Summary: Ms C complained that for several years the Council failed to provide suitable education for her child who is severely disabled. We have upheld the complaint finding Ms C and her child suffered a loss of service and avoidable distress. Raising this issue has also put Ms C to unnecessary time and trouble. The Council accepts these findings and at the end of this statement I set out the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Ms C’. She complains that for several years the Council failed to provide suitable education for her child (who I will ‘D’) who is severely disabled.
2. Ms C says as a result D has missed out on several years of educational support from the Council. Ms C also says she has been put to extensive time and trouble in seeking the appropriate support for D.

Back to top

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 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)
5. The law also says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
6. 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.
7. If 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)

Back to top

How I considered this complaint

8. Before issuing this decision statement I considered:

• Ms C’s written complaint to the Ombudsman and any supporting information she, or her representative, provided. I also had a meeting with Ms C and her representative to gather more information about the complaint.
• Written information provided by the Council in response to several sets of enquiries.
• Relevant law and guidance as set out in the statement below.

9. I also sent Ms C, her representative and the Council a draft decision statement setting out proposed findings. I took account of any comments made before finalising this statement.
10. 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.

Back to top

What I found

Relevant law & guidance

11. Section 19 of the Education Act 1996 says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
12. There is separate Government guidance for children who are missing from education because of health needs and those missing education for other reasons. In either event, the Government expects authorities to put in place education no more than 15 days after it becomes aware of a child’s absence. The Government expects that councils should have “a written, publicly accessible policy statement on their arrangement to comply with their legal duty towards children with additional health needs”. It says this policy should provide links to other relevant Council policies, such as those for children with special educational needs.
13. 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 EHCP 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.
14. EHCPs were introduced by the Children and Families Act 2014. They have been in place since 1 September 2014. Before that date some children with special educational needs had statements of special educational needs, setting out how their needs would be met.
15. A Council must complete an assessment for a EHCP in a maximum of 20 weeks. The Council must ensure the child’s parent is fully included in the assessment from the start and made aware of opportunities to offer views and information.
16. Where the Council reassesses an EHCP it should notify the parent to advise. It should take no more than 14 weeks once it has decided to reassess until it issues the final EHCP. But it should aim to complete the reassessment as soon as possible.

Background

17. D has a rare neurological condition that causes a loss of vision, muscular control and mental skills. It is a condition which has caused D’s health to deteriorate over time. D is non-verbal, has high mobility needs, cannot feed without assistance, requires a special diet, is doubly incontinent, receives oxygen 24 hours a day and suffers regular daily seizures.
18. Before September 2014 D began attending a specialist infant and primary school I will refer to as School X. D was not yet of statutory school age but had a statement of Special Educational Needs.
19. After only a few months Ms C withdrew D from School X. She did so because she had concerns the school was not caring properly for D putting them at risk. At the time Ms C withdrew D from school they were still not of statutory school age, meaning Ms C was not under any legal obligation to send D to school.
20. After this time Ms C sought to ensure she met D’s needs at home. She has sought to provide D with music therapy, swimming therapy, play therapy, massages and daily physiotherapy. She has a range of specialist equipment at home to help her meet D’s needs. There are numerous records on file from health professionals working with Ms C that speak highly of her dedication to meeting D’s needs which are complex.
21. Over several years D has also been known to the Council’s Children and Family Services (or social services). That service supports D as a ‘child in need’. For several years it has provided Ms C with a care package enabling her to support D at home. This is combined with a package provided by the NHS to meet D’s health needs. In total the health and care package supports Ms C with around 75 hours a week support for meeting D’s needs.

Events covered by this complaint

22. Records show that in April 2016 D’s social worker noted D was not attending school. They exchanged emails at that time with the Council’s Education Welfare Service (EWS). D was by now of statutory school age. The EWS advised D’s social worker to liaise with Ms C and the Council’s Special Educational Needs (SEN) service to find out what her plans were. The EWS advised that D should have a EHCP whether they were educated at home or elsewhere. The Council acknowledges no such communications followed.
23. Records show that it was not until around September 2017 the Council SEN service began enquiries into D’s whereabouts. They contacted the Council Children’s Services and confirmed D remained known to social workers. They learnt social services supported D as a ‘child in need’. Council Education officers asked to attend D’s next ‘child in need’ review meeting.
24. In November 2017 the Council wrote to Ms C about D’s education. It said that it had a duty to convert D’s statement of SEN to a EHCP no later than the end of March 2018. It asked Ms C if she could complete part of the statement to record her views.
25. An officer (‘Officer 1’) then attended a ‘child in need’ review. They reported back to other officers in an internal email that Ms C wanted D to attend school up to three days a week or to receive education at home. However, the same note also went on to record it was Ms C’s preference that D receive education at home. It recorded Ms C’s wishes for D’s education, which consisted of ensuring they received “play therapy, swimming, massage and sensory therapy”. On the same day the officer sent a letter to an Occupational Therapist asking for their input into the proposed EHCP.
26. The next Council record is not until February 2018. A different Council officer (Officer 2) sent an email to Officer 1 who attended the Child in Need review asking if D was still without an education placement. That officer later recorded in March consulting with D’s social worker and being advised Ms C did not want a school placement for D but was open to D receiving education at home.
27. In April 2018 a more senior Council officer asked Officer 2 to provide a “prompt and appropriate resolution” to ensure D went “back into educational provision”.
28. In response, the following day, the Council issued a draft EHCP. This named School X as a placement for D’s education. I note by this time the Council had information from a physiotherapist supporting D and their hospital consultant, as well as an OT report.
29. In May 2018 Ms C enlisted the help of a representative who wrote to the Council setting out Ms C’s concerns with the draft EHCP. They pointed out that D had not attended School X for several years and there was no up to date planning to accompany the EHCP.
30. Emails with School X in May 2018 show that it told the Council it had removed D’s name from the school roll when Ms C withdrew D from school in 2014. It expressed concerns the draft EHCP did not set out what health needs D had. It said the school had capacity to accept D as a pupil but only subject to discussion with Ms C and health professionals. By now emails also show the Council education service knew that Ms C received the combined social and health care package I described above.
31. Notes suggest that Ms C could not attend a meeting with the Council arranged in May 2018. It then went on to issue a final EHCP which named School X.
32. In June 2018 further discussions took place with Ms C and her representative. An email from the representative expressed confusion about the Council’s position as it appeared to be offering further assessment of D’s needs despite having just issued an EHCP. While Ms C sent an email which explained the finalised EHCP contained no advice from Speech and Language Therapy or an Educational Psychologist. In response the Council said that Ms C could use her right of appeal to the EHCP but that it wanted to consider first if it should amend the EHCP as she had concerns.
33. A meeting took place in early July 2018 and soon after Ms C sent a letter to the Council via her representative. The letter said Ms C would consider starting an appeal against the EHCP issued in May 2018, but this would depend on the Council’s reply. It said that she was not refusing education for D but did not want them to attend School X. Ms C then listed what she described as a series of omissions in the EHCP. It said much of the information in the plan had been simply copied across from D’s previous statement of SEN and was now out of date. It also lacked key assessments (see above).
34. I have not seen a reply to Ms C’s letter. However, an email in late July 2018 said the Council was discussing the case further at a SEN panel. And in August 2018 the Council contacted a Speech and Language Therapist and an Educational Psychologist for advice. Those emails said it was carrying out a reassessment of D's EHCP.
35. The Council received advice from the Educational Psychologist in September 2018. That advice set out how Ms C met D’s needs at home and how she took D on monthly visits to a hospice around 60 miles away for swim therapy, paying for that privately.
36. In October 2018 the Council recorded discussing the case further at its SEN panel. It decided it remained appropriate to name School X as the setting for D’s education. It recorded no reasons for this decision.
37. A further meeting with the Council took place later that month, attended by Ms C’s representative. They made clear again that Ms C believed it would be in D’s best interests to receive education at home.
38. The next significant event was at the end of December 2018 when the Council issued a further draft EHCP for D. This again named School X as the setting for D’s education.
39. Ms C commented on the draft and requested the Council amend the placement to provide education at home. In response, in January 2019, the Council issued a further draft EHCP, which continued to name School X as the setting. It also said that if D began attending School X it would assess if this was suitable with an officer preparing a report that would go to its SEN Panel.
40. In January 2019 Ms C again said she wanted education provision for D to be provided at home. The Council said it would discuss this request further at its SEN Panel. This met in late February 2019. The Panel recorded maintaining the Council view that D should receive education at School X. There is no record of its discussion or reasons for coming to this view.
41. In March 2019, the Council sent another draft EHCP to Ms C for comment. It said that it continued to note her preference for education at home and it would again discuss this further at its SEN panel. Notes show that in both February and March 2019 the Council consulted further with School X which indicated a willingness to provide a placement for D subject to them receiving one to one support from a medically trained carer (something provided for as part of D’s package of care from the health service and Council social services).
42. In April 2019 the Council issued a final EHCP still naming School X as a placement for D’s education. Ms C went on to appeal this decision. Before the appeal was heard the Council agreed to further amend the EHCP and name D’s provision as being as ‘other than at school’.
43. Ms C made a complaint to the Council about its actions in August 2019. In its reply, at ‘Stage 2’ of its complaint procedure the Council:

• acknowledged poor communication between its services from April 2016 when it knew D was not in school;
• said that it had tried to secure education for D from September 2017 onward but that Ms C did not initially co-operate with the assessment to inform its EHCP;
• that when it first named School X as a suitable placement it was satisfied the school could meet D’s needs.

My findings

On the Ombudsman’s jurisdiction

44. There are two key questions around the Ombudsman’s jurisdiction raised by this complaint. The first is the question of time. The law says that we should not usually investigate late complaints. In this case I find no evidence Ms C complained about the Council’s actions before August 2019. So, I consider any complaint about the Council’s actions before August 2018 is therefore a late complaint.
45. I have considered therefore if there are any special reasons to investigate the Council’s actions before August 2018. Ms C considers we should investigate events from 2014, after she withdrew D from School X.
46. I do not consider it appropriate my investigation go this far back in time. I find the events covered by this complaint began in September 2017. From shortly after this time, I find Ms C expressed clear preferences of what education she wanted for D; where she believed this should took place and what this should consist of. From that day on she was, in effect, in disagreement with the Council about the appropriate education setting for D. Clearly the Council quickly came to the view D should be educated in school as opposed to Ms C’s preference for education at home. The prolonged nature of that dispute is what underpins Ms C’s complaint. I find it reasonable she should have chosen not to complain about that dispute before 2019 when it was finally nearing resolution. Her complaint draws attention to whether the disagreement needed to become so protracted and it is reasonable we investigate that.
47. A different consideration applies when deciding if investigation of the complaint should go back to April 2016 or even further. I find no evidence that Ms C was in any dispute with the education service before Autumn 2017. It is a matter of fact the Council knew that D was out of school at that time, that they had SEN and a statement already overdue for review. It reflects poorly on the Council that despite knowing this it apparently took no action to regularise D’s education.
48. However, there is no record I have found that indicates Ms C expressed dissatisfaction with the lack of involvement of the education service in D’s life. I note that before September 2017 this was also in the context where Ms C had taken D out of school, had an extensive care package and was providing care for D at home with support. Ms C has provided me with social work notes and these do not indicate she was pushing for more involvement from the education service to meet D’s needs. Further, by the fact Ms C had received a statement of SEN for D in 2014 I am satisfied she knew in the most general terms that she may be entitled to educational support for D as well as the health and care package. So, she could have approached that service between 2014 and 2017 either directly or via her social worker to ask for more support and complained if unhappy with its response. There is no record this happened.
49. I find it only occurred to Ms C, once the education service had issued a final EHCP in April 2019, to question why it had not been more involved in D’s life before Autumn 2017. It is a good question and one the Council would do well to reflect on. But it is not our role to pursue local authorities to answer complaints which hinge on events several years previously if there is nothing to indicate the Council was aware of the complainant’s dissatisfaction at the time.
50. The second jurisdiction consideration is that of the ‘alternative remedy’ of appealing to a tribunal. It is the Tribunal that has the necessary expertise and experience to decide on such questions as the most suitable educational placement for a child or the other education content in an EHCP.
51. I find that in April 2019 the Council issued a final EHCP for D and from that point on any dispute about what it contained was subject to the appeal process. Ms C triggered the ‘alternative remedy’ and we cannot take a view on whatever provision D received while the content of the EHCP was subject to appeal.
52. However, I see no reason why we cannot take a view on the Council’s actions between September 2017 and April 2019. I note that in this time frame the Council issued one other ‘final’ EHCP, in May 2018. However, I find that in response to Ms C’s representations the Council embarked on a process of reassessment causing her not to pursue appeal at that time.
53. In these circumstances while it was still open to Ms C to pursue the appeal route instead, it is understandable she did not. The reassessment was an arrangement by consent of the two parties to reconsider D’s EHCP hopefully avoiding the need for appeal. I consider the Council’s actions in undertaking a reassessment of the EHCP from July 2018 onward are therefore within our jurisdiction to reach findings.

On the substance of the complaint

54. The Council knew from September 2017 that D was not in school. It also should have known from that time there was no school place available as D was off-rolled from school in 2014. Yet despite this the Council records show no consideration to asking basic questions such as whether D was too ill to attend school and if so, whether the Council could make some alternative provision at least until a school place was available for D. I am further unable to identify any publicly accessible policy which explains what action the Council will take when it becomes aware of a child who is out of school for reasons of disability or illness.
55. On the facts, I am not satisfied any school place was available for D before April 2019. So, for approximately five school terms the Council failed to consider if there was any support it could offer to D in the absence of an EHCP and in the absence of any school place being available. That was a fault.
56. I accept that from September 2017 onward the Council was making some effort to identify an education placement for D. However, there is little to show what the Council was doing to progress an EHCP for D between November 2017 and April 2018. I do not find its statement that Ms C did not co-operate with its enquiries justified by the evidence it has provided.
57. When the Council then produced an EHCP in May 2018, I find it hurried that document. For example, the Council drafted the EHCP without SLT advice despite knowing about the nature and extent of D’s needs. Clearly at the date of issue School X also had doubts it could meet D’s needs yet was still named on the document. The email trail from that time shows School X had capacity to accept another pupil but qualified its advice as at that time it did not know if it could meet D’s health needs.
58. This was a seriously flawed document therefore. I recognise Ms C could have appealed the content, but I consider it common sense for all parties that instead the Council agreed to reassess it. But then I find the reassessment became bogged down with delay. The Council should have issued a new EHCP within 14 weeks but it took it eleven months. During that time, the Council evidently discussed D’s case several times at its SEN panel yet it did not keep a record of those discussions or what it decided. I cannot see what changed in the Council’s thinking about D’s case between October 2018 and April 2019 and why therefore it did not issue a draft and final EHCP sooner. I accept it was entitled to have a different view to Ms C on the appropriate setting for D’s education. But it served nobody’s interest to prolong the date at which such a disagreement could be aired through an appeal to a tribunal.
59. In summary therefore there was considerable avoidable delay and confusion about the process followed by the Council between September 2017 and April 2019 which justifies a further finding of fault.
60. The injustices caused to Ms C and D from the faults described at paragraphs 55 and 59 are as follows:

• that no provision was made to support D at home, which would have been applicable until such time the Council had issued a EHCP identifying an alternative placement;
• that in the absence of that provision while Ms C supported D to the best of her ability she had to pay for certain therapeutic provisions which would later appear as part of D’s education needs on the EHCP;
• that Ms C was caused unnecessary distress as uncertainty because of the delays and confusion in the Council process and was put to unnecessary time and trouble.

Back to top

Agreed action

61. The Council accepts these findings. To remedy the injustice set out at paragraph 60 it has agreed that within 20 working days of a decision on this complaint it will:

• provide a written apology to Ms C accepting the findings of this investigation;
• agree to reimburse Ms C for any expenses she incurred in meeting D’s therapeutic needs which she funded from her own resources between September 2017 and April 2019 and which it later identified as an education need on D’s EHCP (see further advice in para 63 below);
• pay an additional £3000 in recognition of the loss of provision to D;
• pay an additional £500 in recognition of Ms C’s distress and time and trouble.

62. The Council has also agreed it will try to learn wider lessons from this complaint. Within three months of a decision on this complaint it will:

• ensure it has developed a policy and made this publicly available, setting out its approach when children are too ill (for example through disability) to attend school;
• ensure it has briefed relevant officers on the findings from this investigation; in particular on the need to consider what offer of provision should be made to children who are absent from school while it is drawing up an EHCP; and on the need to avoid repeatedly issuing draft versions of EHCPs which add delay and act as a barrier on parents using appeal rights.

63. With regard to the agreed action for reimbursement I recommend this should begin with Ms C setting out the costs she considers should be covered by this. She should also provide any supporting information to show costs incurred. The Council may reasonably make further enquiries of Ms C if it has reasonable queries about the costs. It can also make reasonable enquiries of Children’s Services or NHS services to check any provision was not provided or paid for by those services. But pending resolution of those, it should seek to settle the reimbursement within 20 working days of receiving Ms C’s schedule. Both parties can refer to this office for advice in the event there is impasse in resolving this part of the recommended action.
64. The agreed action to remedy the loss of provision for D is based on the Ombudsman’s published guidance for remedies. This suggests a figure of between £200 and £600 a month is suitable where a child has missed education. I have based my figure in this case towards the lower end of the spectrum noting the considerable efforts made by Ms C to support D which helped to lessen the impact on them.

Back to top

Final decision

65. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms C and D. The Council accepts these findings and has agreed action to remedy the injustice caused. Consequently, I have completed my investigation satisfied with its response.

Back to top

Investigator's decision on behalf of the Ombudsman