school the day before the mediation was due in July, the advice from school was consistent with what the school had said in late April. The Council has also acknowledged in its complaint response it should have reviewed its decision in early May when it found out there would be a delay in external professionals going into school. This means the fourteen-week assessment process should have started by early May not late July with any final plan issued by August. If the Council had kept to this timetable Ms X’s child could have started school in September 2022. As Ms X’s child was not accessing fulltime education the Council should have sought to complete the assessment as quickly as possible and considered twenty weeks the maximum timeframe.
52. The Council did not issue the final plan until January, a delay of five months. This was fault.
53. We expect councils to consult schools concurrently, not consecutively to avoid delay. The Council knew only one school could offer a place by early December, but the final plan was not issued until mid-January and Ms X’s child did not start school until a month later. This delay was fault.
54. The Council should have considered if alternative education was required once it became aware Ms X’s child was not accessing fulltime education in school. I have not seen the contact with CME in February, but Ms X’s request for statutory assessment in March made clear her child had not accessed school since late 2021. The Council says it did consider s.19 education but was waiting for information from the school which it did not receive until early April, and then it arranged tuition for May. The only evidence the Council has provided of contact with the school was the request for advice in response to the request for statutory assessment. Internal emails in late April in response to the MP enquiry do not mention s.19 education was under consideration. The first mention of this is in the decision letter refusing statutory assessment which states Ms X’s child will be referred to CME. This supports referral for tuition was made in late April, not February. Statutory guidance requires the Council to provide s.19 education without delay and to decide whether it is required even if no medical evidence is available.
55. The Council has admitted it was fault to offer only four, and then six, hours of tuition when 12-15 hours was its usual expectation.
56. I do not find Ms X refused additional hours, Ms X tried to support the tutor including by buying resources that would motivate her child, but says the tutor struggled to get her child to engage. The tutor noted the uncertainty over returning to a school increased Ms X’s child’s anxiety in Autumn 2022. If the Council had issued the EHC Plan on time in August, this prolonged uncertainty would have been avoided.
57. The Council declined to fund swimming lessons but also failed to secure alternative sport provision. It says it contacted the school but there is no evidence it obtained a reply or followed this up, this was fault.
58. Social care could also have considered if Ms X was entitled to a break from caring by carrying out a Parent Carer Needs Assessment, or if her child was entitled to short breaks when they had not returned to education. A social care assessment in Summer 2022 found continued unmet needs within the family in line with what Early Help had found in the Spring. The only outcome identified by social care was for Ms X to try and persuade the SEN team to overturn its decision not to assess for an EHC plan so her child could access education.
59. While the Council may choose to organise its education and social care functions into different departments, the Ombudsman regards the Council as one entity. If social care considered the SEN decision was wrong, then social care should have made representations to colleagues in SEN, not required Ms X to use the mediation (and potentially appeal) process. This was fault.
60. An Early Help plan should have been made, and followed up, to ensure identified unmet needs were met by education and Ms X’s child returned to school. Instead, the case was closed to Early Help in Summer 2022 even though Ms X’s child did not return to school until February 2023.
61. The social care advice for the EHC plan stated Ms X and / or her child had not engaged with Early Help. This is not correct. Early Help closed the case as ‘no further action’. It was not possible for Ms X or her child to fail to engage with support which was not offered. Social care advice for the EHC needs assessment confirmed unmet social care needs, due to an absence from education, but offered no practical support or follow up.
62. Recent guidance on attendance and children with mental health needs says councils should work across departments and with other services to overcome barriers to school attendance. I acknowledge these events took place before that guidance was issued, however there was a failure to keep track of Ms X’s child across CME and social care. Both departments closed the case down many months before Ms X’s child was successfully back in school. Opportunities for oversight of the process and to consider alternative support than education were lost.
63. There is evidence that Ms X had to chase the Council on several occasions, especially during Autumn 2022. She had to involve her MP and make complaints to get issues resolved. If the tuition had been kept under regular review in line with the Council’s usual practice, and Early Help / CME had kept the case open and held regular reviews, then Ms X would have been kept up to date regularly and would not have had to chase the Council for information.

Injustice

64. Ms X did not get a break from caring from Autumn 2021, when the reintegration to school failed, until her child started school in February 2023. This had an adverse impact on her health and impacted on her own activities. I find the Early Help and EHC needs assessments were missed opportunities to have considered Ms X’s needs while her child was unexpectedly at home fulltime. It is difficult to know if support may have been offered via social care, but the uncertainty about this is, in itself, an injustice.
65. Ms X’s child missed out on fulltime education. I am satisfied the Council should have considered s.19 education in Spring 2022, as it had clear knowledge of the situation at that point. Indeed, the Council told me it did start to consider it in February but failed to make a decision until late April / May. The tuition offered was below the Council’s usual offer of 12-15 hours per week and was limited to only three subjects, although by Autumn 2022 little academic education was being successfully provided.
66. I find had the Council completed the EHC needs assessment within the statutory timescale, a final plan naming a new school would have been in place by September 2022. This would have avoided another term and a half of missed provision and additional caring by Ms X.
67. Where fault has led to loss of education, we usually recommend a symbolic payment of £900 to £2400 per term to acknowledge the impact on the child.
68. I find that Ms X was put to unnecessary time and trouble chasing the Council for information.

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Agreed action

Within four weeks of my final decision:

69. The Council will apologise to Ms X for the fault and injustice caused.
70. The Council will make a payment of £1000 to Ms X to acknowledge the impact on her of the delay in providing s.19 education and competing the EHC needs assessment, which delayed her child starting school, and for her time and trouble.
71. The Council will make a payment of £500 to Ms X for the education equipment, lessons, and activities she arranged at her own cost to supplement the tuition.
72. The Council will make a payment of £4200 to Ms X on behalf of her child for the impact on them of missed education. Calculated as follows:
• £1000 for two months in Spring 2022 when no tuition was in place.
• £800 for two months in Summer term 2022 when only three hours per week tuition was in place.
• £2400 for term and a half the EHC plan was delayed, which in turn delayed when Ms X’s child could start their new school.
73. I have considered whether to recommend service improvements. The Council has been working with the Department for Education and NHS England to improve its SEND services resulting in the development of a SEND Improvement Plan. The Ombudsman has also made recommendations to improve alternative provision and EHC processes at the Council in the past year. I consider I do not need to make further recommendations, particularly as these events took place in 2022, before improvement work had taken place.

Within three months of my final decision:

74. The Council will review the lessons learned from this investigation, and the recent guidance issued by the Government on attendance and mental health, and consider if any further changes need to be made to its internal guidance, training or practice, giving particular consideration to:
• Joined up working, utilising support available across departments,
• How officers should make decisions about s.19 education when specialist advice is not available or delayed,
• Oversight and tracking of children out of school until they are successfully reintegrated into fulltime education.
75. The Council will provide us with evidence it has complied with the above actions.

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Final decision

76. I have completed my investigation. There was a five month in the Council completing an assessment for an Education, Health and Care plan, which in turn delayed when Ms X’s child could start at their specialist school. There was also a failure to provide suitable fulltime alternative education promptly, at the right level, or to carry out reviews to increase the education on offer. This caused loss of education as well as distress, frustration, inconvenience, time and trouble to the child and parent carer. I am satisfied completion of the recommended actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman