Summary: Mr and Mrs J complain they were caused distress and uncertainty because of the Council’s failure to issue an Education, Health and Care Plan promptly for their daughter K. The Council also failed to offer alternative provision even though K was too ill to attend her school. The investigation found evidence of fault and the Council has agreed to apologise and to ensure it meets the requirements of the law and statutory guidance going forward. It had already agreed to provide a financial remedy in line with our guidance.

The complaint

1. The complainants, whom I shall call Mr and Mrs J complain the Council delayed in issuing their daughter K’s Education, Health and Care Plan (EHCP) and then amending it following a review in April 2019. They also complain that the Council failed to put alternative provision in place after K stopped attending School 1 in June 2019, for medical reasons.
2. Mr and Mrs J say that as a result K missed out on education; the family were affected emotionally, and the situation caused immense distress and uncertainty.

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What I investigated

3. I have investigated Mr and Mrs J’s complaint. Mr and Mrs J also wanted us to look at the Council’s actions over the course of their hearing at the SEND Tribunal. They said the Council withheld documents and failed to agree an appropriate school even though it accepted the school they wanted, rather than the one named, could meet K’s needs. They said K was without education until the SEND tribunal issued an order in May 2020. This is not part of the complaint I can consider. I explain why at the end of this 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) I have exercised discretion to look at the matter between September 2018 and September 2019 even though this was some time ago.
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We have no jurisdiction where a parent has appealed to the SEND Tribunal from the date the appeal right arises (on issue of the Education, Health and Care Plan) until the appeal is completed. Any loss of education during this period is outside of the Ombudsman’s jurisdiction, unless the matters complained of are not inextricably linked to the appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
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.
9. 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 it is unlikely further investigation will lead to a different outcome (Local Government Act 1974, section 24A(6), as amended)
10. 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)
11. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
12. 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

13. I considered the information provided by Mr and Mrs J with their complaint and assessed the Council’s response to enquiries. I have accessed relevant law and guidance, which I outline here, including information from the website of IPSEA (Independent Provider of Special Educational Advice). I sent Mr and Mrs J, and the Council, a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

14. Children and young people with special educational needs may have an Education, Health and Care Plan (EHCP). EHCPs set out what their needs are and how those kneeds should be addressed.
15. Children and young people can have an EHCP up to the age of 25 if they are still in education.
16. Only SEND can change the content of EHCPs if Councils do not agree with changes a parent wants to make. Only SEND or Councils can say what education is suitable for a child.

Phase transfers and EHCPs

17. This is defined in regulation 2 of the SEN and Disability Regulations 2014 (the “SEN Regs”) as a transfer from:

(a) early years education to school;

(b) infant school to junior school;

(c) primary school to middle school;

(d) primary school to secondary school;

(e) middle school to secondary school; or

(f) secondary school to a post-16 institution.

18. Regulation 18 of the SEN Regs requires that the EHC plan must be reviewed and amended before—

(a) 31 March if the transfer is from secondary school to a post-16 institution

(b) 15 February in any other case

Alternative provision

19. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
20. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the Council’s duty to provide full-time education from 1 September 2011.
21. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
22. Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013) states that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.

What happened

Delay in issuing K’s Education, Health and Care Plan (EHCP)

23. The Council is meant to finalise an EHCP before February in the year of transition. K was in Year 6 (the final year of primary school) so would be transitioning to secondary education in September 2019.
24. However, in this case, School 1 was an all through school so K was not moving somewhere new for the secondary phase of her education.
25. The EHCP issued in September 2018 would have given Mr and Mrs J time to appeal if they knew at that point they wanted another school named before September 2019. I am not finding the Council at fault.

Delay in amending an EHCP following Annual Review

26. The Annual Review of K’s EHCP was held on 29 April 2019 although my understanding is that this was incomplete. From the evidence I have, professionals were disagreeing on the way forward.
27. Following an Annual Review, the Council has to notify the parent of the child or young person of their decision (whether to maintain, amend or withdraw) within four weeks of the meeting (i.e. by 27 May). In addition, because the Annual Review meeting was not ‘complete’, a further meeting may have been necessary. The Council should have been clear what it thought was appropriate and could have scheduled an additional meeting.
28. The Council failed to manage Mr and Mrs J’s expectations, which is fault, and this caused them time and trouble. On 7 May the Council said the documentation “will be looked at this week and responded to”. On 17 May it said; “it is in hand within the team and will be processed in due course”. On 11 June (slightly more than two weeks after the deadline) it said there was no report from a medical practitioner in spite of chasing although there was no need to amend as there were no new outcomes identified. The Council should apologise for its failure as Mr and Mrs J had a reasonable expectation, from the communications received, that the Council would come back to them more quickly than it did.
29. The Council should have confirmed, by the statutory deadline, it was not seeking to amend K’s EHCP. It should have done so by letter. For it not to have done this is fault. However, the information the Council held at the time was incomplete. It needed the health reports to identify whether the support being offered to K should be changed. This means there is no injustice to Mr and Mrs J arising from that fault. Even if the Council had issued a letter, it would still have considered its position after it received the medical information that was missing. However, the Council should ensure that it issues letters within statutory timescales going forward.
30. I can see no evidence the Council told Mr and Mrs J it did not consider a further Annual Review meeting would be necessary once it received the medical documentation. I consider it acted with fault in failing to do this. Mr and Mrs J were expecting a further meeting to complete the review. The Council’s failure to acknowledge this, or to arrange an additional meeting, caused them time and trouble and the Council should apologise.
31. On 14 June, Mr and Mrs J sent the Council a copy of the health reports alongside an ‘authorised absence’ form for K from before the May half term. By 14 June, then, the Council had the information it needed to decide whether to amend K’s EHCP. Just over two weeks later, the Council sent out a Working Document and then a Draft Amended EHCP was formally issued on 4 July. This was prompt considering when the new information was received. I am not finding the Council at fault for this.
32. On 8 July, Mr and Mrs J asked for another school to be named. From the papers I have had sight of, the Council began consulting other schools on 18 July. By then it would be getting towards the summer holidays and schools would not be able to engage in the consultation process until September. I note on 15 July School 1 said it would not be able to meet K’s needs although this appears to have centred on its concerns over specified ways of communicating with Mr and Mrs J. The Council has already told Mr and Mrs J it accepts it should have told them why it felt School 1 would be able to meet K’s needs when it previously said it could not.
33. The Council had eight weeks after it issued a Draft Amended EHCP to issue a final copy. This means it should have issued a final amended EHCP on 29 August. It was four weeks and 1 day late in issuing the EHCP when it did so on 4 October 2019. The Council accepted fault and identified a remedy to the distress this caused. Further investigation is unlikely to achieve a different outcome for Mr and Mrs J or K. The Council should ensure it keeps to statutory timescales to issue finalised EHCPs in good time following drafts.
34. On 4 October 2019, Mr and Mrs J were able to go to the SEND tribunal, which they did. Any matters after that, because Mr and Mrs J used their appeal rights, are outside the Ombudsman’s jurisdiction.
35. I have considered that K could have potentially started at her new school four weeks and one day earlier, given the delay in the Council issuing the EHCP. However, the remedy the Council has already accepted it should give the family is in line with our guidance on remedies. I do not consider asking for an additional remedy would be proportionate. Further, I cannot see that K missed any specific services for four weeks and one day that she could have received had she been in school earlier.

Failure to put alternative provision in place after K stopped attending School 1 in June 2019

36. The Council knew on 14 June 2019, when it received the medical documentation, that K was not attending school. She had been signed off as unfit to attend. It also had a letter on 12 July 2019 from the school to say K was medically unfit for school. The school seems to have been sending work home for K to complete.
37. It is fault the Council did not consider providing alternative education at this point. However, I am not finding that any injustice arose from this fault. This is because on 7 August the Council made an offer of providing five hours of 1:1 education if K was unable to attend School 1 and/or engage with online learning when the school year started. School 1 was also planning for K’s return on 4 September. Although K had previously been at School 1 full time, given she had been unable to benefit from education for some time (by this point) it is not fault for the Council to consider part time provision, at least initially.
38. On 18 September one of the Council’s tutors commented that Mr J was surprised a referral had been made for home tuition as he did not believe it was appropriate for K. On 23 September Mr J wrote to the Council to say he felt its offer “would not offer a proper education” to K. He wanted either out-of-county provision or for another school to be identified. Mr J says that once alternative provision was explained properly the family agreed to it but I consider this was an appropriate offer and one that was not taken up.
39. Therefore, I cannot say, even on the balance of probabilities, that if the Council had offered this earlier, the opportunity would have been taken up.
40. The Council should, however, have systems in place to allow it to take action as soon as it is aware a child is out of school due to health reasons, or other reasons, so it can arrange provision to start as soon as possible in accordance with the relevant guidance.
41. I cannot consider what happened after this time as education for K was being discussed at tribunal. Therefore, it is outside the Ombudsman’s jurisdiction.

Agreed action

42. For the Council to apologise to Mr and Mrs J for its failure to tell them that it did not consider a further Annual Review meeting was necessary once it received the documentation from medical practitioners. The Council should do this within a month of the date of my decision.
43. For the Council to re-offer the remedy it agreed to Mr and Mrs J within a month of the date of my decision.
44. For the Council to ensure that it issues letters and finalises EHCPs within statutory timescales going forward. It should tell me what action it will take to achieve this within three months of the date of my decision.
45. For the Council to ensure it takes action to arrange alternative provision as soon as it becomes aware a child is out of school due to health or other reasons. It should tell me what action it will take to achieve this within three months of the date of my decision.

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Final decision

46. There is evidence of fault causing injustice to Mr and Mrs J and K and a remedy has been agreed.

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Parts of the complaint I have not investigated

47. The Ombudsman has no jurisdiction to consider Mr and Mrs J’s complaints once an EHCP was issued for K in October 2019 and they exercised their right of appeal to the SEND Tribunal until the tribunal ruling. I cannot consider the Council’s actions through the tribunal process. I cannot consider any delays, working documents or mediation outcomes.

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Investigator's decision on behalf of the Ombudsman