The Ombudsman's final decision:
Summary: Mrs X complains about the way the Council handled her daughter’s educational provision and Education, Health and Care plan. The Ombudsman largely does not find the Council at fault. However, the Ombudsman finds the Council at fault for delays issuing the final EHC plan. This caused Mrs X injustice. The Council has apologised and offered Mrs X a payment to reflect the injustice. The Ombudsman is satisfied the Council has taken action to remedy the injustice.
- The complainant, who I refer to here as Mrs X, complains about the way the Council handled her daughter’s educational provision and Education, Health and Care plan. Specifically, she complains that the Council:
- failed to complete annual reviews of the Education, Health and Care plan;
- failed to issue decision notices about the Education, Health and Care plan which meant she had no right of appeal;
- delayed issuing draft and final Education, Health and Care plans;
- failed to provide adequate education for her daughter when she was not well enough to attend school;
- failed to provide the provision set out in the Education, Health and Care plan;
- responded to her Subject Access Request late; and,
- destroyed records.
What I have investigated
- I have investigated parts a to e of this complaint. I have investigated the Council’s actions from June 2019 (when Mrs X’s daughter stopped attending school) to October 2020 (when the Council issued its final complaint response).
- The final section of this statement contains my reasons for not investigating parts f and g of the complaint.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- 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)
- The Information Commissioner's Office (ICO) considers complaints about freedom of information and data protection. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information or data protection, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
- I considered the relevant legislation and statutory guidance, set out below. I considered the Ombudsman’s focus report: ‘Not going to plan? – Education, Health and Care plans two years on’, published in October 2019. I also considered Ofsted’s report on this council, inspected in March 2020. This report is available online.
What I found
What should have happened
Education, Health and Care plans
- Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
- The government issued the Special Educational Needs and Disability Regulations in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
- The Code says a local authority must review an EHC plan within 12 months from the date the plan was made. It must then review the plan every 12 months after this as a minimum.
- The Code says if, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible (within eight weeks of the amendment notice).
Education for children out of school because of ill health
- In 2013, the government published statutory guidance for councils: ‘Ensuring a good education for children who cannot attend school because of health needs’. This relates to a council’s duties under section 19 of the Education Act 1996.
- This guidance says that there will be a range of circumstances where a child with health needs may receive a suitable education that meets their needs without the council having to intervene. An example of this would be where a child can attend school with some support, or where the school has made arrangements to deliver suitable education outside the school.
- The guidance says councils are not expected to get involved in those situations unless it had reason to believe the education provided to the child was not suitable or, where otherwise suitable, was not full-time or for the number of hours that child could benefit from without adversely affecting their health.
- The guidance says councils must arrange suitable full-time education, or as much as the child’s health condition allows, for children who would otherwise not receive a suitable education because of their illness. ‘Suitable education’ means suitable to the child’s age, aptitude, ability and special educational needs. The Courts have said that it is for the council to determine what is ‘suitable education’.
- The guidance says the law does not define full-time education but says children with health needs should have educational provision equivalent to the education they would receive in school. For example, if they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
- Mrs X’s daughter, D, has mental health conditions and special needs. D has had an Education, Health and Care (EHC) plan since 2017.
- D had been refusing to attend school due to her mental health. So, in January 2019, Mrs X and the school agreed a reduced timetable for D. In June, D stopped attending school.
- In September, Mrs X asked the Council for an emergency review of D’s EHC plan. At this time, the Council got a letter from a clinical psychologist which said school can become an overwhelming environment for D. He said D’s mental health was a significant barrier to her accessing the school environment, and that she would likely need significant support to resume her education.
- In November, the Council reviewed D’s EHC plan. In February 2020, the Council sent its decision letter, saying it intended to maintain D’s EHC plan but would amend it to update the content.
- In March, Mrs X complained to the Council. Later that month, the Council sent Mrs X its proposed amended EHC plan. The Council also responded to Mrs X’s complaint.
- The Council said Mrs X did not yet have a right to appeal the EHC plan, but would have the right to appeal once the plan had been amended and finalised. It accepted that the proposed amended plan was late, given that the review was held in November.
- In April, the Council sent Mrs X its stage two response to her complaint. It said D received five hours of home tuition a week because she was not well enough to attend school. It said there was no expectation that all the provision set out in an EHC plan can be provided when a child is ill, but it tries its best to provide what is appropriate for the child. The Council said the school offered for D to return while a more suitable placement was found, but Mrs X did not agree to it. The Council apologised for delays in reviewing D’s EHC plan.
- In July, the Council responded to further complaints from Mrs X. It said D remained on roll at the school. It outlined the education provided to D, what efforts the Council had made to date to find an alternative placement for D, and explained that COVID-19 had caused delays.
- In August, the Council issued D’s final amended EHC plan, which gave Mrs X the right to appeal the content of the plan. Mrs X lodged her appeal against the plan in September.
- In October, the Council sent its final complaint response to Mrs X. It accepted it had not adhered to timescales for completing the amended EHC plan and apologised. The Council offered Mrs X £300 to reflect the injustice caused by this fault.
- Mrs X complains that the Council failed to complete annual reviews of D’s Education, Health and Care (EHC) plan (part a of the complaint). She says she requested an emergency review in September 2019, but it was not held until November 2019.
- The Council says the emergency review was scheduled for October, but the special needs officer had a car accident and was unable to attend. It says the review was postponed until November to allow the officer time to recover and to make sure she could attend.
- I do not find the Council at fault here. I find it was entirely appropriate for the Council to wait for the officer to recover so she could attend: she was a key part of the review process.
- Records show the Council met to review D’s EHC plan in December 2018. The review meeting in November 2019 was therefore within 12 months of the previous review, and is therefore within the timeframes set out in law. For this reason, I do not find the Council at fault.
- Mrs X complains that the Council failed to issue decision notices about the Education, Health and Care (EHC) plan which meant she had no right of appeal (part b of the complaint).
- I find that the Council issued the appropriate notice, giving Mrs X appeal rights, in August 2020 when it issued the final amended EHC plan. Mrs X did not have appeal rights before this because the plan had not been finalised. A person can only appeal an EHC plan once the final plan has been issued.
- For this reason, I do not find the Council at fault.
Delays issuing Education, Health and Care plans
- Mrs X complains that the Council delayed issuing draft and final Education, Health and Care (EHC) plans (part c of the complaint). Mrs X says that in February 2020 she did not agree to the proposed amended EHC plan the Council sent her. She says she told the Council in March what she felt was wrong with, or missing from, the plan. The Council sent the final amended EHC plan in August.
- As I have said above, the Code says if a review decides that an EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as soon as possible and within eight weeks of the amendment notice. Delays in this process mean the person is denied their right to appeal an EHC plan until the final plan is issued. This is injustice.
- The Council’s complaint responses accept that it failed to make sure that D’s EHC plan was amended within the eight weeks, in line with timescales set out in law. It apologised for this and offered Mrs X £300 to reflect the injustice caused.
- I have considered the Ombudsman’s published guidance on remedies and our approach during COVID-19 (between March and September 2020), which is that payments to reflect injustice caused by delays issuing final EHC plans are halved from approximately £100 per month of delay to £50 for each month of delay.
- I find that the Council sent the amendment notice in March 2020. Eight weeks after this is mid-May. The Council issued the final EHC plan in August, three months after it should have.
- Taking all factors into account, I would usually recommend a payment of £150 for these three months of delay issuing the final amended EHC plan. The Council has offered Mrs X £300. I find that the Council’s apology and offer of £300 is a suitable and appropriate remedy for the injustice caused by this fault. It is entirely a matter for Mrs X if she chooses to accept this offer.
Failure to provide adequate education
- Mrs X complains that the Council failed to provide adequate education for D when she was not well enough to attend school (part d of the complaint). She says D only received a fraction of the 25 hours per week she should have been getting, according to her EHC plan.
- The school reduced D’s timetable in January 2019: the Council says this was in agreement with Mrs X because of D’s mental health. D stopped attending school in June. From October 2019 to March 2020, the school put in place three hours of one-to-one tutoring per week. This was then increased to five hours per week. Mrs X says she told the Council D did not need a reduced alternative package. She says she did not agree to a reduced timetable, but accepts that she did agree to a later start time for D.
- As I have said above, the guidance says councils are not expected to get involved where a school makes arrangements to deliver suitable education outside the school, unless the council has reason to believe the education is not suitable.
- In this case, the Council believed that the part-time education provided by the school was suitable for D and in her best interests while an alternative placement was being found. This is a decision the Council is entitled to make.
- The Council says full-time mainstream education impacted negatively on D’s mental health. This was the reason she could not attend school full-time. It says that a full-time interim package of support while finding an alternative placement would similarly impact D's mental health. For this reason, the Council believed part-time provision, provided through her school, was in D's best interests.
- As I have said above, the guidance says councils must arrange suitable full-time education for children who would otherwise not receive a suitable education because of their illness. In this case, I find that the Council was under no obligation to arrange alternative education for D because it believed the education she was receiving from her school was suitable for her needs at that time.
- I find no fault in the Council’s decision that the part-time education provided by D’s school was in her best interests.
- From March to June 2020, Mrs X complains that there was no educational provision at all.
- Between March and September 2020, COVID-19 meant schools were closed. Children with disabilities were in educational placements for safety reasons, not for educational purposes. Therefore, I do not consider that D missed out on formal education her peers were receiving at that time. It would not have been appropriate for D to have been in school anyway, given her mental health.
- Mrs X says that from June onwards, D received three hours per week of one-to-one tutoring online. It is positive that D received some formal education during a period when the Ombudsman would not expect any child to have received any formal education.
Failure to provide the provision set in the Education, Health and Care plan
- Mrs X complains that the Council failed to provide the provision set out in D’s Education, Health and Care (EHC) plan (part e of the complaint). Mrs X complains that three hours per week was not enough, and D should have received 25 hours per week in line with her EHC plan.
- The Council says some of the provision set out in D’s EHC plan is not available to D in the package of support that she accepts. It says this could be provided virtually but D does not engage with it. It says additional support from the school is still available to D.
- The Council also says that it has put forward options to Mrs X to increase provision but she has declined. It says neither D nor Mrs X will engage with any plan to attend school to access additional support or provision. Mrs X says she and the Council “mutually disregarded” the option of D returning to the school. She also disagrees that there was any attempt to increase D’s provision.
- I cannot find the Council at fault for failing to provide the education set out in D’s EHC plan when I have found no fault above (part d of the complaint), and when the Council has offered to increase provision. I do not agree with Mrs X that the Council did not attempt to increase D’s provision. While Mrs X’s reasons for declining offers of additional support or provision may be sound, it is not a reason to find fault with the Council.
- As I have said above, the guidance says the law does not define full-time education but says children with health needs should have educational provision equivalent to the education they would receive in school. For example, if they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
- D’s EHC plan says she will receive 25 hours per week of learning support assistance within a mainstream school. D received between three and five hours per week of the provision set out in her EHC plan but on a one-to-one basis. As above, this one-to-one provision is more concentrated than provision in a mainstream school. Mrs X says the Council told her that D did not need the full 25 hours because one-to-one provision was more intense and covered the same amount of learning as in a classroom environment.
- I find no fault with the Council’s decision that it would not be in D’s best interests to receive 25 hours per week of educational provision on a one-to-one basis. This is a decision the Council is entitled to make, and I find it has been made based on medical information and in line with the guidance. Further, I find it is good practice that the Council told Mrs X the reason for a reduced timetable, and explained that despite the reduced hours, D would receive the same learning she would expect to receive in a classroom setting.
- I have completed my investigation. I uphold part c of Mrs X’s complaint because there is fault causing injustice. I am satisfied that the Council has already remedied, or offered to remedy, the injustice caused to Mrs X by this fault.
- I do not uphold parts a, b, d, or e of the complaint. This is because there is no fault.
Parts of the complaint that I did not investigate
- Mrs X complains that the Council responded to her Subject Access Request late (part f of the complaint) and destroyed records (part g of the complaint).
- As I have said in paragraph ten, we normally consider it reasonable to expect a complainant to refer a complaint about data protection to the Information Commissioner’s Office (ICO). This is because we consider the ICO is better placed to deal with complaints of this nature.
- Mrs X tells me she complained to the ICO in November 2020. I find that she has appropriately exercised her right to complain to the body best placed to deal with her complaints. For this reason, I have not investigated these parts of the complaint.
Investigator's decision on behalf of the Ombudsman