The Ombudsman's final decision:
Summary: Ms X complains of failings by the Council causing her son, Y to lose education. There was fault by the Council, though the latter part of the period when Y was without education is outside the Ombudsman’s jurisdiction to consider. The Council will apologise and pay Ms X £1200 for lost education.
- The complainant, whom I shall call Ms X, complains the Council took too long to issue an EHC Plan for her son, Y.
- She also complains the Council sent another council the wrong version of Y’s EHC Plan in January 2018, which caused further delay in him receiving the correct provision after they moved to the new area.
- Finally, she complains the Council made no alternative educational provision for Y between February 2017 and January 2018 when he was out of school, telling her it would not do so because he remained on a school roll.
What I have investigated
- I have investigated the complaints above, except for that part of the third complaint that came after the Council issued a final EHC Plan for Y in August 2017. I give my reason for this at the end of this statement.
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- The courts have ruled that, where a person has appealed to the SEND Tribunal, the Ombudsman’s authority to consider a council’s actions in making educational provision ends at the point where the right of appeal became available. This applies even where a council makes no educational provision or an EHC Plan does not name any educational provision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407)
- 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
- I read Ms X’s complaint and spoke to her on the telephone, I made written enquiries of the Council and considered what it sent me in response. I considered the Council’s duties as laid out in the SEN Code 2015 and under the Education Act 1996.
- Although the sending on of documents relates to a period when other matters are outside our jurisdiction, the matter is wholly administrative. I have therefore considered if the Council sent on the wrong EHC Plan to the new council.
- I shared a draft of this decision with both parties and invited their comments. I considered those I received.
What I found
- I will deal with each of the three complaints in turn, laying out what should have happened, what happened, if there was fault, and if any fault caused Y injustice.
Issuing Y’s EHC Plan
- Councils have 20 weeks to issue final EHC Plans. In Y’s case, the Council took from 10 February 2017 to 14 August 2017 to issue the final EHC Plan. That was 26 weeks, six weeks too long. I have seen no evidence that the delay was caused by Ms X. I therefore find the Council at fault.
- The period of delay was relatively short, so any injustice caused to Y in terms of lost SEN provision would have been limited, given the due date for the EHC Plan was only three weeks before the school summer holiday. However, as I explain later, Y suffered a more significant injustice during this time as the result of other fault.
- In response to the draft decision, Ms X provided evidence of invoices she paid for occupational therapy for Y. However, these refer to sessions in March, April and July 2017. Even if the final EHC Plan had included such sessions, I cannot say the six weeks’ lateness caused Ms X to incur the cost. This is because any such provision would not have been available earlier even if it was contained in an on-time EHC Plan.
Sending on Y’s EHC Plan
- Where a child moves to a new area, it is logical that councils must send on the relevant SEN documents to the new council. As most councils now keep electronic SEN files, it is relatively straightforward to send on copies of the full records of a child. It is also a matter of common sense that the most recent communications should be sent.
- Ms X says the Council sent on the wrong version of Y’s EHC Plan when she moved. She says it did not send on all the documents it should have done.
- Y’s latest EHC Plan was the one the Council issued on 14 August 2017. However, the records show negotiations had continued since then that involved proposed amendments.
- The Council says Ms X sent it proposed amendments that it received on 21 December 2017. It says these were too late as it had already sent the documents it had up to 30 November 2017.
- The email correspondence I have seen does not allow me to say exactly what was sent by the Council and when. However, some dates are clear.
- First, Ms X has confirmed she sent all her documents to the SEND Tribunal on 29 December 2017.
- Second, the Council sent the latest documents from Ms X to the new council on 10 January 2018.
- Third, Ms X said in an email that she was moving to the new area on 12 January 2018.
- Fourth, the new council told her it accepted her proof of address on 19 January 2018.
- Fifth, the new council told Ms X on 23 January 2018 it had not received assessment reports from the Council. Ms X told it the Council had told her it had sent everything on weeks before.
- Sixth, the new council told Mrs X on 25 January 2018 that it had sent these reports to a school it planned to name, a school that Ms X did not wish it to name.
- Last, the SEND Tribunal was due to sit on 5 February 2018 (stayed from 26 January 2018 at her request, according to the SEND Tribunal Order she sent me).
- Ms X confirmed in response to the draft decision that the new council did not agree to name the school she wanted for Y. She said it agreed to do so in April 2018, before a re-scheduled SEND Tribunal due in May 2018.
- I cannot say exactly what arrived at the new council on what dates. So, I cannot say if the Council should have sent some documents on sooner. But I note that 21 December 2017 was the Thursday before Christmas and that seven of the next 11 days were weekends or public holidays. I also note that most councils and many other public bodies either limit their office hours or close between Christmas and the New Year.
- However, it is likely the new council had the documents it needed by 25 January 2018. And it did not agree with Ms X’s choice of school. The SEND Tribunal also had everything Ms X sent it by 29 December 2017 at the latest. Given the new council only accepted Ms X’s residency on 19 January 2018 and it contested her choice of school for at least two months after it had all it needed, I cannot say any delay by the Council in sending in information caused delay in the new council agreeing provision for Y.
Alternative educational provision
- The Education Act 1996 lays out that councils with education responsibilities must make alternative educational provision for children who are out of education because of exclusion, illness or otherwise. This duty is full-time unless the child cannot cope with full-time provision. The duty starts on the sixth school day for an excluded child and after 15 school days for a child who is ill. It is logical to apply the same standard for an ill child to one who cannot attend for other authorised reasons. Such a duty does not apply in a case of truancy.
February to Easter 2017
- In this case, Ms X phoned the Council on 17 February 2017, saying Y had been absent from school for two weeks because he was anxious. She wrote to the Council on 2 March 2017, saying Y was school refusing because of anxiety.
- Ms X says she contacted the Council on 10 February 2017, but the evidence she has sent me shows she contacted Y’s school at first on 8 February 2017, copying her letter to a Council officer. Her letter referred to Y’s increasing inability to attend school. But it did not directly state he was out of education. Instead. It asked about strategies to engage Y.
- The Council held a meeting on 8 March 2017, confirmed by minutes of the meeting provided by Ms X in response to the draft decision. The plan was to re-integrate Y into school. Given there was a plan, I would not have expected the Council to offer alternative provision at this stage.
- On 20 March 2017, the school referred Y to the Council’s school attendance team, saying his last attendance had been on 14 March 2017. By this time, Ms X was waiting for a visit from a social worker from the disabled children’s team. Ms X is concerned by any suggestion that Y was truanting. For the avoidance of doubt, Y’s absences were not truancy, as demonstrated by later evidence. However, it was not fault for the Council to consider if they were in March 2017 because of the earlier plan to re-integrate him into his school and the fact that he had attended at least one day recently.
- I have not checked the dates of the school Easter holidays in the Council’s area. But given that Easter Day fell on 16 April 2017, it is reasonable to assume that these ran either from 7 April to 18 April, or from 13 April to 24 April 2017.
- Given Y attended at least one school session in March 2017, that there was a re-integration plan and that there was at first some doubt about the validity of his absences, I would not have expected the Council to make alternative provision before the Easter holidays in 2017.
Easter to July 2017
- However, after Easter 2017, matters were different. This is shown by an incomplete internal email the Council supplied. In it, an officer who took over Y’s case in early July 2017 (Officer A), stated there was a request for alternative education provision for Y at Easter. This shows the Council had reached the decision by Easter 2017 that Y’s absences were not truancy. She said that there had been no spaces available and none were likely before December 2017. She reported this was the opinion of another officer (Officer B). Officer A said much the same in another email on 14 August 2017. And a meeting held on 4 July 2017 also confirmed the referral for alternative education came at Easter, but that no spaces were available.
- The three sources together confirm the Council failed to make any educational provision for Y in the summer term of 2017. That was fault. It was also injustice to Y in the form of lost education that term.
August 2017 onwards
- Once the Council issued Y’s EHC Plan on 14 August 2017, Ms X had a right of appeal to the SEND Tribunal. As she used this right, it takes the issue of Y’s education out of the Ombudsman’s jurisdiction from 14 August 2017. I therefore cannot reach any view on the further period of more than a term when Y remained out of education.
- However, I am concerned that the Council, in writing to Ms X on 20 June 2018 in response to her complaint, stated it did not provide alternative education for children who were on a school roll. The Council has confirmed since, in response to my enquiries, that this is not its policy. It has also confirmed a correct understanding of its duties under the Education Act 1996.
- To remedy the injustice caused by fault found, the Council will, within a month of the final decision:
- Apologise to Ms X for its failure to make alternative educational provision between April and July 2017 and for telling her on 20 June 2018 that it had no duty to provide alternative education when a child is on a school roll; and
- Pay her £1200 for Y’s lost education provision for Y during the school term from April to July 2017.
- To make sure no other parent is wrongly told the Council has no alternative education duty to children on a school roll, it will, within a month of the final decision, confirm to all its staff dealing with children out of school and children with SEN the correct understanding of its duties under the Education Act 1996.
- I have upheld the complaint about the loss of educational provision closed the case as the Council has agreed to take the recommended action.
Parts of the complaint that I did not investigate
- As Ms X appealed against the Final EHC Plan, the provision it contained became a matter for the SEND Tribunal from the date the Council issued it. The Ombudsman has no jurisdiction to consider the provision made or omitted thereafter.
Investigator's decision on behalf of the Ombudsman