Summary: We have found the Council at fault for not issuing Y’s EHC Plan in line with statutory timescales, failing to provide Y with educational support for ten weeks, failing to provide Mrs X with information regarding supervision for Y during the school day and failing to follow its complaints process correctly. To remedy the injustice caused the Council has agreed to apologise to Mrs X and make payments to reflect Y’s missed education and the uncertainty and frustration caused.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council has not sent her child, Y’s, Education, Health and Care (EHC) Plan and the accompanying decision letter advising her of her right of appeal to the Tribunal. Mrs X also complains the Council has failed to:
• Provide supervision during the school day since 17 February 2022;
• Assess Y’s needs;
• Meet statutory deadlines; and
• Follow the complaints process correctly.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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. 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

6. I considered Mrs X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

9. Children with special educational needs may have Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to secure special educational provision in an EHC Plan (Children and Families Act 2014, Section 42).
10. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s 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.
11. The Code says the Council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.
12. The child’s parent may appeal to the SEND Tribunal against the description of SEN in the EHC Plan, the special educational provision, and the school or other provider named, or the fact that no school or other provider is named.

The SEND Tribunal

13. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
14. Some of the decisions which are appealable, and we would not usually investigate, include the content of a plan and the named placement.

Alternative Provision

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
17. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
18. We made some recommendations. This included that councils should:
• consider the individual circumstances of each case and be aware that a council 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 coming to decisions;
• decide, based on all the evidence, whether to require attendance at school (and therefore prosecute parents if they do not ensure attendance) or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Child out of school

19. The Education Act 1996 provides the basis for statutory guidance. Section 7 creates a duty for parents to cause their children to receive education at school or otherwise. This may be by education at home. A failure to meet this duty on the parent’s part is an offence under Section 444. Sections 436 to 447 cover councils’ duties and powers under the Act.
20. Section 436 of the Act requires councils to identify children not receiving an education.
21. Section 437 allows councils to serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education if it comes to the council’s attention that this might not be case. It also allows councils to issue a School Attendance Order (SAO) where parents fail to satisfy them.
22. Sections 443 and 444 allow councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
23. Section 447 allows councils to apply to a court for an Education Supervision Order (ESO) where the council is also acting under section 47 of the Children Act 1989.
24. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
25. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

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What happened

26. In February 2022, Y was on roll at a mainstream school (School 1). Y was unable to attend school full time due to anxiety and a part-time timetable was requested by Mrs X. A letter from Y’s GP was provided to the school as medical evidence of Y’s reason for absence. School 1 agreed to Mrs X’s request and a part-time timetable was implemented. The timetable included attendance every day during week 1 and four days out of five on week 2, with Y attending between 2 and 4 periods on each day she attended. During the Spring 2022 term, Y’s attendance was around 50% and then deteriorated to non-attendance in April 2022.
27. In May 2022 the Council received a request for an Education, Health and Care Needs Assessment (EHCNA) for Y.
28. In June 2022, Mrs X requested alternative full-time education for Y because she had been unable to attend school for more than 15 cumulative days due to health needs. Mrs X requested EOTAS for the remainder of the academic year (6 weeks), Y to remain on roll at School 1 for the remainder of the academic year and a suitable placement be sought for September 2022. Mrs X requested a personal budget for the delivery of EOTAS.
29. The Council responded on 17 June 2022 and confirmed it was still considering the request for Y’s EHCNA and whilst this process was ongoing the Council would fund the provision Mrs X requested for the remainder of the academic year and also for the autumn term 2022. The Council said it was unable to provide a personal budget as Y did not have an EHC Plan.
30. Y began accessing online learning at home and her anxiety levels reduced when she was not expected to go into school.
31. On 6 July 2022, Mrs X complained to the Council that it failed to provide Y with a suitable education since March 2020.
32. The Council responded to Mrs X’s complaint under Stage 1 of its complaints process on 5 August 2022. It said that although it had actively sought access to appropriate education for Y, unfortunately to date, this had not resulted in a suitable offer and it apologised to Mrs X. The Council agreed to a package of education and enrichment activities as proposed by Mrs X and said it would provide payments enabling her to arrange the provision for Y for the academic year 2022/2023.
33. In September 2022, Y was taken off roll at School 1.
34. On 27 October 2022, the Council issued a final EHC Plan for Y and named EOTAS in Section I.
35. On 8 November 2022, the Council made amendments to the EHC Plan and issued a draft plan. This EHC Plan was finalised on 3 January 2023 and again it named EOTAS in Section I. Mrs X complains she did not receive this final EHC Plan and the accompanying letter informing her of her right to appeal.
36. The Plan stated Y would be accessing a bespoke education package for the academic year 2022/23 and this would be reviewed in Summer 2023 to ascertain whether remaining on the package or transitioning to a specialist unit is more appropriate.
37. In January 2023, the Council began consulting with education settings.
38. Mrs X contacted the Council again in March 2023 because she had not received a Stage 2 response to her complaint. The Council said that it had not responded to her complaint formally due to “the ongoing operation work and receipt of no further correspondence on [this] matter”.
39. The Council acknowledged that during the Summer 2022 term Y was unable to attend school and there was insufficient provision for Y’s learning made at this point. School 1 had continued to provide homework, updated curriculum maps, along with pastoral support and support from the SEND team. However, School 1 was unable to provide further support due to the impact on capacity due to GCSEs across the school. The Council acknowledged Y had lost learning in the period of ten weeks where she could have received more suitable provision than she did and it offered to compensate her £900.
40. My understanding is that Mrs X has not accepted the Council’s offer of £900.

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Analysis

Y’s EHC Plans

41. The whole process from the point when an assessment (EHCNA) is requested until the final EHC plan is issued must take no more than 20 weeks. In this case, the process took 22 weeks. The delay of two weeks is fault.
42. The Council issued a final EHC Plan for Y on 27 October 2022 but began working on a draft EHC Plan which was issued on 8 November 2022. When a council proposes to amend a plan, it must send the parent a copy of the current plan and an amendment notice detailing the proposed amendments and it must include evidence to support the proposed changes. I have not seen any evidence of this. Decisions on amending or ceasing a plan must be made on the basis of need and evidence. For the Council to amend and issue a draft plan 7 working days after issuing a final plan suggests the plan issued on 27 October 2022 did not adequately reflect Y’s needs. However, I note that Mrs X did not use her right to appeal to the SEND Tribunal if she was unhappy with the Plan.
43. The Council went on to amend and issue another final EHC Plan for Y on 3 January 2023. Due to the concerns highlighted above about the plan issued in October 2022 potentially not adequately reflecting Y’s needs, it could be argued that the process was delayed by 11 weeks and not two weeks. However, the Council says any delays did not affect the provision in place for Y as it was regularly reviewed, and council officers worked collaboratively with the family.
44. I have not seen any evidence the Council sent the EHC Plan from January 2023 to Mrs X and there is no evidence it notified her of her right to appeal to the SEND Tribunal. This is fault. This caused Mrs X frustration because she was told by the Council it had sent her the Plan when it had not.

Suitability of education provided to Y since February 2022

45. I have considered a lot of evidence from 17 February 2022 onwards in relation to this aspect of the complaint. The Council acknowledges there was insufficient provision provided to Y for ten weeks during the Summer 2022 term.
46. From September 2022, there is insufficient evidence to support a finding of fault. Y was struggling with the school environment. Mrs X requested EOTAS and the Council agreed to provide the funding directly to enable her to arrange a package that equated to full time education. The reason the Council did not arrange the provision was due to Mrs X’s request for a particular provider that was not quality assured by the Council. The payments enabled Mrs X to arrange the education with the provider of her choosing. The payments also covered counselling sessions, associated transport costs, enrichment and PE activities. The provision was full time and I have not seen sufficient evidence that the provision being delivered to Y was unsuitable.
47. Whilst Y was in receipt of the bespoke education package, the Council was consulting with schools and settings to find a suitable placement for Y for September 2023. I understand Mrs X put time and effort into arranging the provision for her child and sourcing alternatives when provision was not working well for Y, but I do not consider the Council at fault for this and nor do I find fault with the Council’s decision to provide funding directly to Mrs X.

Supervision during the school day

48. Mrs X also complains about the Council not providing supervision for Y during the school day from 17 February 2022. In February 2022 Y was on a part-time timetable due to ill health. If a child is too ill to attend school then parents are expected to care for sick children. There is no duty on the Council to provide supervision. Therefore, I find no fault with the Council from 17 February 2022 to when an EHC Plan was finalised and issued on 27 October 2022.
49. In responding to Mrs X’s complaint about the absence of supervision, the Council’s response was, “By agreeing a personal budget, the authority gave you the funding to deliver the plan”. I do not consider this response was appropriate. I would have expected the Council to explore a range of options and discussed them with Mrs X before an EHC Plan was finalised.
50. Mrs X could have requested supervision to form part of the EOTAS package in Y’s EHC plan and if the Council refused this request and Mrs X was unhappy with the EOTAS package she could have appealed to the SEND Tribunal. I have not seen any evidence Mrs X requested supervision during the EHC Plan process, and I have not seen any evidence she used her right of appeal.
51. I consider the Council’s absence of providing Mrs X with the relevant information regarding supervision as fault that has caused uncertainty, frustration and lost opportunity. I acknowledge Mrs X wanted supervision for Y so she could obtain employment but I am unable to suggest a remedy to address any potential loss of earnings.
52. If Mrs X still requires supervision, the Council should advise her of the options available such as a child in need and carer’s assessment through Children’s Social Services.

The Council’s complaints process

53. The Council’s stage 1 response was delayed by two working days. After receiving the response, Mrs X contacted the Council in August 2022 to express her ongoing dissatisfaction. From Mrs X’s perspective, the complaint was unresolved. The Council should have considered Mrs X’s outstanding concerns in accordance with its complaints process but it failed to do this. This is fault.
54. The Council’s reasons for failing to escalate Mrs X’s complaint was because it ‘was anticipated that the matter had been resolved during the operational dialogue that had taken place and was ongoing’. I have seen no evidence the Council had assurance the matter had been resolved and that it was satisfied of this. The fault has caused Mrs X frustration and has resulted in the issues complained of remaining unresolved for an extended period of time, from August 2022 to April 2023 when the Council sent a further stage 1 response to Mrs X.
55. I have also found evidence of fault in the Council’s investigation of Mrs X’s complaints. The Council says it sent the final EHC Plan to her on 3 January 2023 but there is no evidence to support this. Additionally, incorrect information was provided to Mrs X about consultations with a particular school. The school said it had not been consulted but the Council said it had in its response to Mrs X’s complaint. In response to my enquiries the Council says, “Regrettably it has not been possible to determine why the date of the consultation itself was later than the complaint response, however it is likely that the response should have included a commitment to consult by a certain date as opposed to stating that the consultation had taken place”.
56. The faults identified above with the Council’s investigation and response to the complaints has caused Mrs X frustration and the Council’s failure to follow its complaints procedure has required her to approach the Ombudsman.
57. In response to my enquiries, the Council advised that it had further considered the matters Mrs X has complained of, it had noted issues around the communication supplied to evidence finalisation of the EHCP and the potential impact this had on the parents’ application of appeal. It said that although these issues do not appear to have impacted on Y’s education provision, especially given the level of ongoing communication that was ongoing with Mrs X, the Council would offer a payment of £600 in light of these issues in seeking to remedy this element of the complaint. In respect of the delay that was encountered within the complaints procedure, the Council would offer an additional financial remedy of £350. I have reviewed the Council’s offer and considered factors such as any education Y received during the ten week period, stage of education and any special educational needs. I consider the recommendations below are appropriate in remedying the injustice to Mrs X and to Y.

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Agreed action

58. To remedy the injustice caused by the identified faults, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Mrs X for the identified faults;
• Pay Mrs X £250 for the distress and her time and trouble caused by the flaws in complaint handling;
• Pay Mrs X £600 to acknowledge the Council’s failure to send Y’s EHC Plan to her and failing to inform her of her right to appeal;
• Pay Mrs X £250 to acknowledge the lost opportunity to receive social care support with regards to supervision for Y during school hours;
• Pay Mrs X £900 to acknowledge the lack of support Y received for ten weeks during the Summer 2022 term. I recommend Mrs X uses this payment as she sees fit for Y’s educational and social needs.
59. The Council should provide us with evidence it has complied with the above actions.
60. I had also recommended that the Council ascertain if Mrs X still requires supervision for Y during school hours and if required, provide her with information of the options available and how it can be secured. In response to my draft decision, Mrs X has advised she no longer requires supervision as Y now has a school place. Therefore, the Council is no longer required to contact Mrs X regarding supervision.

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Final decision

61. The Council is at fault for not issuing Y’s EHC Plan in line with statutory timescales, failing to provide Mrs X with information regarding supervision for Y during the school day and failing to follow its complaints process correctly. The Council has agreed to the Ombudsman’s recommendations to remedy the injustice caused to Mrs X and to Y. I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman