Summary: Miss X complained the Council failed to provide her son Y a suitable education for over a year and delayed in issuing his Education, Health and Care Plan. The Council was at fault for delays in issuing the Education, Health and Care Plan that meant it delayed in identifying suitable alternative education for Y. However, those delays did not cause Miss X or Y an injustice. The Council should review its statutory assessment processes to prevent a recurrence of fault.

The complaint

1. Miss X complained the Council has:
1. failed to provide an education for her son Y since September 2018;
2. delayed in issuing his Education, Health and Care Plan;
3. failed to consult with her preferred school;
4. not named her preferred school for Y;
5. failed to respond to her complaints.
2. Miss X said the Council’s failings have caused her anxiety and have resulted in Y being out of education for over twelve months.

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What I have investigated

3. I have investigated all parts of the complaint except for complaint d). I explain my reasons for not investigating this at the end of this decision statement.

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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. 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 discussed the complaint with Miss X and made enquiries of the Council.
10. I considered the relevant law and statutory guidance.
11. Miss X and the Council both had the opportunity to comment on my draft decision.

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What I found

Education, Health and Care Plans

12. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. We cannot change the contents of an EHC Plan or name a different school. Only the Tribunal can do this.
13. A parent, education provider or the young person (when aged over 16) can ask for an EHC needs assessment. If the Council agrees to complete an EHC assessment and decides to issue an EHC Plan, it must complete that process within 20 weeks of the initial request. The Council must then ensure the EHC Plan is reviewed at least once year.
14. The child’s parent has the right to ask for a particular school to be named in the EHC Plan. Where a parent asks for an independent school not approved by the Secretary of State, the Council must still consider the parent’s request for the school. However, it is not under the same duty to name the provider. Any school contacted by the Council about being named on an EHC Plan should respond within 15 days.

Alternative provision

15. Under Section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
16. Where a child has been permanently excluded from school, the council must arrange alternative provision within six days. For children unable to attend school because of health needs, councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
17. For children who are absent for ‘other reasons’, the statutory guidance on alternative provision states children identified as not receiving full time education should be returned to school or alternative provision as “quickly as possible”. But that should be based on a thorough assessment of the pupil’s needs.

Children missing education

18. Parents are responsible for making sure that their children of compulsory school age receive a suitable full-time education. Councils have a duty to identify children (of compulsory school age) in their area who are not on roll at school and are not receiving suitable education. The Council’s Children Missing Education (CME) service is responsible for tracking children out of education.
19. Once a child is identified as a CME, the Council completes a risk assessment depending on their circumstances. The Council’s policy states that if a parent refuses or fails to engage with the CME officer and does not actively seek a school place, the CME officer will refer the case to the Education Investigation Service. The Council has powers under the Education Act to enforce attendance.

What happened

20. Y finished his final year of primary school in July 2018 and was due to transition to secondary school. Miss X emailed the Council at the end of August 2018 asking for an EHC Plan. She said Y had a diagnosis of autism and was experiencing anxiety and panic attacks about starting a mainstream secondary school. She said she was not sending Y to the secondary school he was on roll for on the advice of his doctor who would write a letter confirming this.
21. The Council removed Y from the school roll and referred Y to its CME service. It wrote to Miss X the following day and said it would consider whether he needed an EHC needs assessment.
22. Y’s doctor wrote to the Council in September. They confirmed Y was experiencing anxiety and that his issues were getting worse. They said he was taking medication to help him sleep. It said Y “has been noticed to have panic attacks at school which stops him from going to school. He is in secondary school now and he is finding it difficult to cope so mum is planning to see whether he could go to special school”.
23. The Council wrote to Miss X on 5 October and said it would complete an EHC needs assessment for Y. It completed an educational psychologist assessment of Y. That said Y needed support to manage his fear in going back to school and needed a “high level of nurturing support in order for him to feel able to re-enter school and feel able to take risks in his learning”.
24. Miss X emailed the Council in February 2019 asking whether the EHC Plan had been completed. The Council did not respond to that email.
25. The Council issued Y’s draft EHC Plan in April 2019. Miss X asked it to consult with School A - a special school for children with social, emotional and mental health issues or who have a diagnosis of autism. The Council sent School A, a copy of the EHC Plan on 12 April 2019 and asked it to respond as soon as possible.
26. In May 2019 the Council’s statement of educational need (SEN) panel, met to agree Y’s EHC Plan. The records show School A contacted the Council to ask the SEN panel permission to meet with Y and assess whether it could meet his needs. However, the SEN panel decided to issue the Final EHC Plan without School A’s assessment. It named School B- a special school for children whose needs cannot be met in mainstream education.
27. In June 2019, Miss X made a formal complaint to the Council. She complained about: Y being out of education since September 2018; that the Council had not named her preferred school; and about the length of time taken to finalise the EHC Plan.
28. School A responded to the Council on 2 July 2019. It had assessed Y. It said it could meet Y’s needs and gave a cost for his education.
29. Miss X contacted the Council on 8 July 2019 to confirm what school Y was expected to go to in September. The Council explained School B was named on Y’s EHC Plan and to contact it to arrange a meeting before September. Miss X also asked about assistance with school transport and was advised to speak to the Council’s transport team.
30. At the start of August 2019 the Council sent Miss X an email apologising for the lack of communication about the secondary school process for Y. It said Y was on the ‘hard to place list’ for School B and that a Council officer would contact her in a couple of days about a place for Y for September 2018.
31. The Council sent Miss X a stage one response to her complaint. It did not say the Council had consulted with School A. Instead it listed other schools the Council had consulted and said School B had responded to the Council and said it could offer Y a place. The Council named School B as it could offer Y appropriate provision.
32. The Council explained the different stages of the EHC Plan assessment process. It went on to state that delays in the EHC Plan process were because of low capacity and staffing difficulties. It asked Miss X to contact School B about Y starting.
33. At the end of August, Miss X contacted the Council two more times. In the first telephone call she said she had not heard from School B about Y starting or his uniform. The Council offered to contact the headteacher for her. The following week, Miss Y emailed the Council again and said she had not received any information about School B. The Council did not respond to that email.
34. On 23 August the Council responded to Miss X’s complaint. It said it had consulted with School A, who had said it needed an assessment of Y before offering a place. The Council said it did not know whether School A had completed the assessment.
35. Miss X remained unhappy and brought her complaint to the Ombudsman. She was not sending Y to School B because she disagreed with the placement and wanted him to go to School A. She said School A was closer and she was unable to take Y to school B.
36. In response to enquiries, the Council said it was investigating Y’s non-attendance at school and his access to suitable educational provision. It said that “might require legal intervention being undertaken”.
37. In addition the Council said “The Lead for Education Outcomes is currently working with SEND Team, the Education Investigation Service and the Elective Home Education officers to review the Standard Operating Procedures in light of this case to ensure that there is a clear response to pupils with special educational needs where the family is refusing to send their pupil to the allocated school to ensure that appropriate education is being provided to the student.”

My findings

Complaint a) the Council has failed to provide an education for Y since September 2018; and

Complaint b) the Council delayed in issuing his Education, Health and Care Plan.

38. Miss X stopped sending Y to school in September 2018. She asked the Council for an EHC Plan for Y. The letter from Y’s doctor said he was experiencing anxiety and that he was struggling to cope with secondary school. It said Miss X wanted him to go to a special school. There was no evidence Y’s health needs would prevent him attending any school but that his needs were potentially incompatible with mainstream education.
39. The Council started the EHC process immediately. That was the correct action to take to ensure the Council had a thorough assessment of Y’s needs so it could arrange the appropriate provision. However, there were significant delays in the Council completing its assessment and issuing the EHC Plan.
40. The Council has a maximum of twenty weeks to complete an EHC Plan from the date of request. As Y was out of education the Ombudsman would have expected the Council to prioritise Y’s assessment to ensure it could make suitable arrangements for his education as quickly as possible. The Council’s failure to do that was fault. It also failed to issue the EHC Plan within the maximum statutory timeframe. Instead, it was finalised 18 weeks later than it should have been. That delay was also fault.
41. The Council issued the final EHC Plan in May 2019. Y’s placement at the school named in the Plan, School B, was not due to start till September 2019. Given the length of time Y had been out of education, the Ombudsman would have expected the Council to produce some form of reintegration plan and alternative provision arrangements until Y’s specialist placement became available. Failure to do so was fault.
42. When assessing whether the above fault caused an injustice, I have considered what would have happened if the Council had issued the Final EHC Plan within statutory timeframes or before. The Council had assessed School B as suitable to meet Y’s educational needs. Miss X chose not to send him there as she wanted Y to go to school A. The Council’s delay in issuing an EHC Plan did not delay Y accessing appropriate education. In addition, Miss X did not appeal the named school in the EHC Plan therefore delays in issuing the EHC Plan did not delay her right to appeal.
43. It is not for the Ombudsman to speculate whether Miss X would have engaged with a reintegration plan or alternative provision from May 2019. However, the Council should consider how it makes interim arrangements for children waiting for specialist educational provision to ensure they do not go without a suitable education.
44. The Council’s children missing education policy states that it will refer a case to the Education Investigation Service where a parent does not actively seek a school place. Although Y was on roll at School B he had not attended since September 2019. In response to enquiries the Council said was making further investigations into Y’s educational provision and attendance. The Council was at fault for delaying to respond to Y’s non-attendance. Although that was fault, that has not caused Miss X an injustice.
45. The Council is currently reviewing its procedures where parents are refusing to send their child to the school allocated in the EHC Plan. That should prevent a future recurrence of the fault.

Complaint c) the Council failed to consult with her preferred school.

46. Miss X wanted Y to attend School A. The Council sent School A Y’s EHC Plan and asked it to confirm whether it could meet his educational needs. It gave School A 15 days to respond. School A asked for further time to complete an assessment. The Council decided to name School B in Y’s EHC Plan which had already responded and said it could meet his needs. The Council did consult with School A. The Council was not at fault.

Complaint e) The Council failed to respond to Miss X’s complaints.

47. Miss X said she complained several times to the Council before June 2019 but the Council failed to respond. The case records show little contact between
    Miss X and the Council. She emailed it in February 2019 about the delay in Y’s EHC Plan and in May 2019 about the named school. The Council did not respond. That was fault. It was not explicit in the emails that Miss X was making a formal complaint, however that is something the Council could have explored if it responded to her. The Council has previously apologised for its poor communication with her.
48. When dealing with Miss X’s complaint, the stage one response did not refer to the Council’s consultation with School A; the stage two response said the Council had not received any information to say that School A had assessed Y. Both responses were incorrect. The Council did consult with School A, and School A had sent the Council its assessment of Y in July 2019. That was fault. That has caused Miss X an injustice as she does not believe the Council consulted with her preferred school.

Agreed action

49. Within one month of my final decision the Council has agreed to apologise to Miss X for providing incorrect information in its complaint responses to her.
50. Within two months of my final decision the Council has agreed to:
• Confirm what actions the Council has taken to ensure EHC Plans are delivered within statutory timeframes.
• Remind SEN officers of the need to respond to communication with parents.
• Review how it provides interim alternative education for children waiting for specialist school places after issuing Final EHC Plans.
• Feed back to the Ombudsman on its review of the Standard Operating Procedures, and how it responds to parents when they refuse to send their child to the school named on the EHC Plan.
• Provide guidance to staff completing complaint investigations of the need to provide accurate information.
51. It should provide the Ombudsman with evidence to show it has done this.

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Final decision

52. The Council was at fault for delays in the EHC Plan assessment process. That fault delayed the Council in identifying a suitable educational placement for Y. However this did not cause Miss X or Y an injustice. I have completed my investigation because the Council has agreed to the Ombudsman’s recommendations that should improve its practices for the future.

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Parts of the complaint that I did not investigate

53. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. Miss X had the right to appeal Y’s school placement to the SEND tribunal.

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Investigator's decision on behalf of the Ombudsman