The Ombudsman's final decision
Summary: the Council failed to provide adequate support between March 2020, when Mrs M’s daughter, G, stopped attending school regularly, and September 2021. The Council offered a payment for some of the education G missed. I recommended an additional payment to remedy the injustice caused.
The complaint
Mrs M complained to us in September 2021 that the Council had not made alternative arrangements for her daughter G’s education when she had been unable to attend school since March 2020.
She complained the Council refused to pay for the specialist occupational therapy and speech and language therapy reports she arranged for her daughter’s Education, Health and Care (EHC) needs assessment.
Since Mrs M made her complaint to us, the Council issued G’s EHC Plan. The Plan says G will receive education other than at school. Mrs M is unhappy with the Plan and has appealed to the Tribunal.
What I have investigated I have considered the support the Council provided between March 2020 and September 2021 when Mrs M complained to us.
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) Once 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) 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.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
I have considered: information provided by Mrs M; information provided by the Council, including its response to Mrs M’s complaint.
I invited Mrs M and the Council to comment on my draft decision.
What I found
Having initially settled well, G began to struggle at primary school in July 2019. She would have ‘meltdowns’ when she got home. The school provided additional support, and in January 2020 made a referral to the Council’s Inclusion Service.
In March 2020, the Council’s specialist teacher for autism assessed G and agreed to write a plan for the school. The school never received the plan.
In July 2020, G was diagnosed with autism and pathological demand avoidance.
Having stayed at home during the early stages of the pandemic, G returned to school in September 2020. Mrs M arranged for visual timetables, quiet learning space, a fidget cushion and ear defenders to be provided in school as advised by the specialist teacher.
However, G did not cope well with the extra demands of Year 4 and often became very upset at school. The school frequently asked Mrs M to collect G as they could not ‘deescalate’ her meltdowns. In October 2020, G stopped attending school altogether.
On 27 November, a specialist practitioner began a 12 week programme to support G’s return to school. G attended school on 9 December 2020 and 27 January 2021 for about one hour.
In March 2021, Mrs M asked the Council to undertake an Education, Health and Care needs assessment to formally assess G’s special education needs.
Mrs M’s complaint to the Council On 25 April 2021, Mrs M complained to the Council about the lack of alternative provision and specialist support for G. She said G had not attended school full-time since March 2020. She asked the Council to make alternative arrangements for G’s education under section 19 of the Education Act 1996. She said she had approached a Specialist Intervention Teacher who works for a neighbouring council and would like the Council to fund the provision she recommended.
The Council responded to Mrs M’s complaint on 18 May 2021. The response outlined the support the Council had provided, but said it was the school’s responsibility to arrange alternative provision if necessary.
Mrs M was unhappy with the Council’s response and asked the Council to respond at the second stage of its complaints process. The Council appointed an investigator. The investigator reported her findings on 28 June 2021.
The investigator found the Council had not complied with the SEN Code of Practice, or its own standards, to provide support as quickly as possible. She noted it was 10 months following the request for support in January 2020 before support was given by a specialist practitioner, and no written advice or guidance was provided.
The investigator also concluded Mrs M had been left to find out for herself about support for G. She concluded the Council had missed opportunities to tell her about services such as the Medical Education Service, specialist funding, and the statutory assessment process.
The investigator found that two reports the Council had promised were never produced, and one team, the Communication and Interaction Team, closed G’s case as the school did not reply to an email when in fact the school did not receive the email due to a change in personnel.
However, as far as Mrs M’s complaint about the Council’s failure to make alternative arrangements for G’s education was concerned, the investigator concluded that a Pupil Referral Unit would not have been appropriate so the Council was not at fault.
The investigator did not uphold Mrs M’s complaint the Council has refused to pay for the specialist occupational therapy and speech and language therapy reports she arranged for her daughter’s Education, Health and Care (EHC) needs assessment. The investigator concluded the Council had offered to commission assessments, but Mrs M had chosen to pay for reports by people with specialisms in pathological demand avoidance.
The Council accepted the investigator’s findings and recommendations. The Council produced an action plan to address the problems the investigator identified.
Dissatisfied with the response, Mrs M complained to the Ombudsman.
Consideration Missed education The investigator carried out a thorough investigation and the Council accepted her findings and recommendations. I agree with the outcome in all aspects but one: the Council’s responsibility to make alternative arrangements for G’s education. The investigator said alternative arrangements would mean G attending a Pupil Referral Unit. Both the investigator and Mrs M concluded this would not be an appropriate setting. The investigator did not, therefore, uphold Mrs M’s complaint.
Pupil referral units are only one option when a council makes alternative arrangements for a child’s education. Other options include online learning, tuition at home or in a neutral venue such as a library. The investigator, and the Council, did not consider these options.
I asked the Council to reconsider this part of Mrs M’s complaint.
The Council reconsidered and accepted it should have made alternative arrangements for G’s education. The Council apologised for not having done so.
The Council said that emergency legislation introduced in response to the pandemic meant it did not have an absolute duty to arrange alternative education between 25 March 2020 and 9 December 2020, but rather had to use reasonable endeavours when schools were closed.
The Council agreed it should have made alternative arrangements for G’s education from 9 December 2020, and certainly from February 2021 when the reintegration plan ended without success. The Council offered a payment of £2,000 for the education B missed between 9 December 2020 and June 2021 when it began to fund tuition at home, and a payment of £200 for Mrs M’s time and trouble pursuing her complaint.
I made further enquires to find out what the Council had done to make sure similar problems do not happen again.
The Council explained that it had seen a significant rise in the number of children not attending school since the pandemic. It said it had introduced a named officer to maintain an overview of cases and consider the Council's duty to arrange alternative education. Decisions are taken at a Placement and Resources Panel meeting and recorded by the officer.
At the time of G’s case, decisions were made by SEN casework officers, sometimes in supervision meetings with managers, in which case they were recorded in staff HR files. The Council said there were no records of decisions in G’s case.
I welcome these changes and the Council’s apology.
Specialist reports Mrs M is unhappy the Council will not refund the cost of two specialist assessments she commissioned for G’s EHC Plan (£1,280). I asked for clarification; the Council confirmed it did not consider it necessary for specialists to undertake the assessments. It said Pathological Demand Avoidance (PDA) is not a separate diagnosis, and the (NHS) therapists it uses would have sought additional advice if necessary.
I do not decide whether specialist assessments were necessary. I appreciate why Mrs M chose to commission specialist assessments, but there is no fault in the Council’s decision.
Developments since Mrs M’s complaint In June 2021, the Council began to fund home tuition for G.
The Council issued a draft EHC Plan on 2 August 2021 and a final Plan on 18 January 2022. The final plan was six months late. It should have been issued by 20 July 2021. The Council agreed education other than at school (EOTAS). Unhappy with the Plan, Mrs M appealed to the Tribunal.
I understand there have been problems arranging suitable alternative provision. Mrs M has told me about the difficulties she encountered. The Council asked her to accompany G to one provider. This was impractical. Mrs M has already taken a considerable amount of unpaid leave from work. The Council later agreed to arrange for support for G at the placement. Nevertheless, this will have been an incredibly difficult and frustrating time for Mrs M.
Conclusions
Fault by the Council appears to have had a significant impact on G’s education. In particular: following the school’s request for support in January 2020 it was 10 months before support was given by a specialist practitioner, and no written advice or guidance was provided.
two reports the Council promised to support the school were never produced, and the Communication and Interaction Team wrongly closed G's case.
Mrs M was left to find out for herself about support for G. The Council missed opportunities to tell her about services such as the Medical Education Service, specialist funding, and the statutory assessment process.
The Council should have stepped in to make alternative arrangements for G's education sooner.
The Council did not provide support as quickly as it should. The referral to the Council’s specialist teacher for autism in March 2020, and the plan that was proposed but never delivered, should have been the start of a process which could have led to G having an EHC Plan considerably sooner. The Council did not begin the EHC needs assessment until Mrs M requested an assessment in March 2021. The Plan itself was six months late.
Agreed action
We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and G, we may recommend the Council makes a symbolic payment.
The Council recognised the need for support in March 2020. The plan proposed by the specialist teacher for autism may have helped, but without the plan, G was without suitable education. It is true that during the pandemic, the Government recognised the challenges councils faced and many of their absolute duties were temporarily replaced with ‘best endeavours’ duties. But the Council has not demonstrated that it used its best endeavours during this period, or that the pandemic was the reason it failed to support G as quickly as it should between March and December 2020.
It is, of course, very difficult to judge now what appropriate education for G would have been at the time. As G was not receiving suitable, full-time education at school, the Council should have assessed her needs and planned alternative provision. It did not.
I recommend the Council offer Mrs M and G an additional symbolic payment of £1,000 to acknowledge the impact on them of the Council’s failure to provide support between March and December 2020.
Further, the Council’s failure to tell Mrs M about the statutory assessment process, and delays undertaking the assessment, potentially delayed G’s EHC Plan, and the support the Council decided she needed, by up to 18 months. I recommend the Council offer Mrs M and G a further symbolic payment of £1,000 to acknowledge the impact of this delay.
Final decision
I have ended my investigation as the Council accepts my recommendations. I uphold Mrs M’s complaint the Council failed to provide adequate support between March 2020, when G stopped attending school regularly, and September 2021 when Mrs M complained to the Ombudsman.
Investigator's decision on behalf of the Ombudsman