Summary: The complainant alleged that the Council has failed to provide suitable alternative education to her daughter when she was unable to attend school for medical reasons. The Council has accepted that there was a failure to provide alternative education to the complainant’s daughter between September 2020 and March 2021. In addition, we find fault with the Council’s delay in issuing an Education, Health and Care (EHC) Plan for the daughter, which caused a further loss of education. The Council has accepted our findings and agreed a way to remedy the injustice caused. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council:
1. delayed in deciding whether to issue an Education, Health and Care (EHC) Plan from December 2019 to October 2020, when this was then refused until the Special Educational and Disability (SEND) Tribunal in July 2021 ordered the Council to issue an EHC Plan. The Council then issued a final EHC Plan in November 2021. Mrs X says that her daughter (D) is still not receiving the EHC Plan provision, particularly Occupational Therapy (OT) and Speech and Language Therapy (SALT); and
2. the Council failed to provide alternative education since March 2020.
2. Mrs X says her daughter has autism (ASD) and anxiety and, being without suitable education, made her socially isolated and affected her confidence.
3. Mrs X says that caring for her daughter while out of school and chasing these issues with the Council has placed strain on her and impacted on her ability to work or socialise.
4. Mrs X wants the Council to acknowledge its failings, put things right for her daughter and compensate her for the missed education.

What I have investigated

5. I have investigated the Council’s actions since December 2019 to March 2022 when I was allocated the complaint. Matters, which I cannot investigate, are set out in the last paragraph of this statement.
6. I am aware that the Council has only investigated the complaint up to March 2021, when it sent its final complaint response to Mrs X. It would be open to the Council to investigate the period of March 2021 to March 2022, should it wish to do so.

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The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
8. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
9. However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
10. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
11. 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)
12. 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.

How I considered this complaint

13. I made enquiries of the Council and I have considered Mrs X’s written information. I have also spoken to her on the telephone.
14. The Council has already agreed that D was not able to attend school between September 2020 to March 2021 because of her medical needs. The Council agreed to remedy the injustice caused by this fault (lost education) by apologising, by making a payment of £3,000 for missed education, by formalising a plan for D to help her make up the lost education and making a payment to Mrs X of £200 for avoidable distress.
15. Mrs X considered that this was insufficient because she said D was out of school for longer, without alternative provision, and the above does not recognise the injustice caused by the delay in issuing the final EHC Plan. Accordingly, we agreed to investigate further but only up to March 2022.

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What I found

Special educational needs

16. The Children and Families Act 2014 says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
17. Councils must decide whether to carry out an EHC needs assessment within six weeks of the referral and must notify the parent or young person it is considering doing so.
18. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the SEND Code of Practice which says that the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks, subject to some exceptions. If a council 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.
19. Professionals should provide their advice within six weeks of the request.
20. Parents can appeal to the SEND Tribunal if the council refuses to assess or to issue an EHC Plan or if dissatisfied with the final Plan. Councils have a duty to provide the SEN provision set out in a final EHC Plan.

Children out of school because of medical needs

21. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
22. The Council’s procedures for children unable to attend school for medical reasons states that schools must satisfy themselves the pupil’s absence is due to ill-health before making a referral to the Council’s Inclusion Support Service (ISS). After 15 days of absence, schools are advised to contact the ISS for guidance.

Facts of this complaint

23. Mrs X says that she asked for an EHC assessment in 2018. However, I am looking at events from December 2019.
24. In November 2019, the Council received a request for an EHC needs assessment. In December it decided to proceed with this within the required six‑week period. The Council sought information from D’s junior school (School Y), from Children Services and from an Educational Psychologist (EP). The Council should have decided whether to issue an EHC Plan, or not, by early March 2020.
25. In March 2020, School Y referred D to its Inclusion Support Service. In June 2020, the Council received notification from a secondary school, (School Z), stating that D was due to start in September 2020. However, School Z noted that she had been a school refuser since November 2019.
26. On 9 October 2020 the Council decided not to issue an EHC Plan and told Mrs X. Mrs X had a right of appeal to SEND Tribunal at this point which she exercised. Mrs X also complained about the Council’s failures to provide suitable education and about the delays in deciding not to issue an EHC Plan.
27. D started at School Z in September 2020. But she failed to attend. The Council says that it expected School Z to provide education, even though D was not attending. There is evidence that School Z tried to engage D. The Council has now accepted that it was at fault in not ensuring appropriate alternative provision between September 2020 to March 2021. So, I do not intend to provide further details concerning this period.
28. In January 2021, the Council started to consider Mrs X’s complaints. It appears that D’s attendance at School Z was minimal from March 2021. In July 2021, the Tribunal ordered the Council to issue an EHC Plan.
29. In September 2021, the Council agreed to seek a special school placement at School V. However, there were no available places at that time, and it was agreed that D would start there in September 2022.
30. The Council issued a final EHC Plan in November 2021, naming School Z but this was seen as an interim measure until D could start at School V in September 2022. It was agreed that School Z would provide a package of support, including online learning, online social activities, and the offer of art therapy.
31. D’s final EHC Plan identified that D has a diagnosis of ASD, and associated difficulties with flexibility of thought and social communication. She also has a diagnosis of severe anxiety, developmental coordination disorder (also known as dyspraxia) and Tic disorder (fast, repetitive muscle movements that are difficult to control). The EHC Plan stated that D required a small group setting, with much 1:1 support, also recognising that her poor motor coordination impacted on her functionality. The EHC Plan suggested individual tutoring to establish a working relationship, then moving to School V, to be planned in consultation with its Inclusion Support Service (ISS).
32. Mrs X says that, in February 2022, School Z offered 15 hours of weekly tutoring, a weekly therapeutic intervention at a care farm centre and weekly online check in sessions with the Head. The Council says D was unwilling to take up these offers. However, Mrs X says that she tried to persuade D to do so but her complex needs meant that she was unable to access online learning and she explained this to the Council. Mrs X says D is still not in receipt of suitable accessible education and D was not offered face to face tutoring.
33. The Council says that OT was not in D’s EHC Plan as a statutory provision. But it was recommended that D had an up-to- date assessment of her gross and fine motor skills, at the discretion of the local health trust. The Council says that the named setting would be expected to make the referral.
34. Section F of the EHC Plan (statutory provision which must be provided) stated that D required SALT in a small group setting, designed and supported by a therapist. The Council says that normally this would be provided by a learning support assistant (LSA) at the school. The Council accepts that it should have ensured this provision was provided by a LSA as part of D’s interim package.

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Findings

Complaint (a): delayed in deciding whether to issue an Education, Health and Care (EHC) Plan from December 2019 to October 2020, when this was refused until the Special Educational and Disability (SEND) Tribunal in July 2021 ordered the Council to issue an EHC Plan. The Council then issued a final EHC Plan in November 2021. Mrs X says that her daughter (D) is still not receiving the EHC Plan provision, particularly Occupational Therapy (OT) and Speech and Language Therapy (SALT).

35. The Council should have decided whether to issue an EHC Plan, or not, by early March 2020. It took until October 2020 for it to decide not to issue an EHC Plan, some seven months overdue. My view is that this amounts to fault.
36. Mrs X appealed this decision. But for the delay, Mrs X could have appealed in March 2020. That would have meant that she would have had the eventual Tribunal Order, that the Council should issue an EHC Plan, sooner than she did.
37. The Ombudsman has no jurisdiction over the Tribunal appeal process. I recognise that it is speculative to say how long it would have taken for Mrs X’s Tribunal process to be completed. But we normally work on the basis that Tribunals are completed within six months, so in this case by September 2020.
38. This means that the Council would then have had fourteen weeks to issue a final EHC Plan (from September 2020), say by January 2021. And, even if Mrs X disagreed with the final EHC Plan, it would have meant that the Council had a statutory duty to make the specified SEN provision from January 2021 (as it did when the Council issued the final EHC Plan in November 2021).
39. In respect of SALT provision, the Council has accepted it should have ensured that there was a LSA to deliver this in the interim. OT was a recommendation and not specified as a SEN requirement. The Council says that it would have expected School Z to make the referral. It is not clear whether it did. But the Ombudsman cannot investigate the internal actions within a school.

Complaint b: failed to provide alternative education since March 2020. The Council has accepted a failure to provide alternative education between September 2020 to March 2021 and agreed a remedy. That is to the Council’s credit.

40. Prior to this, in March 2020, there was the Covid-19 lockdown and schools were closed until July 2020. At this point, D did not have an EHC Plan. If there was a lack of alternative provision during this period, my view is that there were mitigating circumstances, with schools closed, and I do not find fault.
41. I have concluded that D would have had a final EHC Plan by January 2021, but for the delays. I cannot say whether there would have been a place available for D at the special school, School V. But Mrs X will always be left wondering whether there was a lost opportunity for D to be placed at this school sooner.
42. The Council recognised that D could not attend school for medical reasons between September 2020 and March 2021. The Council has continued to accept this. Once the final EHC Plan was issued in November 2021, Mrs X had a further right of appeal if she did not consider it appropriate to wait until September 2022 for a place to become available at School V. However, by this stage, D had an EHC Plan, and the Council had a duty to make the required SEN provision. There is evidence that online education and activities were offered. But, on the balance of probability, it would have been difficult for D to manage online learning and the Council should have recognised this.

View on injustice

43. My view is that the primary injustice has been caused by the delay in deciding whether to issue an EHC Plan, or not. But for this delay, it might have been possible for D to be placed at a special school sooner than September 2022, as now arranged.
44. In addition, D was not offered alternative education between April and July 2021 (four school months). In addition, D was unable to access the alternative education offered to her between November 2021 to March 2022 (four school months). However, I have taken account of the fact that efforts were made to engage D when considering a suitable remedy.
45. Between September 2021 and November 2021, the Council expected School Z to provide education to D and to try to reintegrate her. I do not consider this unreasonable. I also cannot investigate School Z’s actions, so I am not in a position to make any finding concerning this period.

How the Ombudsman remedies injustice caused by fault

46. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

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Agreed actions

47. The Council has already agreed to make a payment to Mrs X of £3000 for the missed education between September 2020 to March 2021. This should be used to D’s educational benefit.
48. The Council has agreed to, within six weeks of the final statement;
• apologise to Mrs X and make a payment of £1,000 to recognise the avoidable distress to the family and the lost opportunity to have D’s education placement determined sooner;
• pay a further £3,000 for the missed education for the other periods when the Council should have provided the SEN provision as set out in D’s EHC Plan (which should have been issued in January 2021). But I have taken account of the fact that for some of this period, efforts were made to engage and teach D. This payment should be used for D’s educational benefit; and
• now consider and devise a plan to ensure that D can be integrated into her new special school in September 2022.
49. The Council has already made several procedural improvements to its SEN practices. But the Council may not have available sufficient tutors to provide face to face tuition when pupils cannot attend school for medical reasons and cannot access online learning or activities. The Council should tell the Ombudsman how it might increase its supply within six weeks of the final statement.

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Final decision

50. I have found fault causing injustice. The Council has agreed the ways to remedy the complaint. I have therefore completed my investigation and am closing the complaint.

Parts of the complaint that I did not investigate

51. I have not investigated the actions of School Z because the Ombudsman is not permitted to do so.

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Investigator's decision on behalf of the Ombudsman