Summary: Mrs X complains about delay by the Council in issuing an Education and Health Care Plan and about failure to make suitable provision for her daughter. Some of Mrs X’s complaints are outside of our jurisdiction. Based on the evidence seen, we find there was a delay in issuing the final Plan. We also find the Council at fault for failing to provide her daughter with alternative provision between September 2021 and January 2022, and failing to respond to Mrs X’s complaint in a timely manner. The Council has agreed to apologise and make a financial payment to remedy the injustice this caused.

The complaint

1. Mrs X complains:

1. there was a significant delay by the Council in issuing her daughter’s (Y), Education and Health Care Plan;
2. there was a delay by the Council in providing suitable and alternative provision for Y from September 2021;
3. there was a delay by the Council in providing education otherwise than at school. Mrs X also says she was not offered a choice of tutors and the tutors provided by the Council were not suitable;
4. the Council’s legal team acted inappropriately, and she felt harassed to comply with requests for information within short timescales; and
5. she had to repeatedly chase the Council for updates, information and responses to her emails.

2. Mrs X says because of this Y has missed out on educational provision which has impacted her development. Mrs X says this also caused her significant distress and frustration.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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. I spoke to Mrs X about her complaint and considered the information she sent. I made enquiries of the Council and considered its response. I also considered relevant law and guidance.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Special educational needs

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place and reviewed each year.
10. Parents have a right to appeal to the SEND tribunal of they disagree with the special educational provision, the school named in their child’s Plan, or the fact that no school or other provider is named. 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.
11. The Ombudsman cannot look at complaints about what is in the EHC Plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
12. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably’ linked to the matters under appeal. This means that if a person disagrees with the placement or type of placement named or not named in an EHC Plan we cannot seek a remedy for the lack of education after the date the appeal was engaged if it linked to the disagreement about the placement.

EHC Plan process

13. The Statutory guidance on ‘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; and
• 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).

14. There are some circumstances in which a council may not be required to comply with these timescales if it is impractical to do so because:

• the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;
• the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;
• exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period ; or
• the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.

Amendments following Tribunal order

15. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

Education Other Than at School (EOTAS)

16. Councils have a duty to provide educational provision which meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school.
17. For children and young people with an EHC plan, the EOTAS provision must be covered in section F of an EHC Plan which should detail the package of education being provided.

What happened

18. There has been a great deal of correspondence and discussion between Mrs X and the Council about these issues. It is not necessary for me to detail everything that happened here. I have set out the key events.
19. Mrs X’s daughter Y has a diagnosis of Autistic Spectrum Disorder with very significant demand avoidance. Y suffered from arrange of medical conditions from birth causing pain and trauma which has severely impacted her mental health and wellbeing.
20. On 14 June 2021, the Council received a request for an EHC needs assessment for Y. At the time of the request Y was four years old.
21. On 14 July, the Council’s EHC panel decided to assess Y. The Council informed Mrs X of its decision and explained that due to the summer holidays, the deadline for advice from professionals and schools was 13 October, which was six weeks from the start of the new academic term.
22. On 14 October, the EHC panel agreed to issue an EHC Plan for Y. The Council sent a draft EHC Plan to Mrs X on 9 November 2021. Mrs X provided comments and requested the Council consult with School A.
23. On 24 December, the Council issued a final EHC Plan naming a type of school rather than a specific placement.
24. Following a request from Mrs X, on 4 January 2022 the Council agreed to provide tuition for Y until a school place was finalised. On 14 January, the tutoring company told the Council it was still looking for a suitable tutor. The Council sent Mrs X an update.
25. On 10 January, the Council consulted with School A and a special unit (School B). Both settings offered a place for Y.
26. On 21 January, the Council issued an amended final EHC Plan naming School B as the most suitable provision for Y.
27. On 24 January, it was agreed that tuition would commence on 21 February for seven hours per week, split over two days.
28. On 3 February, Mrs X appealed to the SEND tribunal requesting a change of placement due to parental preference. The tribunal hearing was scheduled for 24 May.
29. On 28 March, the SEND tribunal received a change of request form from Mrs X. Mrs X submitted a request to amend the grounds of appeal from an education setting to an EOTAS package for Y. The listed hearing date was vacated.
30. Between March and October there was extensive communication between, Mrs X, the Council and the Council’s legal team. This communication concerned matters relating to Mrs X’s appeal which included EOTAS and tutoring for Y. For the reasons explained in paragraphs 11 and 32, it is not necessary for me to provide any further details of that communication here.
31. On 29 April, Mrs X was informed that a place at the specialist unit named in the EHC Plan was still available for Y to attend and the request for an EOTAS package was part of the tribunal process. The hearing took place on 31 October.
32. On 14 July Mrs X complained to the Council about:

• delay in issuing an EHC Plan for Y;
• the EHC Plan process including finalising the plan without naming a school and then naming an unsuitable school;
• failure to provide alternative education/tuition for Y;
• failure to provide therapies such as Speech and Language Therapy (SALT) and Occupational Therapy;
• refusing to provide an EOTAS package;
• threatening and intimidating behaviour by the Council’s legal team; and
• not responding to communication and refusing to work collaboratively.

33. On 16 October, the Council responded to Mrs X’s complaint at stage two of its complaint procedure.

Analysis

34. As explained in paragraph 11, the courts have said that if someone has appealed to a SEND tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably’ linked to the matters under appeal. In this case therefore, I cannot investigate the education provided or lack of education from 21 January 2022, when the final amended Plan was issued. I cannot investigate Mrs X’s complaint about EOTAS and the actions of the Council’s legal team as this was part of the tribunal process.
35. I understand that following the SEND tribunal hearing on 31 October 2022, Mrs X has complained to the Council again about failing to comply with the Order. I have not investigated this part of Mrs X’s complaint as it must be addressed through the Council’s complaint process in the first instance.
36. I can consider Mrs X’s complaint about delay in issuing the EHC Plan and alternative provision/tuition and poor communication for the period September 2021 to 21 January 2022, when the final amended plan was issued. I cannot investigate beyond this period as the tribunal documents show that tuition was discussed as part of the EOTAS package and therefore ‘inextricably’ linked to the matters under appeal. I also find that most of the communication beyond this period is with the Council’s legal team about the appeal.

September 2021 to January 2022

37. The Council was aware from September that Y was not receiving any provision.
38. During this period the Council was completing an EHC assessment and producing an EHC Plan for Y. The Guidance says that the whole process must take no more than 20 weeks (unless certain specific circumstances apply).
39. The Council should have issued the final EHC Plan by 1 November 2021. In response to my enquiries the Council explained that it had applied the summer holiday exception, therefore allowing for a delay of up to six weeks. In response to my further enquiries, the Council has acknowledged the exception did not apply in Y’s case.
40. The Council issued a final amended Plan on 21 January 2022. This is a delay of 12 weeks. This is fault. During this period Y was entitled to receive an education suitable for her needs. I have seen no evidence the Council was considering alternative provision until Mrs X requested home tuition in January 2022. In response to our enquires the Council accepted there was a delay in implementing this provision. This is fault and has meant that Y has missed educational provision she was entitled to. The delay also caused Mrs X distress in the form of uncertainty about her daughter’s education and delayed her appeal rights.
41. In the absence of any assessments or information available during this period regarding the level of provision deemed suitable for Y, I have considered Y’s complex needs and the impact of receiving no provision during this period. Therefore, in line with our Guidance on Remedies, I recommend the Council pays £300 for each of the school months during this period.
42. During this period, I have not seen evidence of poor communication with Mrs X. However, I have found fault with the way the Council responded to Mrs X’s complaint. In response to our initial enquires the Council confirmed the complaint was escalated to stage two for a management review due to a lack of response at stage one. There is no evidence to show the Council responded at stage one. This is fault and meant Mrs X had to wait three months before receiving a formal response to her complaint, causing her distress, frustration and uncertainty.

Agreed action

43. To remedy the injustice set out above, within one month of the final decision the Council will:
1. apologise to Mrs X for the faults identified in this statement;
2. pay Mrs X £1200 for not ensuring Y had access to suitable provision from September 2021 to 21 January 2022. This should be used for Y’s educational benefit. This is calculated at 16 school weeks (accounting for school holidays) at £300 per month;
3. pay Mrs X £300 for the distress and uncertainty caused by the delay in issuing the final EHC Plan and responding to her complaint.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. Subject to further comments by Mrs X and the Council, I intend to complete my investigation finding fault causing an injustice to Y and Mrs X.

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Investigator's decision on behalf of the Ombudsman