Summary: Mrs X complains about the EHCP process and the time taken to secure a school place for her daughter, Y. There was no delay in completing the EHC plan process, but the Council’s failure to provide suitable alternative education between February and July 2019 amounts to fault. This fault has caused Mrs x and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains about the EHC plan process and the time taken to secure a school place for her daughter, Y. In particular Mrs X is concerned:
• the social worker was unprofessional, rude and dismissive;
• the EHC plan process was slow and Mrs X ended up writing her own EHC plan;
• her daughter did not receive the planned five hours of home tutoring or the provision set out in the EHC plan;
• her daughter was out of school for a year and the Council did not do enough to secure her a place.

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The Ombudsman’s role and powers

2. 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)
3. 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). SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. 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)
5. 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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X; and
• sent a statement setting out my draft decision to Mrs X and the Council and invited their comments.

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What I found

Education provision

7. The Council has a duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
8. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
9. 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)
10. The Local Government Ombudsman has issued guidance to 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.

Education, Health and Care Plans

11. 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 council is responsible for making sure that arrangements specified in the EHC Plan are put in place and are reviewed each year.
12. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in legislation and Government guidance. If a parent asks for an EHC assessment for their child, the local authority must decide whether an assessment is necessary. It must tell the parent its decision within six weeks of receiving the request.
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ says:
• 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 Council should tell the parents of its decision to assess or not to assess within six weeks of the from the request.
• 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).
14. Parents have a right of appeal to the SEND Tribunal if the Council refuses to carry out an assessment, or if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.
15. The Ombudsman cannot investigate complaints once a parent has appealed to the Tribunal.

What happened here

16. Mrs X’s daughter Y has a diagnosis of Autism Spectrum Disorder. In late August 2018 Mrs X asked the Council for an EHC assessment for Y. Mrs X also advised the Council Y was struggling at school and they were considering educating her at home until a more suitable placement could be found. Mrs X decided to home educate Y from September 2018.
17. On 14 September 2018 the Council advised Mrs X it had decided not to assess Y’s needs. Mrs X provided further information and on 2 October 2018 the Council confirmed it would carry out an assessment. The Council completed an assessment on 28 November 2018 and the Partnership Resources Forum considered the information on 19 December 2018. The Council advised the panel that Mrs X’s preference was School 1, a mainstream school. The panel determined Y should attend a mainstream school with access to a teaching assistant for 20 hours per week.
18. Mrs X disagreed with the panel’s decision and asserted she had maintained throughout that mainstream schools were not set up to support Y and she needed to be in a specialist school
19. The Council issued a draft ECH plan on 18 January 2019. Mrs X was unhappy with the plan. She was concerned it was not quantified or specified and included incorrect and out of date information. Mrs X also disagreed with the provision and hours allocated to Y. She asked for copies of the reports used in the assessment process and for a meeting to discuss these concerns.
20. Mrs X met with Officer 1 on 28 January 2019 and then provided written comments on the draft plan. Officer 1 agreed to make some changes and arranged a further meeting on 7 February 2019. Following this meeting Mrs X requested further amendments.
21. The Council issued an amended draft plan on 13 February 2019 and having made further amendments issued the final decision on 14 February 2019. The plan identified a type of setting but not a specific placement for September 2019, as it had not been possible to secure a school placement at this stage.
22. On 14 February 2014 Mrs X advised the Council she no longer wanted to educate Y at home and asked it to provide educational provision for Y until a suitable placement could be found. The Council confirmed it would make a referral to a private tuition service. It also confirmed it would consult specialist schools to see whether they could offer Y a place before September 2019.
23. In early March 2019 the Council consulted five schools, including Mrs X’s preference. The Council also made a referral to a tuition service. As this service was full, the Council contacted an alternative provider on 14 March 2019 and requested five hours tuition per week. The service met with Mrs X and Y on 20 March 2019 and tuition began on 26 March 2019. This initial session was for an hour. The records show Y received a further hour’s tuition on 2 April 2019, but Mrs X was unable to confirm with the tutor any other time when she was available that week. Y then went on holiday.
24. On 27 March 2019 Mrs X made a formal complaint about the EHC plan process and the Council’s actions to secure a placement for Y. She complained that Officer 1 was unprofessional and had been rude and dismissive and had not kept her updated regarding possible schools. She asked for clarification regarding the type of school described in the plan. Mrs X also complained that the tutor could only provide two hours tuition a week.
25. In its response the Council noted Officer 1 had met with Mrs X twice and responded swiftly to Mrs X’s emails. It stated there was no evidence Officer 1 had been unresponsive, rude or dismissive to Mrs X, and did not consider it necessary to allocate a new caseworker.
26. The Council also noted Officer 1 had consulted five schools in March 2019. Three had confirmed they could not offer a place and one had yet to respond. The fifth school had offered Y an assessment. Officer 1 had also contacted a further four schools in early April 2019. The Council asserted this showed it had approached schools and would consider further schools Mrs X considered appropriate.
27. In relation to the tuition the Council stated Officer 1 had contacted the service and confirmed Y would receive five hours tuition following the Easter break.
28. Mrs X was not satisfied by this response and asked for her complaint to be considered further. The Council was satisfied it was exploring an appropriate education placement for Y. When it had a firm offer from an appropriate school, it would update Y’s EHC plan.
29. The Council considered it appropriate to provide limited home tutoring at a level Y was comfortable with and could engage with, and to slowly increase this to a level that meets her needs. It suggested this could be achieved by Mrs X enabling tutors to meet with Y over the five weekdays at times that suit her routine.
30. In May 2019 the tuition service set up a new timetable for two hours tuition on Mondays and two hours on Tuesday. The intention was to increase this to five hours.
31. Of the schools consulted in April 2019, three confirmed they would assess Y, and in July 2019 School A confirmed they could offer Y a place. The panel initially refused to agree to this placement. Mrs X states Officer 1 advised her the panel had refused to agree due to the cost and that the support requested was not backed up by Y’s EHC plan. Mrs X disagreed with the panel’s decision and maintained School A was the nearest and most appropriate school, and that Y’s needs were set out in the EHC plan.
32. Mrs X also raised concerns that Y had been receiving four hours tuition a week since June 2019 but had not received any of the support for strategies or therapies set out in her EHC plan.
33. The panel agreed to a placement at School A and the Council amended Y’s EHC plan to name the school. Y started a School A in September 2019.
34. Mrs X is unhappy with the way the Council has dealt with this matter and has asked the Ombudsman to investigate her complaints. She is concerned the EHC plan process took too long and she had to re-write the plan herself to ensure it met Y’s needs. Mrs X is also concerned that Y did not receive the provision and therapies detailed in her EHC plan until September 2019 when she started at School A.
35. In response to my enquiries the Council states there were no delays in finalising the plan. It assessed Y’s special educational needs and issued an EHC Plan within the 20-week statutory timescale.
36. The Council also states there were no delays in providing Y with an alternative education. Mrs X chose to electively home educate Y from September 2018 to 14 February 2019. During this period Mrs X was responsible for Y’s education and the Council was not involved in providing any alternative education. When Mrs X asked for Y to be removed from the home education register the Council sent referrals to home tuition services and commissioned an independent provider. Tuition started on 26 March 2019, but Mrs X was unable to confirm availability for more than two hours. It states the tuition service agreed a timetable and started five hours of tutoring each week from 13 May 2019.
37. The Council states it also consulted over 17 schools, most of which were unable to offer Y a place as they did not have a space or were unsuitable.

Analysis

38. Mrs X is concerned about the length of time taken to complete the EHC plan process. But there is no evidence of any delay which would amount to fault. The Council completed the assessment and issued the EHC plan within the statutory timeframe.
39. Mrs X disagreed with information and provisions detailed in the draft plan but had the opportunity to discuss this with the Council and agree amendments for the final plan. Mrs X also had significant email correspondence with Officer 1. There is no evidence in the documentation I have seen that Officer 1 was rude or unprofessional.
40. The final plan issued in February 2019 did not name a placement. If Mrs X was unhappy with this, or other elements of the plan, she had a right of appeal to the SEND Tribunal. Mrs X did not exercise this right.
41. The documentation shows that having issued the EHC plan the Council attempted to find a suitable placement for Y. It consulted many schools, including those Mrs X expressed a preference for. It is unfortunate that most schools could not offer Y a place, but this is not due to fault on the part of the Council.
42. We would however expect the Council to provide suitable alternative education from February 2019, when Mrs X advised Y would no longer be home educated, until a placement was found. It is unclear from the information available why or how the Council determined that five hours provision per week was appropriate. Or how and when this would be reviewed and potentially increased. There is no record of any suggestion Y would not cope with full time education, or discussion about a reduced timetable.
43. In any event, Y did not receive the planned five hours of tuition each week. She had only one session with the tutor in both March and April 2019, each lasting one hour. This increased to four hours a week from mid-May 2019, but Mrs X states Y did not receive the full five hours at any point.
44. I recognise it was difficult to arrange tuition in March and April 2019 due to Y’s availability, but this does not explain why the tuition did not increase to five hours, or more between May and July 2019. I consider the failure to record how it was decided Y should receive only five hours of tuition and the subsequent failure to provide the full five hours tuition amounts to fault. As does the failure to review this provision with a view to increasing the hours. I note Y has attended School A on a full-time basis since September 2019. This suggests she would have been able to engage in increased hours of tuition at home prior to attending School A.
45. Having identified fault, I must consider whether this has caused Mrs X and Y an injustice. The Council’s failure to provide suitable alternative provision after February 2019 meant Y lost out on a suitable education for a term and a half. That is a significant injustice.
46. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
47. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
48. In considering an appropriate remedy I am mindful that Mrs X and Y’s availability and personal circumstances may have meant it may not have been possible for Y to have received full time tuition at home.

Agreed action

49. The Council has agreed to apologise to Mrs X and Y for its failure to provide alternative education for Y between February and July 2019.
50. The Council has also agreed to pay Mrs X:
• £1000 to use for Y’s educational benefit, for the missed term and a half of education; and
• £150 to acknowledge the distress and anxiety they experienced, and the time and trouble Mrs X was put to in trying to resolve this matter.
51. The Council should take this action within one month of the final decision on this complaint.
52. In addition, the Council has agreed to provide reminders/training to ensure that staff understand the Council’s duty to offer suitable alternative educational provision when children are out of school and not receiving a full-time education. This should include the need to consider the individual circumstances of each particular child and to demonstrate how they have made decisions on what would be suitable alternative educational provision for that child.
53. The Council should take this action within two months of the final decision on this complaint.

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Final decision

54. There was no delay in completing the EHC plan process, but the Council’s failure to provide suitable alternative education between February and July 2019 amounts to fault. This fault has caused Mrs X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman