Summary: Miss X complained the Council delayed transferring her daughter, D, from a Statement of Educational Need to an Education, Health and Care Plan and did not provide her with a suitable education. Miss X said this caused her and D distress and D missed out on a significant period of education. The Council delayed significantly in transferring D to an Education, Health and Care Plan and failed to provide her with a suitable alternative education. The Council has agreed to make a financial payment to Miss X to remedy the injustice it caused her and D and review its processes.

The complaint

1. Miss X complained the Council has failed since 2014 to carry out its statutory duties in relation to her daughter, D, who has special educational needs. Miss X complains in particular that the Council:
1. failed to carry out annual reviews of D’s Statement of Education Needs between 2014 and 2017;
2. delayed in transitioning D from a Statement to an Education, Health and Care (EHC) Plan in 2017;
3. failed to make referrals to a Speech and Language Therapist (SaLT), an Occupational Therapist (OT) and to an Educational Psychologist (EP);
4. issued an EHC Plan that was not fit for purpose and did not meet D’s requirements;
5. failed to ensure D received an appropriate alternative education between November 2017 and July 2018 or take appropriate action with the school;
6. discussed D’s absences with the school without her permission or knowledge; and
2. Miss X said this caused D and her family distress and D has experienced a disadvantage because she has missed out on education in a key school year. In addition, the family has been affected financially because it has affected Miss X’s employment, the family has had to employ a private tutor and has also had to pay for transport to D’s new school.

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What I have investigated

3. I have investigated complaints 1 b), c) and e). I have not investigated complaints 1 a), d) and f) and explain why at the end of this decision statement.

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The Ombudsman’s role and powers

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. Miss X first complained to us in September 2018. This means we can look at events which occurred from September 2017 until she complained to the Council. Some of Miss X’s complaints date from before September 2017. I have looked back to May 2017 in relation to the process to convert D’s Statement to an EHC Plan because this is when that process began. However, I have not looked at any other matters prior to September 2017. Ms X was aware of the matters she complains about and I can see no good reason why she did not complain to us earlier.
6. 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)
7. The Special Educational Needs and Disability (SEND) Tribunal is a tribunal that considers special educational needs.
8. Caselaw has established that where someone may appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
9. 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)
10. 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)
11. 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

12. I spoke to Miss X and considered her view of her complaint.
13. I made enquiries of the Council and considered the information it provided.
14. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

The law

Education of a child

15. Section 19 of the Education Act 1996 says that if a child of compulsory school age (between 5 and 16 years old), cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide a suitable education either at school or elsewhere.
16. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
17. A council may take action against parents where it is not satisfied their child is receiving suitable education and it considers the child should be attending school. The council may prosecute the parents. Before doing so it must consider whether to apply to the courts for an Education Supervision Order instead. It is a defence to a prosecution that the child’s absence is due to sickness or an ‘unavoidable cause’. (Education Act 1996, sections 437-447)
18. Councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
19. Statutory guidance ‘Alternative Provision’ says this duty applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
20. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school…out of mind?’ This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.

Special educational needs and the transition from a Statement to an Education, Health and Care Plan

21. Children with special educational needs previously had a Statement. In 2014, the law changed so councils had to transfer children with special educational needs to education, health and care plans.
22. The law says that councils must carry out and conclude an EHC Plan assessment before 15 February in the calendar year the child transferred from primary to secondary school. D transferred from primary to secondary school in September 2017. This meant the Council had to ensure it had completed D’s EHC Plan assessment by 15 February 2017.
23. The law says councils must consult with certain professionals during the EHC Plan assessment process including any health care professionals who have a role in relation to the young person’s health and an educational psychologist.
24. The council must also seek advice from any person the child’s parent “reasonably requests”.
25. The council has 14 weeks to finalise the child’s EHC Plan from the date it sent the parents a notice that it is going to carry out an assessment of the child’s needs.

Education, Health and Care Plans

26. The EHC Plan sets out the child’s needs and what arrangements should be made to meet them.
27. 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.
28. A parent can appeal a number of issues to the Tribunal. These issues include the following:
• the name of the school or the type of educational placement specified in the Plan; and
• the special education provision specified in the Plan.
29. A parent can only appeal to the Tribunal once the EHC Plan process is complete, and the council has decided either amended or finalised the EHC Plan or informed the parent it is ending or not amending the EHC Plan.
30. The move between schools, especially at the key phase transfers from nursery to infant, primary to secondary and then to post-16 education, is an important moment for any child and especially those with SEN. The Code says that advance planning for these moves is essential and councils must ensure the annual review of the EHC Plan is completed by 15 February in the calendar year of the transfer.

Jurisdiction

31. The Ombudsman has no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
32. In this case, Miss X’s appeal rights arose in February 2018 when the Council finalised D’s EHC Plan. Because the matters she appealed were inextricably linked to the complaints she made to the Ombudsman, I can only look at any loss of education up to that date.
33. Sometimes where a parent approaches us after a successful appeal, we can say that, but for the fault, the appeal would have happened earlier and remedy injustice for the earlier delay. We cannot remedy delay that occurs during the Tribunal process.

Educational psychologists, speech and language therapists and occupational therapists

34. Educational psychologists are employed by the council. Speech and Language Therapists (SaLTs) and Occupational Therapists (OTs) are employed by the NHS (Health).

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What I found

Background

35. Miss X’s daughter, D, has a diagnosis of autism and other medical conditions. Since December 2011, D has had a Statement of Special Educational Needs and Disabilities.
36. D attended a primary school until Easter 2017. Miss X moved D to a different primary school from the summer 2017 term. Miss X said that D was very anxious at school and this was so severe she lost her hair.
37. In September 2018, D moved to secondary school.

The EHC Plan process

38. On 31 May 2017, the Council sent Miss X letter informing her it was planning to transfer D from a Statement to an EHC Plan. The Council included a form for Miss X to complete about D’s needs and wishes. The letter informed Miss X that the Council had requested information from other consultees to be returned by 12 July 2017. The Council said the transfer to an EHC Plan would be completed by 18 October 2017.
39. Miss X submitted information as part of the review. This included details of D’s experiences at school where Miss X said she was extremely vulnerable. Miss X requested the Council seek input from a SaLT because the family had been told D, who had previously received support, should be re-referred when she began the transition to secondary school.
40. The Council sent letters to D’s school, to Health (which would cover SaLT and OT) and its own educational psychologist (EP) service requesting information about D.
41. On 1 June 2017, Health responded to say D was not known to any of its services and it would not be providing advice for the EHC Plan.
42. The school responded with its report on 26 July 2017.
43. The EP provided advice on 9 February 2018.
44. The Council issued D’s final EHC Plan on 13 February 2018, 37 weeks after the process began and 23 weeks longer than the maximum time allowed by the law. At this point, Miss X’s appeal rights were triggered.
45. Under the section which lists the advice gathered, no reference was made to the EP’s report.
46. In relation to health provision, the Plan said D should continue to attend appointments with her paediatrician as required.
47. The EHC Plan named a mainstream secondary school for D to attend in September 2018.
48. Miss X was unhappy with the EHC Plan and complained. The Council requested an updated report from the SaLT who responded in April 2018. Their report said “It would be beneficial… if the teaching staff working with her are familiar with autism, particularly autism in girls… I do not feel [D] will require long term input from our service, but, given the difficulty with accessing school at present and the upcoming move to secondary school, it will be of benefit to develop some long term strategies which can be used to support transition and further ahead”.
49. In April 2018, Miss X lodged an appeal with the Tribunal. Her appeal related to the special educational and health provision named in the Plan, as well as the school named by the Council.
50. In August 2018, the Council issued an amended final EHC Plan. Support for D included the provision specified in her February 2018 Plan but also included 6 hours SaLT support a year and some 1:1 support for maths and developing social skills. The wording in the health provision section remained the same. The Plan named the independent primary/secondary school which was Miss X’s preferred choice.

Educational provision between November 2017 and July 2018

51. On 19 November 2017, Miss X rang the school and said D was unwell and would not be attending. For around a week, D was marked by the school as absent due to illness.
52. The school held a meeting on 4 December 2017 to discuss D’s non-attendance. Miss X said she would not attend.
53. The Council’s Special Education Needs Designated Officer (SENDO) attended the meeting and the school’s notes record the SENDO was satisfied with the support D was receiving.
54. For the rest of the term, the school recorded D as absent either due to illness or for unauthorised reasons.
55. On 1 January 2018, school records note that Miss X had been in communication with the Council’s SENDO about D’s absenteeism from school. The school arranged a meeting to discuss this.
56. The meeting took place on 5 February 2018. The school, SENDO and parents were present. The school suggested a phased return to school following the spring half-term holiday together with counselling for D to help her cope with her anxiety. This was confirmed by a letter to Miss X on 9 February.
57. The phased return did not take place. Until the February 2018 half-term, the school continued to record D as absent for unauthorised reasons. Following the February half-term D was marked as unauthorised absence, illness and medical appointments.
58. On 19 February, after the half-term, Miss X phoned the school to say D would not be attending school for the next two days because of medical appointments. D did not return after these two days.
59. The school arranged counselling for D but Miss X cancelled the sessions. D remained absent.
60. On 3 May 2018, the school contacted the Council’s pupil attendance support team (PAST). On 14 May 2018, PAST contacted the school and suggested D receive home tuition until she was able to return to full-time education at school.
61. From 21 May 2018, D began to receive 2 x 2 hour sessions of home tuition a week. On 13 June 2018, D began to attend a different school.
62. When Miss X complained that the Council had failed to provide D with a suitable education between November 2017 and July 2018, the Council stated that because D was on roll at a school and there was no medical reason to show she was unfit to attend school, it had no duty to provide an alternative education.

My findings

Delays in finalising D’s EHC Plan

63. The law says that the process of transferring a young person from a Statement to an EHC Plan must take no longer than 14 weeks from the date of the notice of assessment.
64. The Council issued the notice on 31 May 2017. It finalised the EHC Plan on 13 February 2018, 37 weeks later. This is 23 weeks longer than the law allows and is fault.

Input from a SaLT and an OT

65. Miss X complained the Council failed to request input from a SaLT and an OT.
66. The Council has provided evidence to show it requested information from Health. This would encompass SaLT and OT.
67. Health responded to state D was not currently known to it. Miss X had requested in her form that SaLT was consulted. The Council made a decision not to consult at this stage with the SaLT.
68. The Ombudsman 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.
69. The statutory guidance states councils must seek advice from any person the child’s parent “reasonably requests”.
70. Miss X stated on her information form that she wanted to seek advice from a SaLT. Her form stated SaLT had previously discharged D in 2015 but said D would need assessing again when she transitioned to secondary school.
71. Miss X’s request was therefore not an unreasonable one to make. This is evidenced by the fact that the Council eventually agreed to consult with the SaLT, although by this stage it had already issued D’s first finalised EHC Plan. And ultimately, SaLT provision was included in the EHC Plan agreed at Tribunal. Therefore, on balance the Council’s decision-making process was flawed. The Council was at fault.
72. There was no evidence that the input of an OT was required. Miss X did not request this on her information form. There was no evidence D had received OT in the past. There was no fault in the way the Council made its decision not to request advice from an OT. This decision was supported by the fact that the EHC Plan issued following the appeal to the Tribunal did not include any input from OT.

Input from an educational psychologist

73. The law says professionals should respond to a request for advice within 6 weeks of the request being made. The EP took until February 2018 to respond, around 9 months after the request was made. This is significant delay. There is no evidence to demonstrate the Council chased the EP for a response during this time, fault which is compounded by the fact the EP was employed by the Council.
74. When the EHC Plan was finalised in February 2018, there is no evidence the views of the EP were taken into account. This is not in line with the statutory guidance and is further fault.

D’s educational provision

75. D’s attendance record shows she was absent from school for the entire period from November 2017 to May 2018 when she began home tuition.
76. The evidence shows the Council first became aware there were issues with D’s attendance at the end of November when the school invited its SENDO to a meeting about this matter. A further meeting was held in February 2018 where it was agreed that D would have a phased return to school. This did not happen and D remained absent. The school arranged counselling, but Miss X cancelled this. Therefore, the situation did not improve.
77. Despite acknowledging D’s low attendance, the Council seemed to take the view that because D was on a school roll and had no apparent medical reason for being absent, the matter was for the school to deal with and not itself.
78. The legislation says that the duty to provide alternative education arises where absence is “by reason of illness, exclusion from school or otherwise”.
79. In this case, the Council was aware of D’s anxiety relating to attending school and potentially connected hair loss, her diagnosis of Autism and her other conditions.
80. The Council could have pursued the legal route against Miss X for non-attendance. This is because she had removed D from school and the Council did not feel there was medical evidence D was unfit to attend. The onus would then have been on Miss X to demonstrate there was good reason why D could not attend.
81. Because the Council did not take that course of action, it had a duty to engage with the situation and consider whether to provide some form of alternative education. The failure to do so was fault.
82. The guidance is clear that alternative provision should be in place from the sixth day of absence. Allowing some leeway, for the Council to assess whether D was likely to return, I consider alternative provision should have been in place by the start of the January 2018 term.
83. However, the Council failed to act to address D’s low attendance until May 2018 when the PAST team advised D receive home tuition. By this stage, D had been out of school for around four months.

Injustice to Miss X

84. The Council delayed in finalising D’s EHC Plan by approximately 23 weeks. This caused Miss X an injustice because it delayed her right to appeal D’s EHC Plan. This delay caused her unnecessary frustration. The Council should make a payment to acknowledge this.

Injustice to D

85. The Council delayed in finalising D’s EHC Plan. However, I cannot say D experienced injustice from these delays. This is because it is likely that even if the Council had finalised D’s EHC Plan within the statutory timescales, that is to say by September 2017, it would still have named the same mainstream secondary school. So it follows that Miss X would have still been likely to have withdrawn D from school.
86. D was out of education from November 2017 to May 2018. However, the law says we can only look at injustice to a young person up to the date their appeal rights were triggered. In D’s case, this was 13 February 2019. The Council became aware D was out of school at the end of November 2017. Allowing time for alternative provision to be found, the Council was at fault for not ensuring the provision of a suitable education for around one half-term, from January 2018.
87. D’s lack of education during this period disadvantaged her. The Council should make a financial payment to acknowledge this. Miss X was also caused unnecessary distress and frustration because of the same fault.

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Agreed actions

88. Within one month of the date of this final decision, the Council has agreed to:
• pay Miss X £300 to acknowledge the frustration she experienced when her appeal rights to the Tribunal were delayed and D was out of education; and
• pay Miss X £350 to remedy the injustice to D when she did not receive any education for half a term, to be used to benefit D’s education as Miss X see fits.
89. Within three months of the date of the final decision the Council has agreed to review its procedures in regard to its duties under s19 of the Education Act 1996 to ensure it is acting in line with the law. It will ensure all relevant staff are reminded of those duties, including the need to chase responses from professionals who do not respond within the statutory timescales.
90. The Council has agreed provide evidence it has carried out these recommendations.

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Final decision

91. There was fault leading to injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

92. I have not investigated the following complaints made by Miss X that the Council:
• Complaint 1a) - failed to carry out annual reviews of D’s Statement of Education Needs between 2014 and 2017 – 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. I provide a further explanation in paragraph 5 why I have not considered this aspect of the complaint;
• Complaint 1d) - issued an EHC Plan that was not fit for purpose and did not meet D’s requirements – the Ombudsman does not have the power to consider the contents of an EHC Plan; only the Tribunal can do this; and
• Complaint 1f) - discussed D’s absences with the school without her permission or knowledge - The Information Commissioner's Office considers complaints about data breaches. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about data breaches, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. In this case, I can see no good reason why Miss X cannot do so.

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Investigator's decision on behalf of the Ombudsman