The Ombudsman's final decision
Summary: Mrs H complained the Council failed to provide enough alternative educational provision for her daughter. She also said it failed to follow the statutory timescales for the Education, Health and Care Plan process and failed to respond to her communication. We found the Council at fault for failing to meet the statutory timescales, failing to provide suitable alternative provision, and some delay in taking steps to put other support in place, or make referrals. The Council agreed to apologise and make payment to remedy the injustice this caused Mrs H and her daughter.
The complaint
The complainant, whom I shall refer to as Mrs H, complained about the Council’s handling of her daughter’s (Child X) special educational needs and support. She said it: failed to provide Child X with enough support to access her education at her school, or through alternative educational provision; caused delays in the Education, Health and Care Plan (EHCP) process; failed to consider Child X’s and Mrs H’s views, communicate, and respond to Mrs H properly; and wrongly put pressure on Child X to complete her GCSEs in 2022 when she was not ready to do so.
As a result, Mrs H said she and Child X experienced distress and uncertainty, and Child X had a loss of educational provision.
The Ombudsman’s role and powers
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) The law 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. We cannot investigate if they have already appealed to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
As part of my investigation, I have: considered Mrs H’s complaint and the Council’s responses; discussed the complaint with Mrs H and considered the information she provided; considered the information the Council provided in response to my enquiries; and considered the law and guidance relevant to the complaint.
Mrs H and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education, Health and Care Plan (EHCP) A child with special educational needs (SEN) may have an EHCP. 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 educational provision or name a different school. Only the SEND Tribunal can do this.
A local authority must review EHCP’s at least every 12 months. It must then: decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting; issue a final EHCP or its decision not to amend the EHCP at all as soon as practicable, and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment. Or they disagree with the special education provision, or the school named in the child’s EHCP.
Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from, it should step in to arrange provision.
The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) What happened Child X has a diagnosis of ADHD, ASD and a communication disorder which impacts her ability to engage with her education and people around her. She also identifies as transgender. Her GP and the local Children and Young People’ Mental Health Service (CAMHS) have referred her for support with the challenges she continues to experience from this.
In July 2021 Child X started attending a new school (School Y). She had an EHCP which set out the special educational needs provision she should receive. This included: a reduced timetable due to her anxiety and difficulties engaging with her education. This was with a focus on Math, English and Science to help her prepare for her GCSEs; support from a key adult; some limited 1:1 support; and access to laptop to support her writing skills and manage her learning.
School Y attempted to increase Child X’s timetable, but her engagement with the provision was limited. By the end of her first term in the 2022 academic year, Child X’s attendance remained very low.
EHCP process As part of Child X’s EHCP annual review, School Y considered Mrs H and Child X wishes and views for her special educational needs. This included her desire to complete her GCSE’s, to receive academic support in her home, support to leave her home, and for referrals for Gender Identity Dysmorphia to be accepted. She also asked the Council to list a different school (School Z) in Child X’s EHCP.
The annual review meeting record of Child X’s EHCP recommended changes in her EHCP. It also set out: her reduced timetable of 8 hours per week in school should remain in place, as previous increases in the timetable had not been successful; she needed counselling and mentoring work to support her with socialising and leaving her house; she should have alternative provision alongside her reduced School timetable to support her educational needs further; and she was on the waiting list for Gender identity Dysmorphia following her GP and the local CAMHS service had referred her for support.
The Council issued Child X’s draft amended EHCP in late 2021. Mrs H made comments on the draft, some of which the Council agreed to make. This led to a further draft EHCP to be issued.
In early 2022 the Council consulted with a number of education settings to determine if they could meet Child X’s needs.
In March 2022, the Council issued its final amended EHCP for Child X. Mrs H asked the Council to list School Z to be Child X’s school from September 2023 in the amended final EHCP.
In April 2022 the Council agreed to list School Z in Child X’s EHCP, which was set out in a further final EHCP in May 2022.
Alternative provision From late 2021, the Council’s allocated case worker worked with Child X and Mrs H to put in place some alternative provision. The Council said this included: a referral to an organisation supporting young LGBT people and their families with counselling support. Child X did not find the organisation suitable, and Mrs H asked the Council for a referral for other counselling support. The Council approached other counselling providers, but none of them were able to meet Child X’s needs; and 15 hours mentoring per week from a local provider which started in late 2021 and ended in July 2022 to help Child X get out of her home and to improve school attendance.
The Council said it considered providing tuition support for Child X’s as well. However, it decided not to do so as she was attending School Y when she was able to do so.
Mrs H’s complaint Mrs H submitted a detailed complaint to the Council. The key parts were that the Council: failed to provide Child X with enough support to access her education at her school, or through alternative educational provision; caused delays in the EHCP process; failed to consider Child X’s and Mrs H’s views, communicate, and respond to Mrs H properly; and wrongly put pressure on Child X to complete her GCSEs in 2022 when she was not ready to do so.
Mrs H also told the Council Child X needed more SEN provision and transport support, and the School Y had put pressure on Child X.
In response the Council told Mrs H it had tried to ensure Child X needs were met. This included some support which was not in her EHCP at the time for counselling and mentoring. It said: it had considered Mrs H’s comments and issued its draft and final EHCP’s for Child X after the annual review. It acknowledged it had not met the statutory timescales, but explained this was because it had worked with Mrs H and it had not caused the delays; its annual review for Child X found she struggled to attend school. It decided she would benefit from mentoring to improve this. However, it acknowledged an email from its case officer had incorrectly also referred to tutoring. It apologised if this had caused confusion, but its view was the provision was not meant to replace her educational provision from School Y; it regarded all out of school provision to be alternative provision, and it was School Y’s duty to work with Child X and Mrs H to provide an education or tuition when she was not physically attending; it had responded to most of Mrs H’s emails to its service. However, it apologised for instances where this had not happened; it had considered Child X’s views and her wish to receive mentoring and tutoring at home, including the views of everyone who worked with her. However, it found individual tutoring would not allow her to achieve the outcomes she wanted; it acknowledged and apologised for its delay in acting on Mrs H’s dissatisfaction about the Counselling support and how this impacted the family. Including how this had not been discussed with her beforehand and its delay in signposting her to her GP and the CAMHS service; and Mrs H should speak directly with School Y to discuss her concerns about the pressure she felt it was putting on Child X. The Council would only get involved where provision set out in the EHCP was not provided by the School.
Mrs H was not satisfied with the SEN provision set out in the Council’s final amended EHCP for Child X and has since appealed this to the SEND tribunal.
Mrs H asked the Ombudsman to consider her complaint, as she remains unhappy with how it handled Child X’s educational provision when she struggled to attend School Y since autumn 2021.
Analysis Mrs H’s complaint included concerns relating to Child X’s EHCP, such as the naming of a school, the amount of SEN provision, and how provision should be delivered. These matters were appealable to the SEND tribunal, I cannot therefore consider these concerns further. I also understand Mrs H has since appealed to tribunal.
However, I can consider the ECHP process and whether the Council provided the provision set out in Child X’s EHCP and ensured she received a suitable full-time education. This also includes the counselling and mentoring provision the Council agreed to provide Child X outside her EHCP.
The EHCP process and communication The Council agreed and apologised to Mrs H for failing to meet the statutory timescales to issue Child X’s final amended EHCP.
The Council should have issued its final amended EHCP by the end of January 2022, but this first happened two months later.
I acknowledge the Council worked with Mrs H during this time with the aim of ensuring the EHCP met Child X’s needs, and some delay was due to Mrs H not receiving a posted version of the draft amended EHCP. However, the statutory timescales are mandatory, and Government has decided it is reasonable for a local authority to complete the process within these. The Council was therefore at fault, which caused Mrs H uncertainty and a two-month delay in her ability to appeal the final amended EHCP to the SEND tribunal.
The Council apologised to Mrs H for instances where it had not responded to her communication. I am satisfied this caused her some distress. However, in most cases her communication was responded to, the Council’s apology was therefore enough to remedy the distress this caused her.
Counselling Following Child X’s annual review, the Council agreed to provide counselling to support Child X with her school attendance and how her identification as transgender impacted her.
The Council arranged for a suitable LBGT organisation to provide counselling support for Child X. However, it agreed it had not discussed the offer of support properly with Mrs H. As a result, the counselling support did not work out. The Council also agreed it caused a delay in referring Child X to her GP and CAMHS for such support.
I found the Council was at fault for its failure to discuss the offer with Mrs H and refer Child X to her GP and CAMHS without delay. This caused Mrs H and Child X uncertainty and is likely to have caused short delay in Child X receiving the agreed counselling support.
Mentoring The Council agreed to provide mentoring support to Child X following its annual review in late 2021. It arranged for the support to start shortly after.
Mrs H was not satisfied with the amount of support and how much funding the Council provided to facilitate the support.
The Council said it considered the counselling and mentoring support to be alternative provision which was put in place to support Child X attend her education at School Y, which was available to her.
I found the Council’s view to be incorrect. It proposed mentoring and counselling support was not alternative provision as none of these provisions were to provide Child X with an education. Rather, these were SEN provisions to support her access to the education available to her in School Y.
As the mentoring support started soon after the Council agreed to provide it, and it provided the funding it had agreed to, I have not found the Council at fault for any delays in putting this in place.
I cannot criticise the level of provision or how the provision should be delivered, as such issues could be appealed to tribunal, once the amended final EHCP was issued.
Alternative provision Child X’s EHCP from 2021 put her on a reduced timetable with priority for key subjects to enable her to progress towards her GCSEs. It is clear from the evidence she struggled to attend the reduced timetable.
During the annual review Mrs H, Child X and School Y said she should receive alternative provision otherwise than in school to ensure she received a suitable education. They acknowledged this may not be full time.
Both Mrs H and Child X shared their views the alternative education should be in their home.
The Council’s view was Child X would not meet her EHCP outcomes from individual tutoring. It said this was because: she wanted to get her GCSEs and an education; she wanted to meet other transgender people and participate in cooking and outings to leave her house; and there were concerns about how much provision Child X could manage at the time.
I found the Council’s view, the individual tutoring would not allow her to reach these outcomes, was flawed and it failed its duty to arrange education for Child X, who because of exclusion, illness, or other reason would otherwise not receive a suitable education. This is because: it was clear from the annual review, without suitable alternative provision in the form of tutoring, she was not receiving an adequate education, fulltime or as set out in the reduced timetable. This was evidenced in the form of Child X’s limited attendance since the start of the academic year; Child X shared her wishes and needs to engage with alternative provision in her home which she felt able to manage; and Child X’s wishes to get out of her house to meet other transgender people and participate in other activities would not be achieved in School Y, but through SEN or Social Care provision such as the mentoring and counselling support.
While I acknowledge the Council’s view it had funded School Y to provide Child X with an education, it remained the Council’s responsibility this happened in practice. When School Y shared its view Child X should receive alternative educational provision in the annual review, the Council should have asked the School to provide the tutoring or arranged the tutoring itself. This could have been in Child X’s home, or in another setting which was found to be suitable for her.
I cannot say how much tutoring would have been suitable for Child X to receive at the time. This should have been discussed with Mrs H, Child X, and the professionals around her, and a plan should have been made as set out in the statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs (January 2013)’, and regardless of the tutoring her reduced timetable at School Y should have remained available to her. However, I am satisfied the Council’s fault led to a loss of educational provision for Child X, and this also caused her and Mrs H uncertainty and distress.
Agreed action
To remedy the injustice the Council caused to Mrs H and Child X, the Council should, within one month of the final decision: apologise in writing to Mrs H, and pay her £250 to acknowledge the distress and uncertainty she and Child X experienced as a result of its failure to adhere to the statutory timescales for the EHCP process and to put in place suitable alternative provision for Child X; pay Mrs H an additional £150 for the time and trouble she had to bring her concerns to the Council’s and Ombudsman’s attention; and pay Mrs H £1000, to use as she sees fit for Child X’s educational benefit, to acknowledge Child X’s loss of alternative provision at a key stage in her education from late 2021 to March 2022 when the final amended EHCP was issued.
Within three months of the final decision the Council should also: remind its staff to ensure all communication is acknowledged and responded to as set out in the Council’s Policy, and agreed steps for external referrals are actioned without delay; remind its staff of the statutory timescales to complete the EHCP process, which regardless of well-intended attempts make amendments to consider parents views, should be adhered to; and Provide training or guidance to its staff to ensure alternative educational provision is properly considered in line with statutory guidance for children who because of exclusion, illness, or other reason would otherwise not receive a suitable education. This includes demonstrating it has considered the views from parents, children and professionals, and clear reasons why it should depart from such views are recorded and shared with the persons involved.
Final decision
I have completed my investigation with a finding of fault which caused an injustice.
Investigator's decision on behalf of the Ombudsman