Summary: the complainant says the Council delayed its assessment of her son’s special educational needs and suitable provision causing disruption and distress to the family. The Council recognised the faults and impact they had and offered a remedy. We upheld the complaint and recommended a greater remedy of £2,700.

The complaint

1. The complainant whom I refer to as Mrs X complains that when managing her son Y’s educational needs, the Council failed to:
• Without delay agree to assess Y for an Educational, Health and Care Plan (EHC Plan) and complete that assessment;
• Issue an EHC Plan within a reasonable time frame leading to Y being out of school for longer and delaying Mrs X’s right to appeal;
• Act to reduce Y’s time out of school from November 2018 and provide suitable alternative provision or support;
• Properly and without delay, address Mrs X’s complaints.
2. Mrs X says this had a severe impact on her and the family because she is Y’s main carer. With Y at home rather than in school this reduced Mrs X’s capacity to work or support the rest of the family.

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The Ombudsman’s role and powers

3. 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)
4. If 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

5. In considering this complaint I have:
• Contacted Mrs X and read through the information presented with her complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance, and policy;
• Shared with Mrs X and the Council my draft decision and reflected on comments received before making my final decision.
6. 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 our final decision with Ofsted.

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What I found

7. Children with complex needs may need an Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.
8. The responsibilities of the Council, educational settings, and partner agencies (including health bodies) are set out in the Children and Families Act 2014: associated Regulations, and statutory guidance, the SEN Code of Practice 2015 (the Code). Agencies should work in an integrated way, with the child and family fully included in decisions.
9. The legal duty to carry out the EHC assessment lies with the Council, it cannot delegate this to a school or college. An EHC plan cannot be issued unless the child or young person has been through the statutory EHC assessment. The threshold for an assessment is low, the child needing only to show they may have special educational needs. A parent, school or young person may ask for an assessment. Councils should also assess anyone who is brought to the council’s attention by any person as someone who has or may have special educational needs.
10. The timescale for assessment for an EHC plan is a maximum of 20 weeks with an emphasis on completing the steps involved as soon as practicable.
11. Statutory guidance says that where the assessment finds services are needed the Council should not delay the provision until the EHC Plan is compete.
12. Councils have a duty to arrange for alternative suitable full-time educational provision at a school or elsewhere for children who, “by reason of illness, exclusion from school or otherwise may not for any period received suitable education unless arrangements are made for them”. (Education Act 1996, section 19).
13. The Council had a Clinical Psychology team known colloquially as Kids in Need of Development (KIND Team). The team’s role included supporting and enabling effective home-school partnership supporting the educational attainment of vulnerable children through working both within the home and school.

What happened

14. In April 2018, the Council placed Y on its SEN Register for social, emotional, and mental health needs because he had difficulties regulating his behaviour and struggled with school. Y’s first school, School 1, referred him to the Council’s clinical psychological team in October 2018 to gain further support for Y. This team offered help to schools to decide if a pupil had special educational needs for which it could provide support.
15. In November 2018 Mrs X removed Y from School 1 due to his severe anxiety shown at school and during the journey to school. The Council did not refer Y to its attendance team.
16. The Council says a child’s school will usually trigger the EHC assessment procedure. The School believed specialist support could address Y’s behavioural difficulties. However, with Y remaining at home the School could not continue the EHC assessment.
17. Following interventions guided by a consultant clinical psychologist the Council says the School and family agreed to support outside of school with a plan to reintegrate Y into the School later. The Council says the relationship between the family and support team broke down and it spent several months trying to settle differences between the parties. Mrs X decided to transfer Y to another school, School 2.
18. Y transferred to School 2 in July 2019. The Council says although Y had not been in school since November 2018 its attendance team did not know of his absence.
19. The Council says the clinical psychology team agreed a treatment plan with Mrs X to address Y’s mental health and behavioural needs. The plan set out a plan to slowly re-integrate Y into the school environment. The Council says treatment began within Y’s home in November 2018 and continued throughout 2019. The Council says School 1 sent homework for Y to complete helped by Mrs X until Y left School 1’s roll in July 2019.
20. In September 2019, the Council’s clinical psychology team supported Y going into School 2 after 3.15 to help him transition back into school. In October 2019, the team agreed to support Y attending School 2 during some lunchtimes so he could interact with his peers. The Council says the team provided one to one support for Y.
21. School 2 asked for a meeting with the team at half term because Y had not returned to any lessons in school. In December 2019 School 2 arranged for a consultation with an Educational Psychologist who assessed Y at home. The recommendation resulting from the assessment suggested Y needed a key worker to help him attend school. Also, Y would need a personalised learning approach because he had now missed a year of schooling.
22. In December 2019, Mrs X complained to the Council that its clinical psychology team failed to alert the Council to Y’s absence from school. Mrs X says this resulted in the Council failing to provide any alternative educational provision during Y’s absence.
23. In response to my enquiries the Council says that had the EHC assessment been triggered when it should, in November 2018, it is likely it would have concluded with a recommendation for specialist provision starting in March 2019. The Council says at the time Y was highly anxious and a school refuser. Therefore, the Council says the assessment may have identified a need for a higher staff to pupil ratio, a more nurturing environment and support for Y to manage his anxiety with an enhanced transition plan back into school.
24. The Council identified an alternative placement for Y which had a strong nurture base and staff trained in trauma informed teaching methods. It placed Y on the roll in September 2019 but unfortunately the school decided to close the nurture base in November 2019 and the application for an EHC assessment followed.
25. The EHC assessment identified in April 2020 Y’s need for specialist provision. However, the Council says it is not possible to retrospectively say if this would have been the result if assessed in 2018, although it says it is likely it would have offered more support.
26. The Council says that:
• From September 2019 to July 2020, it offered one-to-one support at the named school with support from the clinical psychology team until January 2020;
• From April 2020 to July 2020 the Council could not provide the necessary specialist provision but continued with one-to-one support;
• In September 2020, the Council identified a specialist placement that said it could meet Y’s needs. However, during the tribunal procedure, the Council considered the parents’ privately commissioned reports and Occupational Therapist assessment. This resulted in the Council agreeing to a placement at Mr and Mrs X’s preferred school which Y began attending in November 2020.

Complaint to the Council

27. The Council upheld Mrs X’s complaint and said:

“My reading of the response [at Stage 1 of the complaints procedure] is that [the Council] upheld your complaint, acknowledging that Section 24 of the Children and Families Act was not initiated when it should have been, although this could have been set out more clearly for you. In this regard I do not believe that further investigation is warranted or could add anything to this finding and so have decided not to progress your complaint further at this point.”

28. The Council offered a payment of £700 to Mrs X having considered the Ombudsman’s Guidance on Remedies representing 15 weeks lack of support during Y’s absence from school. The Council says it provided £2,000 to School 2 for extra support for Y. The Council apologised for the poor service provided and carried out a review to improve services in future. Mrs X says Y only attended School 2 for lunchtimes and about 30 to 45 minutes beyond that so this payment to School 2 did little to assist Y.
29. The Council says it did not offer Mrs X a payment for Y’s advocate because it offers a free independent advocacy service and so employing her own advocate had been Mrs X’s personal choice.

Analysis – was there fault leading to injustice?

30. My role is to decide whether the Council acted without fault in assessing and providing for Y’s educational needs. If I find the Council acted with fault, I must decide what the Council should do to put that right and whether what it has already offered addresses the injustice caused.
31. The Council recognises it is at fault for the poor handling of Y’s educational and support needs. It has since re-arranged its teams to improve communication and prevent this happening again. I applaud the Council’s learning from this complaint.
32. I find the Council at fault for relying on an application for an EHC assessment from Mrs Y. The Council should have considered an assessment as soon as the Council became aware of Y’s possible need for an assessment and his later absence from school. It is the Council’s duty to identify if a child may need special educational provision. The duty does not rely on a parent asking for an assessment. Once known the Council had a duty to assess. The Council knew in April 2018 Y may need an assessment that should have triggered an assessment then, or by October 2018 when School 1 referred him to the clinical psychology team. I find the Council at fault for the delay in assessment.
33. Further, once Y began missing school and then stopped attending Y should have been referred to the Council’s attendance team for support. The Council should have then considered its duty to provide alternative educational provision. That alternative provision would reflect an assessment of what Y could engage with. Provision could increase depending on any improvement in Y’s engagement and health until able to return to school. I find the Council at fault for this failure of its teams to liaise with each other which resulted in lost support.
34. I cannot say exactly what provision the Council would have provided but for these failings however as I guide, I have noted Y’s current provision. Therefore, I find but for these faults Y would have received specialist provision, by March 2019. Y and Mrs X faced a delay in specialist provision of over a year. This meant Mrs Y could not work because she had the role of supporting Y full time. That also meant Mrs Y needed to employ an advocate to help her navigate the SEN system and identify the Council’s failings.
35. The Council says it offered Mrs X £700 in recognition of its faults and the impact on Mrs X and Y. Mrs X says this recognises approximately 15 weeks out of school without any support for Y. The Council says it did not offer to pay Mrs X’s advocacy costs because it offers a free service. Given the Council’s failings Mrs X did not feel confident the Council’s service would be any more effective than the education service had proved to be.
36. Mrs X and Y experienced injustice. Using our Guidance on Remedies I recommend the Council pays to Mrs X £700 in recognition of the distress, time and inconvenience caused. For Y, he endured seventeen months without full support resulting in disappointment and distress. Y received support in a supportive home environment. I note School 1 sent homework to him and School 2 planned his integration back into school. I have noted School 2 arranged for Y to attend at lunchtimes and a little beyond to address his fear of school. In calculating the time Y missed I have allowed for school holidays, the time it would take to properly assess and arrange a placement. Plus, I have considered Y’s ability to engage or attend school. I recommend the Council pays the equivalent of our lower scale of £200 per month of missed education for ten months.

Recommended and agreed action

37. To address the injustice arising from the faults I have identified, I recommend, and the Council agrees to within four weeks of my final decision:
• Apologise in writing to both Mrs X and Y for the failings and the impact on Y’s educational provision and experience;
• Pay Mrs X for Y’s educational benefit £2,000 in recognition of the impact of the missed specialist education and support Y and the family could have received earlier;
• Pay Mrs X £700 in recognition of the avoidable time, inconvenience and distress caused.

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Final decision

38. In completing my investigation, I find the Council at fault causing injustice.

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Investigator's decision on behalf of the Ombudsman