Summary: Mrs B complained about the Council’s failure to provide suitable education for her child, C, when they were unable to attend school because of anxiety and about delay in reviewing C’s education, health and care plan (EHCP). The Ombudsman found the Council was at fault in failing to make alternative provision when C was unable to attend school. It was also at fault in that it delayed in reviewing the EHCP and in responding to Mrs B’s complaint. The Council has agreed to issue an up-to-date EHCP, put in place alternative provision for C, apologise and make a payment in recognition of C’s lost education and SEN provision and the distress and frustration caused.

The complaint

1. Mrs B complains about the Council’s failure to provide suitable education for her child, C, who has an education, health and care plan (EHCP), when they were unable to attend school after their placement broke down. She also complains that the Council failed to comply with relevant timescales associated with the review of the EHCP and with her complaint. The Council’s failings have led to missed education, causing her child disadvantage.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided. I also considered relevant legislation and statutory guidance including:
• the Education Act 1996;
• statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs 2013’; and
• statutory guidance ‘Alternative provision 2013’.
5. Mrs B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
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.

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What I found

Legal and administrative background

Children with special educational needs

7. A child is special educational needs may have an education, health and care plan (EHCP). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.

Annual reviews

8. Councils should ensure an annual review of the child’s EHCP is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either: maintained the plan; cease the plan; or amend the plan.
9. Within four weeks of a review meeting, a council must notify the child’s parents of its decision to maintain, amend or discontinue the EHCP. (Section 20 (10) Special Educational Needs and Disability Regulations 2014)

Education for children who cannot attend school for medical reasons

10. Section 19 of the Education Act 1996 states that councils have a duty to arrange suitable education at school or otherwise for pupils who, because of illness or other reasons, may not receive suitable education without such arrangements being made.
11. Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children who are out of school because of their physical or mental health. It states councils should:
• have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy should make links with related services in the area, such as the Special Educational Needs and Disability Service and Children and Adolescent Mental Health Service (CAMHS);
• have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
• not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
12. It also states 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.
13. Government guidance, ‘Alternative Provision 2013’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. The provision should generally be full-time unless it is not in the child’s best interests because of their physical or mental health and should enable the child to achieve good educational attainment on par with their mainstream peers.
15. We issued a focus report in January 2016, “Out of sight…. out of mind?”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations including that councils:
• consider the individual circumstances of each case and be aware that they may need to act whatever the reason for absence, even when a child is on a school roll;
• consult all professionals involved in a child's education and welfare;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• act without delay to ensure the child is back in education as soon as possible.
16. The report says councils should not assume that schools shoulder the entire responsibility for a child’s education.

Key facts

17. Mrs B’s child, C, is autistic and suffers from severe anxiety. They were attending a mainstream secondary school which was named in their EHCP. An annual review of the EHCP was held in May 2019.
18. In October 2019 Mr and Mrs B raised concerns that the school was no longer able to meet C’s needs. They said C had been unable to attend full-time education since September 2019 because of the level of their anxiety.
19. In November 2019 the Council’s provision evaluation officer attended a meeting at the school with Mr and Mrs B to discuss their concerns. C was on a reduced timetable and it was agreed they would continue with this with a view to working towards full-time attendance.
20. On 13 January 2020 Mrs B requested an education, health and care needs re-assessment. She explained C had not attended school because of anxiety since December 2019. She believed the school was no longer able to meet their needs and gave detailed reasons for this.
21. On 20 January 2020 the school contacted the Council’s SEN team raising concerns that C had not attended since December 2019. It said it had advised Mrs B that, if she was unhappy with the school’s suitability, she would need to submit a request for an early review of C’s EHCP. The school also requested support from the Council’s inclusion and attendance service.
22. On 23 January 2020 Mrs B provided a letter from C’s GP. She also chased up a response to her request for a re-assessment of C’s needs. The following week an officer from the inclusion and attendance service attended a meeting at the school.
23. On 7 February 2020 Mrs B again chased the Council for a response to her re-assessment request.
24. On 2 March 2020 an annual review was held at the school. The Council received the annual review paperwork on 5 March 2020. It then made a referral for an educational psychologist (EP) assessment and agreed to await the findings before considering Mrs B’s request for a change of placement. C was added to the waiting list for assessment. The EP explained there would be a long wait and, because of COVID-19 restrictions, they would not be able to conduct a home visit.
25. On 22 May 2020 the Council wrote a letter to Mrs B explaining it would not take any further action because the annual review report indicated the EHCP and the provision remained appropriate. However, it did not send the letter.
26. On 4 June 2020 Mrs B complained about the Council’s lack of action regarding her request for a reassessment. She also complained that it had failed to provide suitable education for C who could not attend school because of illness. She asked the Council what alternative provision it would provide while they were awaiting the outcome of the reassessment.
27. The Council responded to Mrs B’s complaint at stage 1 of its complaints procedure on 10 June 2020. It explained that her request for a re-assessment had been agreed by the Council following discussions with the school and apologised that she had not been informed of this. The Council explained that, because of unprecedented demand, there was a delay in completing the EP assessment but it had now asked for this to be prioritised. It said it had informed the school that no amendments would be made to the EHCP but this would be revisited once it received the EP assessment. In the meantime, it was the school’s responsibility to provide education as C was still on the roll.
28. The EP contacted Mrs B to arrange a remote assessment in view of COVID-19 restrictions but it was agreed that this would be postponed until a face-to-face assessment could be done because C would be unable to engage fully with a remote assessment.
29. On 27 July 2020 Mrs B submitted a stage 2 complaint. She said she had not been informed of the Council’s decision that no amendments would be made to C’s EHCP. She also said C still did not have appropriate provision and the school was not providing a tutor for them to access education at home.
30. On 29 July 2020 the Council wrote to Mrs B confirming its decision that the EHCP remained appropriate and no amendments were necessary. It also confirmed it had agreed to carry out a new assessment via an EP but could not say when this would take place. It apologised that Mrs B had not been informed of this sooner. The letter notified Mrs B of her right of appeal against the decision and explained that, before appealing, she must contact the mediation adviser.
31. On 1 September 2020 Mrs B sent another email to the Council complaining that it was not providing suitable education for C. The SEN team responded confirming C remained on the list for an assessment.
32. On 22 September 2020 the Council responded to Mrs B’s stage 2 complaint. It said it was the school’s responsibility to provide education for C and the SEN team had contacted the school about this. It also confirmed that, once it received the advice from the EP, it would make any necessary amendments to the EHCP.
33. On 30 September 2020 Mrs B requested mediation. The mediation service contacted the Council offering mediation on 29 October 2020. The Council did not respond.
34. The EP assessment was completed during October 2020 and the Council received the EP report on 29 October 2020.
35. On 3 November 2020 Mrs B sent an email to the Council asking for information about next steps. Having received no response, she sent a further email on 9 November 2020. The Council responded apologising for the delay and said it would be in touch shortly.
36. On 16 November 2020 Mrs B contacted the Council again requesting a response.
37. The following day the Council wrote to Mrs B confirming it had received the EP report and would include information from it in the amended EHCP. It also confirmed it agreed to her request for a change of placement.
38. The amended EHCP was ready to send to Mrs B on 16 December 2020 but on 18 December 2020 she sent the Council an occupational therapy (OT) report. The SEN team included this information into the EHCP and sent it to be quality assured on 29 December 2020.
39. On 16 February 2021 the SEN district leader quality assured the amended EHCP.
40. The Council then decided that, as an annual review was now due, it would be appropriate to use the new reports and hold an annual review meeting before issuing the EHCP and actioning a change of placement. Meantime, C remained out of school with no alternative provision.

Analysis

Failure to provide a suitable education when C was unable to attend school

41. Mrs B informed the Council in January 2020 that C was not attending school because of anxiety. She repeatedly asked it to make alternative provision for C. The Council says it did not do so because:
• it did not have medical evidence to say C was unfit to attend school; and
• the school was responsible for providing suitable education because C was on the roll.
42. These reasons indicate a lack of understanding of the legislation. The Council has a statutory duty to provide education in cases where children are not able to attend school because of medical conditions or other reasons.
43. Section 19 of the Education Act requires the Council to make suitable educational arrangements for children of compulsory school age where absence is “by reason of illness, exclusion from school or otherwise”. ‘Otherwise’ potentially includes any reason for absence from school as long as it is reasonable. So, even without medical evidence, the Council had a duty to arrange suitable alternative education provision for C.
44. The law does not say interim provision will only be given where there is medical evidence. A lack of medical evidence does not negate the Council’s duty to provide the child with a suitable education. The Council is entitled to ask for medical evidence but it should also consider “other evidence” to prevent a delay in arranging educational provision. The Council should consider the individual circumstances of each case and be aware that it may need to act whatever the reasons for absence, even when a child is on the school roll. The Council should have considered information from the School, C’s doctor, Mrs B and the inclusion and attendance team who were all aware of C’s difficulties with anxiety. I find the Council was at fault in failing to consider C’s individual circumstances.
45. The Council accepts it was at fault in not making educational provision since November 2020 when it agreed an alternative placement was required. But the Council was aware from 13 January 2020 that C was not attending school because of anxiety and was under a duty to provide alternative provision from that point. The guidance is clear that alternative provision should be in place as soon it is clear the child will be absent from school for 15 days or more. By the time the Council was aware C had already been out of school for 15 days.
46. I find the Council was at fault in failing to arrange alternative provision for C from January 2020. The law is clear that, where a school does not make appropriate arrangements for a child who is missing education through illness, the council must intervene and make such arrangements itself. The Council was aware the school was not making suitable arrangements but made no attempt to provide C with any form of alternative provision. This was fault and caused C a significant injustice as they have been without a suitable education since January 2020.

Policy for children missing education because of ill-health

47. The Council does not have a policy in place for children missing education because of ill-health. Government guidance says councils should have a policy to show how different services will work together to meet pupils’ needs. As this is statutory guidance we would expect the Council to have good reason for not following it.
48. I find the Council’s failure to have a policy was fault and contributed to its failure to provide education for C when they could not attend school due to illness.

Failure to meet timescales associated with the review of the EHCP

49. The EHCP should be reviewed annually. A parent may request an early review where it is necessary to change the EHCP more urgently. An annual review was held on 2 March 2020. At the review Mrs B requested a change of placement. The Council should have made a decision on this request within four weeks in line with statutory timescales. The Council did not make a decision until 4 June 2020. This was fault.
50. Mrs B requested a re-assessment of C’s education health and care needs on 13 January 2020. The Council must notify the parent of its decision on the request within 15 calendar days of receipt.
51. The Council accepts there were significant delays following Mrs B’s request for a reassessment. It did not follow the statutory process for re-assessment under the Children and Families Act 2014 and did not respond to the request within 15 days. This failure meant Mrs B was not given a right of appeal.
52. On 3 April 2020 the Council referred C for an EP assessment. It accepts that, at this point it agreed to the re-assessment, but it did not inform Mrs B of this.
53. The Council accepts that, because of an administrative error, a letter dated 22 May 2020 explaining that it would not make any amendments to C’s EHCP and declining the request for a change of placement was not sent. As a result, Mrs B was unaware of this information and was denied the opportunity to appeal. This error was not recognised until two months later and the letter was sent to Mrs B on 29 July 2020 giving her the right of appeal and information on how to apply for mediation.
54. Mrs B requested mediation. The independent mediator contacted the Council suggesting a date for mediation. The Council did not respond. This was further fault. The Council accepts that, by not responding to this request, it failed to give Mrs B the opportunity to discuss her concerns informally through mediation.
55. The re-assessment should have been completed within 14 weeks from the date of the request and a new EHCP issued. However, there were significant delays. The reassessment was not completed until November 2020. An amended EHCP has still not been issued.
56. I find there were significant delays in the process. In addition, the Council failed to keep Mrs B informed and failed to respond to the request for mediation. These failings caused Mrs B distress and frustration and she was put to the time and trouble of complaining to the Council and the Ombudsman.

Failure to respond to Mrs B’s complaint within relevant timescales

57. Mrs B complained on 4 June 2020. The Council responded within its timescales. Mrs B escalated the complaint to stage 2 on 27 July 2020. The Council did not respond until 22 September 2020 which was outside its timescale of 20 working days. This was fault and caused Mrs B additional distress and frustration.

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Agreed action

58. The Council has agreed that, within one month, it will:
• send a written apology to Mrs B for the failures I have identified;
• pay C £6000 to be used for educational, social and mental health purposes, for their lost education and SEN provision since January 2020;
• pay Mrs B £500 in recognition of the distress and frustration caused by the Council’s delays and failure to keep her informed together with her avoidable time and trouble in pursuing the complaint;
• issue an up-to-date EHCP; and
• put in place alternative provision for C.
59. The Council has also agreed that, within three months, it will:
• have in place a policy for children missing education for medical reasons. The policy should take account of current guidance and legislation;
• provide training to relevant Council staff on the statutory duty to provide suitable education when a child is absent from school due to illness, exclusion or otherwise and the need to consider the individual circumstances of the case and all the evidence available; and
• carry out an audit of children of compulsory school age who are on roll but have not attended school for more than 15 school days and where alternative provision is not being supplied, to ensure there is an assessment of their educational needs and how these are being met.
60. The Council should provide us with evidence of how it has completed these actions.

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Final decision

61. I find the Council was at fault in failing to provide Mrs B’s child with any education when they were out of school because of anxiety.
62. I find the Council was also at fault in that it delayed considerably in completing a re-assessment of C’s needs and in issuing a revised EHCP. It also failed to keep Mrs B informed and delayed in responding to her stage 2 complaint.
63. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman