Summary: Mrs X complains the Council failed to provide her daughter Y with suitable alternative education from November 2021 until July 2022. We find fault with the Council for delay in issuing the Education, Health and Care Plan and for failing to arrange alternative provision for Y, causing Mrs X frustration and distress. We have agreed a financial remedy for the injustice.

The complaint

1. Mrs X complains the Council failed to provide suitable education for her daughter Y from November 2021 until July 2022.
2. This caused frustration and distress to Mrs X, and a loss of education for Y.

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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. 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. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I spoke with Mrs X and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. Mrs 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

Education, Health and Care Plan

10. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.
11. The EHC Plan 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.

EHC Plan timescales

12. 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 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Alternative provision

13. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
14. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
15. 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)
16. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.

Appeal right

17. 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.

EOTAS

18. Education other than at school (EOTAS) is a package of education which is council-funded and is detailed in section F of the EHC Plan.

Personal Budget

19. A personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
20. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC Plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)

Inclusion Officer

21. All Surrey schools have an allocated Inclusion Officer to support schools and parents to ensure every child goes to school regularly.

Summary of key facts

22. Mrs X’s daughter Y is autistic with other special educational needs. She started year two in September 2021 and stopped attending school in November.
23. The Council was aware of Y’s absence from school from January 2022 when the school copied it into emails with Mrs X. The school was authorising Y’s absence as illness so there was no referral to the Council’s Inclusion Officer to investigate.
24. The school tried multiple approaches to get Y back into school, including a meet and greet at drop off and online learning. Unfortunately these did not work as Y has significant anxiety issues, and could not access the online learning due to her dyslexia.
25. In January the school asked the Council for an Education Health Care Needs Assessment which the Council agreed. This took place in February 2022. The school were continuing to provide activities for Y but were aware she could not access them.
26. From February 2022 Mrs X funded provision for Y herself including drama therapy, art club and farm learning.
27. At the end of April 2022 the Council refused to issue an EHC Plan for Y saying “it was difficult to ascertain the level of need and therefore to understand the level of support needed.”
28. Mrs X asked the Council to review this decision. It reconsidered its decision in July with additional evidence from the school, saying Y needed “special educational provision that cannot reasonably be provided within the resources normally available at a mainstream setting.”
29. The Council issued the draft EHC Plan on 9 July and Mrs X asked for a personal budget (PB). The Council did not agree the PB and it issued the final EHC Plan on 16 August with no school named.
30. The Council consulted with two schools in September and both said they could not meet Y’s needs with the 15 hours of support in the EHC Plan. They said they would need 32.5 hours but would still have significant concerns about the suitability of a mainstream placement.
31. Mrs X appealed sections B, F and I of the EHC Plan in August. The Council agreed the EOTAS package in November and PB in December, without the matter going to Tribunal.
32. Mrs X brought a complaint to the Council in February 2023, saying she wanted the Council to;
• acknowledge the failures towards the delay in providing Y with alternative education,
• ensure this does not reoccur;
• give a financial remedy for Y’s loss of education;
• reimburse costs for the alternative provision Mrs X provided for Y, and
• provide compensation for the time and emotional impact this has had on the whole family.
33. The Council responded in March saying it had followed the statutory process for the EHC needs assessment, it apologised for the EHC Plan being issued beyond the 20-week deadline, and said alternative provision was available through support offered by the school.
34. In March Mrs X asked for her complaint to go to stage two.
35. The Council response in May partially upheld Mrs X’s complaint as it had not addressed her concerns about its Section 19 duty to provide alternative education for Y. It said it would get a further response.
36. The (undated) stage two response from the Council did not agree that Y had no alternative education. It said:
• It rejected the PB request in September as it thought more time was needed to fully evaluate the recently agreed intervention strategies the school had set up.
• The Multi Professional Team (MPT) meeting held in November considered and agreed Mrs X’s request for an EOTAS package which was backdated to the start of the EHC Plan in August.
37. Mrs X was unhappy with the response from the Council so she brought her complaint to the Ombudsman.
38. In response to our enquiries the Council said all inclusion officers have recently had training on Section 19 duties.

Analysis

39. The EHC Plan was completed after the statutory 20 week deadline (see paragraph 12). This is fault by the Council which it apologised for in the first complaint response. This caused frustration and uncertainty to Mrs X.
40. The Council was not aware that Y had stopped attending school until January 2022. The EHC Needs Assessment in February would have given notice to the Council that the school’s reintegration measures were not working for Y since November 2021, as the school continued to provide them for Y but knew she was unable to access them (see paragraph 25).
41. The Council has not provided me with any evidence of consideration of its Section 19 duty during this period when Y was not attending school due to illness, which the school was authorising. Therefore I find fault with the Council for failing to consider its Section 19 duty (see paragraph 13) from February 2022 until the date of the EHC Plan in August. Mrs X had a right of appeal to the SEND tribunal once she had the final EHCP (see paragraph 5).
42. The stage two complaint response was late from the Council. This caused frustration to Mrs X.
43. I welcome the Council’s further Section 19 training already provided to staff.

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Agreed action

44. The Ombudsman’s Guidance on Remedies says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss.
45. Within one month of the final decision, the Council should:
• Write to Mrs X and apologise for the distress and frustration caused by the faults identified above;
• Make Mrs X a payment of £2400 made up of:
1. £150 for distress, time and trouble; and
2. £2250 for the loss of educational provision for Y (made up of £1500 per term x 1.5 terms).
46. We note the Council has already provided Section 19 training to its staff, and there have been recent service improvements recommended by the Ombudsman for reminding staff of the statutory timescales for EHC Plan’s and the importance of timescales set out in the complaints process. I have therefore not made any further recommendations as we will monitor the impact of these changes through our complaints.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I find fault with the Council for failing to complete the EHC Plan on time, and failing to provide alternative provision for Y. We have agreed symbolic payments for loss of provision and the frustration caused to Mrs X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman