Summary: The Council was at fault in the way it assessed Mrs C’s son’s suitability for alternative provision. It also delayed in issuing his final Education Health and Care Plan. The Council has agreed to make payments to recognise the injustice these faults caused.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about how the Council dealt with matters relating to her son’s education and Special Educational Needs (SEN). Mrs C says this has negatively impacted D’s mental health and his education. Mrs C says:
• The Council failed in its legal duty when it decided not to assess D for an Education Health and Care (EHC) Plan in July 2018.
• The Council failed to properly inform Mrs C about the outcome of an investigation by the Local Authority Designated Officer (LADO) carried out in May 2018.
• The Council failed to arrange suitable alternative education provision for D for a period of eight weeks, when he was excluded from school.
• The Council delayed issuing a final EHC Plan, after it carried out an assessment in July 2019.
• The Council delayed responding to Mrs C’s complaints about the matter.

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What I have investigated

2. I have investigated Mrs C’s complaints that the Council failed to arrange suitable education provision, delayed issuing a final EHC Plan and delayed responding to her complaints.

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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 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)
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)
8. 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

9. I have communicated with Mrs C about her complaint and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. I considered relevant legislation and guidance.
12. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Legislation and guidance

Alternative education provision

13. Councils must “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))
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he 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.
15. 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)
16. 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.
17. The Ombudsman made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Education Health & Care Plans

18. 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.
19. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) 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. It says:
• Where 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 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 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

What happened

20. In September 2017, D started year 9 at a mainstream secondary school. I shall refer to this school as School A.
21. Five days before the end of summer term, D was excluded from School A. Mrs C appealed the school’s decision.
22. The Council’s SEND Family Services contacted D’s family and arranged for D to access its online learning platform from 6 September, the first day of the autumn term.
23. On 12 September, the exclusion hearing was heard, and the Governors of School A upheld the decision to exclude D. Mrs C requested an independent appeal which subsequently quashed the decision to exclude, meaning D could return to School A.
24. Mrs C chose not to return D to School A, instead preferring him to start at a different school, which I shall refer to as School B. D started at School B on 29 October.
25. On the Friday before D started at School B, the Council ended his access to its online learning platform.
26. On 3 July 2019, the Council made the decision to assess D for an EHC Plan. It issued a draft EHC Plan on 11 October 2019 and a final plan was issued on 6 December 2019.
27. The Council apologised to Mrs C for the delay and told the Ombudsman that this delay was caused by it receiving a report from an Educational Psychologist late.
28. Mrs C brought her complaint to the Ombudsman in August 2019. Mrs C had not complained to the Council at this stage, so on 11 September, we asked the Council to consider the issues she had raised through its complaint’s process.
29. The Council has a two stage complaints process. At stage one the relevant manager should respond within 20 days. At stage two a response will normally be provided within 25 days, but for more complex cases a response will be provided within 65 days.
30. Prior to responding to Mrs C’s complaint at stage one, the Council say it contacted her to inform her that there was a short delay. The Council provided a stage one response on 22 October.
31. On 3 November, dissatisfied with the Council’s response, Mrs C’s partner contacted the Council and asked it to progress their complaint to stage two of the complaints process. The Council provided a stage two response 55 days later.

Analysis

Provision of suitable alternative education

32. D was excluded from School A, 5 days before the end of summer term. The Council arranged online learning to start on the first day of autumn term, which was in place for some eight weeks, until he started at School B.
33. Mrs C does not consider that the online education was satisfactory for D.
34. Government guidance recognises that one-to-one tuition is more ‘concentrated’ than classroom-based teaching and it may be appropriate to offer fewer hours of one-to-one tuition than a child would receive at school.
35. However, councils should always consider the individual circumstances of each individual child. ‘Standard offers’ and blanket approaches should be avoided. A Council should be able to demonstrate how it has considered a child’s needs and planned the child’s education accordingly to ensure the child receives the maximum tuition he is capable of.
36. In D’s case the Council did not provide any evidenced it assessed his needs or planned his education according to his needs when online education started in September 2018.
37. I am therefore not satisfied that the Council has demonstrated that it demonstrated that D’s circumstances and specific educational needs were properly considered when the decision was made to provide online education. This is fault.
38. Where fault has resulted in a loss of education provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss.
39. This figure is based on the impact of the loss on the child and takes account of factors such as the child’s SEN, any educational provision made in the period and whether the period was particularly significant, for example the first year of compulsory education, transfer to secondary school or immediate preparation for exams.
40. In this case I consider the payment should be made at the lower end of the scale. This is because, whilst it has not demonstrated that it met D’s needs, the Council did put in place some education provision throughout the period mentioned.

Delay in issuing EHC Plan

41. In May 2019, Mrs C again requested the Council carry out an EHC assessment for D. The Council made the decision to carry out the assessment on 3 July 2019. It therefore should have issued D’s final plan on 22 November, but issued it on 6 December, some 2 weeks late.
42. Whilst, on the balance of probabilities, the delay is unlikely to have had a significant impact on D’s education provision. I do consider the delay would have caused Mrs C a level of uncertainty
43. The Ombudsman’s remedies guidance sets out the principles we follow in assessing remedy payments for complaints. It explains a remedy payment for distress often ranges from £100 to £300, and is dependent on a number of factors, including the severity and length of time of distress, the number of people involved and the vulnerabilities of those affected.
44. Having considered these factors, I have concluded a remedy payment should be made of £150 to Mrs C, to reflect the stress and uncertainty the delay issuing D’s EHC plan caused her family.

Complaints handling

45. Mrs C complains that the Council delayed in responding to her and her husband’s complaints about the issues raised in this decision statement.
46. There was nine-day delay in issuing a response to Mrs C’s complaint at stage 1 of the complaints process. However, the Council did contact Mrs C to inform her of the delay. On balance, I do not consider that this relatively short delay caused Mrs C a significant injustice.
47. Mrs C’s complaint raised several issues, covering a long period of time. I therefore accept that this was a complex case. The Council completed its stage two investigation and provided a response within its 65-day target.
48. I therefore do not find fault with how the Council dealt with Ms C’s complaints.

Agreed action

49. To remedy the injustice identified above, the Council has agreed that, within one month of the date of my final decision, it will:
• Apologise to Mrs C for the faults identified in this investigation.
• Offer to make a payment of £400 for its failure to properly consider D’s circumstances when arranging alternative education provision. This payment should be used for the benefit of D’s education.
• Offer to pay Mrs C a total of £150 to remedy the distress the delays issuing D’s EHC Plan caused to her and D.

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Final decision

50. I have concluded my investigation on the basis that there was fault leading to an injustice.

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Parts of the complaint that I did not investigate

51. I have not investigated Mrs C’s complaint about how the Council communicated the outcome of an investigation by the LADO. This is because this happened more than 12 months ago, and I have not seen any evidence that this matter was raised with the Council through its complaints process, prior to Mrs C complaining to the Ombudsman.
52. I have also not investigated Mrs C’s complaint about the Council’s decision not to carry out an EHC assessment in July 2018. This is because Mrs C had the opportunity to appeal to the SEND tribunal about this decision and I do not consider there any reason why she could not have done so.

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Investigator's decision on behalf of the Ombudsman