Summary: Mrs C complained about the Council’s decision not to assess her daughter for an Education, Health and Care Plan and a statutory Care Needs Assessment. We found the Council was at fault. This caused Mrs C unnecessary distress and meant that S missed two terms of education. The Council agreed to our recommendations to address the injustice its actions caused Mrs C and S.

The complaint

1. Mrs C complains that since July 2023 the Council failed to:
• assess her daughter, S, for an Education, Health and Care (EHC) Plan;
• carry out a Care Needs Assessment under section 17 of Children and Families Act 1989;
• assess her needs as a carer;
• provide alternative provision for S when she was out of school because of her medical needs between September 2023 and February 2024;
2. Mrs C says that as a result both S and her experienced avoidable distress and frustration. Mrs C also questions the impact lack of suitable education will have on S’s future, as she is likely to leave school with no qualifications. Something she says could have been prevented had the Council put in place the alternative provision it agreed to in September 2023.
3. Mrs C would like the Council to assess S’s need without further delay to see if she should get social care support. She would also like the Council to provide suitable education for S.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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 in advance of publication on our website.

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What I have and have not investigated

7. We have not investigated Mrs C’s complaint about the refusal to issue an EHC Plan to S. This is because this is a decision that carried a right to review, and Mrs C used that alternative remedy route when she mediated with the Council and later appealed its decision to the SEND Tribunal.

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How I considered this complaint

8. Before issuing this draft decision statement I considered:

• Mrs C’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation with her;
• any relevant law or guidance as referred to in the text below;
• the Ombudsman’s published guidance on remedies.

9. Mrs C and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Alternative Provision of education for children

10. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
11. 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))
12. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
13. The education provided by a council must be full-time unless a 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)
14. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
15. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
16. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
17. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
18. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
19. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
20. A compulsory school week in the UK is 32.5hours including breaks. Y’s school provides 25 hours of education each week, excluding breaks.

Disabled Children

21. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of 'children in need' in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as 'children in need' and entitled to an assessment under section 17.
22. The Chronically Sick and Disabled Person's Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
23. Services which can be provided under section 2 CSDPA include:
• practical assistance in the home including home based short breaks/respite care;
• recreational/educational facilities including community based short breaks; and
• travel and other assistance.
24. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
25. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the Council should lead a multi-agency assessment and compete it within 45 working days. Where the Council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family.
26. When a Council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
27. The Children Act 1989 and Breaks for Carers of Disabled Children Regulations 2011 require councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
28. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need,’ or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

What happened

Background

29. In late September 2022 Mrs C self-referred to early help for an assessment as she was worried about S’s mental health.
30. S began to experience difficulties with attending school because of her health in October 2022. At the end of the month the Council rang Mrs C and said it considered a Team around Family (TAF) meeting would be helpful. This way it could consider the social care support and Special Educational Needs support the Council may be able to offer.
31. In early November 2022 S returned to school on a reduced timetable. Between November and December S’s timetable was slowly increased, and by early May 2023 she was back to school full-time.
32. In November Mrs C spoke to another Council officer who said they would arrange a TAF meeting and Mrs C gave them details of S’s Children and Mental Health coordinator.
33. In mid-November 2022 Mrs C asked the Council to carry out an EHC Needs Assessment. At the end of the month Mrs C chased the Council about the self-referral for assessment under Children Act 1989 as she had not heard anything.
34. In mid- December the Council refused the EHC Needs Assessment. At the end of the month Mrs C chased the section 17 care needs assessment she had asked for in September
35. By the end of May 2023 Mrs C says S began showing symptoms of burnout again. Her attendance dropped with her only being able to attend few days a week for 1-2 hours per day.

June 2023 onwards

36. In late June 2023 S’s mental health declined significantly and she stopped attending school altogether.
37. In mid-January 2023 Mrs C complained to the Council. She said that:
• it was failing to provide S with education; and
• it refused to assess S’s and her needs under section 17 of Children Act 1989.
38. At the end of February 2023 Mrs C asked the Council to consider her complaint further.
39. The Council held another TAF meeting in mid-March 2023. Mrs C says the Council agreed to follow CAMHs’ advice and not increase S’s timetable for now. An officer also said she considered early help was not needed and still believed S did not need EHCNA.
40. A month later Mrs C met with another Council officer and said S felt pressured to increase her timetable out of fear Mrs C would get in trouble.
41. A few days later Mrs C attended a mediation meeting to see if the Council would agree to assess S for an EHC Plan. It did not and Mrs C eventually appealed to the SEND Tribunal.
42. At the end of July 2023 Mrs C asked the Council to put in place alternative provision for S as she was not attending school because of her anxiety. Mrs C told us the Council never replied to this request.
43. In early August Mrs C emailed the Council and requested alternative provision for S again. She then chased this throughout August but did not get a reply.
44. In September the Council contacted Mrs C and said S would be eligible for alternative provision on medical grounds. It told her that another department would let her know what would be put in place. It also told Mrs C they would organise another TAF meeting.
45. In the same month Mrs C contacted early help again to ask about care needs assessment for her and S under Children Act 1989. Mrs C told us that when the Council called her back it told her it would not do one because S did not have an EHC Plan.
46. At the end of October 2023, the Council held the second TAF meeting. Mrs C told us that in this meeting a Council officer told her that she believed S did not need alternative provision and she should attend school instead.
47. In November 2023 the school made an Early Help referral for Mrs C and S, and the Council accepted this and agreed to carry out the assessments. The Council completed the assessment for S and decided she did not meet the requirements to get support from it disability team. The Council did not share this outcome with Mrs C.
48. In early December Mrs C emailed early help chasing the referral the school was supposed to make to the Council. S was still not well enough to attend school.
49. In mid- February 2024 the Council issued its final complaint response and said:
• its decision to not assess S for an EHC Plan was based on all the relevant information it had at the time;
• it agreed to offer alternative provision in September 2023, but revisited this decision during the TAF meeting in October 2023. It then decided the school should be engaging S in different ways to encourage attendance, but the school refused this without more funding. This should have led to more discussion and decisions, but it did not and S stayed out of school. The Council apologised and said it would set up alternative provision without delay;
• it accepted the Council did not respond quickly enough to Mrs C’s request for an early help assessment for her and S. It apologised and said that it would urgently look at alternative provision for S.
50. Mrs C was unhappy about the Council’s decision and in March 2024 she asked the Ombudsman to consider her complaint. In the same month the Council put in place some alternative provision for S which consisted of approximately 9 hours of education. Mrs C told us that some of the provision was in person, and S could not attend it which meant she accessed closer to 7 hours per week of education.

Analysis

Alternative provision

51. The Council accepted that it should have provided S with alternative provision after Mrs C told it that S stopped attending school in July 2023. But it did not, this is fault.
52. It originally agreed in September 2023 that S should access alternative provision, but later revised its decision based on the view the school should be engaging S in a different way. This is fault. We consider the Council had enough information from the previously failed part-time timetable and a CAMHS letter that stated S should get alternative provision because of her mental health. The Council’s records does not show how it took this into account when it decided that S should attend school rather then providing the alternative provision in September 2023.
53. The Council did not put any alternative provision for S until March 2024. This means that she missed two terms of full-time education. It is difficult to say exactly what is the long-term impact on S’s education this had. However, it is clear that it has caused Mrs C avoidable uncertainty about what stage of education S would have been had it not been for the Council’s fault.
54. Additionally, Mrs C had to chase the Council multiple times to ask for the provision S needed.

Care Needs Assessment

55. The Council accepted that it had not responded to Mrs C request for Care Needs Assessment quickly. The lack of the Council’s response to Mrs C request is fault.
56. It also accepted that once it carried out S’s assessment and decided she did not meet the threshold for support form the Council’s disability team, it failed to share this with Mrs C. The failure the share the outcome of the assessment with Mrs C is fault. Also, the Council then failed to offer Mrs C and S the early help assessment. This meant the Council did not check if there was any social care support they needed, even if it was not from the disability team. This is fault.
57. Lastly, the Council accepted that it did not assess Mrs C’s needs as a carer because it was not sure if all the information had been properly recorded. The poor record keeping about what Mrs C requested is fault.
58. All these faults caused Mrs C avoidable frustration and uncertainty. She chased the Council and continued to ask for support, without realising the Council had assessed S as not meeting the threshold for support from its specialist disabled team.

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Agreed action

59. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs C and S for its failure to provide S with the alternative provision and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• the Council should assess S’s and Mrs C’s needs under the Children Act 1989 should this still be outstanding, and Mrs C still would like the assessment;
• tell Mrs C outcome of the above assessment;
• pay Mrs C £2000 in recognition of the education that S missed between September 2023 and March 2024. The payment should be used for the benefit of S’s education;
• pay Mrs C £300 to recognise the distress and uncertainty the Council’s fault has caused her and S; and
• share this decision with its SEN officers and emphasise the importance of keeping up the service standards for communications and the importance of the Council acting on its section 19 duties.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. We found the Council was at fault for failing to provide alternative provision to S after she stopped attending school in July 2023. This meant that she missed full-time education between July 2023 and March 2024. The Council agreed to our recommendations to address the injustice this caused to Mrs C and S and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman