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A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Council did not properly consider whether it needed to provide alternative education for young boy, Ombudsman finds

The Local Government and Social Care Ombudsman has recommended that the London Borough of Tower Hamlets pay more than £10,000 after the council did not properly consider whether it needed to provide alternative education for a young boy.

Outlining the background to the case, the Ombudsman said the claimant (Miss X), complained that the council had not dealt properly with her son, Y’s, education and SEN provision because:

  • It did not properly consider whether it should have provided s19 Alternative Education provision after March 2019;
  • It had not made the necessary assessments to determine her son’s needs; and
  • She had been accused of imagining conditions which had later been proved to be true, which had delayed the recognition of her son’s special educational needs.

Miss X told the Ombudsman that the council “failed to carry out the appropriate assessments of her children and therefore they have been left without suitable support”.

The Ombudsman investigated the part of Miss X’s complaint about the provision of s19 alternative education provision from March 2020.

Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements, said the Ombudsman.

The Ombudsman said that in early 2019, Y was being assessed for ASD (Autistic Spectrum Disorder). Miss X requested home tuition for Y on medical grounds.

The assessment concluded that Y did not meet the criteria for ASD in May 2019, however, Miss X did not agree with the outcome.

Miss X requested the council complete an Education, Health and Care Needs Assessment, (EHCNA), in September 2019. In December 2019, the council declined to complete the assessment. Miss X appealed to the SEND Tribunal.

The Tribunal dismissed Miss X’s appeal against the council’s decision not to complete an EHCNA in August 2020, the report noted.

The council sent Miss X a warning about potential legal action regarding Y’s non-attendance at school in October 2020. Following this, the council placed Y under a child protection plan, said the Ombudsman.

In February 2021, Miss X obtained a private assessment report which diagnosed Y as having ASD and recommended access to “alternative provision with a differentiated curriculum”.

The council decided not to issue an EHCP for Y in late September 2021 and informed Miss X of this in October. Miss X appealed to the Special Educational Needs and Disabilities (SEND) Tribunal about the council’s decision not to issue an EHCP.

The SEND Tribunal decided in June 2022, that the council should issue an EHCP for Y.

Miss X was unhappy with the final EHCP issued in September 2022 and again appealed to SEND Tribunal.

The Ombudsman investigated and concluded that the council did not properly consider whether it needed to provide alternative education for Y.

“Miss X and Y suffered avoidable distress and uncertainty, were subject to unnecessary child protection proceedings and Y lost educational provision”, said the report.

To remedy the injustice caused, the council was told to:

  • apologise to Miss X and Y
  • pay Miss X £9.600 in respect of Y’s lost educational provision (calculated over 4 terms between April 2021 and September 2022 at the higher end of the scale)
  • pay Miss X £1,100 in respect of avoidable distress caused by unnecessary child protection proceedings
  • provide training to all relevant staff about the council’s duties in relation to s19 alternative education provision and their responsibilities in respect of this, including awareness of issues around neuro diversity, autism/PDA and ADHD.

A spokesperson from Tower Hamlets Council said: “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 neuro diversity, autism/PDA and ADHD.”

Lottie Winson