Summary: Mrs X complained about the Council’s actions to support the educational needs of her son Y from September 2018. We find the Council was at fault for a delay in issuing Y’s Education Health and Care plan and for failing to consider whether he needed alternative provision when he stopped attending school because of anxiety. That caused Mrs X avoidable distress and meant Y went a short period without suitable education. The Council has agreed to apologise to Mrs X and make a payment to remedy any injustice caused.

The complaint

1. Mrs X complained about the Council’s actions to support the educational needs of her son Y from September 2018. She said it:
1. Failed to assess Y’s needs and issue an Education Health Care Plan (EHC plan) within the statutory timeframes.
2. Failed to provide Y a suitable education when he was medically unfit to attend school.
3. Delayed in issuing the agreed EHC plan following the SEND Tribunal.
4. Failed to issue Y’s amended EHC plan following the 2021 annual review within statutory timeframes.
5. Failed to improve its communication with her despite upholding her previous complaint about poor communication.
2. Mrs X says the Council’s faults resulted in Y’s school placement breaking down and having an adverse effect on his mental health, self-esteem and wellbeing. She said it has caused the family significant distress and contributed to her losing her job because of her additional caring responsibilities. She said it has caused the family significant financial distress alongside time and trouble of having to raise complaints with the Council.
3. Mrs X would like the Council to:
• apologise;
• financially compensate them for Y’s missed education, their legal costs and for educational resources they have had to independently source for Y; and
• review and improve its SEN Service.

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What I have investigated

4. I have investigated the Council’s actions from September 2018 but have excluded the periods that Mrs X had a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal about Y’s EHC plan.
5. The reason for this is set out at the end of this decision statement.

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The Ombudsman’s role and powers

6. 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)
7. 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.
8. 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)
9. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
10. Further, where a person has used their right of appeal, we cannot investigate either the decision subject to appeal or the consequences of the decision. This means we cannot consider Mrs X’s complaint about Y’s lack of suitable education between 21 February 2020 until 28 September 2020, as this was inextricably linked to the matters under appeal.
11. 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).
12. Mrs X complained to the Ombudsman in March 2020. I have decided to extend my discretion and investigate the Council’s actions from September 2018 because Mrs X said she did not know about the Council’s duty to provide alternative education to children unable to attend school because of medical need until the start of 2020. Therefore, she was unaware the Council may have done something wrong.
13. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
14. 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.
15. 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)
16. 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

17. I discussed the complaint with Mrs X and considered the evidence she provided.
18. I made enquiries of the Council and considered its response.
19. I referred to the relevant legislation and statutory guidance.
20. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education Health and Care Plans

21. An Education, Health and Care plan (EHC plan) is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
22. Following a request for an EHC plan the Council must decide whether it will complete an EHC needs assessment within six weeks. A decision not to complete an EHC needs assessment is appealable to the SEND Tribunal. Where the SEND Tribunal requires the council to make an assessment and the council subsequently decides to issue an EHC plan, it must issue that plan within 14 weeks of the SEND tribunal.
23. The Ombudsman cannot investigate complaints about the name or type of school specified in the Plan, or the content of the EHC plan as these are appealable to the SEND Tribunal. The Council has five weeks following the SEND Tribunal to issue the agreed final EHC plan.
24. Councils must complete annual reviews of EHC plans. After the review, the Council has four weeks to send the child’s parents a decision notice. This outlines whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the Council decides to amend the EHC plan it must do that without delay. It must issue an amendment notice detailing the proposed amendments. The parents or young person must be given 15 calendar days to comment on the proposed changes. Following representations, if the Council decides to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
25. Where a young person is moving into a post-16 institution the review process should be completed by 31 March of the academic year the young person is expected to transfer.
26. Once the Council finalises the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan, unless the child’s parent or the young person has made suitable alternative arrangements.

Children out of school and alternative provision

27. The Education Act 1996 says parents must ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can take action against parents who do not. This Council has an Attendance Service that supports schools with pupil attendance issues.
28. 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.
29. The ‘Alternative Provision: statutory guidance for local authorities 2013’ states the duty applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
30. A suitable education means a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in the child’s best interests.
31. 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.
32. (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…”
33. The Council provides education for children who are medically unable to attend school through a Pupil Referral Unit (the PRU). After the PRU receives a referral and supporting medical evidence, it completes an assessment to identify the educational needs of the pupil and to plan reintegration back into school.
34. The Council’s ‘Home Tuition and Hospital Teaching Guidance’ states that where specific medical evidence is not available, the PRU will contact other medical professionals and consider other evidence to ensure there is not a delay in arranging appropriate provision. Where appropriate, the PRU completes assessments in collaboration with Children’s Social Care, Health Services and Educational Psychologists.

Background

35. Y had attended an independent school (School A) since 2017. His attendance started to deteriorate and at the start of 2018, School A contacted his parents who agreed for it to refer Y to Children and Adolescents Mental Health Services (CAMHS). Following an initial assessment, CAMHS wrote to School A and said Y appeared to be displaying traits consistent with Autistic Spectrum Condition (ASC) and Attention Deficit Hyperactivity Disorder (ADHD). CAMHS referred Y for a neurodevelopmental assessment.

September 2018

36. Y’s attendance did not improve. In September 2018, School A referred him to the Council because of his absence from school and concerns about aggressive behaviour at home. It said Y’s attendance had dropped to 65% and that Y was increasingly unable to come to school. It said Y was receiving support from CAMHS; that he had been assessed as having dyslexia and sensory processing issues and was waiting an assessment for ASC and ADHD. It said he was receiving extra teaching support from staff.
37. The Council screened the referral and decided to pass it to its Early Help Service. The Service contacted Mr and Mrs X. They stated that they were accessing private support for Y and turned down the offer of a parenting programme. The Council closed the referral and contacted School A.
38. School A made a further referral in November 2018 after an incident at home. The Council again passed the referral to its Early Help Service for assessment. The Council said that Mr and Mrs X did not consent to support from its Early Help Service and the Council closed the case.

My findings

39. Based on the referral the Council received from School A, it was appropriate for the Council to offer support through its Early Help Services. An Early Help assessment would have provided an opportunity to explore why Y was not attending school and whether referrals were needed for other Council services.
40. As Mrs X told the Council that CAMHS were supporting the family and that they did not want support from the Council, I am satisfied with its decision to close the case. There was nothing to suggest to the Council that Mrs X was dissatisfied with the education School A were providing Y. The Council was not at fault.

June 2019

41. CAMHS wrote to Mrs X in June 2019 confirming Y had ASC. In its assessment it said Y’s attendance at school could be an issue as he found it difficult to cope with a whole school day. It made suggestions for Y’s schooling such as additional adult support and teaching him in small groups.
42. Mrs X applied for an EHC needs assessment for Y on 1 July 2019. She supplied the CAMHS assessment. The Council wrote to her on 5 August stating it would not complete an EHC needs assessment and setting out the right to appeal. It said it did not have sufficient evidence of what School A were doing to meet Y’s SEN.
43. Emails between Mrs X and the Council indicate it received additional information from School A. The Council subsequently emailed Mrs X on 24 September to confirm it would complete an EHC needs assessment for Y. It sent a formal notification letter on 1 October 2019.

My findings

44. The Council responded to Mrs X’s request for an EHC needs assessment within six weeks. That letter set out Mrs X’s appeal rights if she disagreed with the Council’s decision. That was completed within statutory timeframes. The Council was not at fault.
45. We would expect Mrs X to use her right to appeal to the SEND Tribunal if she disagreed with the Council’s decision, therefore I have not investigated the Council’s decision not to complete an EHC needs assessment. Additionally, the Council subsequently decided to complete an EHC needs assessment therefore there is no outstanding injustice.
46. It is not clear from the Council’s response to enquiries what additional information it received as part of its reconsideration and when. That means it is not clear whether there were any delays in the Council considering the information it received. That lack of record keeping evidencing its decision making is fault. However, I do not find that has caused Mrs X a significant injustice. If the Council had not agreed to reconsider its initial decision, it is probable Mrs X would have exercised her right to appeal, which is likely to have caused further delay to the Council starting the EHC needs assessment process.

October 2019

47. Mrs X emailed the Council in October 2019 asking for additional educational support for Y as he was struggling to get to school with his anxiety. She asked if the Council could provide support pre- EHC plan. The Council responded and accepted that home tutoring might be beneficial as it would get rid of the stress of Y having to attend school. The Council contacted School A who suggested that Y would be better supported through the medical needs service at the PRU. It said it had asked Mrs X to provide a letter from Y’s CAMHS consultant to say he was not medically fit to attend school. School A did not refer Y into the medical needs PRU.

My findings

48. Following Mrs X’s request for support there was recognition in the Council’s response that Y may benefit from home tuition. The Council should have considered whether it was reasonable for Y to take advantage of his existing schooling at school A, or whether it needed to provide alternative suitable education. It did not do that. That was fault.
49. The lack of consideration of Y’s education at the time has caused Mrs X and Y avoidable uncertainty. However, I cannot say that meant Y went without suitable education. I cannot speculate the outcome of the Council’s considerations or if it had arranged alternative provision, if Y would have engaged with it. Additionally, Y was not wholly without education as he was still attending school (although not fulltime) and the Ombudsman cannot say, how much education Y would have been able to engage with.

December 2019

50. At the start of December 2019, Mrs X emailed the Council because they had not had contact from the Occupational Therapist or Speech and Language Therapist to arrange Y’s assessments. The Council contacted therapy services within the NHS to follow up the assessments.
51. Mrs X complained to the Council at the start of December 2019 that it had failed to arrange the Occupational Therapist and Speech and Language Therapist assessments for Y. She said she was unhappy about how the Council had arranged the Educational Psychologist’s assessment and the quality of the assessment.
52. The Council sent a complaint response just before Christmas. It accepted there was a delay in arranging the OT and SaLT assessments, but it aimed to have these completed by the end of February 2020.
53. Around this time the Council also sent Mrs X, Y’s draft EHC plan. Mrs X wrote to the Council in January as she was unhappy with the content of the draft Plan. The Council suggested meeting to work through Mrs X’s concerns; it arranged a co-production meeting alongside School A on 10 January 2020.
54. The minutes from that meeting state Y’s attendance had dropped to just over 30%. The Council discussed Y attending an additionally resourced provision (ARP) in a mainstream school to meet his educational needs; a suggestion previously made by school A. However, Mrs X refused for Y to attend ARP mainstream provision as she considered that would mean School A had off-rolled Y and he would not get the same academic opportunities. In that meeting, School A said that the provision set out in the draft EHC plan was already in place and questioned how effective the plan was if Y was not attending school.
55. On 22 January 2020, School A contacted the Council and said Y had been off school for more than ten days. It said it would usually refer a pupil to the Education Welfare Officer, but it had not because of the EHC plan. The Council responded and said that as Y was in private education, the school needed to follow its own policy for providing education for a pupil who could not attend because of ill health.
56. Mrs X contacted the Council and asked it to provide Y with alternative education. She said he was medically unfit to attend school. The Council emailed the following week stating it was seeking advice from its legal services as it was unclear on its responsibilities as Y attended an independent school.
57. The Council received further information off School A. It confirmed Y had missed 99 school days in the previous year. It said it had asked Mrs X for medical evidence of Y’s non-attendance since November 2019, but it had not been provided. It said it had provided Y online work and offered one-to-one support at school but he had refused to engage with this. It said it had run out of options to support Y.
58. In emails between Mrs X and the Council, the Council said as Y attended an independent school, the Council’s jurisdiction was different. It offered a further meeting between the Council, School and Mrs X. Around this time School A referred Y to the Education Welfare Service about his non-attendance.

My findings

59. When Y stopped attending School A in January 2020 the emails indicate the Council were unclear on its legal duty to provide alternative provision as Y attended an independent school.
60. The law is clear the Council’s Section 19 duty applies regardless of the type of school the young person attends. The Council should have considered the evidence it had gathered through its EHC needs assessment and decided based on all evidence whether to enforce Y’s attendance or provide Y with suitable alternative education. It failed to do that, that was fault.
61. That meant between 22 January 2020 and the Council issuing Y’s final EHC plan on 21 February 2020, Y was without education. Accepting it would have taken a short period to arrange, my view is Y went three weeks without suitable provision. That has caused Y an injustice.

February 2020

62. Mrs X asked the Council to escalate her complaint to stage two of its process at the end of January 2020. She remained unhappy with the content of the EHC plan, with the lack of communication from the Council about the co-production meeting and OT assessment and the lack of alternative education provision.
63. The Council sent an initial response to Mrs X’s stage two complaint on 11 February 2020. It apologised for inaccuracies in the EHC plan that had caused a delay in it being finalised; it also apologised for limited contact with the SEN Service that had been caused by staff absence. It said Mrs X wanted to provide further comments on the draft EHC plan after receiving the SaLT assessment which was why the Plan had not yet been finalised. It said the Council were working swiftly to ensure the assessed provision needed for Y could be put in place.
64. The Council issued Y’s final EHC plan on 21 February 2020. That did not name a school but stated Y’s needs could be met within mainstream provision.
65. Mrs X had ongoing communication with the Council about the educational provision specified in Y’s EHC plan. Mrs X changed her request of school placement and wanted the Council to consider a place for Y at a specialist school- School B.
66. The Council sent its formal stage two response to Mrs X’s complaint in May 2020. It said it had considered Mrs X’s request for School B for Y, but the Council had not agreed to it as the Council felt Y’s needs could be met within mainstream provision. The Council said her initial complaints about delays and shortfalls in communication was upheld. However, it said delays in finalising the EHC plan were not solely due to the actions of the Council and therefore did not uphold the substantive matters of Mrs X’s complaint.
67. Mrs X appealed to the SEND Tribunal. As part of the Tribunal process, the Council agreed to Mrs X’s choice of school and Y started at School B in September 2020. The SEND Tribunal sat at the end of September 2020. As the Council and Mrs X had agreed the contents of the EHC plan the Tribunal ordered for the Council to issue the amended plan, naming School B within the statutory timeframes.

My findings

68. The Council sent its formal notification to complete the EHC needs assessment on 1 October 2019. The Council had 14 weeks from this date to issue the final EHC plan. It took the Council 21 weeks. That was a delay of seven weeks. That was fault. That fault was linked to delays in the Council receiving assessments from OT and SaLT and therefore having advice ready to inform the draft Plan and disagreement with Mrs X about the content of the Plan.
69. The delay in issuing the EHC plan was frustrating for Mrs X and delayed the right to appeal however I do not believe it caused Y significant injustice. The Council started to fund Y’s place at School B from September 2020- before the Tribunal date of 28 September. Therefore, even if the SEND Tribunal had been held seven weeks earlier, the soonest Y would have been able to access School B was from the start of the Autumn term.
70. In response to enquiries, the Council has provided evidence of how it is addressing requests for assessments with Therapy Services. I am also satisfied that where it encounters difficulties in obtaining assessments it has arrangements in place to commission these.

October 2020

71. The Council issued the final amended EHC plan on 29 October 2020. Mrs X contacted it as it had missed out agreed wording. The Council reissued a further EHC plan on 10 December, followed by the final EHC plan on 16 December 2020.

My findings

72. The Council issued Y’s EHC plan within the 5 week statutory timeframe following the SEND Tribunal. However, the Plan the Council issued was not the one agreed at Tribunal. That was fault. That caused Mrs X avoidable frustration and distress.
73. It took the Council eleven weeks to issue the agreed amended EHC plan following the SEND Tribunal. That was a delay of six weeks. Although that delay was fault, it did not cause Y an injustice as it did not affect his access to educational provision. It did cause further avoidable upset and frustration to Mrs X.

February 2021

74. The Council held the annual review of Y’s EHC plan in February 2021. The Council wrote to Mrs X on 23 March confirming it intended to amend the EHC plan. It sent the proposed amended Plan and amendment notice on 27 April 2021. It asked Mrs X to provide comments on the proposed Plan within the next 15 days. Mrs X contacted the Council and said it appeared to have sent an incorrect Plan, and that amendments agreed at the SEND Tribunal had been removed. The Council issued a new amended proposed Plan on 5 May 2021. The Council issued the final amended EHC plan on 15 June 2021.
75. Mrs X made a further complaint to the Council in June 2021 about delays in issuing Y’s EHC plan following the SEND Tribunal and the annual review.

My findings

76. As Y was not transferring to a different post-16 educational institution the Council did not have to issue his final amended EHC plan by 31 March 2021.
77. The Council wrote to Mrs X within four weeks of the February 2021 annual review to confirm it would amend Y’s EHC plan. That was within the statutory timeframe. The Council was not at fault.
78. The Code states that where the Council proposes to amend an EHC plan, it should start the process without delay. The Council wrote to Mrs X with the proposed plan and amendment notice five weeks later. We would not consider that a delay.
79. The initial proposed amended Plan issued contained inaccuracies as the Council had amended a historical Plan. That was fault. Once highlighted by Mrs X, the Council sent a further amended EHC plan without delay. In response to enquiries the Council confirmed this was an administrative error, and a historical plan was incorrectly updated. It has completed staff training so officers can identify the most recent Plan.
80. The Council had eight weeks to issue the final amended EHC plan after it issued the proposed amended Plan and amendment notice. It issued the final amended Plan on 15 June 2021. That was within seven weeks of the amendment notice sent on 27 April 2021. The Council was not at fault.

Poor communication with Mrs X.

81. The Council upheld Mrs X’s complaint about poor communication when it responded to her in February 2020. In response to enquiries, it has said that its SEN Service has not always responded to Mrs X within its five days corporate expectation because of part-time work patterns and staff sickness. The case records evidence delays in the Councill’s response to some of Mrs X’s emails.
82. A significant amount of Mrs X’s contact with the Council has been in response to the Council sending out inaccurate EHC plans where agreed content has been removed. The Council has acknowledged this in its emails to her in December 2020 and May 2021. This is fault. It has meant that Mrs X has had to go avoidable time and trouble in asking the Council to issue the correct Plans.

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Agreed action

83. Within one month of my final decision the Council has agreed to
• Apologise to Mrs X and pay her a symbolic payment of £300 to remedy the avoidable uncertainty and distress caused by it not considering whether it owed Y a Section 19 duty in October 2019.
• Apologise for any faults in its communication with her and pay her a symbolic payment of £200 to reflect the incorrect EHC plans it issued following the SEND Tribunal and annual review.
• Apologise for not arranging alternative provision for Y for three weeks from January 2020 – February 2020 and make a payment of £300 for lost provision.
• Ensure staff within its SEN Service are aware of the Council’s section 19 duties and how to escalate concerns where a young person is not accessing education.

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Final decision

84. We find the Council was at fault for delays in issuing an Education Health and Care plan and failing to consider whether Y needed alternative provision. The Council has already taken steps to address the faults identified, and it has also agreed to my recommendations to remedy the injustice caused to Mrs X and Y. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

85. We cannot investigate any complaint about the lack of educational provision after the Council issued the final EHC plan in February 2020 to when Mrs X had her SENDIST Tribunal decision in September 2020.

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Investigator's decision on behalf of the Ombudsman