Summary: there was fault by Leeds City Council in relation to the amount of alternative educational provision made to the complainant’s daughter under section 19 of the Education Act 1996. The Council will take the recommended action to recognise this. In addition, the Council did not issue a letter following the review of the EHC Plan. This also amounts to fault though it did not cause injustice

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that Leeds City Council failed to make adequate educational and special educational provision to her daughter, X, from mid-September 2021. X stopped being able to attend school then due to severe anxiety linked to her diagnosis of autism.
2. The injustice Ms B claims is that her daughter has missed out on education and special education provision and Ms B’s ability to work has been affected as a result of her daughter not being in education.

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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. 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

5. I discuss the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft 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.
7. Ms B and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

What should have happened

8. 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.
9. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC Plans at a minimum once every 12 months.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHC plan 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)
14. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
16. Councils must arrange suitable (“suitable” means suitable to the child’s age, aptitude, ability and special educational needs) education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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”.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
20. 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’)
21. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
22. 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 EHC Plan the Council remains responsible for arranging and paying for the provision and for ensuring the special needs provision is made. If a parent states they have decided to home educate their child the Council is not under a duty to make the special education l provision detailed in an EHC Plan. Under section 61 of the Children and Families Act 2014 councils have the power to agree to a child being educated somewhere other than at a school but it must be satisfied that “…it would be inappropriate for the provision to be made in school…”.

What happened

Background

23. X began attending the first year of secondary school in September 2021. At the time she had an EHC Plan issued in October 2020. She is diagnosed with dyslexia and autism. Provision in the EHC Plan included school staff regularly and frequently enabling and supporting X to communicate using different methods, improving her self-confidence and ensuring a robust transition programme was in place to assist with transition to secondary school in September 2021. Other provision related to school staff ensuring X’s ability to learn and make educational progress across the school curriculum, strategies to enable X to develop positive and trusting relationship with school staff to help her manage her emotional state in school including her anxiety and support from school staff to help her skills to manage and maintain friendships with other pupils. The Plan named her primary school as provision in Section I until July 2021 and then a named secondary school placement from September 2021. The Plan was due for review in late September 2021.

Events since September 2021

24. Ms B says X stopped attending school in the same month she started secondary school in September 2021. Despite plans around transition to secondary school being followed, X struggled to manage the transition and the new environment. This resulted in her refusing to go to school.
25. In late September Ms B called the Council to ask for information about how to request Education Other That At School (EOTAS). The Council says it told her to raise it at the EHC Plan review which would be happening shortly. When the review was delayed to mid-October to enable a council officer to attend, Ms B again asked to information on how to obtain EOTAS.
26. The Council says that Ms B told the Council that X had stopped attending school in early October 2021.

Provision from October 2021

27. The Council says the day after Ms B told its staff that X was not attending school it contacted the secondary school. The school confirmed it was providing X with online education through Google Classrooms. The Council says it considered this was a suitable offer under Section 19 given X’s difficulties were not academic but related to being in a school setting. It says it considered part-time flexible provision was in X’s best interests to ensure she could access mental health support she was receiving related to her anxiety.
28. I note that at the EHC Plan review on 12 October Ms B told the Council that X was not accessing the Google Classrooms online provision. On 22 October she emailed the Council to say that X continued to be unable to make any effective use of the Google Classrooms provision as it failed to address X’s identified special needs and was therefore unsuitable. She said that the introduction of a tutor would not be additional to the Google Classrooms work but the only provision as X could not use the Google Classrooms provision.
29. The Council says it referred X to its specialist SEN tutoring service around a week after the review of the Plan. It says tutors began working with X on 10 November 2021 after introducing themselves to her in early November. This was to be an interim arrangement whilst long term arrangements were put in place. The Council argues that it remains of the view that the original offer was suitable when it was made but it accepts that it missed opportunities to differentiate work for X and adapted for her during the early period so that she could engage effectively with it.
30. I note that in an email to the Council in early November 2021 Ms B stated that she had only agreed to the provision of education through a tutoring service as an interim arrangement while the Council sought evidence to support her request for EOTAS.
31. The Council says the tutoring sessions were 1:1 sessions delivered by “highly skilled and experienced tutors and commissioned to deliver interim, part-time supplementary tuition whilst resolving issued with school placements”. The Council says X attended 10 tutoring sessions (sessions delivered by two tutors) before Christmas 2021. It understood these were successful at the time. I note that Ms B has said that X received three hours of tutoring per week for five weeks before Christmas. I have seen the report completed by the tutoring service at the end of its involvement. This provides a high level of detail about the way in which the tutors sought to engage with X and adapted teaching methods to meet her needs.
32. The Council says that around mid-December Ms B asked for the tutor to only deliver English tuition as there was a problem with the maths tuition (I note that X’s strong dislike of maths is referred to a number of times in her EHC Plan and Ms B reported that X said she didn’t want the tutors to come after they both attempted to teach maths in December and this caused X anxiety). The Council says it agreed to this given X’s anxieties.
33. X and her family were unwell during much of January so tutors did not attend the house. On 10 January Ms B said she wanted a plan as to what would happen next but would be happy to continue with the tuition for another two weeks or so. However, three days later X told the Educational Psychologist assessing her that she no longer wanted to receive the tutoring. The Council argues that until that point it understood the tutoring had been going well based on feedback from the tutors, with the exception of the decision about maths tuition in December.
34. At the beginning of February Ms B contacted the Council to say that X was clear she could no longer work with the tutors after what had happened regarding the maths tuition in December when X became very distressed at the way in which the tutors attempted to teach her maths. Consequently no further tutoring sessions were provided.
35. The Council argues that when X stopped attending school in September there were elements of the plan that it would not ensure could be delivered: those involving whole class and groups activities for example. It argues the tutoring service was well placed to and did deliver other aspects of the section F provision including methods of teaching (simplified language, additional time to process and respond for example), use of adapted teaching materials, checking understanding and provision of consistent routines.

Review of the EHC Plan

36. The Council says it does not have any notes of the review meeting in October. It says that instead a “working document” was created and circulated to all those involved promptly after the review meeting took place. It was sent to Ms B with some initial thoughts two days after the review meeting took place. The working document appears to have been a copy of the EHC Plan to which amendments were made so that they could be agreed between those involved. The Council says it also made a referral to the Educational Psychology (EP) service for an assessment. On further investigation of the timing of this referral it is apparent that it was a month after the review meeting that the Council referred the matter to the EP service for consideration of the EOTAS request. It did ask for the EP’s views and advice “ASAP”.
37. It is also apparent that during the review meeting the Council said it would contact its medical needs teaching team. This appears to have been for two reasons: to make alternative provision under section 19 and for a view on the appropriateness of EOTAS for X. Around a week after the review meeting Ms B emailed the Council to express her unhappiness that this referral had not yet been completed despite the Council’s assurances that it had already done this. In response the Council said that it had not in fact referred to the medical needs teaching team because it was not able to as a referrals were only taken from the child’s school or hospital supported by medical evidence from a specialist medical professional. It had instead made a referral to a mental health support service.
38. In early November Ms B appears to have contributed her thoughts and substantive response to the “working document” EHC Plan.
39. The EP assessment was conducted on 14 December 2021 and 5 January 2022. EP report completed on 7 January and circulated on 12 January. The report confirms:
• The school had initially thought that X’s transition to secondary school had gone well – she had attended four transition days in the school in the summer term and her first day in school in September went well with 1:1 support. Strategies to help her into school failed and caused X high levels of anxiety and resulted in her trying to run away from school. In addition Ms B had expressed concern that the school staff did not provide enough “differentiation” for X. So these strategies to try to help X into school ended due to concern for X’s safety and wellbeing and she stopped going to school;
• Ms B and X’s father had been unable to identify any school which they believed X would be able to access and given X’s difficulties at that time concluded that EOTAS was the only workable option at the time;
• She recommended that staff working with X need to be ASC trained and in a group situation she would need 1:1 support, staff need to deliver education with tailored materials and deliver them in a way X can manage, use a dyslexia friendly teaching method and provide a curriculum pitched at mainstream academic ability; and
• X needed provision which provides opportunities for socialising and needs support with anxiety
40. The Council says that following the EP assessment, it agreed to EOTAS and began discussing the EOTAS package with Ms B in late January 2022 and issued a revised draft EHC Plan on 21 February which detailed the EOTAS provision including a personal budget. The EHC Plan was finalised on 8 March. This names EOTAS and a personal budget to support this.
41. The final plan includes provision of 3 hours maths, 3 hours of English and six hours of other curriculum individual tuition a week. The tutor is required to be delivered by a trusted adult experienced in the type of needs displayed by X. It also includes 1 hour PSHE, 1 hour of art, one hour music and 1 hour IT tuition a week.

Ms B’s complaint to the Council

42. Ms B complained in mid-October 2021. She complained that X had been out of education for 15 days and that she had an EHC Plan that the Council was legally obliged to provide. She also complained she had asked the Council to provide it with a copy of its policy about children missing education due to medical needs
43. A response was provided at stage 1 in early November in which the Council agreed it would ask the school to consider what it was providing online at that time and accepted that the provision to that point had not looked very carefully at what it could have provided in addition to Google classrooms. The Council accepts there is no evidence that it followed this up. In relation to Ms B’s request for EOTAs the Council said that this was a significant decision for the Council to make and it wanted more information before agreeing to this.
44. Ms B responded shortly after expressing dissatisfaction with the response at stage 1 and the ongoing action in relation to X’s education and asked for the matter to be considered at stage2 of the complaints procedure.
45. The Council provided its response at stage 2 of the complaints procedure in late November. The stage 2 response stated:
• it was in the processing of considering Ms B’s request for EOTAS but had to be satisfied that no other school placement was suitable before it could decide that EOTAS was appropriate and it was seeking evidence from professionals to reach a decision;
• the Council did not agree that it was wrong for officers to seek evidence to support a need for EOTAS;
• the council considered the Google Classroom provision together with the specialist 1:1 tuition was appropriate. It said that local policies comply with DfE guidance that if, after 15 days absence from school, there is medical evidence that a child will continue to be unable to attend due to medical needs sit can obtain tuition support from the medical needs teaching service which would provide full time education unless that would not meet the child’s needs;
• provided a copy of the policy that had been put together following the earlier Ombudsman report, apologised this had not been provided before and accepted that there was not any policy or advice regarding EOTAS and that the Council would consider this further and was taking action to do so.

Was the Council at fault and did this cause injustice?

Alternative provision under section 19

46. The school provided online teaching using Google Classrooms almost immediately Ms B confirmed that X would not be attending school in early October. I recognise that Ms B did not consider this suitable for X but as an immediate response I do not consider the Council’s acceptance of this arrangement amounts to fault. By the time the review took place around a week later Ms B was clear that this arrangement was not meeting X’s needs and she could not use it. The review appears to have agreed to consider EOTAS as Ms B had requested and, as an interim measure, agreed to identify specialist tutors for X. I consider this agreement to provide tuition confirms that the Council accepted a duty to make section 19 provision. 1:1 tuition from specialist tutors commenced around a month after the review meeting though the Council says it submitted the referral around a week after the review meeting. I consider the individual tuition by the specialist tuition service was set up relatively quickly following the review meeting though I note the Council accepts that it could have offered more differentiated provision in that early period. On balance, given the Council’s acceptance of this, I conclude there is some fault in not making arrangements for more suitable provision before it did and this resulted in some injustice to X.
47. I am satisfied the tuition from the specialist tuition service for five weeks up to mid-December was suitable as alternative provision: the notes later produced by the tuition service clearly demonstrate that the content and delivery was adapted to try to meet X’s communication and learning needs. I recognise that Ms B said X was distressed by the maths tuition provided but do not consider the tuition provided could be considered inappropriate as a result of this. I do not consider three hours a week was sufficient to amount to full time provision as required under section 19 even though this was provided on a 1:1 basis. The complaint response provided in November stated it was sufficient together with the Google Classrooms provision but it seems very clear that X was not able to use the Google Classrooms provision and did not do so after early to mid-October. So, I find fault in the amount of alternative provision delivered in November and December 2021.
48. In response to my draft decision Ms B has said that she also considers the content of the one to one tuition was not appropriate to X’s needs. However, I can see no evidence that she raised this as a particular issue with either the Council or the tuition service. Her communication with the Council on the issue was mostly restricted to her dissatisfaction that the provision was being made at all and that the EOTAS should have been provided promptly after the review in October. I therefore have no grounds to consider the Council should have taken any action to address the suitability of the content as Ms B did not raise it.
49. It seems that during January as a result of illness and later X’s decision she was no longer willing to participate in it, the 1:1 tuition provision could not be made. So I find no fault that none was made for that period of time.
50. There was no provision in place during February. I recognise that M B had said X did not want the specialist tuition service by then but as I understand it, that service could have continued to make some provision then. There are no grounds for me to consider that provision was not still suitable but, even if it had continued, the amount would still have been insufficient assuming it would have continued with the same amount.
51. I recognise that the inadequate provision affected Ms B’s ability to work and caused her avoidable uncertainty and frustration.

EOTAS

52. Ms B has referred to a previous decision in a report issued by this office. She says this states that councils cannot require medical evidence before agreeing to provide EOTAS. The report Ms B refers to states that councils should not rely on a lack of medical evidence as a reason to deny a child access to education or a failure to meet its duty to provide suitable education. I do not consider the Council did this in this case: it accepted a duty to make alternative provision as detailed above and made some provision.
53. Ms B believes it took the Council too long to agree to EOTAS. 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. It decided the best way to confirm this was by way of an EP assessment. The EP assessment was completed by early January. In the meantime the Council started the process of amending the plan promptly after the review meeting with a view to agreeing EOTAS. As soon as agreement to EOTAS was obtained in late January it liaised further with Ms B, issued a draft amended EHC Plan in late February and a final Plan in early March. On balance I do not consider there was fault in the Council’s consideration of the request for EOTAS and do not consider it delayed in agreeing or making arrangements for this.
54. I recognise that the referral to the EP could have been completed more quickly. However, I cannot say with any certainty that this would have resulted in the assessment being completed more quickly. As I have said above, the Council had to be satisfied that it was not appropriate for X to be educated in a school setting before it agreed to EOTAS. As I understand it the Council had initially hoped to obtain a view on this from the medical needs teaching service. Had X been eligible for a service from them and this does not seems to be an unreasonable approach to take. It was a month later before it decided it could not access this quickly enough and it decided to seek a view from an EP instead. Councils have four weeks after a review meeting to inform parents of whether or not they intend to amend an EHC Plan or not and must then complete these amendments “without delay”. Had the Council followed the process properly it should have issued decision on whether or not to amend the Plan four weeks after the review meeting and then gone about seeking the information it needed to make these amendments then. Given these timescales I do not consider it fault that it took the Council around a month to make the referral to the EP service though I accept it could have done so more quickly. But, even if a referral had been made to the EP service earlier, it seems reasonable to assume that it would have taken a month before a first appointment would have taken place. I base this on the fact that it took a month from the time the referral was actually made in mid November until the first assessment appointment took place in mid-December. So, if the Council had made a referral in late October (so around two weeks after the review meeting) a first appointment may have been offered in late November. Asssuming a second appointment would still have been required this may have taken place a week later meaning it would have taken place in early December. The EP may then have been able to issue her report in the first two weeks of December. Flowing from this the Council could then have considered the EP assessment and reached its decision to proceed with EOTAS for X before the Christmas break in 20121. There would then have been the Christmas break until early January when it seems unlikely that much progress would have been made. This may have meant that the process of actively putting together the EOTAS package may have started in early January rather than late January. I consider the difference that could have been made was likely to have been minimal and entirely speculative. On balance, therefore, I do not consider it likely that an earlier referral would have made any significant difference to the pace at which the EOTAS was put in place. I conclude therefore that any fault in the form of delay in making the EP referral could not definitely be considered to have caused injustice.

The review of the EHC Plan

55. The law requires that councils must notify the parties involved, including the child’s parents, whether it proposes to amend the EHC Plan within four weeks of the review meeting. I have not seen any letter to Ms B informing her of the decision to amend within four weeks of the meeting. As this does not comply with the law it amounts to fault. But, it is clear that the Council accepted that new provision was necessary and that it would amend the Plan and it started this process very promptly after the review meeting in October 2021 by circulating the working document asking those involved in the process to make amendments to the existing plan. It also started the process of seeking an updated EP assessment with a view to considering EOTAS seemingly promptly. I do not therefore consider that the failure to issue a letter confirming the intention to amend the plan caused injustice.
56. The law states that where a council proposes to amend an EHC Plan it should start the process of amending without delay. I consider the Council did so in this case as it began distributing the working document and requested the EP assessment reasonably promptly as referred to above. It was for the Council to decide how it could satisfy itself that EOTAS was the best option (ie that no school could meet X’s needs). The Council issued the draft plan in February so it took around four months from the apparent decision to amend to issue a draft Plan. I have carefully considered whether this can be considered “without delay” in this case and have decided that given the need for the input of the EP that this, the apparent prompt request for this and the seemingly efficient assessment and issuing of the EP’s report once she became involved and the prompt completion of the amendments after that date, that this should be considered “without delay” in this case.

Other points

60. Ms B says she had to repeatedly chase the Council to make sure it was taking action to resolve X’s educational and special educational needs provision. I accept it is certainly the case that Ms B did contact the Council frequently. I cannot say with any certainty whether it was Ms B’s frequent contact with the Council that prompted it to take action and that it would not have done so otherwise.

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Agreed action

61. 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.
62. To remedy the identified fault the Council will, within a month of the final decision on this complaint:
• apologise to Ms B and X for the identified fault;
• pay Ms B £400 to recognise the inadequate alternative provision for the half-term following October half-term break in 2021;
• pay a further £200 to recognise that any alternative provision in February would have been inadequate in terms of quantity;
• pay Ms B £250 to recognise the avoidable distress and frustration the inadequate alternative provision caused her.
63. 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 issues appropriate notification of how it intends proceeding within four weeks of an EHC review meeting. The Council will also ask the organisation who arranges an annual review to keep notes of the meeting in addition to any working document produced.

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Final decision

64. There was fault in the adequacy of alternative provision made under section 19 of the Education Act 1996 in that it could not have been considered “full time”. The Council did not issue a letter following the review of the EHC Plan and this amounts to fault but this did not cause injustice.

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Investigator's decision on behalf of the Ombudsman