Summary: Mrs X complained the Council delayed issuing an Education, Health and Care plan, failed to deliver the provision set out in the plan and failed to review it. She also complained about the alternative education provided whilst C was out of school. The Council was at fault for the delays in issuing the plan and a failure to review it. There was no fault in the alternative education it provided whilst C was out of school. The Council should apologise and pay Mrs X £350 for the time and trouble caused.

The complaint

1. Mrs X complained the Council:
• did not inform her it had agreed to carry out an assessment of C’s special educational needs within 6 weeks of her request;
• delayed issuing an Education, Health and Care (EHC) plan for C and the provision in it did not meet her needs;
• provided three hours tuition each day from October 2018 in a local library, which was not an appropriate venue;
• did not deliver the provision in C’s plan dated April 2018;
• made no effort to find a suitable placement for C; and
• failed to carry out an annual review of the EHC plan in April 2019.
2. Mrs X says C has missed out on education and social interaction. The delay in identifying a suitable placement means she is now repeating a school year at her new school. Mrs X says she had to change jobs and reduce her working hours because C was not in school and this caused significant financial loss.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)

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How I considered this complaint

8. I spoke to Mrs X and considered the information she provided.
9. I considered the information the Council provided in response to my enquiries.
10. I considered relevant law and guidance (as set out below) and our guidance on remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

12. 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. Councils must determine whether an EHC needs assessment is necessary and tell the parents its decision within 6 weeks of receiving the request. (paras 9.11 and 9.17 of the Special educational needs and disability code of practice: 0 to 25 years)
15. The EHC assessment and EHC plan development must be carried out in a timely manner. The final EHC plan should usually be issued within 20 weeks. (para 9.53 of the Special educational needs and disability code of practice: 0 to 25 years)
16. Where councils request information as part of an EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request. (para 9.41 of the Special educational needs and disability code of practice: 0 to 25 years)
17. EHC plans should be reviewed annually. The first review should be held within 12 months of the date the EHC plan was issued. (para 9.169 of the Special educational needs and disability code of practice: 0 to 25 years)

What happened

18. Mrs X asked the Council to carry out an assessment of C for an Education, Health and care (EHC) plan on 2 October 2017. She did not receive a response from the Council and complained in late November. The Council responded to the complaint in mid December. It confirmed it had agreed to do an assessment and said it had told Mrs X this by telephone. The Council has not been able to provide a record of the telephone call.
19. The Council requested reports from an educational psychology (EP), speech and language therapy (SALT), community paediatrics (CP), child and adolescent mental health services (CAMHS), and occupational therapy (OT) on 20 December 2017. It also requested information from school 1, the school C was attending. With two exceptions the reports were received on time and the Council agreed to issue an EHC plan on 2 February 2018. I have seen emails to show the Council chased the missing reports.
20. By late January 2018 C was on a reduced timetable at school 1 with some home tuition provided by the school, which the Council monitored by emails and attending meetings with the school. Mrs X reported to the school that the home tuition was working well. Although the school made some adjustments C found the school environment too overwhelming. By March 2018 Mrs X and school 1 agreed it was not in C’s interests to stay there. C remained on the roll for school 1 until she started at school 3 in September 2018. School 1 continued to provide home tuition until July 2018. Mrs X was not happy with the reduced timetable and did not want C to be educated at home but she did not make a formal complaint to the Council about the quality of the alternative education provided during this period.
21. Mrs X complained to the Council that the provision recommended by the educational psychologist and the speech and language provision was not specific and quantified. She also complained about the delayed reports from the community paediatrician and occupational therapist, which were not received until February and March 2018 respectively.
22. Mrs X looked at a number of schools and expressed a preference for school 2, which was an independent special school. The Council agreed to consult with school 2 but explained it could not commit to school 2 unless there were no other suitable placements in its area. This was because school 2 was expensive and it had a responsibility to use its resources efficiently.
23. On 4 April 2018 Mrs X asked the Council to issue a final EHC plan so she could appeal to the tribunal. It issued the final plan on 5 April 2018.
24. The Council was not able to name a suitable placement because the process was not complete when Mrs X asked it to issue a final plan. It said it usually consults schools after parents have agreed the draft EHC plan. In this case it began the consultation process after issuing the final EHC plan. It consulted six schools and school 3, a specialist independent school, offered C a place in September 2018.
25. C began attending school 3 in late September 2018. Unfortunately, this placement did not work out and she left in October 2018. The Council arranged alternative education. Mrs X did not want home tuition and agreed the tuition would be delivered in a local library. A private tutor was engaged to deliver tuition in maths, English and science, which started in November 2018.
26. Mrs X and the tutor told the Council the library was not working well because C found it hard to settle if she could not sit at a regular table and she found the background noises distracting. Mrs X said drunk people came into the library on occasion and sometimes there were children singing. The Council did try to find an alternative venue but was not able to identify a private room that would be available every day. The tutor identified a different library and the Council arranged for C to use the staff toilets there. Mrs X stated throughout that she did not want C to receive tuition at home.
27. In January 2019 Mrs X complained the Council had not ensured the special educational provision set out in the EHC plan dated April 2018 was delivered whilst C was out of school. She said C was not getting the following provision:
• 25 hours of support each week
• structured social skills support
• working in a small group
• a sensory programme and access to sensory equipment
• well being checks with a key adult
• an effectively delivered curriculum to meet her leaning and wellbeing needs
28. The Council responded in February 2019. It said:
• it could not comment on the provision in the EHC plan because the tribunal appeal was ongoing; and
• it was providing 15 hours per week tuition at the library as agreed with Mrs X.
29. In response to my enquiries, the Council said it could not deliver some of the provision, such as social skill support, and speech and language activities in a small group setting, when C stopped attending school. It also said it could not deliver some SALT and OT provision because the health authority could only deliver these as school-based activities. It confirmed it shared the EHC plan with the tutor in January 2019.
30. Mrs X also complained the Council did not carry out an annual review. In response to my enquiries the Council said it did not review the EHC plan in April 2019, a year after the first final EHC plan was issued, because the EHC plan was being contested at tribunal.
31. The Council consulted three times with school 2, Mrs X’s preferred placement. School 2 was not able to offer a place in the year C should have gone into in September 2019 because it was full. It later agreed to offer C a place in the year below on the basis C had lost a lot of education so could not immediately start GCSE courses. C started there in September 2019. The Council agreed a transition plan with the school to offer a gradual reintegration back into school.
32. Mrs X said the flaws in the EHC plan resulted in delays in identifying a suitable placement for C. The Council consulted nine schools in total. In response to my enquiries it agreed it was difficult to identify appropriate provision because Mrs X felt the whole basis of the EHC plan was incorrect.
33. In response to my enquiries the Council offered to pay Mrs X £350 for the time and trouble of pursuing the matter.

My findings

34. The guidance says councils should inform parents within 6 weeks whether they have agreed to carry out an assessment. The Council failed to inform Mrs X whether it had agreed to carry out an assessment within 6 weeks. It only confirmed this in writing after she complained. This was fault. This fault caused uncertainty for Mrs X about whether the Council would assess.
35. The Code says councils should issue the final EHC plan within 20 weeks from the date of the original request, which means the Council should have issued the plan on or before 18 February 2018. It issued the final plan on 5 April 2018 after Mrs X requested this so she could proceed with an appeal to the Tribunal. This was 26 weeks after the date of the request, six weeks longer than the Code allows. The failure to issue the final EHC plan within the statutory timescale was fault. This delay meant a delay in Mrs X being able to exercise her right to an appeal.
36. The delay in finalising the EHC plan was partly due the Council not receiving reports from the community paediatrician and occupational therapy. I have seen emails that show the Council chased these appropriately.
37. The delay was also due to Mrs X being unhappy with the reports and not agreeing with the provision in the draft EHC plan, which meant additional communications to try and achieve agreement.
38. The law says the Ombudsman cannot consider the provision set out in an EHC plan. Only the tribunal can look at this. Therefore, I cannot consider this part of Mrs X’s complaint.
39. The law also says we cannot consider complaints that are intrinsically linked to a tribunal case. Therefore, I cannot comment on the quality of the reports from the professionals because this was part of Mrs X’s appeal to the SEND tribunal.
40. The Council was not able to name a suitable placement for C when it issued the final EHC plan. This was because it had only just begin consulting with schools. It consulted a number of schools, some of them more than once. School 3 offered a place from September 2018 but C left in October 2018. As part of the tribunal proceedings the Council agreed to name school 2 in June 2019 and C started there in September 2019. Mrs X says the flaws in the EHC plan caused a delay in identifying a suitable placement. However, I cannot comment on this because it is too closely linked to the tribunal case.
41. There was a part-time timetable at school 1 for a short period and then a period where the school provided home tuition for C. Mrs X did not complain to the Council about the quality of the tuition provided in this period.
42. C was not attending school from October 2018 to early September 2019. The Council provided alternative education, which consisted of three hours tuition daily with a private tutor in the local library. This began in November 2018. The referral form shows the Council shared C’s attainment levels in relevant subjects prior to tuition starting but I have seen no record it shared any information about her special educational needs. It did not share her EHC plan with the tutor until January 2019. That said, the tuition was tailored for C and there is no evidence it did not meet her needs apart from the question of the location. Therefore, I do not consider this warrants a formal finding of fault.
43. Alternative education is commonly provided at the student’s home or in libraries. Mrs X was clear throughout that she did not want home tuition. The Council noted Mrs X and the tutor had concerns about the library that was originally agreed. It did try to find an alternative venue. It was not able to find a private room that was available at all the times needed but it did make arrangements at a different library when this was identified by the tutor. I consider the Council took sufficient steps to identify a more appropriate venue. It was not at fault.
44. Mrs X said the Council should deliver 25 hours of educational support as set out in the EHC plan. The records show she asked for an increase in the number of hours of tuition so C could receive tuition in additional subjects. However, the Council did not agree C could manage more than three hours per day. Individual tuition is more intensive than classroom tuition, which means the education may be suitable even though it was for fewer hours. The 25 hours support in the EHC plan related to the support needed if C was in school full-time and does not indicate 25 hours of tuition should have been provided when C was out of school. I am satisfied the Council delivered a suitable alternative education.
45. Councils are legally obliged to deliver the support set out in an EHC plan. In this case the Council envisaged C would be in school when it set out the specific provision required and some of the support specified would be difficult or impossible to deliver when C was out of school. Although there was a short delay in sharing the EHC plan with C’s tutor, I consider overall the Council took reasonable steps to deliver the support in the EHC plan and was not at fault.
46. I would have expected the Council to review the EHC plan when C stopped attending school in October 2018 because this was a significant change of circumstances and there was no immediate prospect of a new placement. Further, the Code does not say that councils do not need to review EHC plans where appeals are ongoing so if it had not reviewed the plan in October 2018 it should have done so in April 2019. The failure to carry out a review was fault.
47. There is no injustice to Mrs X or C for the failure to review the plan when she stopped attending school because the Council delivered a suitable alternative education. There is no injustice due to the failure to carry out an annual review in April 2019 because it is unlikely the Council would have amended the EHC plan whilst the appeal was at a late stage.

Agreed action

48. The Council will, within one month of the date of the final decision:
• Apologise to Mrs X for the failure to inform her in writing within 6 weeks that it agreed to carry out an EHC assessment for C, the delay in issuing a final EHC plan for C and the failure to review the plan; and
• Pay her the £350 it offered for her time and trouble in pursuing the matter.
49. The Council will, within three months of the date of the final decision, review its processes to ensure that it carries out an early review of an EHC plan if there is a significant change to the child or young person’s circumstances and carries out an annual review of all EHC plans, regardless of whether there is an appeal outstanding.

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Final decision

50. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of this fault.
51. 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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Investigator's decision on behalf of the Ombudsman