Summary: There were some administrative errors by the Council in the way it updated an Education, Health and Care Plan and sought to identify a new school. Service improvements to prevent recurrence of these errors have been made.

The complaint

1. Mrs X complains about the failure of the Council to obtain expert assessments to inform an Education, Health and Care (EHC) Plan; about delay in amending the Plan and identifying a suitable school; and that her daughter was out of school between October 2018 and September 2019.
2. Since starting this investigation Mrs X has also asked the Ombudsman to consider:
• the Council’s decision not to obtain speech and occupational therapy assessments when it issued the first EHC plan in 2016, or when Mrs X requested them in 2017
• the Council’s decision to name unsuitable schools in 2017 and 2018.
3. Mrs X says she would like the Council to be held accountable for not doing its job properly, lessons to be learned, staff to be disciplined and to provide an apology.

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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. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

6. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
10. We cannot investigate a complaint if someone has appealed to a tribunal. This applies even if the tribunal has not provided a complete remedy for all the injustice claimed. The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (Local Government Act 1974, section 26(6)(a), as amended; (R (on the application of ER) v the Commissioner for Local Administration, 2014); R v the Commissioner for Local Administration ex parte PH, 1999)
11. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ and outside the Ombudsman’s jurisdiction. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
12. A child with special educational needs (SEN) 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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
14. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
15. 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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What I have investigated

16. I have investigated whether there was delay in amending the EHC Plan when Mrs X’s daughter, whom I shall refer to as Y, stopped attending school in October 2018.
17. I have not investigated the content of the EHC plan issued in May 2019, including the school named by the Council, as this is properly a matter for the SEND tribunal.
18. I have not investigated the decisions to name a mainstream secondary school in the EHC plan in 2017 and a special school in 2018. Mrs X had a right of appeal against these decisions which we would have expected her to use.
19. I have not investigated the statutory assessment prior to the issue of the first EHC plan in 2016, or requests for therapy assessments in 2017, or the review of the plan in 2017 and 2018. These matters are too long ago for the Ombudsman to consider. Mrs X did not raise a complaint at the time and did not include these matters in her complaint to the Council in 2019. I will not now expand the scope of the complaint to consider matters which the Council has never been given the opportunity to investigate or respond to. We would expect someone to raise a complaint within twelve months of the events complained of.
20. I have not investigated whether staff should be disciplined. The Ombudsman considers fault and makes recommendations to the Council as one body. Disciplinary action is a matter for a Council as the employer. We do not become involved in personnel matters.

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How I considered this complaint

21. I have considered information provided by the Council and Mrs X including:
• The EHC plans and supporting reports
• The complaint correspondence
• Correspondence between the parties and schools.
22. I have considered relevant law and statutory guidance including:
• Education Act 1996
• The Children and Families Act 2014
• The SEN Code of Practice (‘The Code’) 2015
• Statutory guidance ‘Alternative Provision’.
• Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’
23. I have considered guidance issued by the Ombudsman:
• The Ombudsman’s Guidance on Remedies
• The Ombudsman’s Principles of Good Administration
• Focus Reports on EHC plans
• Focus Report ‘Out of School…out of mind?’
24. I have written to Mrs X and the Council with my draft decision and considered their comments.
25. 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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What I found

Chronology of events

26. Y has autism, anxiety and other diagnoses. She has been under the care of mental health services since 2016.
27. The Council first issued an EHC plan for Y in May 2016 when Y was at primary school. Mrs X says there were problems at primary school with Y’s attendance and her special educational needs being met.
28. In 2017 the EHC plan was updated when Y moved to secondary school. Y attended a mainstream school (School A) from September 2017.
29. In 2017 Mrs X requested speech and occupational therapy assessments. These requests went to a panel, but the Council declined to fund them and told Mrs X to get a referral via health professionals.
30. By February 2018 Y was not attending School A full-time but spending a day a week at a therapeutic placement. Mrs X says the Council would not fund transport to this placement. The Council said if the placement at School A was breaking down then it would need to look at specialist provision.
31. In June 2018 Y took an overdose. Mental health services identified that Y’s anxiety was largely driven by struggling to fit into a mainstream school and recommended Y attend a special school.
32. In September 2018 Y moved to a non-maintained special school (School B). The Council told me it updated the EHC plan in July 2018.
33. Mrs X told me that she had wanted Y to attend her current school (an independent special school) in 2017 and 2018 but knew that this would be a long battle as it was a lot more expensive. Therefore, Mrs X did not appeal the EHC plans naming School A or School B at the time. We would have expected Mrs X to use her right of appeal.
34. After Y had attended School B for only six weeks the school said her behaviour had deteriorated and there had been several incidents. School B said it could not guarantee Y’s safety and she could no longer attend school. School B arranged for alternative provision for Y.
35. In November 2018 Mrs X said that Y had only received two hours of education the previous week. However, I have seen other documents which show that tuition was set up for Y in a library for several hours three days per week in addition to two days at a farm placement. Mrs X did not raise any further complaints about the amount of tuition with the Council at the time. Her May 2019 complaint confirmed the five-day pattern of provision.
36. There was a meeting at School B with Mrs X and Council officers / professionals in or about October / November 2018. The meeting had originally been intended to discuss Y’s sensory needs but matters around safety had overtaken events. It was agreed that a review meeting for the EHC plan would be held on 4 December. At Mrs X’s request the annual review meeting was moved from 4 December until 22 January. At the November 2018 meeting mental health services recommended Y have a sensory assessment to ascertain the correct learning environment for Y.
37. On 24 November 2018 Mrs X told the Council Y needed a placement with speech and occupational therapy input and asked the Council to provide suggestions of schools.
38. On 26 November the Council said it had discussed Y’s case at a specialist panel on 20 November and allocated a place on the roll of an alternative provider. It said once Y started full-time at this provider it would arrange for the sensory assessment. The Council said the annual review would be held on 4 December and it would then send Mrs X an amended EHC plan naming a school run by the alternative provider Y was already attending (School C). Mrs X could then appeal to SEND if she disagreed with this placement. It said speech therapy was not an assessed need identified by health advice and Mrs X would need to contact health for a referral. School B also had a speech therapist on-site.
39. On 22 January the annual review was held. On 26 January the Council met Mrs X and said it would start the process of consulting special schools once it had received the annual review paperwork from School B.
40. On 30 January Mrs X asked the Council to provide her with a personal budget to fund private reports and assessments. I have not seen a response to this email.
41. In February 2019 Mrs X asked School B for one-to-one support for the two days Y was attending the farm. School B refused as it said it did not have sufficient funds for this. It did offer to move the sessions to the library with the teaching assistant. I cannot see that Mrs X complained to the Council or asked it to fund one-to-one.
42. In February / March 2019 Mrs X commissioned private reports and then employed a Solicitor, Mrs X says she spent £7000 on expert and legal fees. Mrs X obtained reports from a private educational psychologist, a speech therapist and an occupational therapist. These recommended Y attend a school which had staff expertise in her needs, and had on-site psychology, speech and occupational therapy.
43. On 12 February the Council sent out consultations to schools with a response date of 5 March (to allow for school holidays). The Council made an error on the consultation form about Y’s ethnicity, which it corrected when Mrs X identified it. This slightly delayed the response time for the consultations as they had to be re-sent.
44. Mrs X’s preferred school (School D, an independent special school) asked for Y to do a two-week assessment. The Council agreed to this. School D confirmed at the end of April it could meet Y’s needs.
45. On 28 April Y was admitted to hospital following an incident of self-harm. This was due to Y wanting to attend School D, where she had enjoyed the assessment, but was anxious that she may not get to attend.
46. On 1 May 2019 the Council issued a draft amended EHC plan naming School E, a non-maintained special school. The Council finalised this plan on 16 May 2019. Mrs X had a right of appeal against the School named.
47. Mrs X told me that the May 2019 EHC plan did not include all the correct sections, for example parental views were missing, but the version I have seen does have a Section A. The Appendix did not list the private reports although these were relied upon.
48. Mrs X disagreed with the decision to name School E as she felt it did not have a suitable peer group and was for less able children than Y.
49. In June 2019 mental health services referred Y to social services due to concerns after she took an overdose. Social care carried out a child in need assessment which noted education placement was considered to be a trigger for Y’s anxiety.
50. On 3 July 2019 the Council agreed to name School D, Mrs X’s preference. It says it issued a Notice of Change and Mrs X was aware that Y had a place at School D for September 2019.
51. Mrs X continued with the appeal but the parties agreed an amended version of the Plan between themselves and this was issued in October 2019, after Y had started at School D.
52. The Council says that while a place was available at School E from May 2019, Y continued to attend the alternative provision arranged by School B until the end of term because Mrs X would not agree for Y to attend School E.
53. The final EHC plan indicates Y was by then receiving support from social care via direct payments.

Complaint history

54. Mrs X made a formal complaint on 30 May 2019 that:
• The EHC plan was incomplete and did not represent Y’s needs and so the wrong school had been allocated
• Y had not had full-time education since October 2018, Y was entitled to twenty-five hours per week and was only receiving two days alternative provision and three days teaching assistant support at a library
• The Council would not fund School D
• The Council had named an inappropriate school, School E
• The Council had previously named another unsuitable school, School B, which Y had only attended for six weeks.
55. The Council said it could not consider Mrs X’s complaint through the complaint process as it was about the school named in an EHC plan and she needed to use her appeal to SEND to challenge this.
56. Mrs X responded to clarify that her complaint was about the way the EHC process had been handled and about the Council’s failure to follow expert recommendations about Y’s mental health.
57. On 18 June Mrs X clarified that the complaint was about the failure to follow the recommendations in the three private reports she had commissioned and that she had had to pay for these herself. Mrs X said the Council was only looking at cost not suitability of school.
58. On 18 June the Council again said it could not address these issues via a complaint and Mrs X had to use the appeal process to challenge the school named.

Relevant law and guidance

59. The Code says that:
• EHC plans must be reviewed by the local authority as a minimum every twelve months. The review process will enable changes to be made to an EHC plan so it remains relevant to the needs of the young person and the desired outcomes. There may be occasions when a re-assessment becomes appropriate, particularly when a young person’s needs change significantly.
• Local authorities must conduct a reassessment of the EHC plan if a request is made by the child’s parent or school and the Council can initiate a reassessment without a request if it thinks one is necessary.
• The process for re-assessment is the same as for a first assessment, that is it includes gathering evidence from relevant professionals and from any person requested by the child’s parents where the local authority considers it reasonable to do so.
• Councils must send a draft version of the EHC plan to the child’s parents and give them at least fifteen days to make representations.
• Section I of an EHC Plan states the name and type of school or other institution to be attended by the child, these details must only be included in the final EHC plan, not the draft plan.
• The child’s parents or the young person has the right to request a particular school be named in their EHC plan including non-maintained special schools and independent schools approved by the Secretary of School under section 41 Children and Families Act 2014. The local authority must comply with that preference and name the school in the EHC plan unless:
1. It would be unsuitable for the age, ability, aptitude or SEN of the child, or
2. The attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.
60. Within four weeks of an annual review meeting a Council must make one of three decisions and notify the parents:
• To amend the Plan
• Not to amend the Plan
• To cease the Plan. (SEN and Disability Regulations 2014 Section 20 and 21)
61. If the decision is to amend the Plan the Code says the Council should start the process of amendment ‘without delay’, but there is no legal timescale that must be met. (paragraph 9.176)
62. Councils must arrange suitable full-time education (or as much education as a child’s health condition allows) for children of compulsory school age who because of illness, exclusion from school, or otherwise, may not for any period receive suitable education unless such arrangements are made for them. (section 19 Education Act 1996). This means a Council does not need to intervene where a school has made suitable provision.
63. Councils also have a legal duty to secure the specified special educational provision in an EHC plan. (s.42 Children and Families Act) The Ombudsman acknowledges that it is not always possible to implement provision in the way envisaged in an EHC plan when a child cannot attend school.
64. Councils do not have to provide alternative education in cases of truancy as the child has a place at school and should be attending. Schools and Councils can use various legal powers if a child is missing school without good reason.
65. Statutory guidance Alternative Provision says that while ‘full-time’ is not defined in law pupils in alternative provision should receive the same amount of education as they would receive in a maintained school. Education can be made up of two or more part-time provisions.
66. Statutory guidance for children with health needs (which includes emotional and behavioural needs) says where the school has made arrangements to deliver suitable education outside of school for the child then the Government would not expect councils to become involved unless they had reason to think the education provided is not:
• suitable
• or not full-time or
• not for the number of hours the child could benefit from without adversely affecting their health.
67. The guidance recognises that it may not be in the interests of a child to receive full-time education if their health condition does not allow for this. If a child receives one-to-one tuition the guidance says the hours of face-to-face provision can be fewer as the provision is more concentrated.

Analysis

Scope

68. I have investigated:
• Whether there was delay in the process of finding a replacement school between October 2018 and May 2019
• Whether the Council should have sought professional assessments requested by Mrs X
• Whether the Council should have intervened when Y was out of school between October 2018 and May 2019 to ensure the education that she received was suitable and full-time.
69. The other complaint issues are either too long ago; or carried rights of appeal which we would have expected Mrs X to use; or were never put to the Council in the 2019 complaint.
70. The Ombudsman cannot consider the content of the EHC plans, including whether the Council named unsuitable schools in the EHC plan. This is properly a matter for the Tribunal. The Ombudsman cannot provide a remedy where a decision by the Council (for example naming an unsuitable school) has been appealed and where the consequence (loss of education) is ‘inextricably linked’ to that decision.

Fault

Seeking advice

71. Mrs X referred in her complaint to delays in the EHC assessment process, but this was not an assessment or re-assessment carried out under section 36 or section 42 of the Children and Families Act. The Council carried out an EHC needs assessment in 2016. During an assessment or re-assessment the Council must seek advice from a range of people set out in Regulation 6(1) of the SEN Regulations and Disability 2014. This includes seeking any advice a parent reasonably requests the Council seek advice from.
72. At annual review the process is different. The Council must consult the child, parent and school. The Council must ensure a meeting to review the Plan is held and invite the parent, education provider and an officer from health and social care. There is no legal requirement for Councils to obtain advice from professionals not currently involved with the child or commission professional assessments for an annual review. If a child’s circumstances change or new needs emerge that are not covered by the EHC plan then the parent can request a re-assessment or the Council can initiate one.
73. In this case the Council decided it could update the EHC plan and identify a suitable school without commissioning speech therapy and sensory assessments. It relied on evidence from the Council’s communication and interaction team, educational psychology and mental health services. If Mrs X did not agree that the evidence held by the Council was sufficient to update the Plan then she should have asked the Council to carry out a re-assessment rather than commission her own reports.
74. The reports Mrs X commissioned led to additional provision being added to the EHC plan for speech and occupational therapy support. However the content of the Plan is a matter that can be, and was, appealed to SEND and it is not for the Ombudsman to say what provision should have been included in an EHC plan. The final plan did rely on these reports but failed to list them in the Appendix.

Alternative provision

75. Mrs X refers to Y being entitled to twenty-five hours per week tuition when she was unable to attend school. The statutory guidance says that fewer hours are acceptable where the alternative provision is one-to-one tuition as this is more concentrated. Y received one-to-one tuition for three days, although this was with a teaching assistant not a teacher, and two days at a farm placement.
76. In November 2018 the Council offered Y a full-time place at a School run by the same alternative provider. Mrs X declined this provision.
77. The alternative provision was arranged by School B. I cannot investigate the actions of a school.
78. I am not persuaded there was a basis for the Council to intervene in the alternative provision offered. The Council was satisfied the education was suitable and equivalent to full-time. It also offered alternatives in November 2018 (School C) and in May 2019 (School E), which Mrs X declined. The Council has not failed to ensure Y received suitable full-time education.
79. Mrs X wanted School D and it was her choice to pursue this via amendment of the EHC plan and via the appeal process although this meant Y was out of school for a longer period.
80. The Council could have insisted Y start at School E in May 2019 when the final EHC plan was issued, however it agreed to allow Y to continue with alternative provision until SEND could decide the matter.

Naming a school in a draft plan

81. The Council stated in November 2018 it would issue a draft plan naming School C. In May 2019 it issued a draft plan naming School E. This was fault. Councils must leave Section I of a draft EHC plan blank to allow parents to express a preference for a particular school. Schools must only be named in a final plan. However, while this was fault I find it did not cause an injustice as it did not prevent Mrs X expressing a preference for School D (which was a section 41 school).

Error on school consultation forms

82. The Council made an error about Y’s ethnicity on the school consultation paperwork. It acknowledged this at the time and immediately corrected it. This did cause a minor delay. There is no need for the Ombudsman to investigate this further, I cannot add to the action the Council has already taken.

Delay in updating the Plan and identifying a school

83. Y’s EHC plan was reviewed in Summer 2018 when Y moved from School A to School B.
84. When the placement at School B failed, a meeting was held promptly in October / November 2018; an annual review meeting arranged for 4 December; and the Council offered to issue an amended plan after 4 December naming School C.
85. It was due to Mrs X’s availability that the annual review meeting was postponed from 4 December until 22 January. As Mrs X had made clear her preference was for a special school, not School C, the Council consulted more schools in mid-February once it had received the annual review paperwork.
86. Mrs X requested a particular school (School D) and the Council consulted this school. School D required Y to do a two week assessment. The Council agreed to this and School D confirmed in an assessment report at the end of April it could meet need.
87. The Council could only refuse Mrs X’s request for School D if Y’s attendance there was incompatible with the efficient education of others, or the efficient use of resources. Mrs X told me that the cost of Y attending School D was significantly more than the cost of attending School C or School E. This would suggest the Council did refuse the request on correct legal grounds.
88. The Council issued a draft EHC plan on 1 May and finalised this on 16 May naming School E. It reversed its decision after mental health concerns about Y in June and agreed she could attend School D.
89. Had the Council not reversed its decision it would have been for SEND to determine whether School E was also suitable. The Ombudsman cannot consider whether or not a school is suitable.
90. While the timescale from Y’s placement failing in October 2018 to Y starting at her new school in September 2019 was long, I have not found evidence of any substantial delay by the Council. Y could have moved to School C at the end of 2018 if Mrs X had been agreeable. Mrs X was entitled to ask the Council to consult alternatives, and to express a preference for a different school. It was three months between the annual review meeting and issuing an amended draft plan, but there was only minor delay by the Council. The timeframe was mostly due to consulting a wider range of schools, including a two-week assessment at School D. It was Mrs X’s decision that Y did not attend School C or School E and that she instead continue to receive alternative off-site education until the appeal was completed.

Injustice

91. There was minor delay and some administrative errors by the Council which caused some inconvenience to Mrs X. These faults were not the reason Y was out of school from October 2018 until September 2019 or the reason Mrs X incurred legal and expert fees.

Agreed action

92. Within four weeks of my final decision the Council will remind its SEN officers that they should leave Section I blank on draft EHC plans to allow for parents to express their preference.
93. At the next annual review of the EHC plan the Council will ensure the Appendix is updated to include all the professional advice relied upon in the Plan, including the privately commissioned reports.

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Final decision

94. I have completed my investigation. There were some administrative errors by the Council in the way it updated an Education, Health and Care Plan and sought to identify a new school. This caused some minor inconvenience to Mrs X but did not cause a significant personal injustice. I am satisfied the service improvements recommended above are a satisfactory remedy for the faults identified.

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Investigator's decision on behalf of the Ombudsman