Summary: There was fault by the Council in failing to secure suitable full-time education including provision in an Education, Health and Care (EHC) plan and during COVID-19. There was also delays in the EHC process and a flawed complaint investigation. This has led to a loss of education and caused the family unnecessary time, trouble and distress. The complaint is upheld.

The complaint

1. Ms X complains on her own behalf and on behalf of her son, whom I shall refer to as Y, that the Council:
• Failed to secure full-time education for Y in 2019 and 2020, in breach of section 19 Education Act 1996;
• Failed to secure education for Y during the first lockdown of COVID-19;
• Failed to ensure that special educational provision in Y’s Education, Health and Care (EHC) Plan was secured, in breach of section 42 of the Children and Families Act 2014;
• Delayed responding to complaints.
2. Ms X said as Y was not in education full-time she had had to abandon her degree at a cost of £12,000 lost fees and Y lost out on education. Ms X feels the Council unfairly blamed her for its delay and for Y not receiving a full-time education.

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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’. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
6. 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.
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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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How I considered this complaint

9. I have considered information provided by the Council and Ms X including:
• Y’s EHC plans and annual review documents
• Complaint correspondence including an independent stage three report
• Council minutes on stage three meeting with complainant
• Council’s policies on:
1. handling complaints;
2. children missing from education;
3. children receiving less than full-time education.
10. I have considered the relevant law and statutory guidance including:
• The Education Act 1996
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations 2014/15
• The Coronavirus Act 2020
• The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020
• Statutory guidance:
1. Children missing education
2. Education for children with health needs who cannot attend school
3. Alternative provision
4. Supporting vulnerable children and young people during COVID-19
5. Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to COVID-19.
6. Coronavirus (COVID-19) SEND risk assessment guidance
7. Education, health and care assessments and plans: guidance on temporary legislative changes relating to COVID-19.
11. I have spoken to Ms X by telephone.
12. 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.
13. Ms 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

Factual background

14. Y started secondary school in September 2018 having previously been home educated. The SEND Tribunal amended Y’s EHC plan in December 2018. The Plan provided for Y to receive 32.5 hours of one-to-one support per week and specialist interventions in a mainstream school.
15. Y started school three half-days a week as part of a gradual transition from home education. By March 2019 Y was attending 3.5 days a week. Ms X says Y developed complex mental health difficulties that affected his attendance. Ms X attributes these to a lack of support and training in school. Ms X met School staff on 17 June 2019. The School told Ms X it was struggling to support Y with engagement in lessons and learning and in managing his behaviours. Ms X and the School agreed to reduce Y’s attendance to three days a week for the rest of the school year.
16. Ms X requested an emergency review on 2 October 2019. Ms X said Y needed new educational psychology (EP) and occupational therapy assessments. Ms X complained the Council had failed to secure all the provision in the EHC plan, including training specified in the Plan.
17. The Council attended the review meeting held in November 2019. School reported Y had made limited progress, he barely attended lessons and was mostly taught one-to-one by a teaching assistant. He was far behind with his work due to low attendance and not being able to attend lessons. ‘It is a struggle to get Y to complete work or even just write in his book’. School said Y needed a personalised curriculum and it needed more specialist advice to know how to support Y.
18. Y had a referral to Child and Adolescent Mental Health Services (CAMHS) as he was experiencing ‘visions’. School said these affected Y’s capacity to engage in learning and were ‘impacting massively…he is currently only able to attend 3 days per week’.
19. The meeting minutes noted ‘Y is unable to attend school fulltime due to medical, mental health and becoming tired’. The Council was to ‘look at adjustments to EHCP to reflect current need. School to continue to support over 3 days.’
20. Ms X was attending school daily at lunchtime as without her support Y would not use the toilet all day.
21. Everyone at the review meeting agreed the EHC plan needed to be updated. Ms X requested a statutory reassessment and School agreed. The minutes state ‘Reassessment required to encapsulate any further assessments…amendment required to outcomes to reflect attendance at school and to look at provision for days he is at home’.
22. The Council issued a decision letter agreeing to amend the EHC plan on 13 December 2019. It did not issue a decision on the request for statutory reassessment.
23. On 18 December the Council had a meeting with the School to check if it was carrying out the EHC plan fully. School said it did not need more training on Y’s specific disability. The Council was satisfied ‘reasonable steps appear to have been made by the school to provide the provision in Section F of Y’s EHC plan’.
24. The Council contacted Ms X in January 2020. It asked her to provide her private EP report and an update on CAMHS input so it could amend the EHC plan.
25. Ms X made a formal complaint on 31 January that Y was only able to access three days education. Ms X did not agree School had received the right training and said Y was ‘excluded from learning’ as a result.
26. On 31 January 2020 the Council’s panel decided to carry out a statutory reassessment. A chronology provided to the Ombudsman however said the Council received a request for statutory reassessment on 24 February 2020 which it had to decide by 10 March, with the final Plan due by 31 May.
27. The Council decided not to obtain EP advice as parents provided their private EP report on 26 February.
28. The Council has a policy for children receiving less than full-time education which requires schools to submit forms to the Council. In 2019/20 Y’s School submitted forms in September, November and February confirming Y’s attendance was kept under review but remained at an agreed fifteen hours per week (across three days).
29. On 11 February 2020 the Council’s complaint response said:
• there was no evidence Y had been ‘excluded’, rather it was Ms X’s choice to withdraw Y from school two days per week;
• it could not amend the EHC plan until Ms X provided her private EP report;
• As Ms X had requested a social care and Local Authority EP assessment the Council had now decided to carry out a statutory reassessment;
• Ms X was ‘withholding’ Y from School due to her concerns about training;
• Until Y attended full-time there would be ongoing challenges in delivery of the EHC plan.
30. The Council issued a draft amended EHC plan in April. Ms X asked for Y to be educated otherwise than in school (EOTAS) using a personal budget to secure home tuition until a more suitable school placement could be identified. Ms X was one week late in providing her comments on the draft.
31. The Council said Ms X’s delay meant it would take longer to issue the final Plan. Ms X complained about delay in issuing the Plan on 1 July 2020. The Council referred to Ms X’s one week delay and said it had also issued an exemption to the usual timescales due to COVID-19.
32. On 1 September Y’s School completed a risk assessment for COVID-19. It said it was waiting for a decision on future placement, but Y had access to online learning materials during the COVID-19 ‘lockdown’.
33. The Council issued Y’s amended final Plan on 14 October 2020.
34. Ms X said Y was not offered a place in school during ‘lockdown’ and did not receive differentiated work. Despite having 32.5 hours funded teacher assistant time, he received no one-to-one support, either face-to-face or online between March and October 2020. Ms X said it was only when she involved her Member of Parliament (MP) that the Council agreed to a personal budget for EOTAS and issued the EHC plan two weeks afterwards.
35. Ms X asked for her complaint to go to stage two. Ms X was unaware the Council had met the School and asked for evidence of the training undertaken. Ms X said Y’s attendance of three days per week was not a choice and had been agreed with School due to Y’s mental health needs. Ms X said it was not possible for Y to attend full-time until he was properly supported; she had requested two days per week home tuition.
36. The Council’s stage two response upheld the stage one response and suggested mediation to resolve why Y was not attending school full-time. Ms X requested the complaint proceed to the final stage.
37. An independent stage three report was provided in December 2020. This upheld there had been poor communication by the Council with Ms X about what it had discussed with School and about the progress Y was making.
38. The investigator recommended the Council meet Ms X to:
• provide information on provision made by the school and training undertaken,
• explain how the Council would support Y moving forward including possible new placements, and
• advise whether it was willing to financially compensate her for her lost degree fees.
39. The meeting took place in May 2021. The Council acknowledged it had used the wrong complaint procedure utilising a social care model of three stages (which had led to delay) instead of the corporate complaint route. There was discussion about whether Y had received education during ‘lockdown’ and the Council said as Y had an active EHC plan he would have been recorded as ‘vulnerable’ on official returns and should have been offered a place in school. The Council said it would seek clarification from Y’s School whether this offer was made.
40. The Council also agreed the following actions:
• to request and collect evidence of reasonable adjustments and training completed by school to include:
1. Training logs
2. Ability to actively demonstrate training
3. Evidence of education offer made to Y during lockdown period and how this was differentiated for him;
• To make changes to the complaints website to make this more accessible;
• To provide guidance to Ms X on the complaint procedure and role of the Ombudsman.
41. The Council said its current view was that there had been a degree of parental choice about attending school so it could not consider financial redress.
42. Ms X told me Y has recently been diagnosed with obsessive compulsive disorder (OCD) which she considers sheds new light on the difficulties he experienced at school. Ms X told me when they got the personal budget it took a long time to find the right tutors that Y would respond to. Ms X told me Y has not received full-time education since getting the personal budget, for example currently they have had to pause tuition due to a deterioration in Y’s mental health.

Relevant Law and guidance

43. Section 19 of the Education Act 1996 says councils are responsible for the provision of suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
44. Statutory guidance ‘Alternative Provision’ says Councils should ensure children are placed in alternative education as quickly as possible. All pupils must receive full-time provision in total, whether in one setting or more, unless a pupil’s medical condition makes full-time inappropriate. Pupils should have a personalised plan with clear objectives, timescales and arrangements for monitoring progress.
45. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils are responsible for arranging suitable full-time education for pupils who because of illness or otherwise would not receive suitable education without such provision. Councils must intervene where it has reason to think the education provided by a school is not suitable, or where otherwise suitable, is not full-time or for the number of hours a child could benefit from without adversely affecting their health.
46. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
47. Under section 42 of the Children and Families Act councils are responsible for making sure that arrangements specified in an EHC plan are put in place.
48. An EHC plan must be reviewed at least every twelve months. The Council must decide within four weeks of the review meeting whether to amend the plan, cease the plan or keep the plan the same and notify the parent of its decision. If the decision is to amend the Plan, amendments should be made ‘without delay’.
49. A Council must secure a reassessment if a parent or school requests one unless it has carried out an assessment in the previous six months, or it is ‘not necessary’ to make a further assessment. It must notify the parent within fifteen days of the request and inform them of their right of appeal against a decision not to reassess. The Council can itself decide to make a reassessment at any time. The maximum timescale from the decision to reassess to the issuing of any amended final EHC plan is fourteen weeks.
50. The Government amended the SEND Regulations due to COVID-19 between 1 May and 25 September 2020 so that instead of a set timeframe, actions had to be taken as soon as reasonably practicable. This included:
• Amending an EHC plan after annual review
• Notification of decision whether it is necessary to reassess EHC provision.
• Timescales for issuing an EHC plan after an assessment or reassessment.

After 25 September the usual timescales applied.

51. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, except for children of keyworkers or pupils deemed ‘vulnerable’. The Government asked councils to carry out risk assessments to decide whether children with an EHC plan should stay at home or go to school. Councils and settings should decide together who was better placed to undertake the risk assessment. In March the balance was whether the child was safer in school than at home, from June this changed to whether they were equally as safe in school as at home. The risk assessment should take account of the views of parents and pupils and balance health risks with the risks of not receiving parts of the EHC plan.
52. On 1 May 2020 the Secretary of State changed the absolute duty of councils to secure special educational provision in an EHC Plan (s.42 Children and Families Act) to one of using reasonable endeavours to do so. This was a temporary change from 1 May to 31 July. Councils had to consider for each child with an EHC plan what they could reasonably provide in the circumstances. Guidance set out examples of alternative arrangements councils could consider including the use of personal budgets. A council was to keep a record of the provision it had decided to arrange or secure, confirm this with parents and keep the provision under review.

Analysis

Amendment of EHC plan

53. The Council’s decision after the November 2019 review meeting was to amend the Plan, not carry out a reassessment. Amendments to the Plan should have bene made ‘without delay’. A draft amended Plan was not produced until April 2020. The reason for delay was that the Council did not have enough evidence to amend the Plan and was relying on Ms X obtaining this privately or via new assessments. This is fault. It was for the Council to seek the evidence it needed to amend the Plan, not the parent. This should have happened in November.
54. The delay in amending the Plan delayed Ms X’s right of appeal for a different placement.
55. I am not persuaded Ms X’s one week delay in returning her comments on the draft EHC plan in April 2020 contributed to the long delay converting the draft to a final Plan. Timescales for amending EHC plans did not change until 1 May 2020, after Ms X had provided her comments. After May 2020 the Council had to amend the Plan as soon as was reasonably practicable. Even allowing for COVID-19, it should not have taken six months to convert a draft plan to a final plan especially when Y needed to know what placement he would be attending in September.

Statutory reassessment

56. The Council failed to respond to the request from Ms X and School for a reassessment. It should have responded to this request within fifteen days providing a right of appeal against any refusal. The failure to do so was fault and delayed Ms X’s appeal rights for eleven months.
57. The Council decided to carry out the reassessment on 31 January, not as its chronology document says on 24 February 2020. It did so on its own initiative, not in response to the earlier request, because Ms X’s private report and other assessments were not yet available. As the Council agreed this evidence was needed it should have requested it in November 2019 and agreed the reassessment at that time.
58. I find the statutory reassessment should have started in November 2019 and been completed within fourteen weeks, by February 2020. This would have been before COVID-19 affected timescales. The reassessment was not completed until October 2020, this is fault.

Complaint handling

59. The Council has acknowledged it provided confusing information about the complaint process and it should have used the corporate process. This would have provided a quicker route to the Ombudsman after stage two.
60. The stage three investigator found poor communication by the Council with Ms X as it did not tell her what information it had obtained from School about implementation of the EHC plan. The investigator recommended the Council met Ms X to provide further explanation, which it did in May 2021. At this meeting the Council acknowledged Ms X had concerns about the training and would seek evidence from the school. I agree with the stage three investigator the Council should have sought this evidence when it first received Ms X’s complaint in October 2019.
61. I find the Council’s complaint investigations at stage one and two were flawed. The Council found Y’s EHC plan was being implemented, School had had sufficient training, Y could attend School full-time, and it was Ms X’s choice to ‘withhold’ him from School. The Council ignored evidence which contradicted these findings for example:
• School considered it needed more specialist advice to know how to support Y, which does imply a training need;
• Y was barely engaged in any learning when in school;
• Y had been referred to CAMHS for ‘visions’ which ‘massively’ affected his ability to learn and attend school;
• Y’s absence was authorised on health grounds, not unauthorised and the School agreed he should only attend three days;
• Ms X had requested two days per week home tuition.

The failure to carry out a thorough complaint investigation considering all the evidence was fault.

62. At the May 2021 meeting, the Council promised to obtain specific evidence from School and provide it to Ms X. This has not happened. Ms X told me she has not received a copy of the meeting minutes, seen the list of agreed actions, or heard from the Council since May 2021. I find the Council has failed to implement the actions it agreed in May 2021, this is fault.

Failure to secure special educational (Section F) provision in an EHC plan

63. When Ms X complained to the Council in Autumn 2019 that provision was not fully in place the Council correctly met with the school to investigate. The Council’s complaint response said it was satisfied provision was in place and relevant training had been completed. However, its actual view was less definitive as it had recorded ‘reasonable steps appear to have been made by the school to provide the provision in Section F of Y’s EHC plan’
64. The stage three investigator criticised the Council had not shared information with Ms X about its meeting with the school or produced any evidence to support its findings, for example training logs. The investigator recommended the Council provide this information to Ms X. The Council was unable to evidence when it met Ms X in May 2021 how it had reached the view the EHC plan was being implemented. This casts doubt on the Council’s earlier assessment and complaint response.
65. There is not enough evidence to know whether the EHC plan was being fully implemented by Y’s School. It is apparent he was not learning in that environment in Autumn 2019. This could have been because provision was not in place, or because it was the wrong type of placement. That the School was clearly struggling to meet Y’s needs in Autumn 2019, and he was not attending full-time, should have prompted a faster response from the Council in seeking external advice from professionals, as School and Ms X had requested at annual review.

Failure to provide suitable full-time education in breach of s.19 Education Act 1996

66. Y’s attendance increased until Spring 2019 when School and Ms X agreed it should reduce to three days a week for the rest of that school year due to deterioration in his mental health.
67. When Y’s part-time timetable continued in September 2019, the Council failed to consider if it needed to make Y’s education full-time, or up to the maximum number of hours Y could benefit from without adversely affecting his health. This was fault.
68. The Council failed to respond to Ms X’s request for two days tuition, this was fault.
69. I have not seen evidence the Council obtained medical advice to establish how much education Y was able to manage either in a school setting or in total. This was fault. The School records indicate the offer of education to Y remained at fifteen hours throughout 2019/20.
70. I do acknowledge that since Y has had a personal budget there have been interruptions in his home tuition due to fluctuations in his mental health and Y may not have consistently accessed full-time education in any event.

Failure to provide education during COVID-19

71. When schools and colleges closed in March 2020, councils were asked by the Government to carry out a risk assessment (with schools) for children who had an EHC plan to determine whether they should attend an educational setting. Councils also had to work with families and settings to consider how much of the provision in an EHC plan could be secured, and whether alternative arrangements needed to be made to secure provision where this could not happen in a school. Councils had to keep the provision under review for each child with an EHC plan.
72. At the Council’s meeting with Ms X in May 2021 it said:
• Y’s School should have offered him a place in school during the COVID-19 ‘lockdown’ period, and
• It would seek evidence from school about whether the School did so and what provision was made available to Y during COVID-19.
73. That the Council did not have this information in May 2021 indicates the Council did not know whether a risk assessment had been completed for Y in March or June 2020. This is fault. The Council should also have had its own record of what provision had been secured for Y as it should have been using its ‘reasonable endeavours’ to ensure Y could access as much of the provision in his EHC plan as possible.
74. There is no evidence the Council considered what education or elements of the EHC plan it could reasonably provide to Y during COVID-19. This is fault.

Injustice

75. Ms X’s right of appeal was delayed by eleven months. This delayed Y’s ability to move to a different placement that may have met his needs better.
76. Y did not receive full-time education from September 2018 to October 2020. The Council should have intervened no later than October / November 2019 when Ms X complained about the part-time timetable and considered supplementing the education Y was able to access in school.
77. If the Council had completed the statutory reassessment by February 2020, then, on the balance of probabilities, Y would have stopped attending school at that time and had a personal budget for tuition, as he does currently. Potentially Y could have used his personal budget during COVID-19 to secure online tuition.
78. The Council also failed to consider what education it could secure for Y during COVID-19. The Council considers Y should have been offered a place in School. Even if the School did not agree, then the Council should still have considered whether online resources and work sent home met Y’s needs or if other arrangements, such as online tuition could have been put in place.
79. Given the pattern of Y’s attendance and mental health, including since he has had his personal budget, he may not always have been able to access five days education even if alternative education was provided. It is also too speculative to say Ms X would been able to complete her degree studies. Y would have been at home between two and five days in any event. I do find Ms X has been required to provide more care and support to Y than if home tuition had been provided sooner.
80. Ms X has been put to significant time and trouble pursuing her complaint over an eighteen month period.
81. I find the Council did unfairly blame Ms X for its delay and for Y not attending school due to her views on training, which caused her distress. The picture was more complex than the Council’s complaint responses acknowledged.
82. Delays in the process to update the EHC plan caused Ms X and Y distress and uncertainty about what placement Y would be attending in September 2020.

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Agreed action

Within four weeks of my final decision:

83. The Council will apologise to Ms X and Y for the additional fault I have identified in this investigation.
84. The Council will make the following financial payments:
• £1000 to Ms X to acknowledge her additional care, her time and trouble and the distress and uncertainty caused.
• £1000 to Y to acknowledge that but for the fault, on the balance of probabilities, Y would have accessed more education between Autumn 2019 and Autumn 2020 than he did. The payment should be made to an account in Y’s name, but over which parents have supervision.
85. The Council will complete the actions it agreed at the stage three meeting in May 2021.

Within twelve weeks of my final decision

86. The Council appears to have relevant policies in place, for example for Schools to report when children are not attending school full-time but still failed to take appropriate action in Y’s case. It is unclear why. The Council should undertake a review to see what lessons can be learned from Y’s case. This should include:
• An understanding of why alternative education was not considered or offered
• An understanding of why the request for reassessment was not responded to
• An understanding of why the special educational needs officers did not consider it their responsibility to seek evidence to allow them to amend the EHC plan, but placed this expectation on Ms X
• An understanding of why risk assessments were not carried out by the Council during COVID-19 for a pupil with an EHC plan
• An understanding of why two complaint officers failed to consider evidence that contradicted their findings that Ms X was to blame for delay and for Y missing education
• Consideration of whether staff require refresher training or guidance to prevent a recurrence of the faults identified in this case.

The Council should provide a report of its findings and the steps it intends to take to prevent a recurrence of the faults listed above to the Ombudsman.

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Final decision

87. I have completed my investigation. There was fault by the Council in failing to secure suitable full-time education including provision in an EHC plan, delays in the EHC process, and a flawed complaint investigation. This has led to a loss of education and caused the family unnecessary time, trouble and distress. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman