Summary: Mr B, complains the Council has failed to deliver suitable support for his children’s special educational needs and to reassess their needs. He also complains the Council failed to respond to his complaints. The Council delayed reassessing and issuing Mr B’s children with new Education, Health, and Care plans, this caused injustice to Mr B and his children. The Council has agreed to issue the children’s Education, Health and Care plans within one week of this decision and to make a financial remedy to Mr B for the delay.

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council has failed to deliver suitable support for his children’s special educational needs and to reassess their needs. He also complains the Council failed to respond to his complaints.

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What I have investigated

2. I have investigated the Council’s delay issuing D and E’s EHC plans until the end of October 2020.
3. I have not investigated how much provision D and E missed because of the Council’s delay. I cannot assess until the Council has issued their final EHC plans and any subsequent appeal has been concluded.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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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How I considered this complaint

7. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Ombudsman’s focus report ‘Education, Health and Care Plans: our first 100 investigations’; and
• the Council’s policies and procedures.
8. I considered Mr B and the Council’s comments on a draft decision before making my final decision.

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What I found

Legislation and Guidance

Elective Home Education

9. Elective home education is where parents choose to provide education for their children at home instead of sending them to school full-time.
10. Section 7 of the Education 1996 Act requires parents to provide an efficient, full-time education suitable to the age, ability and aptitude of the child and any special educational needs which the child may have.
11. Parents who choose to home educate take on financial responsibility for the cost of doing so, including the cost of any external support used such as tutors, parent groups or part-time alternative provision.
12. The Council is still under an obligation to conduct an annual review of the EHC (Education, Health and Care) plan. The EHC plan should set out the type of special educational provision the Council thinks the child needs but it should state in a suitable place that parents have made their own arrangements under section 7 of the Education Act 1996.

Education, health and care plan reassessment

13. 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. (Department of Education and Department of Health and Social Care 2014 SEND code of practice: 0 to 25 years)
14. Councils must conduct a reassessment of a child or young person’s EHC plan if a request is made by the child’s parent. A Council can refuse a request for a reassessment (from the child’s parent, young person or educational institution attended) if less than six months have passed since the last EHC needs assessment was conducted. (Special Educational Needs and Disability Regulations 2014)
15. The Council must tell the child’s parent or the young person of its decision whether to undertake a reassessment within 15 calendar days of receiving the request to reassess. (Special Educational Needs and Disability Regulations 2014)
16. If it decides to reassess, the Council gathers information and writes a draft EHC plan. The EHC plan is set out in sections which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of school. (Department of Education and Department of Health and Social Care 2014 SEND code of practice: 0 to 25 years)
17. The council must give the child’s parent 15 calendar days to consider and provide views on a draft EHC plan and ask for a particular school or other institution to be named in it. (Special Educational Needs and Disability Regulations 2014)
18. The overall maximum timescale for a reassessment is 14 weeks from the decision to reassess to issuing the final EHC plan. (Special Educational Needs and Disability Regulations 2014)
19. When sending the final EHC plan, the council must tell the child’s parent of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (Special Educational Needs and Disability Regulations 2014)
20. SEND is a tribunal that considers special educational needs. The tribunal can correct any deficiencies in the EHC plan which relate to the special educational needs or special educational provision for the child or the young person. (The Special Educational Needs and Disability Tribunal (‘SEND’))
21. On 1 May 2020, some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to give councils more flexibility in responding to the demands placed on them by coronavirus (COVID-19). The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’) amended the timescales that applied to councils for various procedures relating to EHC needs assessments and plans. 

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mr B and Ms C have two children, D and E. D and E are registered blind. Both D and E have EHC plans. D’s was finalised in August 2017 and E’s in July 2016. In January 2019, D was in year two and E was in year four at school.
24. D and E’s EHC plans were reviewed in April 2018. Attendees at the meeting agreed that both plans were maintained with no amendments.
25. In January 2019, their parents removed D and E from School F, a mainstream school, because they felt it was not meeting their needs. They took D and E to their General Practitioner (GP) who reported they had symptoms of anxiety and depression because of the school environment. Their GP referred them to the Child and Adolescence Mental Health Service (CAMHS).
26. The Council’s elective home education service visited the family in May 2019. It explained to Mr B and Ms C the implications and responsibilities of home education. Mr B explained he was home educating C and D until he found a suitable educational setting for them because School F was not meeting their needs. Mr B said the family may move to a different local authority. The officer recorded they would look for provision in Walsall if this move did not happen. The Council officer identified the reason for elective home education as SEND.
27. The Council amended D and E’s EHC plans naming elective home education in section I of their plans and sent Mr B and Ms C the final plans in June 2019.
28. On 8 October 2019, Mr B asked the Council to reassess D and E. He explained they had been out of mainstream education since January 2019 and asked the Council to speak to their home tutors and CAMHS. In November 2019, the Council told Mr B it had not decided whether to reassess D and E because it did not have enough information. It suggested reviewing D and E’s EHC plans instead. Mr B replied that he wanted a D and E reassessed because they had been out of education since January 2019 and had both been referred for autism spectrum disorder assessments.
29. Mr B chased the Council in January 2020 and it responded again saying it did not have enough information to decide whether to reassess D and E. Mr B emailed the Council again to explain the situation. On 28 January 2020, Mr B complained about the Council’s delay. The Council agreed to reassess D and E and told Mr B on 3 February 2020.
30. The Council asked Mr B for information about D and E. In May 2020, it asked him to complete ‘Family Conversation and My Views’ forms with his children. In June 2020, it asked Mr B for the contact details for the tutors that worked with D and E when they were being electively home educated.
31. The Council issued D and E’s draft EHC plans in August 2020. The Council did not name an educational provider in either plan. Mr B and Ms C’s preference was for D and E to be educated in a special education provision.
32. Mr B asked to meet with the Council to discuss the EHC plans. He chased the Council for a meeting a fortnight later explaining the new academic year was starting soon and he was concerned that his children’s EHC plans had not been finalised and they did not have school places. The Council told Mr B to submit his comments on the draft EHC plan and then it would arrange a meeting.
33. Mr B complained to the Council in September 2020.
34. At the end of October 2020, the Council had not issued D or E’s final EHC plans.

Analysis

35. The Council amended C and D’s EHC plans in May 2019 to record they were being electively home educated. If Mr B and Ms C were unhappy that elective home education was named in section I of their children’s EHC plans, they could have appealed to the SEND tribunal.
36. On 8 October 2019, Mr B asked the Council to reassess D and E, the Council had 15 days to respond to the request. The Council did not respond until the 3 February 2020. From the date the Council agreed to reassess D and E, it had 14 weeks to issue their EHC plans. By October 2020, the Council had not done so.
37. The Council should have responded to Mr B’s request by 23 October 2019 and finalised D and E’s EHC plans by 29 January 2020. On the 28 October 2020, the Council’s delay was 39 weeks. This delay prevented Mr B and Ms C from exercising their right of appeal to the SEND tribunal and has likely resulted in lost education provision for D and E.
38. If the Council had not delayed the process, D and E’s final EHC plans would have been issued in January 2020, before The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 came into force.
39. This delay caused Mr B and his family significant injustice. Mr B was inconvenienced, caused frustration, and put to time and trouble by having to chase the Council to fulfil its statutory duties. The family have experienced uncertainty about the provision D and E are entitled to and their education provider. This distress would have been avoided if the Council had fulfilled its statutory duties.
40. As D and E’s final EHC plans have not been issued, I cannot assess the provision they lost because of the Council’s delay. When the Council finalises D and E’s EHC plans and any resulting appeal is completed, I encourage the Council to consider making Mr B and his family an offer for any lost provision from 29 January 2020 to the date D and E’s final EHC plans are issued. The Council should make this offer in line with the Ombudsman’s guidance on remedies. If Mr B is unhappy with the Council’s offer, he can return to the Ombudsman to assess and make recommendations to remedy any lost provision.

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Agreed action

41. Within one week of this decision the Council will issue D and E’s final EHC plans.
42. Within one month of this decision, the Council will:
• Apologise to Mr B and his family for the delay.
• Pay Mr B and his family £1000 for the avoidable distress and inconvenience caused by the Council’s delay issuing D and E’s EHC plans. I have made this recommendation to reflect that two children with considerable needs have been affected by an extensive delay.
• Issue staff with guidance about the procedure and timescales for EHC reassessment.
43. Within three months of this decision, the Council will carry out the following service improvements:
• Review its procedures to ensure they comply with the SEN regulations and code in respect of the process and timescales for responding to reassessment requests and issuing final plans.
44. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

45. I have completed my investigation and uphold Mr B’s complaint. Mr B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint I did not investigate

46. I have not assessed the provision D and E missed because of the Council’s delay. Mr B can return to the Ombudsman for this to be considered once D and E’s EHC plans have been finalised and any subsequent appeal has been concluded.
47. I have not considered matters beyond the end of October 2020. If there are further delays, Mr B can return to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman