Summary: Miss K has made a complaint for her son who has special educational needs. The Council was at fault for failing to provide an Education and Health Care Plan in compliance with the statutory code timetable. This caused a period of distress to Miss K and arguably delayed the date her son was able to undertake full-time education. However, Miss K had a right of appeal about the naming of a school placement. This means that by law, the Ombudsman cannot remedy any injustice beyond the date the right of appeal occurred. Also, the Ombudsman cannot remedy any fault by reason of the Council not providing suitable education to Child A.

The complaint

1. The complainant, who I refer to as Miss K, is making a complaint for her son (Child A) who has special educational needs (SEN). Miss K says:

1. the Council has left Child A without satisfactory education for a prolounged period of time, in breach of its statutory duty;
2. the Council delayed in completing a final Education and Health Care Plan (EHCP) to support Child A in education as a result of it failing to find a suitable school in a reasonable time and;
3. the Council failed to respond to her during its internal review and complaints processes.

2. Miss K says that because of the Council’s faults, Child A has missed education and that she has had to personally fund private education classes as a result. As a desired remedy, Miss K wants the Council to recognise its failings and be held accountable for the injustice to her and Child A.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
5. 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).
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

7. I have reviewed Miss K’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, including its supporting documents, relevant legislation and case law. Both Miss K and the Council received an opportunity to comment on a draft of my decision.

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What I found

Background

8. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
9. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
10. The First-tier Tribunal (Special Educational Needs and Disability) (Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Relevant law

11. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise that at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

12. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.
13. In the Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407 (the Roberts judgement), it was found that if someone has lodged an appeal to a tribunal, we cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with the placement in an EHCP, we cannot seek a remedy for lack of education or any other consequences after the date the appeal was made.
14. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance and details of legal requirements local authorities must follow (subject to exceptions). This includes the legal timetable local authorities must adhere to in producing an EHCP. The whole process of needs assessment and EHCP development, from the point when an assessment is requested until the final EHCP is issued, must take no more than 20 weeks.

Chronology of events

15. In June 2018, Child A’s then school placement (School A) began to breakdown and it applied for an EHCP to support him in education. The Council accepted Child A required an EHCP and produced a draft EHCP in October 2018. It consulted School A about naming it in the EHCP, though Miss K wanted Child A to attend her preferred school (School B). Child A stopped attended School A on the basis he could not access the school due to medical and health needs.
16. In November 2018, School A responded to the consultation and told the Council it could not meet Child A’s needs. The Council offered Child A five hours of home tuition a week which he began receiving. Miss K said this amount of home education, at the time, was suitable as it allowed Child A the time to build confidence with his tutor. The Council then consulted a further nine schools for the purposes of naming an adequate placement for Child A.
17. In February 2019, Miss K sought a final EHCP from the Council so she could lodge an appeal with the Tribunal over the naming of a school placement. The Council issued the final EHC Plan at the end of February. This gave the type of school to be named as ‘’a mainstream secondary school’ but did not name a particular school.
18. In April 2019, Miss K requested more hours of home tuition from the Council for Child A. This is because she considered that five hours had become unsuitable for his needs. However, the Council did not respond to her multiple emails and has accepted failings in this regard and apologised to Miss K.
19. In June 2019, Miss K submitted an appeal with the Tribunal in relation to the naming of a school placement for the EHCP.
20. In July 2019, Miss K’s solicitors wrote to the Council claiming it was failing in its legal duty to provide suitable alternative education to Child A. It asked the Council increase Child A’s home tuition to ten hours a week. The Council responded agreeing to increase Child A’s hours.
21. In September 2019, the Council began providing an increase in home tuition to Child A of ten hours a week. Further, the Tribunal hearing was postponed to this month and the Council agreed to name Miss K’s preferred School B.
22. In October 2019, Child A began attending School B on a full-time basis.

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My findings

Delays in the EHCP process

23. As provided by the Code, the Council must take no more than 20 weeks to issue a final EHCP from the point of request. The Council has accepted fault for exceeding the statutory timetable by 17 weeks. It said its communications were poor and delays were in part due to a lack of resources, increased demand for the service and operational failings within the Council. Further, the Council said delays were also impeded by communications between it, Miss K and other parties. However, the Council has also accepted fault for communication failings in its own internal processes by not responding to Miss K’s correspondence. I do not therefore consider Miss K contributed to the delay in issuing a final EHCP.
24. The Council was at fault and I must therefore consider what injustice was caused to Miss K and Child A. In my view, the delays were both serious and substantial and led to a prolonged period of uncertainty and distress for Miss K. Further, had the EHCP been delivered on time, it would likely have been the case Child A attended School B earlier. However, alternative provision was provided to Child A by the Council and the law says this must be fit for his needs and ability. On that basis, whether Child A was left without education is properly a matter of whether the alternative provision was suitable for his needs.
25. In addition, I cannot by law investigate a complaint where the complainant could or has appealed to the Tribunal about the contents of an EHCP. Further, following the Roberts judgement, I cannot investigate a matter which is connected to the matters under appeal. Miss K acquired a right of appeal in February 2019 which she later used to secure a named school placement for Child A’s EHCP. So, although the delay in issuing the final EHCP meant a delay in Child A starting at Miss K’s preferred school, I cannot consider the impact of this after this date as that was the eventual matter under appeal with the Tribunal.
26. I have recommended a financial remedy in light of the identified injustice. For the reasons given however, my recommendation is limited to remedying the communication failings and delays, up to February 2019.

Lack of suitable education

27. The Council says it provided suitable alternative education for Child A in compliance with 19 of the Education Act 1996. In its view, this is because it provided home tuition while he was out of school taking account of his health needs. It says it increased the hours of tuition when Miss K asked it to.
28. Miss K informed she was satisfied with the alternative education provided by the Council up until April 2019 when it no longer became adequate. Miss K made repeated requests to the Council for an increase in hours, but these were not responded to. However, following Miss K’s solicitors contacting the Council for an increase, this was agreed. In my view, additional hours were provided to Child A on the understanding the status quo was no longer satisfactory. Also, I consider that had the Council responded to Miss K’s initial requests since April 2019, this matter would have been addressed much earlier.
29. That said, whether Child A was provided suitable alternative education is a matter connected to that under appeal with the Tribunal. This is because alternative education was provided by reason of a dispute as regards to the naming of a school placement. On the basis that Miss K acquired a right of appeal in February 2019 which she utilised, I cannot by law recommend a remedy for the fault beyond this date. This is by reason of the application of the Roberts judgement. Because the lost education, by reason of it being unsuitable, was post the Tribunal appeal, I have no power to recommend a remedy. I also cannot recommend the Council reimburse Miss K for the cost of arranging private education classes. This is because these are consequential losses connected to the matters under appeal with the Tribunal.

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Agreed actions

30. To remedy the injustice identified above, the Council has agreed to take the following actions:

• By 7 April 2021, the Council will pay Miss K £600 as a distress payment resulting from communication faults and delays in the EHCP process, up to February 2019.
• By 2 June 2021, the Department of Children’s Services will review and improve its communications policy to ensure timely and reliable responses to its customers.
• By 2 June 2021, the Department of Children’s Services will review its adherence to the Code, specifically about ensuring the delivery of any final EHCP within 20 weeks of request.

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Final decision

31. The Council was at fault for failing to provide an EHCP for Child A in compliance with the Code’s timeline. This caused a prolonged period of distress to Miss K and I have recommended a financial remedy to address this. I cannot however investigate or provide a remedy in respect of lost education in this case. This is because lost education is connected to the matter under appeal with the Tribunal and the law says we have no jurisdiction in these circumstances.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman