Summary: Mrs X complained that the Council has failed to provide her daughter, D, with a full-time education for over three years. She also complained that the Council delayed providing D’s Education, Health and Care plan. She says this has caused D and the family immense distress with D becoming suicidal. Mrs X also has health problems and she says the Council’s approach has had a detrimental effect on her. She asks that the Council compensate D for its failing to support her education and for the impact on the family’s mental health that its approach has had. The Council is at fault for delaying issuing D’s EHC plan and for its approach in other ways. However, it is not at fault for failing to provide D with an education.

The complaint

1. Mrs X complains that:

• D has not received a full-time education since January 2018
• The Council’s closure of a specialist centre where she was receiving education led to D’s self-harming
• The Council delayed issuing D’s Education, Health and Care plan (EHC plan)
• D is still not receiving travel training, as required by her EHC plan.

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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. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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.
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)

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How I considered this complaint

8. I spoke with Mrs X and reviewed the complaint file.
9. I made enquiries with the Council and researched the relevant law and guidance.
10. Mrs X took her complaint to the Ombudsman on 12 January 2021. She says she is unhappy that D did not have a full-time education from January 2018. Mrs X could have come to the Ombudsman about the failure of provision at an earlier date. As set out in my para 6, I cannot investigate late complaints unless I consider there are good reasons. However, as Mrs X has been in continual contact with the Council during the period in question and as she and her family have been suffering from the impact of Mrs X’s poor health and D’s distress, I have exercised my discretion to investigate further back than twelve months. I have taken my starting point as being Mrs X’s request for the Council to assess C for an Education, Health and Care plan.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision

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What I found

Relevant law and guidance

Education, Health and Care Plans (EHCPs)

12. 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 EHC plan 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.
13. A local authority must conduct an assessment of education, health and care needs when it considers that it may be necessary for special educational provision to be made for a child in accordance with an EHC plan. (para 9.3, The Code)
14. The statutory processes and timescales must be followed. Local authorities should conduct the assessment in the most efficient way possible, working collaboratively with children and their parents. It should be possible to complete the process more quickly than the statutory timescales permit, except in more complex cases or where there is disagreement. (para 9.7 The Code)
15. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child is brought to a council’s attention), until the final EHC plan is issued, must take no more than 20 weeks, subject to some exemptions. (para 9.40 The Code.)
16. There are exceptional reasons why a local authority might not be expected to comply with the above timeline. Among these are:

• Appointments with people from whom the local authority has requested information are missed by the child or young person – although this only applies to the duty on partners to comply with a request made under the needs assessment process within six weeks.
• The educational institution is closed for at least four weeks, which may delay submission of information from a school or other institution.

Alternative Education

17. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
18. 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 16(6))
19. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• where full-time education would not be in the best interests of a particular child for reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests, and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.

20. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
21. In the Focus Report, we made recommendations based on examples of good practice seen. We said councils should:

• consider the individual circumstances of each case and be aware that, potentially, 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;
• 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
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Powers to improve a child’s attendance

22. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
23. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
24. Section 437(3) of the Act relates to whether the authority considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)

Background

25. At the time of Mrs X’s stage one complaint to the Council, D was 14. She had been diagnosed with a number of conditions that made attending school difficult for her. She has also been diagnosed as autistic.

Education, Health and Care plan

26. In February 2018 Mrs X asked the Council to assess D for an EHC plan. There was some delay in experts providing reports to the Council. The records show the Council chased this information and in mid May 2018 the Council agreed to carry out an EHC plan for D. In line with the statutory framework, D’s final EHC plan should have been issued by 2 July 2018.
27. The Council says some key information was not received until October 2018.
28. By the time Mrs X took her complaint to the Ombudsman, in January 2021, the Council had still not issued D’s final EHC plan.
29. In response to her stage one complaint, on 18 September 2019, the Council informed Mrs X that delays were due to delays from agencies providing information.
30. It accepted its communication with Mrs X had been poor during the period of assessment.
31. Mrs X complained that staff shortages were not an excuse for a failure to meet statutory deadlines. In November 2019, after Mrs X had asked for her complaint to go to stage two of the complaint’s process, the Council responded that there were certain exceptional circumstances where it may not be reasonable to expect councils to comply with time limits. It added that it had now issued the EHC plan and asked that if Mrs X had an issues with that, she should contact the Council.
32. The final plan had not been issued; the draft plan had been issued on 18 October 2019.
33. In December 2019, the Council asked Mrs X if, given the above response in November, would she still like to progress her complaint to stage two. She said she did and in April 2020 the Council provided its stage two response. It offered her £500 in recognition of delays and poor communication.
34. The final EHC plan for D was issued on 20 March 2020.
35. Mrs X says she disagreed with the contents of the EHC plan but because she had waited so long for it to be issued, she felt she could not appeal.

Analysis

36. The Council should have taken twenty weeks to issue D’s EHC plan. It took two years and almost nine months. This is one year, and almost nine months late. Even if there were initial delays caused by late expert reports, such delay is not reasonable. I am surprised that the Council sought to explain the delay in such terms. It was at fault and given the length of delay, I would have expected it to accept this fault unequivocally. Its letter in November 2020 could be read as trying to give Mrs X the impression that her concerns about delay were unwarranted. It also said that it had, by that stage, issued the EHC plan, when it had not. This is fault. Mrs X could have been put off by such a response. She persevered and the Council accepted its fault at stage two of the complaints process. In April 2020, it offered £500 in recognition of delays and poor communication. But I do not consider that fully acknowledges the fault or injustice.
37. EHC plans are there to help children or young people and the professionals around them use the best approach to their education. There are strict statutory deadlines for that purpose. D should not have had to wait for such a long time for the Council to support her with a plan. Throughout this period D would have felt uncertain and those around her did not have the structure of a plan to provide some certainty to D or to Mrs X about the paths chosen to help her. Especially given the anxiety and distress that Mrs X repeatedly told the Council worries about her education caused D, this is an injustice. I have made a recommendation to acknowledge this by asking the Council to increase the offer of £500 it has made.
38. I have not commented on the issues Mrs X had with the EHC plan that was eventually issued. For example, Mrs X considered that equine therapy should have been included in her plan. Even if Mrs X did not feel she could appeal those issues after such a long wait, it was open to her to do so. The Ombudsman does not have jurisdiction to address those issues.

Provision of education

39. D stopped attending her school in February 2018. She was then referred to a specialist team to provide her with home tuition.
40. Her psychologist supported this approach and suggested that any return to school should be done in a gradual and graded way.
41. D started five hours of home tuition on 25 April 2018. The records suggest she found the prospect of going back to school even with a reduced timetable and flexible hours, very difficult.
42. On 15 October 2018 D moved to 12 hours group learning at an onsite tuition centre. An educational psychologist’s report at the beginning of the year said D had the potential to obtain good GCSEs.
43. Her attendance during the next year was 71 per cent. It was hoped that she would be able to attend full-time in the future.
44. In July 2019 D was told that the centre she attended would soon be closing. Mrs X said this information had a traumatic effect on D. She complained to the Council.
45. The Council responded that the centre would not be closing until August 2020 and in any event, there would still be a service available for those who were medically unfit. However, it said that according to its records, full time education at the centre would not be an option for D.
46. In September 2019, when D started at the centre again, she struggled with her attendance. Mrs X contacted the Council to say that the thought of attending had made D self-harm. She said that D had been expecting to have full time provision and not having this had caused her anxiety. Mrs X also said D found her core subjects overwhelming and Mrs X decided it was better if she educated D at home for her own safety.
47. In early October 2019 D went back to five hours of home tuition per week. According to the Council’s records D found it hard to access this number of hours per week. Her attendance from 23 October 2019 to 9 January 2020 was 44 per cent.
48. Mental health professionals overseeing D’s case said, in late October 2019, that D was likely to need an educational placement that could manage extreme levels of anxiety. It was noted that D had said that the way she was informed about the closure of her specialist centre had increased her anxiety. It was also noted that there was no possibility of D returning to her school.
49. On 13 November 2019 the Council sent Mrs X confirmation of the education on offer for D. It said that she currently had 1:1 home tuition. She was, it said, at that point, accessing four hours. It said she could access “as little or as much as [D] can manage.” She was also accessing four hours through a home tuition art group. Again, the Council said she could access as little or as much as she could manage.
50. It said that a number of other options were available to D, including home tuition at another venue, joining a nurture group or attending extra-curricular home tuition groups. It said that “…all of the above are on offer to [D] at any point…at any time. These are flexible and [D] can transition between them as her health needs improve or deteriorate.”
51. In January 2020 the records show that D was offered 12 hours per week. Her attendance between 14 January to 10 March 2020 was 50 per cent.
52. There was then a period where restrictions caused by the COVID 19 pandemic intervened. But between 16 September to 18 June 2021 D’s attendance, although only five hours per week, improved to 87.5 per cent.

Analysis

53. The Council has a duty to provide a suitable full-time education for children who are unable to go to school. However, in this case I consider it acted understandably with caution given the difficulties D had accessing education. I am particularly persuaded by its letter of November 2019 where it set out the various options that were available for D. It stressed that she could access as much or as little education as she felt she was able to access. It had to tread with care when urging D to accept provision because she was evidently finding accessing education very distressful. I can not find it at fault for failing to provide an education when it appears from the records that D found this so difficult.
54. Mrs X says D’s real anxiety was triggered by the way in which she was told the centre where D was receiving education was going to close. I cannot determine that this factor alone caused D’s mental health to deteriorate. Further, at that point, the centre was not due to close until the end of the following year. During the first term of the next academic year D hardly attended at the centre at all and started receiving home tuition. Even though she was only receiving five hours per week, her attendance was very low. It is understandable that the Council did not want to push this. It is clear there were concerns about D’s fragile mental health.
55. It is understandable that Mrs X is so concerned about the fact D lost so much in education over the years. However, the Council acted in line with the recommendations from mental health professionals to take an approach that caused the least upset to D.

Travel training as per D’s EHC plan

56. Mrs X says that D is still not receiving her travel training as allowed for in her EHC plan. Her 2020 plan said that she was very anxious about travelling alone in a taxi to attend education. Her 2021 plan said this should be arranged at suitable times as part of a life skills programme in preparation for post-16 education.
57. The Council responded to our enquiries on this point by saying that D’s on-roll school is the holder of her EHC funding and it is being organised through the school.

Analysis

58. The Council is responsible for ensuring that the provision set out in the EHC plan is provided. This training is clearly needed to help D progress back to full time education.
59. The Council’s response indicates that it has devolved that responsibility to D’s school, which is fault. I have made a recommendation to address this.

Conclusions

60. I am concerned that the Council took so long to issue D’s EHC plan. The delay was unacceptable. D clearly had serious difficulties accessing education and Mrs X and D will now never know whether if she had been issued with her EHC plan at an earlier date, this might have helped them feel more secure in approaching her return to full time education. I have recommended a higher sum than the £500 offered to D from the Council to acknowledge the length of time the family were left waiting.
61. However, I do not consider the Council was at fault for failing to support D’s school education or a more comprehensive alternative education plan. Medical professionals determined that D could not return to her school. Although D was upset by the news that the centre she attended was closing, she could still have attended for another two academic terms. Further, the Council wrote to her offering a range of other alternative offers. I note that the Council, in line with the statutory guidance referred to in my paragraph 19 above, said D could have as much education as D’s health condition would allow. D, however, did not appear to be able to access more than she was at that point.
62. The Council should make enquiries with D’s school to ensure the provision laid out in her EHC plan is being provided.

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Agreed action

63. Within a month of my final decision, the Council should pay Mrs X the sum of £1000 to acknowledge the prolonged distress caused by the delay in providing D with her EHC plan.
64. It should also make enquiries with D’s school to ensure D’s travel-training is provided. It should provide evidence to the Ombudsman setting out the provision organised so far. If any provision has been missed, the Council should consider making Mrs X and or D an offer to remedy missed provision. If Mrs X is unhappy with any offer, she can return to the Ombudsman.
65. Within three months of my decision, the Council should be able to show that it has systems in place to ensure it meets the statutory deadlines it is required to meet in the EHC plan process.
66. The Council should provide evidence of all of the above to the Ombudsman.

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Final decision

67. I have found the Council at fault and that this caused Mrs X an injustice. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman