Summary: Ms X complained that the Council failed to deliver the provision set out in her daughter’s education, health and care plan and failed to put in place alternative provision when she was unable to attend school because of ill health. We found the Council was at fault because there was a delay in starting speech and language therapy and because it failed to put in place alternative provision from September 2022. The Council has agreed to apologise to Ms X and make a payment to her.

The complaint

1. Ms X complains that the Council:
• issued a final EHCP on 15 September 2021 without giving her an opportunity to comment on the draft as required by law;
• failed to put in place the speech and language therapy provision set out in her daughter's EHCP until 29 November 2021;
• failed to put in place alternative provision for her daughter when she was unable to attend school for significant periods between December 2021 and February 2023 because of anxiety; and
• failed to deliver the provision in her daughter's education, health and care plan during this period.
2. She says that, as a result, her daughter missed out on education and special educational provision and this caused the family distress.

Back to top

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. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. Local Government Act 1974, section 26(6)(a), as amended)
6. 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.

Back to top

How I considered this complaint

7. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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.

Back to top

What I found

Legal and administrative background

Education, health and care plans

10. A child with special educational needs (SEN) may have an education, health and care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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 I: The name and/or type of school.
11. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Education for children out of school

13. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise.
14. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils to arrange suitable alternative education. The only exception is when suitable provision is already being made.
15. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
16. The Council should attempt to arrange this alternative provision as soon as it is clear the child will be away from school for more than 15 school days, although there is no statutory timeframe.
17. When considering whether a school can meet a child’s needs, the Council must decide whether it is “reasonably practicable” for them to attend. The Council must consider relevant information, including medical advice, when reaching this decision but is not obliged to follow medical advice.
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of sight? Ensuring children out of school get a good education, published in July 2022)
19. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Key facts

20. Ms X’s daughter, D, has a diagnosis of autism and significant anxiety.
21. In June 2021 the Council agreed to Ms X’s request for an education, health and care needs assessment.
22. The Council sent a draft EHCP to Ms X on 13 August 2021 and invited her to an action planning meeting on 9 September 2021 to discuss the plan before it was finalised.
23. D started in Year 7 at a mainstream secondary school, School Y, in September 2021. Ms X says that, after only three weeks, it was clear that she was struggling to attend because of anxiety.
24. The Council issued a final EHCP on 15 September 2021.
25. On 29 September the school’s special educational needs coordinator (SENCO) explained to Ms X that the school was not planning to start speech and language therapy (SALT) until after half term to give D time to settle into the school.
26. On 12 October Ms X sent an email to the SENCO asking for information about which days and times SALT would be provided. The SENCO said she would plan this the following week and would contact Ms X before half term.
27. On 8 November Ms X again contacted the SENCO asking when SALT would begin. The SENCO apologised for the delay saying there had been staff shortages so the school had been unable to start the programme at the allocated time. She said it would begin in a couple of weeks.
28. Ms X contacted the Council’s SEN team on 16 November saying D was frequently missing school because of her SEN and asked whether there was a team who could offer advice. The Council said the school needed to make a referral and advised Ms X to discuss her concerns with the SENCO.
29. On 18 November, the SENCO confirmed to Ms X that D was receiving 2 hours 45 minutes per week pastoral support together with in-class support for 11 lessons of one hour 15 minutes. She also had access to pre-school provision, learning support at break and lunch times, learning support homework club twice a week and a named key worker. This was shared provision available to all students with EHCP’s which equated to about one hour per week per child. The SENCO said D would also receive SALT intervention of one hour per week split over three sessions starting in the week commencing 29 November.
30. On 10 December the speech and language therapist sent an email to Ms X saying she had met with the school to discuss the SALT programme and provided resources to support with this. This included: how to set and measure targets; activities to develop skills at each level; and how to progress the approach once D reached a certain stage of confident talking with her key worker. The therapist said the key worker who would deliver the programme was off sick but the school hoped to set up the therapy at the suggested intensity of three times per week from January 2022.
31. The SALT started in January 2022 but, on 26 January, Ms X asked the school to reduce the sessions to twice per week because it was adding to D’s anxiety.
32. On 12 May 2022 Ms X contacted D’s allocated SEN caseworker, Officer A, to ask how to request alternative provision. She said the mainstream school environment was not working out for D despite outside intervention and school support. She said she was regularly unable to attend, taking one or two days off per week. She thought online school may be more suitable and asked whether D’s EHCP could be amended to name an online provider.
33. Officer A explained that, having a different school named on an EHCP could only be done through the annual review process. Alternatively, Ms X could request an emergency review. She also provided information about educating a child at home. Ms X said she would wait until the annual review in September to see how D was progressing.
34. A few days later Ms X sent an email to Officer A saying D would be off school until after half term because of anxiety. She asked whether alternative provision could be provided because D had had multiple absences over the preceding few weeks totalling more than 15 days. Officer A advised Ms X to discuss this with the school as they could provide work for D to complete at home and put in place ways to support her return to school.
35. On 8 June 2022 an emergency review meeting was held. It was agreed D would attend school on a reduced timetable that would gradually increase so she was attending full-time by the end of the summer term.
36. D missed eight days school in June and a further seven in July.
37. There was another meeting on 15 July. Ms X said School Y was too big for D and she was only able to attend three days per week because of the stress caused by the environment. She said she was exploring an independent education provider with a smaller environment. It was agreed D would re-join the school in September 2022 with a view to a possible move to a new placement.
38. On 18 July the school advised the SEN team that Ms X was requesting a change of placement and did not want the current draft EHCP to be finalised until this had been explored. As this request was received in the final week of the summer term, it was added to the SEN panel agenda for 15 September 2022.
39. Ms X told the Council that, after a recent SALT assessment, it had been agreed that SALT provision would be suspended as D was currently too distressed to benefit from it. Ms X said the school had tried various interventions to help D attend but they were not working. She said D needed a substantially smaller school with less pupils. She asked the Council to consult two private schools. The Council explained it would not fund a private school placement. It remained of the view that D’s needs could be met within a mainstream school and suggested Ms X attend an open evening at a smaller mainstream secondary school.
40. D did not return to school in September because of anxiety. Ms X sent the Council a letter from her GP confirming her absences were due to ill health.
41. On 15 September 2022 the SEN Panel considered the request for a change of placement and directed the SEN team to consult the school requested by Ms X. The school said it could not meet D’s needs and was unable to offer her a place.
42. D returned to school in mid-September but was still struggling with anxiety.
43. After being consulted on the draft EHCP, School Y confirmed that, although it could meet D’s academic needs, it was not currently able to meet her sensory needs as they were directly linked to the size of the site and the overall pupil population causing acute anxiety. It said these factors could not be changed or adapted so the school was unsuitable for D’s SEN.
44. On 18 October Officer A suggested consulting another smaller mainstream setting. Ms X agreed to visit the school. The officer advised that the Council had to finalise the EHCP because of statutory timescales and would name School Y but this could be amended in future. She also confirmed that, by issuing the final EHCP, Ms X would be able to appeal to the Tribunal.
45. On 20 October the Council issued a final EHCP naming School Y. Its view was that School Y was suitable provision as it was able to offer adaptations such as different start and finish times, a learning support assistant to take D to and from lessons, the use of different entrances and exits and a quiet space to have her lunch with friends.
46. In November D’s absences increased and, on 23 November, Ms X again asked the Council to put in place alternative provision for D while she was unable to attend school full-time.
47. The Council asked School Y whether it would agree to a dual registration with another school. School Y confirmed it would agree to this. So, the Council consulted with another school. It was unable to offer D a place.
48. On 4 December 2022 Ms X appealed to the SEND Tribunal about the contents of D’s EHCP and the named school. She also complained to the Council about lack of alternative provision.
49. In January 2023 Ms X suggested online provision two days per week and school attendance at School Y three days per week but the Council was unable to agree to this as the online provision was not registered with Ofsted.
50. D did not return to school after the Christmas break. The Council arranged alternative provision with a tutor in maths and English twice a week for a fixed period of four weeks starting on 9 January 2023.
51. Following Ms X’s request, the SEN team formally consulted a special school. The school offered D a place and she started in March.
52. On 22 March Ms X confirmed that she was happy with the contents of the proposed amended EHCP which named the new school in section I. She withdrew her appeal and the EHCP was finalised in April 2023.

Analysis

The opportunity to comment on the draft EHCP

53. Ms X says the Council issued a final EHCP on 15 September 2021 without giving her an opportunity to fully comment on the revised draft plan.
54. The Council sent the draft EHCP to Ms X on 13 August 2021. The letter explained that an action planning meeting (APM) had been scheduled for 9 September 2021 and it was important that she read the draft plan before the meeting to check all the information was correct. It explained that any blank parts of the EHCP would be discussed at the meeting.
55. Ms X responded on 21 August raising some concerns about the content of the draft plan and asking various questions. Officers A answered some of Ms X’s questions and confirmed that the draft EHCP could be discussed and amended at the APM.
56. On 20 September the Council sent Ms X the final EHCP. Ms X responded saying, “I can see the plan contains the amendments made during the APM”.
57. Ms X says she expected to receive a revised draft plan following the APM and a further opportunity to comment before it was finalised.
58. It appears there may have been some confusion on Ms X’s part. Councils must give the child’s parent or the young person 15 days to comment on a draft EHCP. The Council complied with this duty by giving Ms X the opportunity to comment on the draft EHCP before the APM. It then issued a final plan including the amendments agreed at the meeting. The Council was not required to give Ms X a further opportunity to comment before issuing the final plan.

Speech and language therapy

59. Ms X says the Council delayed in providing the speech and language therapy set out in her daughter's EHCP.
60. The Council says that, when the EHCP was issued in September 2021, the school allocated a key worker to work with D three times a week to complete a SALT planned ‘small step’ programme with the aim of supporting her to independently communicate her needs and preferences to a range of familiar adults. It says it has no record that there was a delay in starting the therapy.
61. Ms X has provided emails between herself and the school’s SENCO and emails between herself and the speech and language therapist which confirm the SALT provision set out in D’s EHCP did not start until January 2022.
62. The school’s view was that SALT provision should not start until after half term in October 2021 to allow D to settle into the school. This was a matter for their professional judgement. So, I do not criticise this. However, the provision did not begin until January 2022. Although this was due to staff sickness, which could not be helped, this was fault.
63. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
64. I find the Council was also at fault in failing to check with the school that the provision had been put in place.
65. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools and other education providers are providing all the special educational provision for every pupil with an EHCP. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
66. There is no evidence to suggest the Council took any steps to check whether the SALT provision set out in D’s EHCP had been put in place even though she had moved to a new school.
67. I have recommended a remedy below for the injustice caused by the failure to put SALT provision in place between October 2021 January 2022.

Alternative provision

68. Ms X says the Council should have put in place alternative provision for her daughter from December 2021 as she was unable to attend school for significant periods because of anxiety and had already missed more than 15 days of school.
69. The Council says D attended School Y from September 2021 to December 2022 and the school put in place various support to enable her to attend. When D stopped attending school completely in January 2023 it arranged alternative provision.
70. I find the Council was not at fault in failing to put in place alternative provision in December 2021 because the school was working with Ms X to put in place various strategies to support D to attend full-time. A reintegration plan was agreed in June 2022 whereby D would attend on a reduced timetable which would gradually increase so she was attending full-time by the end of term. However, by mid-July D was still only attending three days per week because of anxiety and it was agreed she would re-join the school in September but with a view to a possible move to a new placement.
71. I find the Council was at fault in failing to put in place alternative provision from September 2022 when D was unable to return to school at the beginning of term. Ms X provided the Council with a letter from her GP confirming D’s absences were because of ill health. Although D returned to school in mid-September, she was still struggling with anxiety and School Y confirmed it was unable to meet her sensory needs which were directly linked to the size of the school and the number of pupils. It was clear from this point that School Y was not suitable or accessible for D so the Council should have put in place alternative provision while it consulted suitable alternative placements. Failure to do so caused D an injustice.
72. As Ms X appealed to the Tribunal against the placement named in the EHCP issued on 20 October 2022, I can only recommend a remedy for the injustice caused by the lost provision up to this date. The period after the right of appeal arose is outside the Ombudsman’s jurisdiction.

Delivery of provision in the EHCP

73. Ms X says the Council failed to deliver the provision in D’s EHCP between December 2021 and February 2023 when she was absent from school. She accepts D did receive provision when she was in school.
74. The provision set out in the EHCP could only be delivered while D was at school, so I do not consider there are grounds to criticise the Council for failing to deliver it when she was not at school.
75. I have already considered the failure to provide SALT above. I am satisfied that SALT was provided from January 2022. But it was suspended in July 2022 following a SALT assessment. D’s EHCP stated that she would receive “access to advice and intervention from the Speech and Language Therapy Department, as deemed appropriate by that service. Therapy provision may alter to meet [D’s] changing needs and will be subject to review/reassessment as prioritised by the Speech and Language Therapist involved at any given time”. So, there was no fault in not delivering SALT from July 2022.

Back to top

Agreed action

76. The Council has agreed that, within one month, it will:
• send a written apology to Ms X for the fault identified above and make a symbolic payment of £200 in recognition of the distress caused; and
• pay Ms X £900 to use for the benefit of D’s education in recognition of the lost SALT provision between October 2021 and January 2022 and the failure to secure alternative provision between September 2022 and 20 October 2022.
77. The Council has also agreed that, within two months, it will review its systems for checking special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement.
78. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

79. I find the Council was at fault in failing to put in place alternative provision between September 2022 and 20 October 2022 and in failing to secure SALT provision between October 2021 and January 2022.
80. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman