Summary: Mrs X complains about delays in the Council’s response to her request for an Education Health and Care Plan (EHCP) for her daughter, inadequate educational provision in the interim and a refusal to compensate her for the money she has spent on private educational services. The Council is at fault and has caused injustice. It has agreed to pay financial remedies, to apologise and to make a service improvement.

The complaint

1. Mrs X says the Council delayed in first agreeing to and then finalising an EHCP for her daughter, B. In the interim the Council provided medical home tuition which Mrs X says was insufficient. She says her daughter’s education has suffered as a result, and she has suffered financial loss in that she has had to pay for private tuition.

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What I have investigated

2. I have investigated the Council’s actions in relation to B’s ECHP.

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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’. (Local Government Act 1974, section 24A(6), as amended)
4. 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

5. I spoke to Mrs X and considered information provided by Mrs X and the Council. I also considered the relevant legislation and guidance. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
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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What I found

Legislation and guidance

7. The Children & Families Act 2014 and its associated regulations and guidance and the Special Educational Needs (SEN) Code of Practice govern Council’s responsibilities towards children with SEN.
8. If a parent or school asks the Council to carry out an assessment of a child’s SEN it must decide whether to do this within six weeks.
9. If, following assessment, the Council decides an EHCP is necessary, it must issue a final plan within 20 weeks of the request for assessment.
10. Section 19 (1) of the Education Act 1996 provides that a local education authority shall “make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those 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”.

What happened

11. Mrs X has a 13-year old daughter, B, who stopped attending to school in early 2019 for mental health reasons. She was later diagnosed with autism. Mrs X requested an EHC assessment on 6 March 2019. The Council did not make its decision to carry out the assessment until 20 August, some four months beyond the statutory deadline of six weeks for a decision.
12. B’s school referred her to the Council’s inclusion support service in July 2019. The service commissioned The Key Education Centre to provide home education to B from September 2019. The Key initially provided B with four hours’ home tuition per week. In late September, Mrs X complained to the Council. She said the SEN team had advised her the EHCP would not be finalised until June 2020 which she said was “completely unacceptable” and in breach of statutory timescales. She also complained that four hours’ tuition was insufficient, adding that her daughter was “a bright girl and she has the right to an education that suits her special educational needs”. She threatened judicial review.
13. The Council apologised to Mrs X for the delay in the decision to assess B and for the further delay in issuing the EHCP, adding that it was still waiting for medical and psychologist reports. “The educational psychology service are struggling to meet their statutory deadlines,” it added.
14. The Council increased the provision to five hours and signposted Mrs X to the team responsible for home tuition if she still felt this was insufficient. It advised that home tuition with one-to-one teaching was much more intense than a school timetable and that “an hour or two a day is considered to be a reasonable representation of the proportion of direct teaching in a day”. The Council also suggested alternatives to home tuition could be explored, such as online tuition.
15. From September Mrs X also funded tuition at a private centre for home educated children once per week as well as paying for extra-curricular activities for her daughter such as yoga and piano lessons.
16. In November, an educational psychologist arranged by the Council visited B. In a report completed in mid December, the psychologist noted that B was academically bright but was currently unable to cope with mainstream school, large groups and classroom settings. It said she should continue to receive three hours per week home tuition while gradually increasing the time spent studying outside of the home, building up to three days per week by the end of the school year. The psychologist also recommended provision of additional support including one-to-one sessions on managing her anxiety, social skills and emotional awareness.
17. The psychologist’s report noted that Mrs X had “arranged an extensive timetable of home tuition and on-site teaching” at the private centre as well as “trying to engage B in extra-curricular activities which offer the opportunity of some interaction with peers albeit in a limited way” and that she would like support from the SEN service to build on this approach. The report commented on the “success of this graduated approach”, adding “it will be important now to build on this success through extending this gradual and regularly reviewed programme”.
18. In January 2020, following a decrease in B’s home tuition hours from five to four which Mrs X has told me was due to staffing constraints, Mrs X complained again to the Council. She said: “I do not consider 4 hours medical tuition enough for a bright girl”. She pointed that she was paying for private tuition at the home education centre and asked for a refund on the centre fees. She also said she was paying for yoga classes “to try and help her with emotional regulation” and suggested these should be funded by a personal budget. Her daughter was being “socially disadvantaged” by delays in finalising her EHCP and she was out of pocket, she added.
19. Mrs X also said the NHS child and adolescent mental health service (CAMHS) had let her down by “offering an assessment in a clinical setting at a time she was unable to leave the house” and that she needed money for a private assessment.
20. In its response on 14 February the Council refused, telling Mrs X she had made the decision to fund the additional classes for B without agreement from her school or the SEN service and that it would not fund provision or a personal budget until an EHCP had been agreed. “The SEN service would not backdate payments for provision being made prior to a plan being issued,” it said. It apologised for the delay in completing the EHCP and said it would ask the inclusion support service to look into the Key increasing B’s tuition hours. It said the B’s tuition had decreased to four hours per week “due to science tuition no longer being possible". The Council told me it is unable to confirm that science tuition ceased to be available due to staffing constraints.
21. A review of B’s needs took place at the Key on 9 March. During the review, Mrs X again requested funding for the tuition B was receiving at the private centre. After this request was again refused, she submitted further complaints to the SEN service.
22. She said she had used her disability living allowance and carers’ allowance to pay for provision costing £52 per week that should have been provided by the Council. She pointed out that children in schools are offered music and sports so her daughter should also be able to access these. Because Mrs X had spent her own money on this tuition, she was unable to fund private therapy for B, which she felt she needed. Mrs X also complained that the home tutor was not a subject specialist and B’s tuition was inadequate given her desire to sit GCSEs and become a biomedical scientist. She also said B was unable to access online tuition.
23. In its final Stage 3 response on 17 April the Council reiterated its refusal to fund provision beyond additional home tuition. It said the Council commissioned Education Centres and home tuition or online learning for medically unwell children and where a pupil is only able to access home tuition fewer hours would be provided than if they had attended an education centre, as one-to-one tuition is more intense. However, the Council added that it had discussed B’s education with the ISS and that it “recognised 4 hours per week may not be sufficient considering B cannot access online learning” or attend an education centre. Ms X then complained to us.
24. The Council has told me the ISS was surprised to learn in April that Mrs X wanted B to receive more education and that she had not raised a complaint with the Key or requested anything additional. It added: “The Key was aware Mrs X had complained about SEN and the EHCP process but had not raised anything directly with the school or escalated via the Key complaints process”.
25. Documents provided by the Council show the ISS suggested Mrs X was funding extra provision for B as a “ploy” to obtain extra provision under her EHCP. However, the ISS also accepted that B “may not be receiving as much education as she can manage”.
26. The ECHP was finalised on 16 June 2020, 11 months beyond the 20-week statutory deadline. The EHCP recommended B receive tuition and support at the same private centre that was already providing tuition to B, funded by Mrs X. It also recommended home tuition continue at three hours per week. It initially also said it would fund piano lessons for B via a personal budget. After B decided to drop piano the Council agreed to fund a leisure centre membership instead.
27. I spoke to Mrs X and she explained to me how she had calculated the £52 per week she had spent on her daughter since September 2019. She told me that the family’s difficulty in dealing with her daughter’s mental health crisis had been exacerbated by the Council’s faults.
28. The Council did not initially accept my draft decision. It said B had not missed out on provision while she was waiting for EHCP as she had received an adequate provision. It said that “as a general rule of thumb” one hour of one to one tuition is comparable to one day at school and that supplementary online learning was not possible due to B’s mental health. It took into account Mrs X’s concerns about home tuition and the educational psychologist’s recommendations on B’s outcomes but was satisfied it represented a suitable education for B.

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Analysis

29. The Council delayed its decision to assess B and took 11 months longer to finalise B’s ECHP than it should have. While part of the period covered by the complaint coincided with the pandemic, if the Council had completed the EHCP within the statutory time frame this would not have been the case.
30. The Council argued that the delay to the EHCP did not result in reduced provision for B, as she was suitably provided for by home tuition. Its documents show it believes Mrs X’s decision to complain to the SEN service rather than ask the Key to increase her daughter’s home tuition may have been a “ploy”. I have seen no evidence to support this. Mrs X expressed her view, in letters to the Council, that home tuition alone was insufficient and that simply increasing the amount of home tuition would not meet her daughter’s needs.
31. The Council’s documents show it accepted B’s home tuition had been reduced from five hours to four. In the absence of evidence to the contrary I accept Mrs X’s assertion that this was due to staffing constraints at the Key. Council documents also show the ISS accepted “an hour a day is probably not sufficient” especially given B could not access online learning.
32. In my view, given the above and the evidence in the educational psychologist’s report, home tuition alone did not provide B with a suitable education.
33. Where fault has led to a loss of educational provision, we will usually recommend a payment of £200 to £600 a month to acknowledge the impact of that loss, taking into account factors such as the child’s SEN, any other educational provision made during that time and whether additional provision can now remedy that loss.
34. In this case B’s loss has been mitigated by Mrs X at her personal expense. This an injustice to Mrs X.
35. The Council has agreed pay Mrs X £1,035 for her spend on Faregos and piano lessons for B between September 2019 and the start of lockdown.
36. The Council has also agreed to pay Mrs X £250 for her time and trouble in bringing the complaint and in recognition of the impact of its faults over an extended period, and make a further apology to Mrs X.
37. The Council has also agreed to improve its service by reporting back on the number of other cases where there is a delay in the statutory assessment, the length of the delay, and details of action to address these delays.

Agreed action

38. Within one month of my decision the Council has agreed to:
1. Pay Mrs X £1,035 in compensation for the sum she spent on educational provision for B;
2. Pay Mrs X £250 to acknowledge the impact of its faults over this period and her time and trouble in bringing these complaints;
3. Apologise to Mrs X for these faults;
4. Report back to us on numbers of other children in 2019 and 2020 for whom there has been a delay in the statutory assessment for an EHCP, the lengths of delay in each and details of action the Council has taken to address delays.

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Final decision

39. I have completed my investigation with a finding of fault causing injustice. The Council has agreed to apologise and pay financial remedies and to a service improvement.

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Investigator's decision on behalf of the Ombudsman