Summary: Mrs X complained the Council delayed in completing an Education Health and Care Plan for her son and failed to provide education for the entire school year from September 2021. The Council took two months longer than it should to complete the EHC plan which is fault. It has failed to show that suitable education was provided for Mrs X’s son during the time he was not attending school which is also fault. A suitable remedy is agreed.

The complaint

1. Mrs X complains the Council delayed in completing an Education Health and Care Plan (EHC plan) for her son and failed to provide education for the entire school year from September 2021.
2. Mrs X says this has caused significant distress to herself and her son and impacted on their mental health.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant including recordings of meetings between the family and education professionals;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Timescales and process for EHC assessment

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Key facts

Education Care and Health Plan actions

9. Mrs X completed a request for a EHC needs assessment for her son B, on 28 June 2021 and the following day gave consent for advice to be sought for the assessment. The Council wrote to Mrs X on 4 August confirming the Council had decided to carry out the EHC needs assessment.
10. On 22 September the Council wrote to Mrs X explaining there would be a delay completing the assessment and it apologised. It said an increase in demand for services, including the Educational Psychology service, meant a delay in advice being provided. It gave no indication of timescales for progression and completion.
11. Mrs X responded the following day expressing her concern about the lack of action and stating the statutory timescales for completion of the EHC needs assessment. The Council replied on 8 October, apologising for the delayed response. It said it was experiencing significant delays but that the case had now been allocated to an educational psychologist and that the case could be moved forward once the advice was received.
12. The Council wrote to Mrs X on 3 December with the decision that an EHC plan would be issued. It advised that it would write again when the draft plan is available for her comments. The Council emailed Mrs X on 22 December saying the draft EHC plan had been published and she could now log onto its system to check the draft and make comments. It explained she had 15 days to respond.
13. The final EHC plan was issued on 18 January 2022. Mrs X did not submit an appeal in respect of this plan as she concerned the support detailed in it was sufficient.

Attendance at school and alternative education provision

14. B was unable to return to school in September 2021 due to school based anxiety. He did make attempts to return supported by his family and the school but this was not successful. The school provided some work for B to complete at home.
15. In November, an Education Welfare Officer (EWO) was in contact with B and Mrs X because B was not attending school. The information provided in response to my enquiries states the EWO was clear that the amount of medical evidence meant formal action was not required and so no action was taken.
16. Mrs X made a formal request for out of school provision. At a Team around the Family meeting on 22 November 2021, it was noted that B’s school based anxiety went beyond his sensory needs and it was agreed to make a WAVE referral. WAVE provides alternative provision to pupils unable to access mainstream provision due to medical and health needs.
17. The WAVE referral submitted by the school’s special educational needs co-ordinator (SENCo) included a supporting letter from an occupational therapist. She said it was likely B was suffering from a mental health condition called school refusal. She said extreme anxiety of this sort can have an adverse effect on a child’s health and wellbeing and if not addressed can affect their academic progress. She said provision was needed to support B to return to school via a graded approach. She concluded her report by saying that B’s anxiety is linked to his diagnosis and this was a strong indication his Special Educational Needs need to be considered a priority if he is able to return to the school environment.
18. The Panel considered the referral and wrote to the SENCo on 15 December 2021. It said there was insufficient medical evidence to support a WAVE referral. It said it was evident B has specific SEN and that the school was awaiting an EHCP decision. The Panel concluded the SENCo should await the outcome and continue to make referrals for B into the relevant support teams.
19. Mrs X says the school was unable to fulfil key parts of the EHC plan, in particular that there would be a named key adult in school, with skills and experience of working with young people with social communication difficulties and social, emotional and mental health difficulties so B could develop a trusting relationship.
20. At a Team around the Family meeting on 26 January 2022 discussion took place about the provision for B and in particular the above person. A representative for the school said it would be impossible to find someone within the school with the necessary skills to fulfil that role and that it could take a long time to recruit someone with the necessary skills. It was felt that the important thing was to have the necessary skills.
21. I made further enquiries to the Council about the action it had taken to ensure a suitable education was being provided for B. I specifically asked it to comment on what happened at the meeting on 26 January and to provide evidence that it ensure the provision in the EHC plan was provided. The delayed response received from the Council did not provide any evidence to show it was satisfied suitable education was being provided or that the provisions set out in the EHC plan were in place. It simply said there was nothing on file to suggest it was not being provided.

Analysis

22. The Council’s failure to complete the EHC plan process in accordance with the statutory timeframes is fault. The whole process for completion of an EHC plan should be 20 weeks from when the assessment was requested. Mrs X requested an assessment on 28 June 2021 and so the process should have been completed by 15 November. The final EHC plan was not issued until 18 January, almost two months late.
23. The law requires a council to arrange suitable education for a child it knows cannot attend school due to medical or other reasons. EWO was involved with B in November 2021 and accepted there were medical reasons for B’s non-attendance at school. A WAVE referral was made and was considered by the Panel in December 2021. The panel declined the request.
24. I find no fault in the process for the WAVE referral. The panel used their professional judgement and took the view the threshold for alternative provision was not met. I am satisfied this was a decision the Council was entitled to take and so I cannot criticise it.
25. However, the Council was aware B was not attending school and while the threshold for education via a WAVE referral may not have been met, the duty to ensure suitable education was being provided was for the Council and not the school. In response to my enquiries on this issue the Council said it did not provide alternative education after the EHC plan was issued in January 2022 because the named school was receiving additional funding which it could use to support B’s engagement in education. However, it has not provided any information to show that it took action to ensure the school was providing education. This also applies to the period from when it knew B was not attending school.
26. I asked the Council, as part of my further enquiries, to specify the date it was first aware B was not attending school. It failed to answer this question or provide any evidence. Mrs X says B was not regularly attending school in the previous school year and that this was known to the Council. In the absence of evidence from the Council, I take the view that the school knew from the start of the school year in September 2021 that B was not regularly attending school.
27. The Council was aware B was not receiving an education at school following his failure to return for the new term in September 2021. Mrs X says the school provided one maths book before September 2021 and that she asked it what topics were being covered. I note that some art tuition was provided from February 2022 onwards for a total of five sessions as well as some meetings to plan for B’s transition to secondary school in September 2022. The Council has not provided any evidence to show it took action to ensure this amounted to a suitable education or that the provision detailed in the EHC plan was being provided.
28. Having identified fault I must consider what injustice has been caused to Mrs X and B. The delay in completing the EHC plan caused frustration and distress. I note Mrs X did not appeal after the EHC plan was issued in January 2022 and so I do not consider her right of appeal was delayed.
29. I appreciate that when the EHC plan was agreed this enabled B’s current school and the new school he moved to in September 2022 to plan for his reintegration and he did return to school in September 2022. However, the Council has failed to evidence what education was provided. I consider a symbolic payment to remedy the loss of educational provision should be provided. In reaching a view I have taken account of the fact some work was done regarding B’s transition to the new secondary school in September 2022 and that has resulted in a successful integration.

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Agreed action

30. To remedy the injustice caused to Ms X and B as a result of the fault in this case the Council, within one month of my final decision, will take the following action:
• Apologise to Mrs X and B;
• Pay Mrs X £300 in recognition of the distress and anxiety experienced and the time and trouble she was put to; and
• Make a symbolic payment of £2,250 to be used by B to recognise the loss of education provision.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman