The Ombudsman's final decision:
Summary: Mr and Mrs X complained the Council delayed issuing their son P’s Education, Health and Care plan, and did not provide him with a suitable alternative education while he was out of school. The Council was at fault. It issued P’s Education, Health and Care plan ten months late, and this contributed to P being unable to attend school. The Council then did not provide him with suitable education while he was out of school. P missed a significant amount of education. His parents suffered considerable distress and inconvenience, and went to undue additional time and trouble. The Council has already taken action in response to the faults it identified. However, we have identified extra fault causing significant injustice. The Council has agreed to apologise, pay the family an extra £4,000 and issue a staff reminder.
- issue their son P’s Education, Health and Care plan within the timescales the law allows; and
- secure suitable, full-time alternative education when P was out of school.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- For this investigation, I:
- considered the information Mr and Mrs X provided and discussed the complaint with them;
- made enquiries of the Council and considered the comments and documents it provided;
- looked at the relevant law and guidance, including the Children and Families Act 2014 and the Education Act 1996;
- considered the Ombudsman's guidance on remedies; and
- wrote to Mr and Mrs X and the Council with my draft decision and considered their comments.
What I found
- Children with complex needs may need an Education, Health and Care (EHC) plan, which details the support they must receive in school. Parents can ask a council to carry out an assessment of their child’s special educational needs (SEN) to decide whether to develop an EHC plan. Where a parent requests this, or where a council “otherwise becomes responsible” for a child or young person, it must decide whether it may be necessary for special educational provision to be made for the child or young person under an EHC plan.
- The law defines a council as being “responsible for” a child if he or she is in the council’s area and has been:
- identified by the council as someone who has or may have SEN; or
- brought to the council’s attention by any person as someone who has or may have SEN.
Education out of school
- Councils must arrange the provision of suitable education at school or otherwise for children of compulsory school age, who may not otherwise receive a suitable education due to illness or exclusion.
- "Suitable education" means efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have. This education must be full-time, unless the Council decides the child’s physical or mental health mean this is not in their best interests.
- We issued a Focus Report in September 2011, amended in June 2016, titled “Out of school….out of mind?”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report sets out how the number of hours teaching that constitutes a full-time education varies according to the year a child is in. For years 3 to 6 (children aged 7 to 11), full-time amounts to 23.5 hours weekly.
- Councils need to ensure children with health problems are not without education for more than 15 working days. So, if a child cannot attend school because of a health problem, after 15 days the council must intervene and provide suitable education for a minimum of five hours a week.
- Mr and Mrs X’s son, P, started attending a school in January 2016, during year five. P has mental health difficulties, which led to difficulties in school. P was reluctant to go to school and his behaviour was challenging. He firstly attended the school for mornings only, and built up to full weeks by November 2016.
- P had a 5 day fixed-term exclusion in November 2016, during which he attended a pupil referral unit (PRU) designed to provide education for children who are excluded, sick, or otherwise unable to attend school. The Council says on 12 December 2016 it began providing 10 hours of top up funding to the school for P. P was also receiving therapeutic support which started in 2015.
- On 14 February 2017, the Council held a team around the family meeting. At this meeting, Mr and Mrs X say attendees agreed P could not continue learning in a mainstream school. They discussed he may need an alternative type of education. The Council says at this meeting, the possibility of an EHC plan was mentioned, but it received no formal request for an EHC needs assessment at this point. The action plan for this meeting said the school was to complete EHC plan paperwork as soon as possible. The minutes stated it would take 20 weeks to get an EHC plan in place.
- The Council says in April 2017 it reminded the school to make a request for an EHC needs assessment. Mr and Mrs X raised concerns about P’s support arrangements. At a meeting, the Council agreed to a flexible timetable to support P. Mr and Mrs X say P’s attendance was as low as 30%, with the rest of his time spent at home. Mrs X took a career break from March 2017 to support P. Mrs X says by this time, P was only attending school for three half-day sessions per week, and school staff regularly needed to speak with or meet with Mrs X. Mrs X told me she also needed to provide support relating to her other child with their own needs, but the other child was in school full-time so did not require as much support as P.
- The school did not send the referral the Council had asked for. An Educational Psychologist prepared a report for the EHC process which the Council received at the end of June 2017. Mr and Mrs X asked for an update in October 2017 as it had been over 20 weeks since the meeting of February 2017. The Council told them the EHC assessment process had not started. The school then made the formal referral the Council had asked for. The Council agreed in December to complete an EHC needs assessment and wrote to Mr and Mrs X. It received a further Educational Psychology report in January 2018.
- P returned to full-time attendance at school. At the end of January 2018, the Council held an EHC planning meeting. However, P was excluded at the beginning of February. The Council says this was for a fixed term of four days. Mr and Mrs X say the school at first intended this to be permanent, and told P he was being permanently excluded, but later retracted this because of legal issues with excluding a child undergoing an EHC needs assessment.
- Mr and Mrs X say the head teacher at P’s school advised them P’s exclusion was because he could not comply with the rules of a mainstream school. They expressed concern with the Council that it had known a year previously P could not perform in a mainstream school, but it had not moved him somewhere suitable yet. They told it they had decided to keep P at home for medical reasons until the Council held the EHC panel meeting, which they were advised was due later in February.
- The Council says the school said that on his return, P would receive a flexible timetable, one to one support in all lessons and full supervision at break and lunch times. Mr and Mrs X say they were told P would have been placed in internal inclusion if he had returned, which would involve being in a separate room with full supervision. Mr and Mrs X did not feel this would be in P’s best interests and they say the head teacher agreed. P’s GP wrote to the Council saying he was not mentally stable enough to attend a mainstream school. The Council says the school agreed to provide work for P weekly.
- Mr and Mrs X wrote to the Council at the beginning of March 2018. They said they were disappointed as the Council did not get the draft EHC plan prepared in time for the February panel. The Council issued P’s draft EHC plan on 8 March 2018.
- Mr and Mrs X wrote to the head of children’s services at the beginning of April. They said P was brought to the Council’s attention in February 2017 as a child with SEN who may need provision under an EHC plan. They highlighted the Council had not arranged suitable, full-time, alternative education for P while he had been unable to attend school. The Council replied, accepting it had not issued P’s EHC plan within the legal timescales. It based this on the process starting in November 2017. The Council apologised for this delay. It explained a home tuition referral had been made.
- Mr and Mrs X were disappointed with this response. They replied and asked the Council when it would issue the final EHC plan. Mr and Mrs X received no acknowledgment or reply within five working days and so contacted the Ombudsman. We asked them to complete the Council’s complaints process, which had not yet started. Mr and Mrs X had not so far stated on their letters to the Council that they wished to complain.
- Mrs X told me until late April 2018, P received no formal support at home. Mr and Mrs X had arranged the referral to the PRU for tuition. While P was out of school Mrs X took him to museums and he watched educational programmes. Mr and Mrs X say the lack of education had a big impact on P’s health, confidence, self-esteem and behaviour. At the end of April, P started receiving an hour of tutoring weekly, to which his parents transported him.
- At the beginning of May 2018, the Council sent a stage one complaint response to Mr and Mrs X. The Council said its communication had been poor, and said it would discuss this with the officers involved to improve practice in future.
- The Council issued P’s final EHC plan on 18 May 2018. The plan named special educational provision including:
- Daily psychoeducational work to help him understand his emotions and develop strategies to calm and settle to learning.
- Working in a quieter environment at times when he is in a more heightened state.
- Once weekly, targeted work to help P with curriculum areas he previously missed.
- there were issues with communication and a lack of clarity around responsibilities for triggering the assessment process, which the Council needed to address.
- It was clear why Mr and Mrs X understood the EHC assessment process had started in February 2017. Had communication been better the Council could have issued the EHC plan sooner.
- the Council needed to be clear on when the statutory process was triggered and that its procedures complied with the law.
- the delay in issuing the final plan was unacceptable.
- P had experienced an extended period of disruption to his education, which impacted on Mrs X’s ability to work and placed emotional strain on the family.
- the Council review its processes around beginning and developing EHC plans to ensure it followed the law and communicated clearly.
- the Council considered paying the family £1,000 to recognise the delay, stress and emotional impact that the process and bringing the complaint had caused, and £2,000 to recognise four months P was not in school and not receiving suitable alternative education. This was in recognition of the disruption to P’s education and the restrictions this placed on Mrs X’s ability to work.
Delay in issuing P’s EHC plan
- At the meeting on 14 February 2017 which the Council attended, the option of an EHC needs assessment was discussed. The minutes said the process would finish within 20 weeks. The action plan for the minutes included the action “EHCP paperwork to be completed ASAP”. Therefore the Council should have been in no doubt Mr and Mrs X expected it to start the EHC assessment process following that meeting. The Council was “responsible for” P at this point, and the law does not allow it to delay this process while waiting for a formal referral. The Council had a duty to decide within six weeks, by 28 March 2017, whether to carry out a full EHC needs assessment. The Council should then have completed the final EHC plan by 4 July 2017. It instead completed this ten months later, on 18 May 2018. The Council failed to begin the process in February 2017, and this led to a significant delay, only starting in November 2017.
- The Council is of the view the delay did not contribute to P’s exclusion and subsequent inability to return to school for medical reasons. This is based on its belief P was excluded while the Council was still within the statutory timescales for completing an EHC needs assessment. This was not the case, as it should have started the process in February 2017. Further, had the Council completed the EHC assessment process and issued P’s plan in time, it is likely he would have started attending the special school named in his plan in 2017 rather than 2018. I do not, therefore, accept the Council’s reasoning and so I must further consider the impact the delay had on P subsequently being out of school.
- I cannot say with certainty that P would not have been out of school, had the Council acted without fault. I also cannot say with certainty he would have started at the special school in September 2017. However, on the balance of probabilities, the Council’s delay in completing the assessment and plan led to delay in P getting appropriate provision. This contributed significantly to P’s difficulties worsening while attending the mainstream school. The Council stressed to me that P already had some support in place. This reduces the impact of the delay. However, the Council’s EHC assessment found P needed provision over and above that already being provided, because of his SEN, and the Council named a special school in his EHC plan. P did not receive the support he required in a timely way. I am satisfied that P was therefore caused a significant disadvantage by the Council’s failure to start the EHC assessment process when it should have done in February 2017.
Education out of school
- Mr and Mrs X highlighted to the Council it was not providing education for P, who was out of school after being excluded. The Council said, however, as the exclusion was not permanent he was not out of school due to exclusion. P’s parents did not return him to school for medical reasons, and his GP supported this. The Council should have provided P with a suitable education within 15 working days. P should have begun receiving suitable education from the beginning of March 2018.
- The law does not require education out of school to be full time in all circumstances. However, I have seen no evidence the Council considered P’s needs and decided it was not in his best interests to receive a full-time education. Therefore, P was entitled to a full-time education. The Council delayed arranging alternative education for P while it focused on completing his EHC plan. When the Council issued P’s EHC plan in May 2018, a small amount of tutoring was arranged. For children P’s age, full-time is classed as 23.5 hours weekly. The Council did not provide P alternative education as soon as it should have, and then did not explain its decision to provide P with part-time education. This was fault. P missed a significant amount of education.
- Mr and Mrs X say they lost more than £26,000 in earnings. P was out of school for four months, and Mrs X provided support to him for this time. I am satisfied the Council’s delay in issuing P’s EHC plan contributed to his being out of school, and I am satisfied the Council did not arrange suitable education for P when he was unable to return to school for medical reasons. Therefore, I am satisfied fault by the Council contributed to Mrs X’s decision to take time off work. The Council is not, however, solely responsible for the earnings Mr and Mrs X lost. Mrs X told me her decision to take a break from work was also to support in relation to another child, however the other child was not out of school, therefore it was mainly because of P’s needs that Mrs X took a career break. P was out of education for some, but not all, of the time Mrs X took off. P’s attendance was low for the rest of this time, however I cannot say this is solely due to fault by the Council. But for fault by the Council, it is likely P would still have had low attendance and Mrs X may have chosen to take a career break in any event.
- Mr and Mrs X did not specify they wished to complain when they wrote to the Council expressing their disappointment at the delays. I am therefore not critical of the Council for not having considered their concerns as a complaint until we signposted Mr and Mrs X back to use its complaint process.
- However, the Council did not escalate Mr and Mrs X’s complaint to stage two when they then requested this in May 2018. This was fault. The Council’s complaints procedure does not include a review at stage one before escalating a complaint to stage two. It took a further month for the Council to issue a stage two response letter. Mr and Mrs X went to added time and trouble due to the Council not escalating their complaint when it should have done.
- The Council’s complaint process did not fully address Mr and Mrs X’s complaint. The panel did not decide when the EHC process should have started. The panel recommended a financial remedy without first providing clarity on this point. It recommended the Council review its processes around starting EHC assessments. The Council did so but it did not identify it should have started the assessment process for P in February 2017. While the Council identified it had been at fault, it missed opportunities to identify the extent of this.
Action already taken by the Council in response to the complaint
- I welcome the action the Council has so far taken in response to the panel’s findings. However, it took Mr and Mrs X coming to the Ombudsman for the full extent of the fault and injustice to be identified. Due to my investigation finding further fault, and the implications this has for the level of injustice P and his parents experienced, I have made further recommendations.
- I have recommended the Council pays a further financial remedy to P to recognise the larger period of injustice than that identified by the Council. I have also recommended the Council pays a further financial remedy to Mr and Mrs X. This is to recognise the significant distress and inconvenience caused to them by its faults, and the time and trouble they went to in order to resolve this complaint.
- I am concerned the Council has also not addressed in its service review or training the fact the assessment process should have started earlier, in February 2017. I have made a further recommendation due to this.
- The Council has agreed to apologise to P and his parents to recognise the injustice caused to them by the additional faults I have identified.
- The Council has agreed to pay a further £3,000 to P, in addition to the £2,000 it has already paid. I based this recommendation on:
- £400 per month for eight months between July 2017 and March 2018, where P would have received suitable provision in school had the Council finalised his EHC plan within the statutory timescales; and
- £600 per month for three months, from March to June 2018, where P did not receive EHC provision and, in addition, was out of school without a suitable alternative education.
- I found fault by the Council, causing an injustice to P and Mr and Mrs X. The Council provided a remedy which recognised some of this. It has agreed to my further recommendations to remedy the outstanding injustice. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman