Summary: Mrs X complained about how the Council met her daughter, Z’s, educational and special educational needs. The Council was at fault for delay in carrying out the assessment for Z’s Education, Health and Care plan. This caused Mrs X frustration and meant Z was delayed in receiving provision. The Council was also at fault for failing to properly consider if it should arrange alternative provision when Z was not receiving suitable education. On balance, had it acted without fault, the Council would have put provision in place. Its failure to do so had a negative impact on Z’s development at a critical period in her education. The Council will apologise to Mrs X and Z and pay Mrs X £1700 in recognition of the injustice Z experienced.

The complaint

1. Mrs X complained about how the Council met her daughter, Z’s educational and special educational needs. In particular, Mrs X said the Council:
1. delayed in carrying out the assessment for Z’s Education, Health and Care plan;
2. did not carry out an Occupational Therapy or Speech and Language Therapy assessment as part of its Education, Health and Care plan assessment;
3. did not provide alternative provision for Z;
4. did not name a specific school in Z’s September 2021 Education, Health and Care plan. Instead it named a mainstream type school;
5. did not properly look for a specialist school setting for Z between September 2021 and July 2022;
6. did not conduct itself properly at the SEND Tribunal hearing; and
7. delayed in arranging the provision in Z’s July 2022 Education, Health and Care plan.
2. She says this had a significant impact on Z’s development and wellbeing and was distressing for the entire family.

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What I have and have not investigated

3. I have investigated points (a) to (c) above. I have not investigated points (d) to (g) for the following reasons.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman also cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. Mrs X appealed the placement named in the plan so I cannot investigate the Council's decision to name a mainstream type placement in Z’s EHC plan (point (d)).
5. The Ombudsman may choose not start or decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. Mrs X complained about how the Council sought a specialist school place between the dates of September 2021 and July 2022 (point (e)). I have not investigated this issue because when a potentially suitable placement offered ‘taster’ days, Z was unable to attend due to her health needs. In any event, Mrs X ultimately decided Z should have home tuition instead.
6. Mrs X’s complaint about the Council's conduct at the SEND Tribunal is not for the Ombudsman to consider. The law expressly prevents us from investigating this. The SEND Tribunal is able to make judgements about council conduct and take action in response including barring them from the hearing and making an order for costs (point (f)).
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. Mrs X has not complained to the Council about delay in arranging Z’s SEN provision (point (g)) and it is reasonable for her to do so.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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)
11. 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)
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
13. Mrs X complained about the Council's failure to offer Z alternative provision from January 2021 to July 2022, when the Tribunal heard her appeal. I have only investigated the period from January to September 2021. Mrs X appealed the placement in Z’s September 2021 EHC plan, which named a mainstream type school. The Council, in naming a mainstream type school, was setting out its position such a school was suitable and available. Mrs X appealed on the grounds mainstream education was not suitable for Z due to her health and SEN needs. This is inextricably linked to her complaint about failure to provide alternative provision to Z’s mainstream school. Any ongoing injustice in respect of not providing alternative provision, once the final EHC plan was issued, was a consequence of the Council’s appealable decision to name the school in the final plan and therefore not something we can investigate. I therefore cannot investigate the period covered by the appeal; September 2021 to July 2022.
14. 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

15. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
16. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

17. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
18. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section H: The child or young person’s health needs.
• Section I: The name and/or type of school. 
19. The statutory timescales for completing an EHC assessment and issuing a final EHC Plan is 20 weeks from the request for an assessment.
20. The SEN (Special Educational Needs) and Disability (SEND) Regulations 2014 state that a council must obtain information and advice from such persons as reasonably requested by the child’s parent. This advice should be provided within six weeks of the request.
21. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative Provision

22. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
23. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
24. Councils should arrange provision as soon as it is clear a child will be absent for health reasons for more than fifteen days, whether consecutive or cumulative.
25. Although there is a clear duty on councils to make alternative educational provision, they may decide a child cannot cope with full-time provision, especially where the reason is medical. In such circumstances, there should be a clear professional opinion to support this. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child.

Good administrative practice

26. The Ombudsman issues guidance for councils called “Principles of good administrative practice”. It states we expect councils to clearly explain the rationale for a given decision and record those reasons.

Council's complaints policy

27. The Council operates a two stage complaints procedure. At stage one, it will respond within 20 working days. At stage two it will respond again within 20 working days, or 65 working days in complex cases.

What happened

28. In January 2021 Mrs X requested an EHC plan assessment for her daughter Z, who was in year 9. She said:
• Z had a diagnosis of anxiety and was waiting for an assessment to decide if she had autism;
• she had been struggling to attend school due to her anxiety for several years. She currently only attended school one to three days a week and on a reduced timetable. She usually spent the equivalent of one to two lessons in an area set aside for pupils with SEN which sometimes had a teaching assistant present to help with work;
• a Council team which specialises in helping SEN children access schooling (the LIFT team) had recommended a programme to increase Z’s resilience and another to help her manage symptoms related to autism.
• Z nonetheless was still struggling and needed more support, which Mrs X felt could be obtained through an EHC plan.
29. As part of the EHC plan assessment, the Council sought information on Z from her school. It responded in February 2021 to say:
• despite the high levels of support it had already put in place, Z was still not able to manage school;
• it said it could not seek Higher Needs Funding (HNF) for Z because she was not in school for the necessary six hours a week in order to meet the criteria;
• it questioned whether a mainstream school was appropriate for Z and suggested she may be better placed in a setting more suited for children with her needs. It said the large class sizes and corridors were particularly challenging for Z; and
• it was confident Z would be able to access the curriculum if she was in the correct setting or had the support of outside agencies.
30. In June 2021, Mrs X emailed the Council to chase the assessment outcome and asked it to seek OT and SALT assessments for Z. Mrs X says the Council called her at the end of the month to say it would not agree to carry out OT and SALT assessments because Z had recently had an autism assessment and that would provide sufficient information on her communication and sensory needs.
31. The Council has no records of that phone call or its consideration of Mrs X’s request.
32. In July 2021, Mrs X contacted a Council officer called a Provision Evaluation Officer (PEO) to ask for support. PEOs work with mainstream schools to make sure children with SEN are receiving the provision they need. Mrs X says the PEO officer called her and discussed her concerns about the suitability of a mainstream placement for Z.
33. Z stopped attending school altogether in September 2021.
34. The Council issued Z’s final EHC plan in early-September 2021. It issued an amended plan a few weeks later after comments from Mrs X. The plan noted Z had significant anxiety and had been diagnosed with autism. The SEN provision set out in the plan was strategies to help Z to manage her symptoms and develop communication skills. It named a mainstream type placement.
35. At the end of the month, the PEO attended a meeting with the School at Mrs X’s request. The PEO suggested the School refer Z to a school for children with health needs and back to the Council's LIFT team. The PEO also suggested the School seek HNF funding.
36. Mrs X did not agree with the Council's assessment of Z’s needs (section B), Z’s special educational needs (section F), Z’s health needs (section H) or with the placement (section I) so she appealed those elements to the SEND Tribunal.
37. Mrs X subsequently paid for private OT and SALT assessments, which she submitted as part of her appeal.
38. The Tribunal heard Mrs X’s appeal in mid July 2022 and agreed with most of her arguments. It ordered the Council to amend section I to name Educational Otherwise Than at School (EOTAS), which it had to provide for seventeen hours per week.
39. The Council issued Z’s amended plan in early August 2022. It now included provision such as weekly at home SALT and OT sessions, which would become less frequent in time. It also included strategies for teaching and support staff to use when Z was able to access non-EOTAS education.
40. Following the August 2022 plan, Mrs X sought a personal budget to allow her to commission Z’s EOTAS. Z has since been receiving home tuition; she is in year eleven.
41. I asked the Council how it decided whether it owed Z the duty to provide alternative provision between January and September 2021. The Council told me the information in the assessment request showed Z was receiving as much full-time education as was possible given her health needs as a result of the School’s interventions. Its PEO officer was also supporting the School. It therefore felt it did not owe Z the alternative provision duty.

Complaint

42. Mrs X complained to the Council in late March 2022. The Council did not respond until 10 June, 49 working days later. It said the delay was due to complicated complaints, greater complaint numbers and staff absence, it apologised.
43. Mrs X remained dissatisfied and made a stage two complaint in mid-July. The Council responded 83 working days later, in mid-November, after the Ombudsman became involved.

Findings

EHC plan assessment

44. The Council must carry out EHC plan assessments within 20 weeks of the date of request. The Council took almost 32 weeks, which is three months too late. This delay was fault. It delayed Mrs X receiving her appeal rights, which in turn delayed her appeal to the SEND Tribunal. This caused her frustration.
45. This delay also caused injustice to Z. But for the delay, Z would have received the SEN provision in the August 2022 plan three months earlier, including the weekly OT and SALT sessions. The loss of these provisions is likely to have impacted on her progress and learning.

Occupational Therapy and Speech and Language Therapy Assessments

46. The Ombudsman cannot question a Council's decision if it is made without fault. The SEN (Special Educational Needs) and Disability (SEND) Regulations 2014 state that a council must obtain information and advice from such persons as reasonably requested by the child’s parent. Mrs X says that after she asked the Council to seek OT and SALT assessments it called her to say it did not think assessments were needed as Z had recently had an autism assessment. The Council decided the request was therefore not reasonable. The Council properly considered Mrs X’s request so I cannot question its decision not to agree the assessments.
47. However, the Council has no record of how it considered Mrs X’s request or of its conversation communicating that decision to her. This was fault. The Ombudsman expects councils to keep appropriate records, particularly of key decisions and how it informs relevant people of the outcomes. The fault did not cause Mrs X an injustice because she confirmed she received the outcome on the phone. She was about to seek private assessments in time for the Tribunal hearing.

Alternative provision- January 2021 to September 2021

48. The Council has a duty to arrange alternative provision if a child in its area is not receiving a suitable education due to illness. This duty applies even when a child is on a school’s roll and receiving some educational provision. The total provision should be full-time unless a child is unable to cope with it. There should be clear professional opinion to support this conclusion. Councils should arrange alternative provision when it becomes clear a child is going to be out absent from school for fifteen days on health reasons, even if cumulatively.
49. The Council told me it concluded, based on Mrs X’s EHC assessment request, that the interventions the School put in place meant Z was receiving as close to a full time education as possible and therefore it did not owe Z the duty to arrange alternative provision. It also said the actions the PEO took showed it took steps to help.
50. However, in her January 2021 EHC plan assessment request Mrs X told the Council Z’s health was impacting on her ability to access schooling. She said it had been a problem for several months already. She said the School had tried to support Z through a reduced timetable and access to a special area of the school for children with SEN. Despite that, and some support from the Council in the form of offers of courses, Z was still not able to attend school anything near full-time and when she was in school, she was rarely in classes.
51. In addition, in February Z’s School told the Council it had already put high levels of support in place but Z was still not able to manage to attend. In fact, her attendance was so low the School was unable to apply for HNF funding to help support her further. It felt mainstream education was not suitable for Z given her health needs, but she would be able to learn in another environment.
52. Both the School and Mrs X were saying Z had health needs that prevented her from accessing school in any meaningful way and that this has been the situation for some time. The Council has not evidenced how it came to the decision it did not owe Z any alternative provision. In coming to key decisions councils should be able to show they have given due regard to the relevant evidence. I am not satisfied the Council has done so in this case, particularly given the strong evidence provided by Mrs X and the School. I therefore find the Council at fault for failing to properly consider if it owed Z alternative provision.
53. The Council says it provided ongoing support through the PEO. However, the PEO did not begin supporting Z and the School until July 2021, after Mrs X contacted them directly to seek help. This was around six months after the Council first became aware Z was too ill to attend school with any frequency. The PEO took limited action, including recommending the School seek HNF funding, which it had previously said was not possible, suggesting the School refer Z to a specialist school and back to a team who had previously helped her. None of this resolved the immediate issue of Z’s lack of suitable education due to her anxiety.
54. On balance, had the Council properly considered the evidence available to it, it would have found it owed the alternative provision duty. Given many of Z’s challenges accessing school were due to the mainstream environment, and that she was able to participate with the home tuition put in place after the August 2022 EHC plan, I am satisfied Z would have been able to access any such alternative provision. Where the Ombudsman finds a child has not had alternative provision where they should have, we usually recommend a payment of between £200 and £600 per month. I have considered Z’s age, the provision she was receiving at the School and whether she could have coped with full-time education. I have recommended a payment of £250 per month which, taking into account school holidays, totals £1500.
55. It is disappointing to see the Council has not put alternative provision in place when it should have, given we have found fault with it for the same issue several times recently. I have not made any recommendations to prevent the fault occurring again because, in one of our previous investigations, the Council agreed to carry out a detailed review of its policy and procedure on alternative provision. It has just completed that recommendation (21 017 510 - Local Government and Social Care Ombudsman).

Complaint

56. The Council responded to both of Mrs X’s complaints outside of the timescales set out in its policy. This was fault and caused Mrs X undue frustration.

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Agreed action

57. The Council will provide us with evidence it has complied with the above actions.
58. Within one month of the date of my final decision, the Council will:
• apologise to Mrs X and Z for the injustice they experienced as a result of the faults identified in this decision.
• pay Mrs X £200 for the frustration caused by the delay in carrying out the EHC plan assessment and responding to her complaints.
• pay Mrs X £1500 for the benefit of Z’s education. This is in recognition of the impact of the lost educational provision from January to September 2021 and the delayed SEN provision caused by its delay in carrying out the EHC plan assessment.

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Final decision

59. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman