Summary: The Council was at fault in delaying issuing an Education Health and Care Plan for Mrs X’s son, failing to put in place support set out in the Plan and failing to ensure he received all the alternative provision promised. The Council has agreed a suitable remedy.

The complaint

1. Mrs X complained that the Council:
1. delayed in carrying out an Education Health and Care (EHC) assessment, identifying a special school placement and issuing a final EHC Plan for her son;
2. failed to ensure he received suitable education in the meantime;
3. failed to put in place the support set out in the EHC Plan;
4. failed to communicate with her properly.
2. As a result she says her son missed out on a year of education and she has suffered anxiety and distress.

Back to top

What I have investigated

3. I have investigated the question of delay from April 2017 when the Council agreed to carry out the EHC assessment. I explain at the end of this statement why I have not investigated the earlier period.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).

Back to top

How I considered this complaint

8. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance. I shared a first and second draft decision with the Council and the complainant and considered their responses at each stage.

Back to top

What I found

9. 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. The EHC plan is set out in sections. Section F sets out the special educational provision. Section I names the placement. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
    
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ 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. The guidance says:
• When a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The whole process from the date of the request until the final EHC Plan issued must take no more than 20 weeks, unless certain exceptions apply.
• A local authority must comply with a parent’s request to name a particular school in the EHC Plan unless:
1. it would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
2. admitting the child or young person to the school “would be incompatible with the efficient education of others, or the efficient use of resources”.
• The local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan.
• Where a school is named in an EHC Plan it must admit the child.
11. Local authorities have a duty to ensure that the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Appeals

12. A parent or young person may appeal to the SEND Tribunal about the following:
• a decision not to carry out an EHC assessment
• the support set out in a final EHC Plan
• the placement named in a final EHC Plan.

Alternative education

13. Local authorities have a duty to 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 provision. (Education Act 1996, section 19)

What happened

14. Mr and Mrs X have a son, Y, of primary school age. Y has a diagnosis of high functioning autism and suffers with high levels of anxiety. He has an EHC Plan and since September 2018 has attended a specialist school, School 2.
15. Y’s previous, School 1, made two unsuccessful requests to the Council for an EHC assessment for Y in 2016 and 2017. When the Council declined the second request it increased the special needs funding to School 1 to allow for 25 hours a week extra support for Y.
16. After Mr and Mrs X appealed to the SEND Tribunal against the refusal to assess, and the School made a further request, the Council agreed to carry out an assessment. It told School 1 and Mr and Mrs X of its decision on 4 April 2017 and started the assessment. Mr and Mrs X withdrew their appeal.
17. The Council issued the draft EHC Plan on 24 July 2017. It consulted School 2, Mr and Mrs X’s preferred school, giving a deadline for its response of 8 August. The Council explained to Mr and Mrs X that the request for School 2 would be considered at the next meeting of the Countywide Admissions Panel (CAP) in September 2017.
18. In September 2017 Y started the term full-time with 1:1 support. The 25 hours extra funding for him continued at School 1. Then Mrs X says at the end of September he started attending in the mornings only at the request of the School. The Council says this was increased at the end of the month to three mornings and two full days a week. But Mrs X says the morning-only timetable continued until mid-November.
19. The CAP meeting took place in mid-September 2017. School 2 had not made a formal response to the consultation by this point but it told the Panel it did not have capacity to offer Y a place at the time. The case was to return to the Panel in October.
20. The Council told School 1 and Mr and Mrs X the result of the Panel meeting on 25 September 217. The Council contacted School 2 to discuss a potential place for Y but School 2 said it was unlikely there would be a place available until September 2018. The Council then began to look into alternative school placements, consulting three other schools. It also consulted School 1 in October 2017.
21. There was a further CAP meeting held on 11 October 2017. Again School 2 said it could not offer a place. This was when School 2 first responded to the formal consultation. The decision was to resubmit the case to the Panel in January 2018.
22. Following the October CAP Mr and Mrs X contacted the Council to try and find out what was happening with the school place and the EHC Plan. The Council replied at the end of October saying it agreed School 2 was the most suitable school for Y out of the maintained specialist provision in the County. But it said as there was no place available it would need to consider other schools. It said it would keep Mr and Mrs X informed and also let them know if a place became available at School 2. It said they could suggest schools themselves.
23. Mrs X wrote to the Council saying she was angry about the delay in finding a new placement.
24. The Council contacted School 2 again in early November to check if it would offer Y a place from September 2018. The School and the Council agreed this would be considered at the CAP meeting in November and the Council informed Mr and Mrs X. The Council also said if there was no place available for Y at School 2 before September 2018, it would need to look into putting some ‘interim provision’ in place to support him at School 1. The Council also explained this to School 1.
25. In November Mrs X asked about consulting two other schools. School 1’s response to the consultation was that it was not a suitable placement. It said despite considerable efforts it was not able to meet Y’s needs and he should be placed at a special school as agreed by the CAP previously. School 1 asked the Council about the outcome of the latest CAP meeting. The Council advised that School 2 had offered a place from September 2018. It said it had considered School 1’s response to the consultation and was aware of its concerns. However it said it was recommending that Y stayed at School 1 for the rest of the year with additional alternative provision. School 1 was not happy with this decision. At the end of November 2017 it said Y was attending school for an hour a day and was “not coping with even this small amount of time”.
26. The Council’s response was to start looking into alternative education providers and suggest this should be discussed with School 1, with extra funding if necessary. It sent information to the School about potential alternative providers.
27. At the end of November School 2 confirmed it would offer Y a place from September 2018. The following day, 30 November, the Council issued the final EHC Plan naming School 1 as an “appropriate placement” up to the end of the summer term and School 2 from September 2018. The support set out in the Plan was for provision “equivalent to 25 hours learning support assistance per week”, provided individually and in small groups. The covering letter to Mr and Mrs X explained their right of appeal. They did not appeal.
28. Mrs X wrote to the SEN Service Manager in early December 2017 complaining that the Council had failed to provide a specialist placement for Y and that he was only receiving one hour a day education in school. She said Y’s mental wellbeing was deteriorating. She said she was spending large amounts of time looking into alternative providers herself. The Service Manager acknowledged receipt of the email and said she would pass on Mrs X’s concerns to the case officers involved. Mrs X did not receive any further reply. The Council says it has no record of this correspondence, although Mrs X has provided copies. However the Service Manager contacted School 1 and said she would ask the SEN Team to look into how the Council could bridge the gap in Y’s education and to contact School 2 again.
29. In mid-December the Council decided to arrange a meeting with School 1 in the New Year to discuss alternative provision. In January 2018 the Council had discussions with School 1 about funding a bespoke package of support for Y. Y was attending school for 2 hours a day with 1:1 support from TA. Over the following two terms Mrs X and School 1 contacted alternative providers to work with Y and his TA on managing his anxiety and emotions. The Council provided an Advisory Support Worker to advise staff on strategies and interventions to use when working with Y. Y had transition visits to School 2. During the summer holidays the Council provided funding to School 1 to enable Y to attend a summer project.
30. In early January 2018 Mrs X made a complaint to the Council about delay in carrying out the assessment and issuing the final EHC Plan. She also complained about failure to provide the 25 hours a week support required in the EHC Plan. She said Y was missing out on education and contact with other children.
31. In response the Council accepted the process had been delayed beyond the 20- week timescale required. It apologised for this. It said it had sought a place at the parents’ preferred school. It said it had consulted other schools but Mrs X had written to the Council to say School 2 was the only realistic option, as the other schools mentioned were too far away. Regarding its legal duties in relation to EHC Plans, the Council said this was to arrange the educational provision “(school placement)” but that it was the named school which had the legal duty to arrange the special education provision described in section F of the Plan. It noted that Y was now attending school for two hours a day. It accepted that Y was legally entitled to a full-time education but said “I would implore the school to ensure that his timetable is increased back to full time provision as soon as is possible”. The Council said it had provided the funding to the School for full-time TA support. It said it was happy to discuss options for alternative provision and support with School 1 and provide extra funding if necessary. It said it was also in discussion with School 2 about whether Y could start earlier.
32. In April 2018 Mrs X wrote to the Council again to say Y’s mental state had deteriorated further and he needed his hours at school to increase. She asked what was happening about the extra provision while waiting for a place at School 2. She said because of a delay in the Council’s funding, the alternative provider had not been able to continue supporting Y.
33. Mr and Mrs X wrote to the Council again in May 2018 to complain about problems with the alternative provision offered. They wrote again a few days later after seeking legal advice. They said the advice they had received was that the Council did have a legal duty to put in place the special educational provision in the EHC Plan. They said Y should be getting 25 hours a week and was currently receiving only ten hours. They said the School had made every effort to secure alternative provision and now they wanted the Council to do so in line with its legal duty.
34. The Council replied saying it had been in regular contact with School 1 about interim provision to support Y. It said as the School was currently named in his EHC Plan it remained responsible for his education during this period, with the funding the Council had provided. It said it had approved extra funding for alternative provision “while [Y] unable to access the provision at [School 1]”. Mrs X says she did not receive this reply.
35. Y started at School 2 full-time in September 2018.
36. In late September 2018 the Council responded to Mr and Mrs X’s complaint at the further review stage. The summary of the complaint was that Y had attended an unsuitable mainstream school for only two hours a day since 4 January 2018 and only part-time since September 2017. They also complained about delay in issuing the EHC Plan, failure to deliver the support in the EHC Plan, delay in allocating a special school placement, and problems with the alternative education provision from November 2017. Most of the Council’s response focussed on the period before it agreed to carry out the EHC assessment. The Council apologised for delay in arranging a place at School 2. But it said its choices were to direct entry to School 2, which would have had a negative impact on the School as it was already full, or find a placement at an appropriate out of county special school. It said the parents did not consider any other school within a reasonable distance suitable. The Council said it had supported School 1 in the meantime with extra resources and support from alternative providers.

Analysis – was there fault causing injustice?

37. Mrs X complains of delay in completing the assessment and issuing the final EHC Plan, and lack of full-time education and support required in the Plan in the meantime.

Complaint a) - delay

38. The Council has accepted there was delay in issuing the final EHC Plan and apologised for this. It says it issued it 13 weeks outside the 20-week timescale. This assumes that the deadline was 20 weeks from the date when the assessment started. But the 20 weeks starts from the date when the Council receives the request for an assessment. The Council has six weeks to make a decision, and so if the Council agrees to assess, the assessment should start at week six. In this case the Council at first refused to carry out an assessment, and then agreed on 4 April 2017 after Mrs X appealed. The Ombudsman takes the view that in such cases the assessment starts at week six in the timetable. So the Council has a further 14 weeks to complete the assessment and issue an EHC Plan. It should therefore have issued the final EHC Plan by 11 July 2017. This means the delay was 20 weeks.
39. The Council says the reason for the delay was that it was trying to secure a place at the parents’ preferred school, which was not confirmed until the end of November 2017. In the meantime it said it was also consulting with other schools as it was aware School 2 was unlikely to offer a place before September 2018.
40. The account of events above shows that repeatedly putting the placement decision to the CAP delayed the issue of the final EHC Plan. However I could not say that if the Council had decided to issue the final Plan earlier to meet the required timescale, this would have resulted in a different outcome. The Council had several options. It could have issued an EHC Plan without a named school or named a school other than School 2 if it had identified one that was suitable. But it is unlikely Mrs X would have considered either option beneficial as School 2 was her preferred school. She would therefore have had to appeal.
41. Alternatively the Council could have named School 2 earlier and directed it to admit Y if it did not accept the School’s case that it would be detrimental to the education of others and the School’s resources to do so. However the question of which school to name in an EHC Plan is a matter for the SEND Tribunal to determine on appeal. It is not for the Ombudsman to question the decision. If the Council had issued the final Plan earlier with a named school, I have no reason to think the decision would have been different to the one made at the end of November 2017 naming School 2 from September 2018 only, with School 1 as the placement for the rest of the 2017-2018 school year. This is because the Council accepted School 2’s case that it would be detrimental to the School to admit Y unless a vacancy arose. Mr and Mrs X did not appeal the final EHC Plan to challenge the decision to name School 1 for the rest of the school year. So I cannot say the delay in issuing the final EHC Plan affected the school placement decision.
42. I have considered whether the delay in issuing the final EHC Plan caused delay in Y receiving support set out in the Plan. The provision in the EHC Plan was for the equivalent of 25 hours a week TA support. The Council was already providing funding to School 1 for this level of extra help and Y was receiving 1:1 support. So delay in issuing the EHC Plan was not the reason for lack of full-time support.

Complaints b) and c) – lack of education

43. To look at Mrs X’s complaints about lack of full-time education and support I need to divide the period in two: before and after the Council issued the EHC Plan.
44. In October and November 2017 Y was attending school for mornings only at the request of School 1, and then from 21 November for one hour a day. Initially if the School had taken this decision, it was its responsibility to make up the hours to full-time. The Council’s duty was to step in if it was aware Y was not receiving full-time education because of illness, exclusion or ‘other reasons’ and there were no other arrangements being made to provide it. By early November the Council was aware School 1 considered it was no longer suitable for Y’s needs, the Council was looking for alternative placements and it advised School 1 it would support it by providing funding for additional provision. It gave information to School 1 about potential providers. So it was taking steps to try and ensure Y could receive full-time education. I do not consider the Council was at fault in taking this approach during this period.
45. Once the EHC Plan was issued on 30 November 2017, Mr and Mrs X had a right of appeal against the decision naming School 1 for the remainder of the school year. The Ombudsman has discretion to investigate the provision after the date of the final EHC Plan if we consider it would not be reasonable to expect the complainant to appeal. In this case Mrs X explained that she did not see what positive outcome such an appeal would have had. She felt she had spent a lot of time and energy in securing a place at School 2 from September 2018. She thought the alternative provision the Council offered would be full-time and she focused on trying to ensure this was in place. She felt appealing would have caused more uncertainty and stress and would have been a long process. Knowing that her son was to move again in September, she felt any further significant change for him before them would have been distressing for him.
46. Taking account of Mrs X’s comments and the lack of alternative placement identified, I consider that it would not have been reasonable to expect Mrs X to appeal. I am therefore able to consider whether there was fault in the way the Council dealt with question of alternative provision during Y’s last period at School 1 while waiting to take up place at School 2.
47. Mrs X has complained about gaps in the alternative education provided. The Council has confirmed that as well as the two-hour a day timetable at School 1 and the professional support from the Advisory Support Worker, the following extra support was in place:
• three 45-minute sessions a week from one provider, ‘AP1’, from 23 February to the end of April 2018;
• support from a second provider, ‘AP2’ from 18 June 2018 until the end of the summer term.
48. This means that, starting in January 2018 to allow for the Council to make the necessary arrangements, Y received no alternative provision for the following periods:
• from the beginning of term in January 2018 to when AP1 started (around seven weeks)
• between AP1 ending and AP2 starting (around seven weeks).
49. This loss of educational provision is an injustice to Y and I recommend a remedy below.
50. From when the Council issued the final EHC Plan at the end of November 2017 it was under a duty to ensure the special educational support in the Plan was arranged. The Council says it had difficulty delivering the equivalent of 25 hours a week TA support set out in the EHC Plan because this was intended to take place in a mainstream school environment and Y was not attending school full-time. He received the TA support for the ten hours a week he was in school. The alternative provision was intended to supplement the part-time timetable at School 1. I have dealt with gaps in this provision above. Nevertheless the Council accepts that Y missed out on some of the provision in the EHC Plan, for example the small group work.

Complaint d) – poor communication

51. Mrs X has also complained about failings in communication. The evidence I have seen shows that the Council responded to most of Mrs X’s emails. However it did not respond to those of 6 December 2017 and 15 April 2018 sent to the SEN Service Manager. The Council has checked and says it has no record of these communications. Mrs X has provided copies. I understand that the officer has since left the Council. It may be that her correspondence has been deleted. In the absence of evidence that the Council responded to her I find that the Council was at fault.
52. I also consider that the Council was at fault in telling Mrs X it was the duty of the School to ensure the support set out in the EHC Plan was delivered. Schools have to deliver the provision in an EHC Plan on a day to day basis. However councils have the ultimate binding legal duty to ensure the special educational provision in section F of an EHC Plan is arranged. Councils may expect a school or college named in the EHC Plan to do this, but if this does not happen, the Council must step in and ensure the special educational provision is made.

Agreed action

53. The Council has agreed that to remedy the injustice caused it will take the following action within one month of the final decision on the complaint.
• Apologise to Mrs X for the full extent of the delay in issuing Y’s EHC Plan and the gaps in educational support I have identified, and for failing to reply to correspondence.
• Offer Mrs X a payment of £200 per month to recognise the lack of additional provision for 14 weeks, making £700.
• Offer her a further payment of £300 to recognise the lack of other provision in the EHC Plan over the whole period, such as the small group work.
54. The Ombudsman’s remedies guidelines recommend payments of between £200 and £600 per month for loss of education depending on the circumstances. In making my recommendations I have taken account of this guidance, the difficulties Y had at the time in accessing learning and the fact that he was receiving education part-time.
55. The Council has also agreed that within one month it will remind relevant officers of the Council’s legal duties in relation to securing the provision in an EHC Plan.

Back to top

Final decision

56. I have found fault by the Council in the way it dealt with issuing the EHC Plan and providing educational support to Y. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
57. 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.

Back to top

Parts of the complaint that I did not investigate

58. I have not investigated the period before the Council agreed to carry out the EHC assessment. This is because Mrs X had a right of appeal against the decisions not to assess her son’s needs, and she did appeal one of those decisions. So this matter is outside the Ombudsman’s jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman