Summary: We uphold a complaint about delay in issuing an Education, Health and Care plan. We also find fault in complaint handling and in a failure to arrange suitable education for Y for health reasons. This caused avoidable distress, frustration and time and trouble. The Council will apologise and make payments to reflect Ms X’s avoidable distress and time and trouble. It will also make payments for Y’s loss of alternative provision and issue her final plan.

The complaint

1. Ms X complained the Council:
1. Failed to offer mediation;
2. Delayed responding to her complaint and did not fully address all the complaints;
3. Did not communicate with her or her MP adequately;
4. Failed to act in line with duties in Section 19 of the Education Act 1996;
5. Did not properly consider or respond to her parental request to seek advice and information;
6. Failed to follow the timescale for completing an Education Health and Care (EHC) needs assessment and plan; and
7. Did not follow the Tribunal’s recommendations.
2. Ms X said this caused her and her daughter Y avoidable distress and a loss of education provision.

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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. 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 the complaint to us, the Council’s response to the complaint and documents described in this statement.
7. Ms X 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

Relevant law and guidance

8. On receiving a request for an Education, Health and Care (EHC) needs assessment, a council must determine whether an assessment is necessary. (Children and Families Act 2015, section 36)
9. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school and from other professionals including an educational psychologist (EP). It must also seek advice and information from any person the child’s parent reasonably requests. (Regulation 6(1) of the Special Educational Needs and Disability (SEND) Regulations 2014).
10. Where a Tribunal orders a council to carry out an EHC needs assessment, the Council must:
• Notify the parents within two weeks of the order and
• Send a final EHC plan as soon as practicable and within 14 weeks of the order (Regulation 44(2)(b)(ii) SEND Regulations 2014)
11. The council must prepare an EHC plan if, after a needs assessment, it is necessary for special educational provision to be made. (Children and Families Act, section 37)
12. 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. (Education Act 1996, section 19). We refer to this as ‘the Section 19 duty’ or ‘alternative provision’ (AP).
13. Guidance says:
• Local authorities should work together with agencies and parents to ensure best outcomes.
• Provision should be full-time unless it is not in the child’s best interests.
• There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school.

(Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

14. Parents have a right to council-arranged mediation where a council has decided not to secure an EHC needs assessment (Children and Families Act 2014, sections 52 and 54)
15. Our guidance says:
• Where possible, define the complaint from the complainant’s view
• Be clear on timescales and when the complainant will hear from you again, keep them informed, especially if there is a delay
• Respond to each complaint in a timely and appropriate way
• Offer an appropriate remedy, proportionate to the harm suffered.

Summary of key events

2022

16. Y has mental health problems. She was in Year 5 in the school year 2022/23.
17. Ms X requested an EHC needs assessment on 13 June 2022. The Council refused this so Ms X appealed to the SEND Tribunal.
18. Ms X spoke to a duty officer from the Education Welfare Service (EWS) in July. She said Y was not attending school and was struggling to leave the house due to anxiety. The duty officer noted “school are authorising absences so school need to be providing education… if mum feels robot would be good, could school provide online learning or something on TEAMS?”
19. The Council allocated an Education Welfare Officer (EWO). They carried out a home visit in the middle of August. The records show a robot was discussed and Ms X agreed to it. (The robot sits on the student’s desk at home and has a camera, microphone and speaker. Through an app, the student can see, hear and speak to the teacher and their classmates.)
20. A letter from Child and Adolescent Mental Health Services (CAMHS) to Y’s GP dated 17 August 2022 said Y had not been attending school since June 2022 due to her mental health problems. It said CAMHS was going to offer Y therapy for social anxiety.
21. On 19 August, the Council’s funding panel discussed a request for AP for Y. The record said school had put in place an alternative timetable, but this had not worked. Instead, work was given daily for Y to complete and the Headteacher made weekly contact. The panel record said Y had stopped attending when offered:
• Work with a teaching assistant outside the classroom
• Work with the Headteacher outside the classroom
• Work with a small friendship group outside the classroom with all the above options
• Work with mum outside of the classroom.
22. The panel agreed funding for the robot. The EWO noted the funding panel’s view was Y “did not meet the criteria for section 19 provision” and the Council agreed the robot at Ms X’s request.
23. On 9 September, the EWO noted school was trialling the robot. The records say Ms X told the EWO that school was saying they could not move the robot round the classroom for data protection reasons and were expecting Ms X to supervise Y’s work.
24. The school submitted a request for AP for medical reasons on 16 September. The request said Y had not attended since 8 June 2022 and an alternative timetable had failed. The school suggested using the robot and said tuition would not be suitable because of Y taking too long to engage with people she didn’t know.
25. On 14 October, the EWO noted the robot had been returned “as it was not in Y’s best interests”. She was using TEAMS and the class teacher was going to meet with her the following week. She had been in school for a couple of hours, but Ms X said this was too much for her. The EWO noted they had closed Y’s case as “no additional request for support was made of the local authority and a reintegration plan was in place.”
26. On 18 October, Y’s school referred her to the Council’s SEND and Inclusion hub. The referral form noted the EWO was involved already. Y had been having education by TEAMS. School had provided support to try and get her back to school, but this had not worked.
27. The SEND Tribunal ordered the Council to carry out an EHC needs assessment in an order dated 21 December 2022. It noted:
• Y had anxiety-based school avoidance;
• It was deeply concerned Y was not receiving the full-time education to which she was entitled and that there was no evidence the Council had referred Y to speech and language therapy to investigate unmet needs around her communication as school noted she had extreme communication difficulties; and
• Its view was a multi-disciplinary assessment may be necessary as her needs may extend beyond the remit of an Educational Psychologist (EP.)

2023

28. On 9 January, the Council sent Ms X a letter saying it had agreed to carry out an EHC needs assessment. A caseworker wrote to NHS services asking for advice by 21 February.
29. Also on 10 January, a family practitioner from the Council’s social care team emailed the SEND caseworker saying Y only went to school for two hours a day and never went into the classroom. Ms X and the caseworker also spoke and Ms X asked for SALT and OT assessments for Y. The caseworker said the school needed to make the referral to the SALT service and she would ask the panel about the OT assessment.
30. On 17 January, the caseworker emailed Ms X to say she had discussed Ms X’s request for an OT assessment with her manager and this could not be considered until the Council “had the EP evidence of need.”
31. On 27 January, Ms X and a case officer discussed a referral to the NHS speech and language (SALT) service. On 9 February, the NHS SALT service refused the referral because the service was not commissioned to work with children with anxiety and no speech and language disorder. Ms X challenged this and the NHS SALT service agreed to see Y.
32. Ms X complained to the Council at the end of January raising some of the issues in her complaint to us. She sent emails between February and June chasing up responses to her complaint, querying when an EP would be allocated and chasing responses to letters from her MP on her behalf. The Council responded to Ms X’s complaint on 15 March. It did not uphold her complaints.
33. The NHS SALT team agreed to see Y for a one-off appointment. The SALT report of 20 March 2023 recommended 14 strategies to support Y. The SALT said they could not provide any more support and said Y needed input from a service specialising in anxiety like a psychologist.
34. On 20 March, Y’s case was allocated to an EP.
35. On 28 April, the EP issued their advice. The report noted Y was attending school part-time in the mornings and had one-to-one support when she was in school. The EP made some recommendations including a sensory processing plan. Ms X told me she received the EP’s advice in 24 May.
36. On 6 June, Y’s school sent a report saying Y had deteriorated recently and was only in school for at most one and a half hours in the morning. And she did activities only and would not engage with learning. She would only engage with her one-to-one support. School said it would need funding to train staff in Y’s condition and said she would need to have an OT assessment so it could understand her sensory needs.
37. The Council’s stage two complaint response of 20 June 2023 said:
• It accepted it did not offer mediation and was sorry for this. It was also sorry for the delay in the EHC plan process;
• The Council provided the robot in September 2022 and TEAMS lessons were also provided as a short-term solution for Y’s difficulty accessing education;
• School provided technical support where needed;
• The records indicate Y preferred to use TEAMS, so the robot was to be returned as it was not needed;
• School has a full-time place for Y. She is not attending due to anxiety. AP was accessed through the robot and TEAMS;
• Schools could refer students to CAMHS directly. There were also mental health in school practitioners in some schools;
• Schools were responsible for the ‘assess, plan, do review’ process within their budget. Once this process had been completed, they would request an EHC needs assessment. Once this had been agreed, the Council would gather relevant information and get advice from other services;
• The investigating officer should have contacted her to discuss the complaint. She had since met with a senior officer; and
• The EP report was available and the Council would issue a draft EHC plan.
38. On 21 June, social care provided further advice.
39. Ms X complained to us at the end of June.

Events since Ms X complained to us

40. The EP amended and updated their report twice.
41. The Council’s panel approved funding for a sensory (OT) assessment in August. The Council decided to commission an OT for advice. Their report was available in September.
42. The EWO’s case records indicate the Council approved funding for a tutor/mentor for two sessions of two hours a week outside the home in September 2023 and put out a tender to providers. Tutoring started at the beginning of October.
43. The Council issued a draft EHC plan on 17 October. Ms X provided comments on this. The draft plan said Y needed 15 hours of support to deliver the special educational provision, on an individual or small group basis. The plan included daily support in school provided by a member of staff with training in sensory integration.
44. The Council consulted with schools including Y’s current school which confirmed it could meet Y’s needs.
45. The Council issued a second draft EHC plan on 21 December.
46. The Council has not issued Y’s final EHC plan at the time of writing this draft statement.
47. The minutes of a review panel on 7 November said the school was offering to fund more tuition, the teacher was visiting Y at home. Y was getting two hours of tuition twice a week until December 2023 when the final EHC plan is to be issued. The case notes show children’s social care asked for an increase in hours and the panel agreed an increase to two five hourly sessions a week. It is unclear if the increased sessions are in place.

Was there fault and if so did it cause injustice?

The Council failed to offer mediation

48. The Council is at fault. It did not offer mediation as it was required to do to be in line with sections 52 and 54 of the Children and Families Act. This caused avoidable frustration and may have been a lost opportunity for the parties to settle the issues in dispute and to avoid going to Tribunal.

The Council delayed responding to her complaint and did not fully address all the complaints

49. The Council took too long to provide complaint responses which was fault. The stage two response failed to address all the issues Ms X complained about. It did not fully address her complaint about the failure to comply with the Tribunal’s recommendations or to respond to her parental request for advice. The response did not identify the failure to arrange full-time equivalent AP for Y. This was poor complaint handling, was not in line with our guidance and was fault causing avoidable distress and time and trouble.

The Council did not communicate with her or her MP adequately

50. The records indicate Ms X had to chase up officers regarding her complaints, MP correspondence and about the EHC needs assessment process. This was poor communication and complaint handling and was fault causing avoidable time and trouble.

The Council failed to act in line with duties in Section 19 of the Education Act 1996

51. It was fault for the duty EWO to tell Ms X it was the school’s responsibility to provide education. The law and guidance says this is the council’s responsibility where the child isn’t attending school for health reasons and there is evidence from agencies and parents that a re-integration plan is not working.
52. The Council missed opportunities to consider its duty to ensure Y had a suitable full-time education after the robot did not work out. The Council was made aware five times between October 2022 and June 2023 that Y was not receiving full-time education because of mental health problems (by school in October 2022 and June 2023, by the Tribunal in December 2022, by a family practitioner in January 2023 and by the EP in April.)
53. The law says education should normally be full-time unless this is not in the child’s best interests. The arrangements for Y’s schooling were not full-time and the records show the Council knew this. Yet the Council did not request any specific medical evidence about whether Y could only manage part-time education. It did not seek any advice from clinicians about Y’s health needs and how these impacted her education or seek recommendations about what she could manage or what was in her best interests. This was fault as it is not in line with Section 19 of the Education Act 1996 or in line with the guidance I have set out in paragraph 13. This guidance is clear that councils must work with parents and that provision should be similar to standard schooling in terms of hours. The Council did not consider offering equivalent AP and this was fault.

The Council did not properly consider or respond to the parental request to seek advice and information from an SALT and OT.

54. Ms X asked for a SALT assessment in January 2023. There was fault in directing Ms X to get Y’s school to refer Y to the NHS SALT service. This is because the law is clear that is for the Council to decide what advice is needed and to seek that advice if requested by the parent; unless it considers the request an unreasonable one. Having decided SALT advice was necessary for the EHC needs assessment, the Council should have sought it and not school. The Council did not act in line with Regulation 6(1) of the SEND Regulations which was fault causing avoidable frustration.
55. The Council told Ms X she needed to wait for the EP’s advice on Y’s sensory needs before it would seek the advice of an OT. This would have been acceptable had the EP provided advice on time, because the EP would have promptly identified Y’s initial sensory needs and enabled the Council to properly consider Ms X’s request and decide whether it was reasonable. However, the EP did not provide their advice until the end of April. And although that advice set out some sensory needs, the Council took from the end of April to August to commission an OT report. This was a delay of about four months which contributed to the continuing delay in issuing the EHC plan and was fault causing avoidable frustration.

The Council failed to follow the timescale for completing an EHC needs assessment and issuing an EHC plan

56. The Council accepts in its own complaint response there has been delay. The Council had 14 weeks from the Tribunal’s order of 21 December 2022 to complete the process and issue a final EHC plan, so by 29 March 2023. The Council has not issued a final plan yet (only a draft plan), so the fault is continuing. This has caused avoidable distress, uncertainty and a delay in Ms X’s right of appeal if she wishes to challenge the final plan.

The Council did not follow the Tribunal’s recommendations.

57. The Tribunal did not order SALT or OT assessments; the order was for the Council to complete an EHC needs assessment. The Tribunal expressed concern about the lack of a SALT assessment but did not order one. I do not uphold this complaint.
58. The Tribunal did not mention an OT assessment. It said a multi-disciplinary assessment may be necessary, beyond just EP advice. If the Tribunal had intended to order an OT assessment, it would have included this in its order. The Council was not required by the Tribunal to seek an OT assessment, so I do not uphold this complaint.

Injustice to Y: loss of AP under Section 19 of the Education Act 1996

59. The available evidence indicates Y was either having lessons on TEAMS or attending school for at most two hours a day between July 2022 and October 2023. This is significantly less than her peers and is not near full-time.
60. Since October 2023, Y has been receiving four hours a week of one-to-one tuition. Guidance allows part-time provision where the AP is one-to-one because it recognises that this type of education is more intensive. There is no injustice requiring a remedy from October 2023.

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Agreed action

61. The Council will, within one month of my final decision:
• Apologise to Ms X for the avoidable frustration, time and trouble and distress and make her a payment of £500 to reflect this;
• Issue Y’s final EHC plan and ensure the provision on that plan is in place for Y as soon as the final plan is issued; and
• Make Y a payment of £1300 made up of £400 per term from September 2022 to October 2023. This is to reflect the lack of suitable full-time education.
62. The Council should provide us with evidence it has complied with the actions in the last paragraph.

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Final decision

63. We uphold a complaint about delay in issuing an Education, Health and Care plan. This caused avoidable distress, frustration and time and trouble. The Council has accepted our recommendations of an apology, payments to reflect Ms X’s avoidable distress and time and trouble and payments for Y’s loss of AP. The Council will also issue Y’s final plan.
64. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman