The Local Government and Social Care Ombudsman has recently published a case where Norfolk Council must reimburse £1,500 the family spent obtaining professional reports and pay the parents £5000 for their child’s lost opportunities for education and support, plus £500 for their avoidable distress caused by the Council’s faults.
The Ombudsman says that Councils are responsible for arranging suitable full time education for children who because of illness would not receive education. The 2013 Guidance says that 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.
In addition, the Ombudsman says Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need a Statement or, since September 2014, an Education, Health and Care Plan (EHCP).
The Local Government Ombudsman issued guidance to councils in September 2011, and amended in June 2016, on how he expects them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The Ombudsman recommended that Councils should:
- consider the individual circumstances of each case and be aware that 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;
- 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.
In November 2011 Child B was formally diagnosed as suffering from Aspergers. In January 2012 the school provided an Individual Education Plan to the child but he did not have a Statement. At this stage the Council was considering prosecuting the mother for failing to ensure school attendance even though it knew the boy had medical needs which made it difficult for him to attend school.
In May 2012 the mother asked for a statutory assessment of her son’s SEN. She also wrote to a number of people at the Council and at school explaining that her son was very isolated and spent most of his time in his bedroom. The Council refused the request. In September 2012 the mother appealed to the SEND Tribunal against the Council’s refusal to assess. The Council arranged a tutor for one hour a day for three days in September 2012. The boy remained on the school roll although he did not attend and the council told the mother it was up to the school to provide education. In January 2013 few weeks before the SEND Tribunal hearing in January 2013, the Council agreed to assess the boy for a Statement of SEN and it conceded the mother’s appeal.
In May 2013 a Child and Adolescent Psychiatrist reported that the child might be at risk of developing psychosis. The mother had also arranged for an Occupational Therapist (OT) report. The OT reported in May 2013 that the child had a range of difficulties which was causing a complete withdrawal from school, social activities and limited personal care.
In June 2013 the Council completed its statutory assessment and it issued a Statement. It named the school where the boy was currently on roll but which he had long ceased attending, combined with transfer to another mainstream school. The mother appealed to the SEND Tribunal. In the meantime the Council still provided no interim education. In effect the boy was without education or services between September 2012 and September 2013.
In September 2013 the Council agreed a trial period at a specialist independent school for children with autism. A tutor from the school made a couple of short visits to the home and the boy began short visits to the school in November 2013.
In June 2014 the mother wrote to the Council raising a number of concerns about its approach to pupils with significant health needs. The boy’s psychiatrist also wrote asking for the boy to be provided with educational support. The mother said the tutor from school was meant to visit the home when her son was not at school, but he only did so for two hours per week.
In July 2014 the SEND appeal heard the mother’s appeal. It was agreed at the appeal that there should be a ‘wrap around package’ and that the Council needed to look at clinical psychological support to assist the boy at his school. The mother says a comprehensive transition package was agreed that for assessment by a Psychologist, a Speech and Language Therapist (SALT) and by an Occupational Therapist (OT) in the school.
In September 2014, when the boy returned to school there were six pupils in his classroom whereas previously he had been in a class on his own. He only attended school for one and a half hours per week and refused to attend at all from January 2015. The mother approached her MP who concerns with the Council about the lack of education and other services.
In January 2015 the National Health Service (NHS) assessment by the Neuro- Development Team confirmed that the boy was medically unfit to attend school. On 22 January 2015 the mother wrote to the interim Director of Children Services complaining that the special educational provision was not being provided by the school and that the Council had a duty to ensure it was.
In January 2015 the Council held a meeting without consulting the mother where it was decided that the placement would end. The interim Director wrote to the mother on 13 February 2015 stating that there would be a multi agency meeting to help draw up an effective EHCP. The Director also stated a referral would be made to Adult Social Care.
After the Council ended the school placement in February 2015 the mother says the Council provided no alternative provision. She incurred extensive expenditure on legal advice and assessments to ensure the Council properly considered her son’s needs for his EHCP.
In April 2015 the Council stated it would arrange a tutor to deliver education at home for two hour and a half hours twice per week. Social care also assessed Child B and he was made the subject of a Child in Need plan until June 2015.
The mother says in fact the tutor started in September 2015 visiting for one hour twice a week. There were problems with the boy being unwilling to come out of his bedroom and the tutor not being allowed upstairs to his bedroom. In September/October 2015 there was a discussion about the boy attending a special independent residential school and the Council arranged transport for the boy to visit this school. But the boy refused to get into the taxi. The Principal of the independent school offered advice about a way forward which the mother says the Council ignored. Mrs X says that the Council did not undertake any assessments for the transfer of the boy’s Statement to an EHCP.
The Council did liaise with CAMHS, believing it should provide specialist mental health support in hospital because it felt that the boy’s mental health was the main barrier to education and this needed to be addressed. The mother says that this suggestion was inappropriate because Child B needed intensive OT and SALT provision to help him leave the house. Provision in a hospital was not appropriate.
The mother was concerned by the Council’s delays in completing the EHCP and eventually approached solicitors who asked the Council to finalise the EHCP by 3 December 2015. On 29 January 2016 the Council issued a final EHCP which the mother appealed at Tribunal. (The final outcome of this appeal was made known a year later in January 2017).
In early February 2016 the Council agreed a tutor to visit the home starting in late February 2016. It also agreed an assessment by a Sensory Integration Occupational Therapist. The long term plan was for the boy to be able to attend a specialist school/ College for those with autism.
The Council says it took 41 weeks from April 2015 to 29 January 2016 for it to finalise the transfer to an EHCP. This is because of a number of requests made for changes and explorations of suitable provision.
This boy has significant and complex needs. The recent Clinical Psychologist’s (CP’s) report sets out why the boy has the difficulties he does have. The boy now spends most of his time in his bedroom communicating mainly with his mother.
The mother told the Council in September 2012 that her son had significant difficulties. The Council knew that the boy’s medical difficulties may well affect his school attendance and performance. The Ombudsman considers that the Council has been very slow to pick up on the implications of these difficulties and it has meant the mother has had to use the SEND Tribunal, solicitors and private assessments to try to ensure her son received appropriate help. Over the years the boy’s difficulties have become more pronounced and intractable.
The Ombudsman finds fault in the following ways:
When the new statutory Guidance was issued in 2013, the Council did not amend its policy for children unable to attend school because of health needs until April 2016;
In September 2012 the Council was informed of the boy’s medical difficulties but it took no action even though it knew he was not attending school. It should have sought medical information then to inform its decision making at this stage;
The Council’s Educational Psychologist was involved as from October 2012 and the Council also knew the boy had been referred to the Neuro Development Team. Again the Council missed an opportunity to intervene or to provide assistance and education. In effect the boy was without education between September 2012 and September 2013;
In October 2013 the boy started at a new independent school. The Ombudsman cannot see evidence that the Council gave proper thought to whether the educational provision required was actually being provided by the school.
The SEND appeal of July 2014 agreed a ‘wrap around service’ but the Ombudsman cannot see the evidence that the Council ensured the school provided this.
In January 2015 the boy stopped attending school. The Council ended the placement without discussion and the boy was again left without educational provision and a tutor did not start working with him until September 2015;
There was a significant delay by the Council in completing the EHCP between February 2015 and January 2016. This has resulted in the mother having to seek legal help and a delay in her being able to exercise her son’s appeal rights;
The Council sought no fresh assessments of the boy since ending his placement nor when transferring his Statement to an EHCP;
Overall it appears there are prolonged periods when Child B was not receiving any education and periods when the education was insufficient.
The mother has been raising her concerns about the educational provision for some years now. The Council’s significant failure was not to recognise the extent of the boy’s difficulties early on or to take robust action to provide education and support services at this point. He needed very intensive support and a specialised approach. As a result of the Council’s failings, the boy, who is an intelligent child, has not been able to achieve his full potential. He has also been socially isolated. These are significant injustices to him.
“The Ombudsman will usually recommend a payment of £200 to £600 per month for lost education. He will take account of the impact of the lost education on the child’s life chances and whether any additional provision can remedy some or all of the loss. The Ombudsman will also make payments for complainants’ avoidable distress and frustration and for unnecessary expenditure.”
On 6 February 2017 the Tribunal issued its decision. It set out a detailed programme of educational and other necessary support. The aim is for professionals to build a rapport with the boy with a long term aim of a specialist residential placement capable of dealing with his ASD and sensory issues as well as the associated emotional effects such as anxiety and low mood. The Tribunal Order is binding on the Council. The mother has the option of making a fresh complaint to the Ombudsman if the Council do not abide by the Order.
The Ombudsman says the Council has now agreed to:
reimburse parents’ costs in obtaining private reports/legal assistance, estimated to be in the region of £1,500
pay £500 for avoidable distress caused by the Council’s faults;
pay £5000 for Child B’s lost opportunities for education and support
The Ombudsman adds “In addition I suggest that the Council looks carefully at the arrangements it has regarding children missing from education because of health difficulties. It must devise a system which enables it to know early on which children are struggling with school attendance because of health difficulties. It makes no difference to the duty on the Council to support such children be they at maintained or other schools such as academies. Some councils have a pro forma for all schools to complete where there are concerns that a child is not attending school for health reasons.”
BELOW IS THE GUIDANCE REFERRED TO IN THE OMBUDSMAN’S PUBLISHED DECISION, ITS TITLE IS OUT OF SCHOOL, OUT OF MIND