Summary: There was delay by the Council in issuing an EHC plan which delayed appeal rights and a school move. There was also a failure to consider social care needs during the assessment. This caused distress, uncertainty and loss of support for an extended period. The Council will apologise, make service improvements and make a financial payment to the family.

The complaint

1. Mr X complains about delay and poor communication in his daughter’s statutory assessment of her special educational needs (SEN) and delay in issuing a final Education, Health and Care (EHC) plan which delayed his right of appeal.
2. In this statement I will refer to Mr X’s daughter as Y.
3. Mr X also complains about the Council’s failure to conduct a social care (child in need) and / or parent carer needs assessment as part of the EHC assessment.
4. Mr X says his daughter did not receive suitable education when her mainstream placement broke down. This caused his daughter anxiety and meant she missed out on education. Mr X and his wife also missed out on vital support.
5. Mr X says opportunities to provide support were missed much earlier and that his daughter should never have been placed in a mainstream secondary school.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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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What I have investigated

9. I have investigated the period from when Mr X made a request for statutory assessment in March 2019.
10. I have not considered the period before this because:
• It was not part of Mr X’s original complaint to the Council and so it has not had an opportunity to comment on earlier events.
• Y was at SEN support level and her schools were responsible for meeting her needs and for referring for additional support if appropriate. We cannot consider the actions of schools. Y was not brought to the attention of the Council at that time.
• We would usually expect a complainant to bring a complaint to the Ombudsman within twelve months of the events.
11. Mr X brought his complaint to us in July 2020, but as the complaint covers the period of the statutory assessment I have exercised discretion to consider the period from March 2019. It was not Mr X’s fault that the EHC needs assessment took longer than expected.
12. I have not considered whether Y received suitable education from 16 March 2020 when the final EHC plan was issued and a special school place made available. Mr X had a right of appeal about the school named on the Plan which he used. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal about the same issue.
13. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) This means where a Council issues an Education, Health and Care (EHC) Plan and names a school the parents do not consider suitable, the Ombudsman cannot consider loss of education during the period the appeal is ongoing. The decision (naming an unsuitable school) and the consequence (failing to provide education) are ‘inextricably linked’.

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How I considered this complaint

14. I have considered information provided by Mr X and the Council including:
• SEN documents
• Tribunal decision
• Children’s social care documents
• Council policies on medical needs
• Complaint documents.
15. I have considered relevant law and guidance including:
• The Children and Families Act 2014 and SEND Regulations and Code of Practice
• The Education Act 1996
• The Children Act 1989
• The Chronically Sick and Disabled Persons Act (CSDPA) 1970
• The Ombudsman Focus Reports on EHC plans and children who are not receiving full-time education
• The Ombudsman’s Guidance on Remedies
• Statutory Guidance:
1. Working Together to Safeguard Children;
2. Alternative Provision;
3. School Attendance;
4. Ensuring a good education for children who cannot attend school because of health needs.
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.
17. Mr 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

What happened

18. Y has SEN. In November 2017 Mr and Mrs X were considering whether to apply for a statutory assessment under the Children and Families Act (‘The Act’) but did not do so.
19. Y transferred to mainstream secondary school in September 2018. Fairly quickly it became apparent that she was struggling and required a high level of adult support.
20. The School submitted a request for statutory assessment on 6 March 2019. The submission was very detailed and indicated school was needing to put in 27.5 hours one-to-one support a week and had done three cycles of the graduated approach (trialling interventions). Y’s School said Y was not able to manage a secondary curriculum, was often unable to attend lessons and had aggressive behaviour especially at home.
21. The School stated Y’s attendance was 93% for the academic year to date.
22. The Council agreed to assess on 24 April. This was within the six week period allowed under the Act to make this decision.
23. The Council obtained advice from an educational psychologist (EP), speech therapist and from ‘health’ in June 2019. It sought advice from social care but social care replied that Y was not known to the service.
24. On 17 July the Council agreed an EHC plan needed to be issued and it sent a draft plan to parents.
25. Y’s parents replied with comments on 31 July. Further drafts were issued in August and September but no final plan was issued.
26. The delay was due to the need to identify a suitable school. Advice received by the Council supported a specialist placement.
27. School A offered a place on 28 September 2019 and this was the special school named when the Council eventually issued a final EHC plan on 16 March 2020. However, the Council’s high needs funding panel would not agree to name it in September 2019. The SEN officer was asked to consult other local placements. My understanding is that School A is an independent special school but is not on the list of schools approved by the Government under s.41 of the Act.
28. The request to name this school went back to panel on 23 October and 12 November but the panel declined to name it until other options had been exhausted.
29. School B offered Y an interview / trial in November 2019, but Mr X says he was not informed of this fact until he spoke to the school in January 2020.
30. The Council’s complaint response said that this oversight was due to a change of SEN officer at that time and when the issue was identified by the new officer the interview was re-arranged. Mr X disagrees and says the new officer did realise in November but was advised to wait until the outcome of other school applications. Mr X says the interview was rearranged by parents.
31. In March 2020 School B offered Y a place.
32. In March 2020 Mr X complained about delay in issuing a final EHC plan. Mr X says his right of appeal was being delayed. The Council then issued a final plan on 16 March 2020 naming School A. While Mr and Mrs X had been agreeable to School A being named in September, by March they felt Y’s situation had deteriorated and that School B was suitable in a way School A was not.
33. The Council’s complaint response acknowledged the final EHC Plan should have been issued within twenty weeks (by 23 July 2019) and was issued eight months late. The Council said in its complaint response it could lawfully have issued a final plan earlier naming a type of school, not a specific school, which would have given Mr X a right of appeal earlier. It apologised that it did not explain to Mr Y the length of time it may take to identify a school or that it could have issued a final plan simply to provide a right of appeal. It acknowledged its communication with him should have been better.
34. The Council said the problem was a mismatch between demand for special school places and supply and it was taking measures to increase places available locally.
35. The Council acknowledged consultation with schools could have been more efficient as it approached schools over a four-month period but said as it had to consider the use of public resources it had to exhaust local options before naming School A. The Council said it could not state with any certainty that more efficient consultation would have led to a school place being identified earlier.
36. The Council said its understanding was that Y attended her mainstream school until ‘lockdown’ due to Covid-19 in March 2020.
37. Y’s parents appealed against the naming of School A in the Plan to the SEND Tribunal. As part of a pilot for the Tribunal to make social care and health recommendations Mr and Mrs X also appealed the social care parts of the EHC plan. The social care sections were blank as Y’s social care needs had not been assessed.
38. During the period of the appeal Y remained at the mainstream school. Evidence from professionals supported that Y was not able to access education successfully within the mainstream school environment.
39. Mr and Mrs X appealed for Y to attend School B on a weekly residential basis. Y was often violent at home and they were struggling to manage her behaviour, there was a risk of family breakdown.
40. After an incident at home Mr Y self-referred to social care in June 2020. An Early Help assessment was completed. This noted schooling was in dispute until the tribunal was heard but identified Y did require support from social care including activities to do in school holidays.
41. In August 2020 the Council’s high needs funding panel considered there was not enough evidence to support residential schooling and asked children’s social care to complete a full child in need (CIN) assessment to see if services could be put in place to avoid the need for residential education.
42. In September 2020 the CIN assessment started. The SEN team agreed for Y to attend School B as a day pupil, conceding that part of the appeal. Y started School B on 2 November 2020. The placement was to be jointly funded by health, education and social care. Mr and Mrs X continued with their appeal to ask for weekly residential and also social care support at weekends and holidays.
43. In November 2020 the CIN assessment identified Y required access to social activities at weekends and during school holidays as well as support with behaviour management, school transition and life skills.
44. On 18 December 2020, following the Tribunal decision, a final amended EHC Plan was issued naming School B on a residential basis together with three hours social care support per weekend and forty hours social care support in school holidays. Y was placed in the year group below her chronological age due to the amount of education she had missed, but also because the school considered that due to the previous failed placement Y would require a lengthy period to recover from her previous experiences before she was ready to re-engage with learning at her previous level.
45. In February 2021 the CIN assessment was updated to reflect the Tribunal decision.
46. In its complaint response the Council said it would take the following actions to remedy the faults it identified in its own handling:
• Apologise and review its process to ensure fluid handling of cases
• Refresher training for officers about timescales and seeking school places
• A £500 goodwill payment to Mr Y for the injustice caused by delayed appeal rights and his time and trouble bringing the complaint.
47. In March 2021 Mr X responded to the Council’s complaint response and explained that the social care provision was not yet in place. In July 2021 Mr X told me that some social care provision was then starting but this was only building up slowly.
48. The Council’s final complaint response did not address the social care issue except to say if Mr X wished to begin a new complaint about the provision not yet being in place then he could do so. The response did not address why the EHC assessment did not include social care advice.

Analysis

Delay in completing EHC assessment and loss of education

49. Councils have a legal duty under s.19 Education Act 1996 to provide suitable full-time education to pupils who due to illness, exclusion or otherwise may not receive suitable education. Councils would not usually expect to become involved where a school had made suitable arrangements. The Council’s policy on medical needs says it will intervene where it had reason to think the education being provided was not suitable or, while otherwise suitable, was not full-time or for the number of hours a child could benefit from without affecting their health.
50. On the evidence I have seen Y was attending school regularly in 2018/19 and 2019/20 and while she was often unable to access lessons, or indeed the mainstream curriculum, she was then taught separately with one-to-one support. Professional advice from the EP in June 2019 recommended a move to a school with small classes but did not advise this needed to happen immediately, prior to completion of the EHC assessment. The EP did not recommend a dual placement of on and off-site provision pending the outcome of the EHC process and appeal. There was no medical evidence suggesting Y could not attend school for health reasons.
51. I cannot criticise the Council for failing to provide alternative education when Y was attending her mainstream school regularly. I acknowledge that Mr and Mrs X and Y consider that much damage was done to Y’s education and mental health during this period, but I cannot recommend a remedy where I have not made a finding of fault.
52. I cannot comment on why Y’s schools did not submit a request for statutory assessment in 2017 or 2018, the actions of schools are not within the Ombudsman’s jurisdiction.
53. I cannot consider a remedy for the period from March 2020 onwards when the Council issued a final EHC plan. Any injustice in this period arose from the Council’s decision to name School A, a school which Mr and Mrs X chose not to send Y to until the outcome of their appeal was known. The Courts have decided that the Ombudsman should not investigate and remedy the consequence of a decision where the decision itself is outside jurisdiction. I cannot therefore consider the education Y received from March to November 2020. During this period Mr Y had a right of appeal which he used, a special school place was also available to Y.
54. The Ombudsman cannot consider costs incurred as part of the appeal process. This is a matter for the Tribunal.
55. I can look at the period from the date the Council became involved when the statutory assessment request was received (March 2019), until the date the final Plan was issued (March 2020).
56. Y’s EHC assessment started in March 2019 and should have been completed by late July 2019. Failure to do so was fault. The Council has acknowledged delay.
57. The Code of Practice says if a parent requests a particular school the Council must comply with that request unless it would be unsuitable for the age, aptitude or SEN of the child or their attendance would be incompatible with the education of others, or the efficient use of resources. This applies only to maintained schools, non-maintained special schools and independent schools listed by the Government under s.41 of The Act.
58. Parents can make representations for independent specialist placements that are not s.41 listed, but the Council is not under the same conditional duty to name the school. It must have regard to the general principle that children are to be educated in accordance with their parents’ wishes, so long as this is compatible with the education of others and does not mean unreasonable public expenditure.
59. The Council is correct to say that it can lawfully issue a plan naming a type of school, or no school, and that there is a right of appeal against such a decision. Sometimes councils will do this to give itself more time to find a school place. The Council could have done so in July 2019. This would have given Mr X a right of appeal eight months earlier and it would follow that Mr X’s appeal (and the date when Y could start her new school) would have been resolved earlier. Mr X says he was not familiar with the SEN system and was not informed this was an option. The Council has acknowledged it did not communicate well with Mr Y about the timescale for finding a school or option of an earlier appeal.
60. While there was delay, which the Council has acknowledged, Y has been placed in the year below her chronological age to mitigate the impact on her education.

Social care

61. On 24 April 2019 the Council’s SEN officer wrote to social care for advice as part of the EHC assessment. The reply stated Y was not known to the service. This is not an adequate response. An EHC assessment must include an assessment of care needs (SEND Regulation 6(1)). Where a child already has a care plan, providing advice will be straightforward. Where a child is not already known to social care, the Council must identify whether they have social care needs. Sometimes it may be necessary to proceed to formal assessment to determine this.
62. In addition, section 97 of the Act introduced a duty for Councils to carry out a Parent Carer Needs Assessment (PCNA) either where it appears to the Council the parent carer may have a need for support or where a parent requests a PCNA. PCNA should be combined with any other assessments (for example CIN or EHC assessments).
63. Failure to obtain social care advice or to consider if Y or her parents required assessment was fault.
64. When social care (early help) did become involved fifteen months later unmet social care needs were identified. It is reasonable to conclude a similar finding would have been made had the assessment started fifteen months earlier.
65. The Council decided Y needed services that were available under its power to provide services to children in need under s.17 Children Act but that Y did not have needs that it was necessary to meet under s.2 CSDPA (such as the provision of a support worker or direct payments). This matter was appealed to the SEND Tribunal which decided Y was entitled to statutory short breaks under s.2 CSDPA (three hours per weekend and forty hours in school holidays).
66. The Ombudsman cannot comment on the level of support that the social care assessment identified when it was completed in 2020, because we cannot comment on matters which have been subject to a Tribunal appeal.
67. We can say that if the social care assessment had started fifteen months earlier it is likely that the outcome would have been as it was in 2020, that Y should access s.17 services. I also find that, on the balance of probabilities, if Y’s EHC plan had been issued on time then Mr Y’s appeal about social care support would have been resolved several months earlier. Y would then have accessed statutory short break weekend and holiday support sooner.

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Agreed action

68. The Council has already acknowledged the need for refresher training to ensure timely decisions in EHC assessments. It has also recognised that it needs to increase the number of special school places locally.
69. Within three months of my final decision the Council will review its training and processes to ensure that EHC assessments always consider whether there are social care needs, including whether parent carers have a need for support.
70. The Council has already apologised for the faults and delay it identified. It will also apologise for the failure to obtain social care advice, with the apology provided within four weeks of my final decision.
71. The Council offered £500 to acknowledge the delay in providing appeal rights and the time and trouble to Mr X of bringing his complaint. This is in line with the Ombudsman’s guidance for distress, uncertainty and time and trouble caused to Mr X and is appropriate.
72. I consider that a payment of £500 for distress and uncertainty should also be made to Y to acknowledge the period when she was unable to move to a special school when it is accepted this was required to meet her needs. I do not consider a further payment for loss of education is merited. I am satisfied the Tribunal has remedied this by ordering that Y repeat a year of education.
73. The payments of £500 to Mr X and £500 to Y have been agreed by the Council and will be paid within four weeks of my final decision. Payments to Y should be made into an account in her name but supervised by parents.
74. I have found Y missed out on support for a period of approximately fifteen months when she would have received support via Early Help. Also, had the appeal been brought sooner, the higher level of social care support the Tribunal ordered may have been in place up to eight months earlier. The Council will pay Y £1000 to acknowledge the loss of social care support, such payment to be made within four weeks of my final decision.
75. If there has been delay since the Tribunal in putting social care support in place, Mr Y would need to raise this as a new complaint with the Council in the first instance but could ask the Ombudsman to consider the matter if he remained dissatisfied once local resolution is complete.

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Final decision

76. I have completed my investigation. There was delay by the Council in issuing an EHC plan and in delaying appeal rights. There was also a failure to consider social care needs at the appropriate time. This caused distress, uncertainty, time and trouble and meant the family lost out on support for an extended period. I am satisfied the recommendations set out above are an appropriate remedy for the
77. 
    injustice caused.

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Investigator's decision on behalf of the Ombudsman