Summary: Mrs X complains the Council delayed in issuing the final Education, Health and Care (ECH) plan for her son. She also complains the Council failed to provide suitable full-time education for her son after she stopped home education. We find fault with the Council. We have made recommendations.

The complaint

1. Mrs X complains the Council delayed in issuing the final Education, Health and Care (EHC) plan for her son. She also complains the Council failed to provide suitable full-time education for her son after she stopped home education in January 2020. Mrs X says the Council’s actions caused her son to become stressed, panicked, anxious and angry due to the uncertainty over his education. She also says she was caused distress and time and trouble at having to chase the Council.

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The Ombudsman’s role and powers

2. 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

3. I spoke with Mrs X and considered the information she provided.
4. I made enquiries with the Council and considered the information it provided.
5. I sent a draft decision to Mrs X and the Council and considered their comments.
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 this decision with Ofsted.

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What I found

Alternative provision

7. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
8. Statutory guidance, ‘Alternative Provision’ notes local authorities are responsible for arranging suitable full-time education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such provision. This 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.

Education, Health and Care plans

9. A child with special educational needs may have an Education, Health, and Care (EHC) plan, following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. The guidance says the whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply. If exceptions apply, the local authority must inform the child’s parents so they are aware of, and understand, the reason for any delays.

What happened

12. Mrs X was home educating her son, Y. At the end of August 2019, Mrs X asked the Council to complete a EHC needs assessment for Y.
13. The Council told Mrs X it had agreed to complete the assessment at the end of September 2019.
14. In October 2019, Mrs X asked the Council to seek an assessment from a Speech and Language Therapist (SALT) and an Occupational Therapist (OT). The Council made a referral to both in October 2019.
15. At the end of October 2019, the National Health Service (NHS) told the Council it would not progress the referral as it could not work with children educated at home by parents.
16. In January 2020, Mrs X told the Council she could not longer home educate Y. She asked the Council to provide alternative education and asked for a tutor as she believed Y would refuse temporary schooling outside of the home.
17. The Council consulted with two schools, School A and School B in January 2020. The Council said School A did not respond to the consultation, but it was aware the school was at capacity.
18. In February 2020, Mrs X provided the Council with a private SALT report.
19. In March 2020, the Council consulted with another school, school C. School C asked to observe Y in their school setting.
20. In April 2020, Mrs X confirmed she wanted the Council to name School B in Y’s EHC plan. Mrs X also asked the Council to again provide a tutor for Y until he starts school in September.
21. In June 2020, the Council issued Y’s final EHC plan. The final plan named School B as his placement from September 2020.
22. At the end of June 2020, the Council arranged for Y to receive home tuition.
23. Mrs X complained about the delay in finalising Y’s EHC plan and about the Council not providing education other than at school. The Council acknowledged fault with the delay in finalising Y’s EHC plan. The Council offered to pay for the private SALT assessment Mrs X paid for.
24. In response to our enquiries, the Council confirmed it accepted fault for the delay in issuing the final EHC plan. The Council said there was a delay of around five months.
25. The Council also said it believed there were some mitigating circumstances as the delay was partly due to:
• The NHS telling the Council it was not able to provide Y with a SALT assessment.
• Officers decided to hold back the final plan as Mrs X wanted private OT and SALT reports to be included within the plan.
• Ongoing discussions were taking place concerning Y’s longer-term placement.
• Disruption caused by the Covid-19 pandemic.
26. The Council highlighted that its officers were well intentioned and prioritised the achievement of a good quality EHC plan, rather than a timely but poor-quality plan.
27. The Council also accepted fault for not providing suitable education for Y once Mrs X told it she was no longer educating him at home. The Council accepts this service failure continued until home tuition was arranged for the end of June 2020.
28. The Council offered the following remedy:
• Apology to Mrs X for the failure to meet the timescale for issuing the final EHC plan, for the delay in starting the services specified in the EHC plan, and for failing to ensure a timely educational provision.
• A financial payment of £700 to recognise the injustice caused by the delay in issuing the EHC plan.
• A financial payment of £3300 (to be used for educational purposes for Y) to recognise the injustice caused by not providing suitable full-time education. The Council said the total period where Y had no education was five and a half months. As a goodwill gesture, the Council has not taken into account the 15 days allowed for a local authority to arrange the provision, the school holidays, and the period where schools were closed due to the Covid-19 pandemic. The Council said it considered the Ombudsman’s guidance on remedies which recommends a payment between £200 and £600 a month. The Council said it applied the maximum amount of £600.
• A financial payment of £200 to recognise the time and trouble Mrs X had taken to pursue her complaint.
29. The Council also explained it had made improvements to its systems and had set up cross-departmental task groups for elective home education and children missing from education. The Council said it would also have a learning review session with an independent reviewer to identify any further improvements needed regarding children missing from education.

Analysis

30. The Council has accepted fault for the delay in issuing Y’s final EHC plan. The evidence does show the Council did not meet the statutory timescale of 20 weeks to issue the final EHC plan.
31. The Council has also accepted fault for not providing Y with a suitable education after Mrs X told it she was no longer home educating him in January 2020. I welcome the Council’s recognition that it failed to take proper account of its duties under section 19 of the Education Act 1996.
32. I agree with the Council’s view the faults identified caused Mrs X and Y an injustice.
33. I have considered the Council’s remedy offer and am of the view the offer is appropriate. I also note the offer is likely to have been higher than what I would have recommended due to the Council not taking into the account the school holidays and the 15 days allowed to arrange a provision.

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Agreed actions

34. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mrs X for the failure to meet the timescale for issuing the final EHC plan, for the delay in starting the services specified in the EHC plan, and for failing to ensure a timely educational provision.
• A financial payment of £700 to recognise the injustice caused by the delay in issuing the EHC plan.
• A financial payment of £3300 (to be used for educational purposes for Y) to recognise the injustice caused by not providing suitable full-time education. The Council said the total period where Y had no education was five and a half months. As a goodwill gesture, the Council has not taken into account the 15 days allowed for a local authority to arrange the provision, the school holidays, and the period where schools were closed due to the Covid-19 pandemic. The Council said it considered the Ombudsman’s guidance on remedies which recommends a payment between £200 and £600 a month. The Council said it applied the maximum amount of £600.
• A financial payment of £200 to recognise the time and trouble Mrs X had taken to pursue her complaint.
35. The Council should complete the above within four weeks of the final decision.
36. Within four months of the final decision, the Council will provide the Ombudsman with the outcome of its learning review.

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Final decision

37. I find fault with the Council for the delay in issuing the final EHC plan and for failing to provide Y with suitable education between January 2020 and June 2020. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman