Summary: Ms B complained how the Council has handled her son’s special educational needs. She says the Council failed to meet statutory timescales during the Education, Health and Care needs assessment process, its communication with her was poor and it failed to provide her son with alternative provision he can access after he stopped attending school. We find the Council was at fault for its delays during the Education, Health and Care needs assessment process and its communication with Ms B. It was also at fault for how it handled Ms B’s son’s alternative provision. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms B complained how the Council has handled her son’s (C) special educational needs. She says the Council failed to meet statutory timescales during the Education, Health and Care (EHC) needs assessment process, its communication with her was poor and it has failed to provide C with alternative provision he can access after he stopped attending school in March 2022.
2. Ms B says the matter has caused significant distress and upset. She says C’s mental health has deteriorated.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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)

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What I have and have not investigated

7. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Ms B exercised her right to appeal to the SEND Tribunal about the content of C’s EHC plan. Therefore, I have not investigated what educational support the Council provided to C after February 2023 as this cannot be separated from the matters Ms B raised in her appeal.

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How I considered this complaint

8. I considered information from Ms B. I made written enquiries of the Council and considered information it sent in response.
9. Ms B and the Council 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

EHC needs assessment

10. 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.
11. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
12. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.
13. Where the council agrees to complete an EHC needs assessment following an appeal, the maximum timescale for the council to issue the final EHC plan is 14 weeks from the date of the decision.

Alternative provision

14. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
15. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.

What happened

17. This chronology provides an overview of key events in this case and does not detail everything that happened.
18. Ms B’s son, C, has special educational needs. Ms B’s advocate contacted the Council at the beginning of November 2021 and asked for an EHC needs assessment for C.
19. The Council wrote to Ms B in December and refused to assess C. Ms B appealed the Council’s decision to the SEND Tribunal.
20. C was struggling to attend school because of his anxiety. The school implemented a differentiated timetable and one to one support in lessons to help C with his anxiety. C stopped attending school completely in March 2022.
21. The Council reviewed the case and the further evidence Ms B provided with her appeal at the end of March. It noted C was not attending school. It conceded and agreed to assess C in April.
22. The school funded C’s attendance one day a week at a nurture farm in April.
23. Ms B emailed the Council at the beginning of April and asked it to include certain assessments as part of the process. She chased for a response twice in May and asked for an update.
24. Ms B called the Council in June as it had not responded to her emails. She also said C was only receiving six hours of provision per week at the nurture farm.
25. The Council agreed to issue an EHC plan for C. It sent the draft plan in early August. Ms B responded and said there were reports missing. She sent a further email with her comments.
26. The Council visited Ms B to discuss C’s education. Ms B explained C had received some provision at the nurture farm until July and online mentoring over the summer. She said C was due to transition to secondary school in September, but he did not any provision in place. The Council agreed to fund alternative provision for C from the start of the academic year.
27. C continued to attend sessions at the nurture farm and the online mentoring in September. The Council contacted Ms B the same month about C’s alternative provision. It sent her forms to complete and said it would slowly introduce further provision as a gradual approach. Ms B completed all the relevant forms and sent it to the Council at the end of September. She said she was struggling to get C to consider other types of provision. She said she would work on introducing them and she was hopeful he would start some sessions after the October half term.
28. The Council emailed Ms B in September to arrange a meeting to discuss C’s draft EHC plan. Ms B responded a few days later and confirmed her availability. The Council responded several weeks later and offered her two dates in October. It apologised for the delay. Ms B responded and confirmed her availability.
29. Ms B complained to the Council about its poor communication, its failure to attend the pre-arranged meetings and the content of C’s draft EHC plan. She sent a further email and said she was unhappy it had failed to respond and confirm the meeting for the second time.
30. The Council emailed Ms B and said the officer was off on unplanned leave. It confirmed a meeting for the following week.
31. The Council called Ms B in mid-October to discuss C’s alternative provision. It agreed to follow matters up after the half term break to discuss what provision C could access.
32. The Council responded to Ms B’s complaint at the end of October. It apologised for its poor communication and for not attending meetings. It said it was pleased it had now arranged a meeting.
33. The Council spoke to Ms B about C’s alternative provision at the beginning of November. Ms B agreed for the Council to contact an outdoor activity provider. She said she had booked a visit, but it was dependent on C’s anxiety. She also asked for funding for an extra session for C’s online mentoring.
34. C was too anxious to attend the outdoor activity provider and therefore it did not proceed.
35. The Council issued an amended draft EHC plan for C in November. Ms B and the Council exchanged emails about C’s draft EHC plan in December. The Council said it would agree in principle to Ms B’s request for Education, Otherwise Than At School (EOTAS). It said it would seek the views of its placement panel.
36. The panel decided a placement in a specialist educational setting was more appropriate for C. The Council issued a further amended draft EHC plan in January 2023.
37. Ms B referred her complaint to stage two of the Council’s complaints procedure. She complained how it handled the EHC needs assessment process. She also said it failed to provide alternative provision, and it failed to name EOTAS in C’s EHC plan despite previously agreeing to it.
38. The Council issued C’s final EHC plan in February 2023. It noted a specialist setting would deliver the provision in the plan, but it did not name a specific school. Ms B appealed to the SEND Tribunal about the content of C’s EHC plan.
39. The Council responded to Ms B’s complaint. It accepted it delayed issuing C’s EHC plan. It said it missed opportunities to attend arranged meetings, which delayed Ms B’s right of appeal to the SEND Tribunal. It offered her £300 as a symbolic remedy for C as a vulnerable young person and £200 for her time and trouble.

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Analysis

40. The Council had until 14 July 2022 to issue C’s final EHC plan, but it did not do so until 1 February 2023. This is significantly outside the statutory timescales and is fault. This fault has caused Ms B uncertainty and distress about C’s education and delayed her right of appeal to the SEND Tribunal.
41. The Council was at fault for its communication with Ms B. She sent several emails in April, May and June 2022 which it failed to answer. She was put to some inconvenience chasing for a response and the lack of updates caused her frustration. The Council also delayed responding to her emails about the meeting to discuss C’s EHC plan. This caused her further frustration.
42. The Council was aware at the end of March 2022 C was not attending school because of his anxiety. It therefore should have contacted the school and other professionals who had been working with him to understand his needs. It then should have reviewed all the available evidence and decided whether it had a duty to act under Section 19 of the Education Act 1996. The Council failed to take any action. This is fault.
43. Ms B emailed the Council in June 2022 and said C only receiving six hours per week of therapeutic support at a nurture farm. This is significantly short of a full-time education. The Council failed to assess C to decide whether he could have coped with further provision or whether what he was receiving was suitable for him.
44. The Council agreed to provide C with alternative provision from September 2022. C was too anxious to attend any sessions at the outdoor activity provider. When the Council became aware of this, it should have reviewed the case and decided what alternatives it could offer that would be suitable for C’s needs. Its failure to do so is fault. C was only receiving limited provision and so the Council should have also reviewed it and decided whether he could have coped with further hours. Ms B did ask the Council for extra funding so C could more online mentoring sessions, but I cannot see it actioned her request.
45. The Council’s faults have caused C a significant disruption to his education. Children have a right to an effective education and any time they miss is difficult to replace later. It was an important stage in C’s educational career as he was transitioning to secondary school. The Council’s faults have also caused Ms B distress, upset and frustration.
46. We have recently highlighted issues with the Council’s failure to fully consider its duties for children missing education and its delays during the EHC needs assessment process. We have recommended service improvements. This includes asking the Council to provide training and guidance to staff for children who are out of school and drawing up an action plan to resolve delays during the EHC needs assessment process. Therefore, I have not made any further service improvements in this case.

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Agreed action

47. To address the injustice caused by fault, by 11 January 2023 the Council has agreed to:

• Apologise to Ms B for the frustration, distress and upset caused by the faults identified.
• Pay Ms B £200 to remedy her delayed appeal rights to the SEND Tribunal.
• Pay Ms B £300 for her distress, upset, frustration and inconvenience.
• Pay Ms B £3,350 for the loss of C’s education provision from April 2022 to February 2023. We would suggest Ms B uses this for C’s educational benefit.

48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. There was fault by the Council, which caused Ms B an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman