Summary: Miss C complained that the Council had failed to provide her daughter, F with a suitable education since she started secondary school in 2018. We have investigated events from October 2020. We found the Council delayed in accepting a request for an EHC needs assessment and delayed in finding an alternative education provider who could meet F’s needs. We found F was left with an unsuitable education provider for a year. The Council has agreed to pay Miss C £1800 for the benefit of F’s education and £300 for her time and trouble.

The complaint

1. Miss C complained that the Royal Borough of Greenwich (the Council) failed to provide a suitable education for her daughter, F since she started secondary school in 2018. F has lost out on years of education severely affecting her progress and Miss C has experienced significant stress and time and trouble over a long period.

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What I have and have not investigated

2. I have investigated the events from October 2020 until September 2022. I consider it was reasonable for Miss C to have complained about the older events at an earlier point. Miss C had a right of appeal to the SEND tribunal about the Council’s decision not to issue an Education, Health and Care plan (EHCP). I consider it was reasonable for her to use that right and so I have not investigated the events beyond 14 September 2022.

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The Ombudsman’s role and powers

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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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)

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Provision of education

9. Councils must “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.” (Education Act 1996, section 19(1))
10. 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”.
11. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
12. 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 19(6))
13. 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)
14. 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)

The Ombudsman’s view

15. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
16. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children 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.

Special Educational Needs assessments

17. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. It says where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
18. If a local authority decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for a EHC needs assessment
19. 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. Parents must consider mediation before deciding to appeal. 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.

What happened

20. Miss C’s daughter, F has ADHD, anxiety, sleep disorder and social communication problems. She had stopped attending school, due to anxiety, when she started secondary school in 2018.

Background

21. In 2019 Miss C tried to home educate F, but she did not engage and the Council tried two alternative tuition providers. The first one withdrew before starting, saying it could not meet F’s complex needs. The second provider started in December 2019. However, F has struggled since to engage with the tutor. In general, she does not like leave the house and finds it difficult to engage with people outside her immediate family. She has not attended medical, dentist or hair appointments.

October 2020

22. In October 2020 Miss C requested an EHC needs assessment. She said the current alternative provision was not meeting F’s needs, she was diagnosed with ADHD, had social communication issues, displayed demand avoidant behaviour and had a severe sleep disorder, but would not take her prescribed medication. She said F had been out of education since year 7 and struggled with sickness when forced into a school environment. The Council acknowledged the request and sent Miss C a parental consent form to complete and return. The Council said it did not receive the signed form, so it took no further action but referred the case to its Fair Access Panel (the Panel) to consider a new provision.
23. The Panel met in late October 2020. It said that the issues with attendance appeared to be more connected to Miss C’s needs rather than F and it was very difficult to engage with the family. The Panel noted Miss C had recently requested an EHC assessment and that F was not attending the alternative provision. It asked the inclusion service to convene a meeting to decide whether F needed a new provision.
24. The Education Psychology Service in January 2021 completed a MAP process with F (a person-centred conversation exploring F’s strengths, difficulties, hopes fears and what helps). The Educational Psychologist (EP) met with the Inclusion Service and the tuition provider to discuss the goals identified. A plan was agreed for the tutor to gradually build up a relationship with F, initially via text.
25. A review meeting was held in March 2021, and it was noted F’s attendance was 12.9%. The Council provided her with a laptop.
26. In June 2021 a further review meeting was held, which Miss C attended. The meeting noted F had not been able to engage with the tutor. The meeting decided that the EP would complete assessment work remotely and the Inclusion Service would see if CAMHS could provide remote support.
27. The EP completed the assessment in September 2021.
28. In February 2022 a review meeting was held involving, the Inclusion Service, the tuition provider, the EP and Miss C. They agreed that the tuition provider was not able to meet F’s needs. There were two more review meetings in March and April 2022 and a child and family assessment was completed by social care at the end of April 2022.
29. On 3 May 2022 Miss C and the tuition provider requested an EHC needs assessment. On 8 June 2022 the Council agreed and informed Miss C. It said the deadline for receiving the reports was 25 July 2022. It did not receive the EP report until 5 September 2022. Miss C asked about home education again, but the Council was reluctant given the previous lack of success.

Formal complaint

30. Miss C made a formal complaint in July 2022. The Council responded at Stage one of its complaints procedure. It said:

“In response to your second complaint about the local authority’s failure to provide suitable education, there have been a number of efforts made to support [F] to access education including funding a specialist placement for over two years, arranging tutoring and arranging for an Educational Psychologist to assess [F]’s needs. I can appreciate the journey you have been on to support your daughter  including making a parental request for [F] to have an educational needs assessment.  This was turned down in October 2020 by the SEN panel due to lack of evidence and I can imagine how frustrating this must have been for you.  I believe a new request has now been submitted and there are some reports needed to support this request before it can go to the SEN panel.”

31. Miss C requested her complaint go to stage two of the procedure.
32. The Inclusion Service met with Miss C to discuss the next steps. The Council again agreed to contact CAMHS and aimed to secure a place at a specialist provision for F from September 2022. It also agreed to explore the possibility of outreach work from the autism team but noted that F did not have a diagnosis of autism.
33. The Council responded to the complaint at stage two of its procedure on 30 August 2022. It said:

“By way of support, [the alternative provider] allocated a tutor to work with your daughter. They also sent work home, offered online learning, all the while attempting to keep in contact via Zoom meetings and text messages. Meetings were also convened with Inclusion officers and yourself to review the strategies being used to encourage [F] to engage with her learning. Despite everyone’s best efforts, little progress was made. [F]’s complex needs continued to prevent her from engaging. This meant that it became difficult for professionals to support your daughter and the necessary assessments to be undertaken.”

34. On 14 September 2022 the Council notified Miss C that it had decided not to issue an EHC plan for F. The letter explained her right of appeal to the SEND Tribunal.
35. The Council says F has been on the roll of the new provision since early October. But Miss C said to me in November 2022 that F was waiting for an assessment.

Analysis

First request for a EHC assessment – October 2020

36. The Council said to me that it did not proceed with the EHC needs assessment because Miss C did not return the parental consent form. But it said to Miss C in the stage one response that the panel had refused the request. From the evidence provided I have concluded a formal decision was not made and no further action was taken after the Council sent out the parental consent form. As no decision was made there was no right of appeal to the SEND Tribunal, and I can continue to investigate this period.
37. I consider the Council should have contacted Miss C when she did not return the parental consent form, to check she had received the form, explain that the assessment request could not be considered without it and what she needed to do to progress the request. The failure to do so was fault.
38. However, I do not consider the failure to progress the assessment at that point significantly affected the situation for F, because the Council took appropriate actions to resolve F’s lack of engagement. The Council considered Miss C’s request for alternative education provision and referred F’s case to an EP who completed an initial assessment in January 2021. In February 2021 the Council with the EP and the tuition provider produced a plan to improve F’s engagement with the home tutor. It reviewed the situation in March 2021 and provided F with a laptop.
39. After four months it carried out a further review with Miss C, the EP and the tuition provider and noted that the plan had not been successful, so it commissioned the EP to carry out a full assessment and the Inclusion service agreed to liaise with CAMHS regarding remote support.
40. If the Council had commenced a formal EHC needs assessment it would have engaged an EP, liaised with medical and social care professionals and the tuition provider, which was very similar to the action it took. However, I accept that as it did not proceed with the assessment it did not reach a formal decision and this denied Miss C the right to appeal to the SEND tribunal, which was fault.

Delay in reaching a decision over alternative provision

41. Once the EP completed her assessment in September 2021, there is no evidence the Council took any further action until February 2022 when a multi-agency review meeting decided the tuition provider was unable to meet F’s needs and the tuition provider would start working on an EHC needs assessment request. I consider the Council could have made this decision by the end of October 2021 as F’s level of engagement had not significantly changed and I have not seen evidence that it was waiting for any more reports or information.
42. The tuition provider took another three months to make an EHC needs assessment request which seems excessive, and it is not clear why the Council did not advise Miss C to make the request herself or continue the one she made in October 2020 by completing the parental consent form. This was fault.
43. The Council delayed slightly in completing the needs assessment. It should have informed Miss C within 16 weeks of the date of the request whether it would issue an EHCP. It took 19 weeks.
44. The Council did not suggest an alternative provider until September 2022. I accept the situation was difficult given F’s inability to engage with any person outside the immediate family. But given the low level of F’s engagement with the home tuition I consider the Council could have acted sooner once the EP had completed their assessment in September 2021, to identify some alternatives for F to try.

Injustice

45. It is difficult to conclude whether the delays identified above (in assisting Miss C make a request for a needs assessment and looking for alternative provision for F) significantly impacted on F’s access to education because:
• the outcome of the request made in May 2022 was not to issue an EHCP; and
• there is no indication whether F was able to engage with any kind of education.
46. However, in the absence of any clear medical evidence to support a Council decision that F was unable to access any form of education, I am unable to say that the delays did not cause F an injustice. On the evidence available I have concluded she spent a further year with a provider who could not meet her needs.
47. Miss C was also caused significant uncertainty and time and trouble in trying to access education for F.

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Agreed action

48. In recognition of the injustice described above, I recommended that the Council, within one month of the date of my final decision:
• Pays Miss C, £1800 for the benefit of F’s education and £300 for the impact on Miss C.
• Within three months, reviews its procedures to ensure the Council, in cases where children are not accessing education, makes it a priority to identify the cause of the problem, provides alternative education in accordance with its statutory duties and obtains medical evidence to support decisions where appropriate.
49. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

50. I consider this is a proportionate way of putting right the injustice caused to Miss C and F and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman