WHAT IS SUFFICIENT IN TERMS OF MEDICAL EVIDENCE?

Derbyshire County Council v EM & DM [2019] UKUT 240 (AAC)

The Upper Tribunal held that there is no absolute requirement that all EHC Plans must specify a school or other institution (or type of either) in Section I of an EHC Plan. The Upper Tribunal found that if the local authority thinks that no school or other institution (or type of either) would be appropriate for the child, the ‘naming’ duty under these sections and thus in Section I of the EHC Plan cannot as a matter of law arise.

SEND & ABSENCE DUE TO ANXIETY

Summary: Mrs B complained that the Council failed to provide suitable alternative education for her daughter C when she was unable to attend school due to anxiety. We found the Council failed to provide C with suitable alternative education, between October 2019 and March 2020. The Council has agreed to apologise to Mrs B, pay her £2000 to remedy the impact on C and a further £300 for Mrs B’s time and trouble in pursuing the matter. It has also agreed to review its policy, provide training and check alternative provision for other children in similar circumstances.

ALTERNATIVE PROVISION

Summary: Mr F’s son, B, suffers from anxiety. Mr F complained the Council did not provide education for B when he was unable to attend school due to illness. B missed education because of a flaw in the service designed by the Council to fulfil its duties to children unable to attend school. The Council “outsourced” its responsibilities to schools and did not retain sufficient oversight and control. This meant the Council was either unaware or not in a position to act when things went wrong.  The Council relied on B’s school to make decisions about B’s education. When attempts to secure B’s return to school failed, the Council should have arranged suitable education for him. The service designed by the Council failed. B was without education for four months as a result.

ALTERNATIVE PROVISION

Summary: Mrs X complained the Council failed to ensure her granddaughter, D, received appropriate education from October 2019 to December 2019. She also said the Council failed to provide the provision outlined in the EHCP. The Ombudsman has found fault by the Council which has caused D to miss out on special educational provision. The Council will apologise, make a financial payment and service improvements.

Summary: Mr and Mrs X complain that the Council failed to provide support when their daughter Y could not attend school due to anxiety and failed to provide education while she was out of school. The Council is at fault as it had an unbalanced focus on Mrs X, its early help team delayed in contacting her, delayed in carrying out a needs assessment for Y’s EHC plan, failed to ensure the provision in Y’s EHC plan was delivered, failed to carry out an interim review of the EHC plan and failed to provide education to Y for 18 months. This meant Y missed the opportunity to gradually increase her tolerance to education which will have disadvantaged her. The faults also caused distress and avoidable time and trouble too Mr and Mrs X. The Council has agreed to remedy the injustice to Mr and Mrs X and Y.

Summary: Mrs X says the Council failed to arrange alternative education for her son when he was absent from school for medical reasons in the autumn of 2018 and between April and September 2019. There was fault by the Council because it did not properly consider its duties to provide alternative education. The Council agreed to address the injustice to Mrs X and her son through a financial remedy.

Summary: Mrs X complained the Council failed to provide suitable alternative education for her daughter after she became unable to attend school. Mrs X also complained the Council took too long to issue an Education, Health and Care plan. She said her daughter had missed out on education and was socially isolated. 

• Leeds City Council left a young girl without proper education for nine months after she started refusing to go to her primary school because of anxiety, the Local Government and Social Care Ombudsman has found.
• The girl, who was 10 when the events started, became increasingly anxious about going to school until the school asked her mother to take her home because she was so distressed.
• Over the next nine months, the girl was given little education – and at one point her mother had to fund an alternative education placement.
• When the girl eventually started engaging with the Children and Adolescent Mental Health Services (CAMHS) it suggested she had sensory processing difficulties and recommended gathering information for diagnostic tests.

Leicestershire County Council

The Council failed to provide suitable alternative education Mrs B’s daughter, C, when she was unable to attend school due to anxiety. The Council also failed to support C and her family, arrange a multi-agency meeting or make a referral to Autism Outreach. The Council accepts these failings and has offered to apologise to the family, make a payment, and undertake a review of its policies and procedures. The Ombudsman considers this to be a satisfactory remedy for the injustice caused.

Gloucestershire County Council

Mrs M complained the Council had failed to put in place alternative educational provision when her son was out of school. There is evidence of fault and the Council has been asked to apologise, make a payment and change its procedures.

Norfolk County Council 

The Council expected the school to continue to meet the need and put the provision specified in the EHC plan in place until a suitable placement was found even once they have told the Council they cannot meet need. This is not acceptable. The duty is on the Council to secure the provision is made. Once it is on notice that the school is not making the provision then the Council must arrange the provision. 

There is a further issue in that the Council was on notice that Y was not attending school because of her anxiety. Where a child cannot attend school because of illness the Council must arrange suitable full-time education. I have seen nothing to show the Council had any regard to its duties to Y in this respect.

Derby LA fined over £8000 after 18 months of EHCP delays left an autistic girl without education. The girl was too anxious to attend her mainstream school, but Derby failed to provide sufficient alternative education.

Stoke-on-Trent City Council 

The Council delayed communicating a decision not to issue an EHC Plan for a child (B) following statutory assessment. The Council failed to put in place Alternative Education for B when this was justified. The Ombudsman recommended and the Council agreed to apologise in writing to Mr and Mrs C, pay B £1,500 to acknowledge lost educational provision, pay Mr and Mrs C £500 to acknowledge distress caused by failure to issue a timely decision on whether to make an EHC Plan, and finalise and publish policy on Alternative Education.

Dorset County Council

The Council was at fault for failing to ensure Z received a suitable education. The Council also took too long to finalise Z’s Education, Health and Care Plan. The Council has agreed to make a financial payment to remedy the injustice it has caused Z and to make procedural changes.