The Ombudsman's final decision
Summary: Mrs X complained about the Council’s failure to provide her son, who has special educational needs with a suitable education and related matters. We have found the Council to be at fault because it failed to provide alternative education when Mrs X’s son was too ill to attend school and did not properly consider what level of home tuition was suitable. To remedy the missed education and distress, the Council has agreed to apologise, make a payment to Mrs X and review its practices. We did not investigate parts of Mrs X’s complaint because they either happened too long ago or were matters that were appealable to the Tribunal.
The complaint
Mrs X complains that the Council has failed to provide her son, Child Y, with a suitable education and support for his special educational needs since 2018. In particular, she complains about the following matters: Failure to include relevant medical information in Child Y’s Education, Health and Care Plan.
Delay in Education, Health and Care Plan process.
Failure to provide adequate alternative education.
Failure to carry out an occupation therapy assessment.
Failure to provide a suitable education when Child Y was unable to attend school.
Failure to pay for essential equipment.
Delay in carrying out an Education, Health and Care Needs assessment and issuing an Education, Health and Care Plan.
As a result, Mrs X says Child Y has struggled to cope with life and significantly affected his mental health and well-being. This has also caused considerable distress to Mrs X who has had to give up work and been responsible for sourcing alternative support for her son.
What I have investigated Some of Mrs X’s complaint relate to events that occurred three years ago.
By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion.
I investigated events from December 2020. This is when the Council was first made aware Child Y was struggling to attend school. There is no evidence the Council was aware of the problem before this date and so it is highly unlikely I would make a finding of fault were I to investigate this time period. For this reason, I have decided not to investigate what happened before December 2020.
I have not investigated complaint g) and parts of a) and d) above for the reasons explained at the end of this decision statement.
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 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. (Local Government Act 1974, sections 26B and 34D, 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 Tribunal in this decision statement.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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.
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)
How I considered this complaint
I spoke with Mrs X and reviewed the information provided.
I made enquiries with the Council and reviewed the relevant law.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
The law and guidance Education Health and Care Plans 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 council is responsible for making sure that arrangements specified in a child’s EHCP are put in place. The council will usually do this by funding to a school or college to provide the necessary support. A council may also make a payment to a parent or young person so that they can organise the provision themselves. This is called a personal budget.
We can look at complaints about these matters, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
The procedure for reviewing and amending EHCPs is set out in legislation and government guidance. Councils must review EHCPs at a minimum once every 12 months.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a council proposes to amend an EHCP it should start the process of amendment without delay. The law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Education Other Than At School (EOTAS) is provision that may be suitable for a child for who education in a school setting is not appropriate. It means the child has education provision delivered somewhere other than a school. If this is named provision in an EHCP the Council remains responsible for arranging and paying for the provision and for ensuring the special needs provision is made.
The Special Educational Needs and Disability Tribunal (the Tribunal) Parents who are unhappy with the content of the child’s EHCP (sections B and F), or about a placement named in it at Section I, may appeal to the Tribunal. The law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal. This means that the Ombudsman cannot investigate a complaint when the issues it raises can be dealt with through an appeal to the Tribunal.
Children unable to attend school Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says in considering alternative education local authorities should not: have processes or policies in place which prevent a child from getting the right type of provision and a good education; and have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child’.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) What happened I have set out below a summary of the key events. But it is not meant to show everything that happened.
Background information Child Y is of secondary school age and has SEN. Mrs X believed Child Y needed additional support that would only be provided if he had an EHCP.
After some mediation, an EHCP was issued in December 2019. This named School T at section I. Child Y started attending School T in February 2020. His attendance was disrupted by the nationwide lockdown in March 2020. He struggled to engage with home learning and his mental health was affected due to social isolation. He returned to School T in September 2020.
Events I have investigated An annual review was held at School T in December 2020. School T reported that Child Y’s attendance was a concern and suggested he transfer to its affiliated specialist hospital resource (Unit B). It was also reported that Child Y had been verbally diagnosed by the Child and Adolescent Mental Health Service (CAMHS) as having Pathological Demand Avoidance (PAD).
The Council agreed the transfer to Unit B. In March 2021, Mrs X told the Council this was not working as Child Y was unable to leave the house due to his extreme anxiety and decline in his mental health.
In June 2021, Unit B told the Council that Child Y’s poor attendance was still of concern. It explained the integration plan it had devised to improve Child Y’s attendance had not worked.
An early annual review was held on 23 July 2021 at the request of Mrs X. School T reported that Child Y’s SEN targets and outcomes were not being met. It explained the action it had taken to encourage attendance including a part-time timetable, home and car park visits. This had proved to be unsuccessful, and Child Y was recorded as having an attendance rate of 16%. School T said it was no longer able to meet Child Y’s needs.
Mrs X advised the review meeting that Child Y had additional diagnoses that were not being considered. She asked to Council to remove School T from Section I of the EHCP and to leave it blank. Instead, she requested a tailored package of home based, alternative support (EOTAS).
Child Y’s case was considered by the Council’s SEN Panel (“the Panel”) on 29 July 2021.
The Panel refused Mrs X’s request for EOTAS because it was satisfied School T and Unit B were able to meet Child Y’s needs, were he to attend. This decision was based on the fact there was no evidence from health professionals to confirm he was unable to attend school on medical grounds.
However, the Council did accept Child was unable to attend school and so offered to arrange for Child Y to have a home tutor through a tuition agency. Mrs X refused this offer because she felt it would not meet Child Y’s needs.
Mrs X, with the help of an advocate, challenged the Panel’s decision. This was her first formal complaint. She explained she was privately funding counselling and holistic tutoring, and that Child Y was engaging well with both services.
The Panel met again on 18 August 2021. It remained of the view suitable education was being offered to Child Y because both Unit B and home tuition remained available. It agreed to consider a bespoke package of support if Mrs X submitted more information about this, including the cost and evidence that it would meet Child Y’s SEN as specified in his EHCP.
On 24 August 2021, the Council notified Mrs X of its decision not to amend Section I of the ECHP. It said it was not able in law to leave this section blank. She was advised she could appeal this decision to the Tribunal.
In September 2021, Mrs X provided information about a service she had identified as being suitable (Service D).
The Council agreed a personal budget to fund Service D. However, it said it could not fully support EOTAS via Service D because it was only part time provision.
Upon further representations from Mrs X, on 15 September 2021, the Council agreed to formally recognise EOTAS. A final EHCP was issued on 29 September 2021.
In October 2021, Mrs X requested funding for counselling for Child Y. This was refused because was not a specified requirement in his EHCP. It explained much of the support identified in the ECHP could only be provided in a school setting.
Mrs X also requested funding for a laptop to assist Child Y with his home learning. The Council agreed to pay half because this was its standard allowance. Mrs X says it was not possible to purchase a suitable laptop for £400 and had to pay the balance herself.
The Council issued an amended final EHCP on 29 October 2021. Section I was left blank. Mrs X again engaged with mediation to encourage the Council to change its position to avoid having to appeal this decision to the Tribunal. This mediation led to the Council’s agreement to extend funding for Service D until July 2022. It also agreed to fund another provider (Service E) and additional tuition.
The mediation also led to an occupational therapy (OT) assessment completed in December 2021. Mrs X says this should have happened sooner. The OT report set out a number of recommendations as to how Child Y could be supported.
A final EHCP was issued in March 2022. This named EOTAS at Section I. The Council also agreed to increase the personal budget to fund extra tuition. Mrs X and the Council continue to negotiate the appropriate level of support funded through the personal budget.
The complaint
Mrs X first complained to the Council in August 2021 about the Council’s failure to provide a suitable education and related matters. She was dissatisfied with the Council’s first response and made further complaints in September and December 2020, including a new complaint about a lack of OT support. The Council issued its final complaint response in January 2022.
The Council did not uphold Mrs X’s complaint.
In response to the Ombudsman’s enquiries about the complaint, the Council said: it provided education for Child Y since his first EHCP was issued in December 2019. Home tuition was rejected by Mrs X when it became clear he was unable to attend in July 2021 despite the best efforts by the school to secure his attendance; and since agreeing to fund a bespoke package of EOTAS, the Council has increased the personal budget to fund additional support requested by Mrs X, in line with the needs identified within Section F of the EHCP.
Analysis Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place or alternative education.
I have considered each of Mrs X’s separate complaints below.
Failure to include relevant medical information in Child Y’s ECHP Mrs X says the Council failed to take account of relevant information submitted by health professionals about Child Y’s diagnosis. She believes a contributory factor was the Council’s failure to attend the July 2021 annual review.
It is not the role of the Ombudsman to determine the content of an EHCP, only the Tribunal can do that. However, I am able to consider the Council’s decision making process that was part of Mrs X’s complaint.
There is no statutory obligation on the Council to attend a review and so I do not find the Council to be at fault for not doing so, particularly as the Panel considered Mrs X’s specific concerns at the two meetings held shortly afterwards in July and August 2021.
The Council says it considered the available medical information and agreed that sensory processing, social anxiety and hypermobility should have been included in the amended draft EHCP following the annual review. This was corrected following submissions made by Mrs X’s advocate to the SEN panel on 18 August 2021 An apology was given for this not being done sooner, but the Council did not uphold this element of the complaint. In my view it should have done so and is fault. It is understandable why Mrs X felt frustrated by the Council’s failure to formally acknowledge its mistake.
The Council remained of the view that PDA was not a recognised “stand alone” diagnosis and so should not be included. This was a decision the Council was entitled to make, and its rationale was properly explained to Mrs X. There was no fault here.
I understand Mrs X remains unhappy about the Council’s failure to properly acknowledge and provide support for Child Y’s mental health in his ECHP, including counselling. However, the content of the ECHP (Sections B and F) is matter for the Tribunal, not the Ombudsman and so I am unable to consider this aspect of the complaint.
Delay in ECHP process The annual review took place on 23 July 2021. The law expects councils to notify parents of its intention to amend an EHCP within four weeks from the date of the review. The amended EHCP must be issued within eight weeks from the date of the amendment notice.
The Council’s SEN panel agreed to amend the ECHP on 29 July 2021. The final Plan should have been issued on 23 September 2021. It was no issued until 29 September 2021. This was fault. However, I do not consider this short delay caused a significant injustice to Mrs X, particularly as it did not cause a delay in any appeal to the Tribunal, as no such appeal was made.
Mrs X also believes it took the Council too long to agree to EOTAS funded by a personal budget and this had an impact on the EHCP timetable. Section 61 of the Children and Families Act 2104 is clear that councils must be satisfied that it would be inappropriate for education to be provided in school before agreeing to EOTAS. So the Council had to be satisfied this was the case.
The records show Mrs X submitted information about service D on 13 September 2021. The Council agreed to fund this the following day. I am satisfied the Council acted without fault here. And while the decision was being made, home tuition remained available to Child Y.
There was no fault with the Council’s response to Mrs X’s request for EOTAS that caused a delay in the EHCP process.
Failure to provide adequate alternative education Mrs X says when the Council finally accepted Child Y was unable to attend school in July 2021, the 15 hours support offered was inadequate and was not equivalent to full time education. She questioned the rationale for this decision.
In its complaint response, the Council remained of the view that the original offer to fund 15 hours of home tuition per week was equivalent to full-time education and was satisfied this was the most Child Y could cope with at that time. The Council said this could be reviewed and increased to 25 hours if Child Y’s situation changed.
The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.
There is no information within the Council’s case records about how it arrived at 15 hours. I would have expected to see some evidence of this. We expect councils to be able to explain their decisions, so parents are not left wondering if a certain figure has just been decided arbitrarily. In this case I would expect to have seen, at the very least, a record of a discussion with Unit B, Mrs X and possibly Service D about what they considered Child Y could manage.
In the absence of such evidence, I have found fault with the Council’s decision-making process here.
It is not for the Ombudsman to determine whether Child Y would have been offered any additional support had the decision been made properly.
But there uncertainty about whether this could have been the case, and this is injustice that requires a remedy.
Failure to carry out an occupation therapy assessment Mrs X says Child y has missed out in valuable OT support due to the Council’s failure to request an assessment. The Council has explained neither paediatric services nor Child Y’s primary school had suggested one was necessary during the EHCP process.
It is not for the Ombudsman to advise what assessments should be completed. This is a matter for the Council’s judgment. The Council has explained its position to Mrs X. If a parent is unhappy with the description of their child in the EHCP or the provision allocated, they can use their right of appeal to the Tribunal.
Mrs X raised this issue during a mediation process and the Council arranged an OT assessment in December 2021. It followed the correct procedure here.
There is no evidence of fault regarding this aspect of the complaint.
Failure to provide a suitable education when Child Y was unable to attend school The records show the Council was first put on notice there were ongoing concerns about attendance in December 2020. Although the Council did not attend this review, it was sent a copy of the review paperwork that specified this problem.
Shortly afterwards, in January 2021, the School made the proposal for Child Y to transfer to Unit B. Mrs X says neither her nor Child Y were involved with this decision. As this was effectively an internal transfer, I would not necessarily expect the Council to be involved in such a move. There is no evidence the Council was aware at any time prior to the transfer that Mrs X had reservations about it.
I am satisfied the Council acted as we would expect here. There was not a significant delay between the transfer from School T to Unit B. And the written proposal from School T to the Council demonstrated careful consideration was given about the suitability of Unit B.
While I acknowledge Mrs X holds a different view about this, the move to Unit B, as a specialist unit was a reasonable response to Child Y’s attendance issues. For this reason, I consider the Council was meeting its Section19 duties up to that point.
The records show the Council was told by Mrs X on 24 March 2021 that Child Y was unable to attend Unit B. The Council correctly responded by asking Unit for more information about this. In response, Unit B confirmed its action plan to encourage attendance was not working.
The Council’s position is that it was under no duty to offer home tuition at this time because there was no evidence that Child Y was unable to attend school for medical reasons. The Council was satisfied it continued discharged its s19 duties because a suitable education was available.
I disagree. In my opinion, this was not a straightforward situation of a “school refuser”. In my view, this seems to have been the Council’s position. Unit B had expertise in dealing with children suffering with trauma and mental health problems, and their attempts to get him into school were not working. I have been provided with minutes of a meeting with the Unit B and Mrs X where it was agreed the only way to engage with Child Y was for a member of Unit B staff to visit him at home, possibly through a window.
While I commend Unit B’s attempts to work with Child Y, the fact remains that throughout this time Child Y did not receive a suitable education. From the case records I have seen, I am satisfied there was clear link between Child Y’s mental health and his attendance.
The Council has relied on the fact it was not provided with medical evidence as a reason for his non attendance. The relevant government guidance makes it clear this is not a requirement, and that councils should not delay making alternative provision while waiting for such evidence to become available. There is no evidence the Council asked for this, either via Mrs X or directly to a health professional. The evidence is clear that Child Y’s mental health was, at the very least, a contributory factor to his non attendance. Its response to my enquiries the Council said, “it was fully aware that Child Y was still not attending school due to his mental health needs”.
I am satisfied the Council should have arranged home tuition sooner than it did. In my view this should have happened at the start of the summer term 2021, when Unit B confirmed its attempts to encourage Child Y back to school had not worked.
Home tuition was made available from 6 September 2021. This was refused by Mrs X. While there is some uncertainty about whether this was offered at the correct level, I am satisfied, the Council discharged its section 19 duty from that date.
Mrs X refused the home tuition because she said he needed a more tailored bespoke service that was on offer. To the council’s credit it responded by inviting Mrs X to submit further information. This was a reasonable request. A personal budget funded EOTAS package of support was agreed by the Council in September 2021.
Failure to pay for essential equipment The Council agreed to fund a laptop up to the value of £400. Mrs X says she had to pay an additional £400 for a laptop that had the necessary functionality to support Child Y’s EOTAS.
It is not for the Ombudsman to determine the amount that should have been allocated for a laptop. There is no evidence that Mrs X explained why a higher specification laptop was essential. For this reason, there was no fault with the Council’s handling of this issue.
Agreed action
When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s Guidance on Remedies states: for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred; distress can include anxiety, uncertainty, lost opportunity and frustration; where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
To remedy the identified faults the Council will, within a month of the final decision on this complaint, the Council has agreed to take the following action.
Apologise to Mrs X for the identified faults; Pay Mrs X £1500. This is to acknowledge the summer term of missed educational and SEN provision in 2021.
Pay Mrs X £200 to recognise the uncertainty about whether home tuition was offered at the correct level.
Pay Mrs X £250 to recognise the avoidable distress, time and trouble she has spent pursuing her complaint.
To address the procedural faults identified the Council will, within three months of the date of the final decision on this complaint tell us what action it will take to: ensure that it provides alternative education for children who are unable to attend school at the correct time, even if medical evidence is not immediately available; and ensure evidence is obtained when making a decision about the amount of alternative education that is suitable for the child.
Final decision
I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice caused. On this basis I have completed my investigation.
Parts of the complaint that I did not investigate Part of Mrs X’s complaint relates to the Council’s earlier refusals to carry out an EHCP assessment and issue an EHCP. Both these decisions were appealable to the Tribunal and so outside the Ombudsman’s jurisdiction. I have also not investigated Mrs X’s complaints about the content of Child Y’s ECHP for the same reason.
Investigator's decision on behalf of the Ombudsman