Summary: Miss X complained about a delay in producing an Education Health and Care Plan for her daughter and failure to provide alternative education for her. Based on the evidence seen, the Ombudsman finds there was delay and the Council failed to ensure the child received full-time education when she was out of school. The Council has agreed to the Ombudsman’s recommendations.

The complaint

1. Miss X complains that the Council:

• Failed to meet its duty to make alternative educational provision for her daughter (Z), when she was out of education from November 2018;
• Refused to complete an EHC assessment for Z in November 2018 but then agreed in January 2019.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s couision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. If we are satisfied with a council’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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
6. 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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How I considered this complaint

7. I discussed the complaint with Miss X and considered the information she provided. I made enquiries of the Council and considered its response and the documents it provided. I considered relevant law and guidance.
8. I gave Miss X and the Council a copy of my draft decision and invited their comments.

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What I found

9. Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities is set out in the Special Educational Needs and Disability Code of Practice:0 to 25 years published in 2014 (“the Code”). This includes information about the EHC assessment process and EHC plans.
10. Paragraph 9.3 of the Code states “the factors a local authority should take into account in deciding whether it needs to undertake an EHC needs assessment are set out in paragraphs 9.14 to 9.15 and the factors a local authority should take into account in deciding whether an EHC Plan is necessary are set out in paragraphs 9.53 to 9.56”.
11. Paragraphs 9.14 and 9.15 of the Code say a council should pay particular attention to:

• evidence of a child’s academic attainment and rate of progress;
• information about the nature, extent and context of the child’s SEN;
• evidence of the action already being taken by a school to meet a child’s SEN;
• evidence that, where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided; and
• evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet those needs by other agencies.

12. In Cambridgeshire County Council v FL-J [2016] UKUT 0225 the Upper Tribunal held:
    “The authority or tribunal does not have to decide at this initial stage whether special educational provision ‘is necessary’… that question only arises when an assessment has been made… the issue at the initial state is a provisional and predictive one; it is only when an assessment has been made that a definitive decision has to be made”.
13. Councils have responsibility for completing EHC plans for children where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. There are rights of appeal to the Special Educational and Disability (SEND) First Tier Tribunals for parents where a local authority refuses, at week six, to carry out a statutory assessment, or where a council decides, at week sixteen, not to issue an EHC Plan, or when parents disagree with the contents of the final Plan.
15. Paragraph 9.41 of the Code states:

• “Local authorities must give their decision in response to any request for an EHC Plan assessment within a maximum of 6 weeks from when the request was received or the point at which a child or young person was brought to the local authority’s attention;
• When local authorities request information as part of the EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request;
• 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 an EHC needs assessment, and
• The child’s parent or young person must be given 15 calendar days to consider and provide views on a draft EHC Plan and ask for a particular school or other institution to be named in it”.

16. Paragraph 9.62 of the Code states, “as a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below”. With regards to this case Section I states:

“The name and type of school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person)”

Alternative education for children out of school

17. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age, who “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, Section 19). For children excluded from school it begins on the sixth school day of absence.
18. 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 16(6))

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What happened in this case

19. I have set out below a brief chronology of events. It is not intended to show everything that happened.
20. Miss X’s daughter, Z, now aged 14 has a diagnosis of Autistic Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). She was attending a mainstream secondary school (School A).

Permanent Exclusion

21. On 7 November 2018, School A, permanently excluded Z and informed the Council. The Council put in place four hours of home tuition over two days whilst it sourced alternative education provision. In December 2018 the Council agreed that Z would attend one day a week at an ‘alternative provision’ scheme. This was increased to two days per week in January 2019. In February 2019, the Council agreed that Z would attend equine therapy for 15 weeks.
22. On 9 November 2018, the Council made an application for at a pupil referral unit (PRU). I understand that Miss X did not consider a PRU to be an appropriate setting for her daughter. This was confirmed in an email to Miss X on 14 November 2018, in which the Council wrote” you are not in agreement with our decision to approach [PRU]”. Although Miss X initially declined this offer, the PRU later confirmed that it did not have a space for Z.
23. On 6 December 2018, the Council made a request to place Z at an independent school. The school declined the request as it was unable to support the behavioural challenges presented by Z.
24. On 20 January 2019 Miss X declined the Council’s offer to approach School C. She said 28 out of 29 children on roll were boys and because Z’s previous school had expressed concerns about her use of ‘sexualised language’, she did not feel this was an appropriate placement for her daughter.
25. On 22 January 2019, the Council’s records show that it sought permission from Miss X to consult with School D. The school was 8.3 miles from Z’s home address and Miss X was concerned about the distance and declined the consultation.
26. In response to Z’s attendance at a ‘alternative provision’ scheme, a senior officer wrote on 31 January 2019, “This girl has been permanently excluded on two occasions therefore we will not be able to get her back into a mainstream school the legislation prevents it. As a local authority we must provide a suitable alternative education. Attendance at this scheme is not a school and is an alternative provider. Strictly it is outside of policy but if we do not provide an educational alternative the parent has a right to go to the Ombudsman. This has happened in the past and we have been fined”.

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Analysis

27. Z was permanently excluded from school on 7 November 2018 and has been out of full-time education since. The Education Act 1996 as amended says, councils must offer full-time educational provision for permanently excluded children from the sixth day after the exclusion.
28. I understand that it is the Council’s view that the PRU and schools C and D were deemed suitable on the basis they had experience of working with children with autism. I cannot comment on the suitability of the schools sourced by the Council. However, the PRU was not able to offer Z a place irrespective of whether Miss X was not in favour of sending her daughter to a PRU. It is not clear how and why the Council considered School C was a suitable placement as it would have been aware of the ‘sexualised language’ exhibited by Z at her previous school. I have seen no further evidence that the Council continued to explore full-time education provision for Z and why it did not consult with other independent schools.
29. I appreciate that there were complexities in identifying a suitable placement for Z. Therefore, I consider it would be reasonable to allow a period of one month to secure full-time education. I acknowledge that the Council arranged four hours per week of home tuition, two days at an alternative provision scheme and 15 weeks of equine therapy. However, as recognised by the Council the scheme was not a school. In my view the Council was responsible for a lack of education provision from December 2018 to July 2019, which is eight months.
30. In March 2019 the Council met with Miss X. At the meeting Miss X said the Council had failed to support Z and raised her concerns about the lack of full-time education provision. The Council’s records also show that Miss X confirmed that she was happy with the current support package in place for Z and did not want any additional provision. I have discussed this with Miss X who explained that there was no alternative package of support on offer and therefore she had no choice but to accept the provision provided. Miss X was satisfied that the package was working well but was clear that it was not ideal and not full-time education.

Education Heath and Care Plan

31. On 12 November 2018 Miss X asked the Council for a statutory EHC assessment. The Council considered the request at its EHC panel. The Council declined the request and informed Miss X of its decision on 24 December 2018. The Council has not explained why the panel did not agree to an assessment.
32. Following the decision, the Council received further information from the early intervention team that had been working with Z. It is not clear whether the Council requested this information and if so, when it was requested or received. The education inclusion and partnership (EIP) team said that it was not possible nor appropriate for Z to return to mainstream school. The Council said the family felt alternative provision was not appropriate for Z and therefore, on 29 January 2019 the EHC panel agreed to a statutory assessment.
33. On 3 March 2019, Miss X queried the timescales for the EHC process. Miss X said she submitted her original request on 12 November 2018 and on 24 December 2018 she was informed that the Council had declined the assessment. She said on 29 January 2019, the Council agreed to the statutory assessment. The Council responded to Miss X’s email and concluded that the Plan should be finalised by 7 May 2019, which was 14 weeks from the date the assessment was agreed.
34. The Council issued a draft EHC Plan on 7 May 2019. The final EHC Plan was issued on 6 June 2019. The Council told Miss X that it had named a type of school in the plan to ensure that it met statutory timescales. It said that it was in consultation with an education setting and Miss X would be informed of the outcome in due course. The Council said Miss X would be given a further right to appeal at that stage.

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Analysis

35. Unless specific exemptions apply, once the Council has received a request for an EHC Plan assessment, it has a maximum period of 20 weeks to complete the process and issue the plan. In this case the Council initiated the process on 12 November 2018 and declined Miss X’s request for an assessment on 24 December 2018. This decision was made within the six weeks and the Council complied with the statutory timescales.
36. However, on 29 January 2019 the Council agreed to an assessment based on information it had received from the EIP team. I understand that the EIP team had been supporting Z since May 2017 and worked closely with the SEN team. Having reference to paragraphs 9.14 and 9.15 of the Code I would therefore have expected the Council to have obtained information from the EIP team after receiving the Miss X’s request on 12 November 2018.The Council’s failure to obtain this information earlier caused an injustice to Z as it meant a delay in agreeing to the EHC assessment. Had this information been available, the panel would have agreed to an assessment on 24 December 2018.
37. I consider the 20-week timescale should therefore commence from the date of the initial request. The date for issuing the final EHC Plan should have been 1 April 2019 and not 7 May 2019 as suggested by the Council. But it was not completed until 6 June 2019, a delay of around ten weeks. The delay was fault. Given Z was not in full-time education when Miss X asked for the EHC assessment, the Ombudsman would have expected the Council to treat the request and the assessment with a matter of urgency. It did not do this and instead there were delays in agreeing the assessment and writing up the Plan.

Agreed action

38. Where we find fault by a council, we must consider the injustice caused to the complainant and whether a remedy is warranted for the injustice. Here, the Council’s delay in producing the final EHC Plan and failure to provide full-time education led to a loss of educational provision for Miss X’s daughter for an eight-month period.
39. The Council has agreed that within one month of the date of this decision it will:

• apologise in writing to Miss X for the faults identified;

• make a payment of £200 for each month of provision lost, making a total of £1600. I have consulted the Ombudsman’s guidance on remedies and taken into account that Z was receiving four hours per week home tuition;
• pay Miss X £250 to recognise her frustration and distress and time and trouble in pursuing matters with the Council;

40. The Council has agreed that within three months of this decision it will:

• review and streamline its processes to meet the 20-week timescale required to finalise EHC plans;
• ensure that staff understand the Council’s duty to offer suitable full-time educational provision for permanently excluded children from the sixth day after the exclusion.

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Final Decision

41. I find the Council at fault for the lack of education provision and the way it dealt with the EHC assessment. The Council has agreed to my recommendations and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman