An East London council has been ordered to pay a mum and her son almost £11,000 after he missed 17 months of education because he was refused a place at an alternative school. Tower Hamlets Council must pay the woman, known only as Miss X in a Local Government and Social Care Ombudsman report, £9,600 for the educational provision her son had lost and an extra £1,100 for causing her ‘avoidable stress’.
Miss X had complained to the Ombudsman because she said the council had failed to deal with her son, Y’s, education and special educational needs (SEN) provision and had not taken the right steps to determine her son’s needs. She claims she had been accused of making up some of her son’s conditions, which later were proven to be true and ended up delaying the recognition of her son’s special education needs.
At the start of 2019, Y was being assessed for autism and his mum had asked that he be home-schooled for medical reasons. When the assessment concluded that Y did not meet the criteria for autism, Miss X didn’t agree with the outcome and asked the council to complete an education, health and care needs assessment (EHCNA).
However, by the end of 2019, the council chose not to complete an EHCNA and Miss X appealed to a SEND tribunal and her son stopped attending school in March 2020, despite his school stating that it was meeting his needs. The tribunal ruled against Miss X’s appeal against the council’s decision not to complete an EHCNA in August 2020 and the council threatened Miss X with legal action regarding her son’s absence from school.
Miss X asked the council to provide an alternative education provision for Y as he couldn’t attend school, however, the council told Miss X that this wasn’t an option because Y did not have an education, health and care plan (EHCP). She complained to the council and asked for home tutoring and an assessment to be carried out, as well as an EHCNA and a social worker to be assigned. Instead, the council put Y under a child protection plan.
By February 2021, Miss X got an assessment done for her son privately which resulted in him being diagnosed with autism spectrum disorder (ASD) and was advised to have an alternative education provision with a ‘differentiated curriculum’. Miss X sent the report confirming her son’s autism to the council however it did not uphold her complaint. The next month, the council agreed to complete an EHCNA for Y.
By April 2021, Miss X had a second private assessment done which again diagnosed her son with ASD. Despite this, the council didn’t issue an EHCP for and told Miss X this in October of that year. She appealed this to a special educational needs and disabilities (SEND) tribunal.
Health professionals told the council in January 2022 that they wouldn’t dispute the ASD diagnosis for Y and further reports from a speech and language therapist, an occupational therapist and an educational psychologist all advised on recommendations for SEN provision for her son.
However, the council didn’t uphold Miss X’s complaint at stage two of its complaints process and said a mainstream school would meet her son’s needs. A SEND tribunal concluded in June 2022 that the council should issue an EHCP for Y, with the council eventually issuing one in September 2022.
However, Miss X was unhappy with the EHCP and appealed to the SEND tribunal. By October 2022, the council withdrew the court action for Y’s absence from school.
In February 2023, Miss X’s representatives asked the council to again provide her son with alternative education and provided a doctor’s letter stating Y could not attend mainstream education. During this time the council referred Y to alternative education provision for a package of tuition.
The Ombudsman concluded: “The council says in its stage 1 complaint response that it considered requests for alternative education provision. However, emails show the council told Miss X that Y was not eligible because he did not have an EHCP. There is no requirement for a child to have an EHCP in order for a council to consider the provision of alternative education under s19 [Alternative Education provision].”
They added: “The council did not properly consider whether Y required alternative educational provision. This is the fault of the council. Miss X and Y remain uncertain whether the council would have provided alternative education for Y. On the balance of probabilities, had the council properly considered the evidence available, I consider the council would not have made alternative provision for Y at this time as the differing professional opinion was evenly balanced.”
The Ombudsman did not investigate before March 2020 as Miss X’s complaint was referred only from this time onwards. The Ombudsman said Miss X could also have complained about earlier periods of time in 2019.
The Ombudsman didn’t investigate any matters relating to Y’s needs which are or had been subject to a tribunal. As a result of the ordeal, Y ended up missing school between April 2021 and September 2022 and his mum has been awarded £9,600 to make up for losing four terms of educational provision.
The council must also provide training to all staff in relation to alternative education provision, which includes awareness of issues around neurodiversity, autism and attention-deficit hyperactivity disorder (ADHD).
A spokesperson for the council told the Local Democracy Reporting Service (LDRS): “Whilst we cannot comment on individual cases involving children, we have apologised to Miss X and Y for the distress caused by this incident and agreed to pay the recommended payments. We are committed to continuous improvement and will be providing the recommended staff training, including awareness of issues around neurodiversity, autism and ADHD.”
