Summary: Ms C says the Council was at fault for taking a year and a half to process her son, X’s, application for an Education, Health and Care Plan and for other faults made during the EHCP process. She says this has caused injustice to X because he missed out on education. The Council was not at fault for delays in processing Ms C’s application. It was, though, at fault for a failure to provide information that Ms C had requested. It should take steps to improve its information management systems.

The complaint

1. The complainant, who I have called Ms C, says the Council was at fault for various faults concerning the education of her son, X. In particular, she says:
1. The Council took 74 weeks to complete the EHCP (education health and care plan) assessment process with delay throughout.
2. The Council tried to force X back into a school which couldn’t meet his needs.
3. A mediation process was not impartial
4. The Council failed to share key information with Ms C.
2. Ms C says that this has caused her and X injustice as X has not received a suitable education. She felt no choice but to withdraw X from school and home education him. She says X is entitled to free school meals which he did not receive.
3. Ms C says she would like the Council to admit they have done wrong and treat her with respect in future.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. 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.
8. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
9. 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

10. I considered all the information provided by the Council and Ms C. I wrote an enquiry letter to the Council. I then considered all the information I had gathered and applied any relevant law and guidance.
11. Ms C 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 should happen

Councils’ duties to provide education

12. Councils must provide suitable education for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. (Education Act 1996, s.19)
13. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
• The guidance says, if a child receives one-to-one provision, the hours of
  face-to-face provision could be fewer than provided in full-time education, as the provision is more concentrated.

14. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education (Statutory Guidance ‘Children Missing Education’).
15. In our Focus Report Out of Sight, Out of Mind? How councils can do more to give children out of school a good education, we made six recommendations based on examples of good practice seen. We said councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

16. Local authorities should:

• Ensure that the education the child receives is of good quality, preventing them slipping behind their peers and allowing them to reintegrate back into school as soon as possible.
• When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities. January 2013)

Education, Health and Care Plans (EHCPs)

17. The responsibility for providing support to children and young people with special educational needs (SEN) is shared between Councils and education settings.
18. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support. Children with more complex needs might need an educational health and care plan (‘EHCP’). Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
19. The EHCP is split into sections. The educational provision the child must receive is set out in section F. The school to be attended is named in section I. If a child receives an EHCP, the Council has a duty to ensure the child receives the education specified in section F.
20. Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan and amend it in accordance where appropriate, to ensure that the young person continues to receive education or training. (s.29, SEN Regulations 2014)
21. Parents’ views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local authorities, early years providers and schools should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon. At times, parents, teachers and others may have differing expectations of how a child’s needs are best met. Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained, to work through points of difference and establish what action is to be taken. (1.7 The Sen Code of Practice 2015), (“The Code”)
22. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.

EHCP time limits

23. Councils should send out a draft EHCP within 14 weeks of the request for an assessment. The final report should be issued within 20 weeks of the initial request for an assessment.
24. A council may be exempt from this time limit if it would be impractical to meet it such as:
1. Where the school, nursery or college is closed over the summer holidays.
2. The child or parents face exceptional circumstances during the 14-week period.
3. The child, parent or both are absent during the 14-week period or
4. Where a council initially refuses to carry out an assessment but the SEND Tribunal subsequently orders it to do so. The council must then either issue a decision not to assess within ten weeks or issue a draft EHCP within 14 weeks.
5. If a council carries out an EHCP needs assessment but then refuses to issue an EHCP but is then ordered to assess by the Tribunal, it must issue a draft plan within five weeks and the final plan within 11 weeks of the decision date.

Powers to improve a child’s attendance

25. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
26. The Education Act 1996 provides the following:
• section 436 of the Act requires councils to identify children not receiving an education.
• section 437(1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to demonstrate that the child is not receiving a suitable education.
• section 437(3) of the Act relates to whether the authority considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (Para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)

Safeguarding duty

27. The Elective Home Education guidance also reminds councils of their safeguarding duty to children who are not receiving a suitable full-time education. It says councils should be ready to fully exercise their safeguarding powers and duties to protect a child’s well-being, which includes their suitable education. Underlined in the Guidance it says that “A failure to provide suitable education is capable of satisfying the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm. It says when the use of safeguarding powers is justified, they should be used.
28. While recognising that each case is different, when considering whether an unsuitable education does amount to significant harm, it says a “clear-cut” example of this would be when a child was being provided with no education at all for months. It says that in such cases councils should seek the advice of educational psychologists. (Para 7.1 – 7.6, Elective Home Education, Departmental guidance for local authorities, April 2019

What happened

29. X was born in 2012. He has been diagnosed with an autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). He attended a mainstream school in the Council’s area which I have called School 1. Ms C says the school is unable to meet his needs.
30. X received full time one-to-one support from School 1 in the first term of reception but this was later reduced. When he was six, he was held back a year to repeat year 1. The evidence shows the school was concerned about X’s behaviour.
31. In July 2018, Ms C applied to the Council for an EHCP assessment for X. The Council says it wrote back to her two weeks later telling her it had refused to assess X for an EHCP. Ms C says this is not true. She says the Council, in fact, wrote to her and told her it would not begin the assessment process until September. The Council says Ms C again requested a second assessment on 4 September 2018.
32. Ms C says School 1 asked her to take X out of school in early September 2018 because it was unable to cope with his behaviour. She says he was out of school from about 6 September 2018She says she told the Council that X was not in school. She says she also contacted School 1 which said it would get in touch to arrange education for X.
33. In the event, she says the school did not contact her and refused to answer her calls and emails. This meant that X was out of school for some time and X was out of school until the end of November 2018 when he returned on a part time basis. The school initially says he was to have a part time education until February 2019 but, in January, said he had to return full time or he would have to go elsewhere.
34. The Council has provided evidence that the school wrote to Ms C in October 2018 warning her that X had not gone to school on nearly 30 occasions that term. It said that, if he did not go soon, it would refer her to the Council to be fined.
35. The Council has also provided a letter it sent to Ms C on 6 November 2018. In this letter, the Council warned Ms C that X would have to go to school. The records also show that there was a meeting between Ms C and the Council in mid-November 2018. At this meeting, Ms C agreed a reduced timetable for X. The evidence suggests that this was implemented in late November 2018.
36. Ms C says she was not electively home-educating. She was trying to get a decent education for X. She says, though that she received no contact from the school or Council until she was threatened with a fine.
37. Ms C’s appeal was heard in February 2019. The Tribunal upheld the appeal and ordered the Council to carry out an EHCP assessment.
38. The Council says it received notice of this decision on 5 March 2019 and wrote to Ms C, the school and other consultees on 13 March 2019 asking for submissions. It says it received all submissions by 14 May 2019 and issued a draft EHCP on 31 May 2019. It named School 1 on the EHCP as the named school.
39. Ms C says that X was not receiving education throughout most of this time. She made it clear from the beginning that she did not believe that School 1 could provide an adequate education for X. She did not understand why the Council continued to claim that School 1 could provide an education for X when it had failed to do so since July 2018.
40. The Council says that, on 7 June 2019, Ms C requested that the EHCP should not be finalised as she wanted amendments made to the plan.
41. On 2 July 2019, Ms C wrote to the Council saying she had written to School 1 saying X would not be attending until the EHCP had been settled. She said ‘she did not want to send X to School 1 as she wanted him to go somewhere else and said that, because he found it impossible to cope with change, he could not attend School 1. She made it clear that this she was not electing to home educate X and that this was, in her view, a temporary situation.
42. On 3 July 2019, she requested that the Council should name a local independent special school, School 2 instead of School 1 on the EHCP.
43. The Council refused this request and issued a further draft EHCP naming School 1. Ms C complained to the Council in August 2019. The Council responded on 3 September 2019 saying it would put a proposal to its funding panel. The SEN panel discussed X’s case in late September 2019 and refused to fund a place for X at School 2.
44. Ms C says she believed that X would be too anxious to attend school 1. She therefore did not send him to school but asked the Council for tutors for X when it became clear that the EHCP was not going to be finalised any time soon. She says the Council refused.
45. The Council says it worked with Ms C to try to find a way for X to receive education at School 1 and X remained on the roll at School 1.
46. The Council issued a final EHCP again naming School 1 on 1 October 2019. Ms C says she did not return X to School 1 as she remained convinced that this was not going to work.
47. Ms C subsequently asked the Council to name another school, School 3 on the EHCP. School 3 was some 25 minutes from the family home by public transport. After making the necessary enquiries in mid-October 2019.
48. Ms C subsequently asked the Council to name another school, closer to her house, School 4, on the EHCP. After asking the school about capacity, the Council arranged for X to transfer to School 4. He began attending that school in early December 2019. In January 2019, the Council issued a final EHCP naming School 4 as the designated school.

Mediation

49. Ms C and a representative of the Council, Officer O, attended a mediation session in early November 2019. The record of the mediation, which was hosted by an independent dispute resolution company, shows that the following was agreed:
1. To have a discussion with School 3 about whether they had concerns about meeting X’s needs.
2. Depending on the outcome of this discussion, to take a request to the funding panel for X to attend School 3 with transport costs.
3. The Council took a note of requests to update the EHCP
4. Ms C would continue to visit schools in her town if request for School 3 refused and report back to the Council.
5. The Council would keep Ms C informed of outcomes.
50. Ms C then found another school, School 4, that she felt would be better for X than School 1. She therefore asked the Council to name that school on the EHCP. The Council consulted with the school. The school agreed to offer X a place. He began attending in December 2019.
51. The Council issued a revised EHCP in January 2020 naming School 4 as the designated school on the EHCP. X has attended that school since then.

Complaint

52. Ms C complained to the Council in January 2021 about various matters. In particular, she said she was dissatisfied with complaint responses she had received more than a year earlier. She also said she was unhappy that the EHCP process had taken 74 weeks
53. The Council refused to look at these matters under its corporate complaints procedure saying that its policy was not to look at complaints about events which occurred more than a year earlier if the complaint could have been made earlier.

Was there fault causing injustice?

Delays in finalising the EHCP

54. The Council says Ms C requested two EHCP assessments for X in July 2018 and September 2018. Ms C says she made only one request in July. I find that Ms C is right. Ms C has shown me a letter from the Council dated 26 July 2018 in which it acknowledged receipt of her request but said it would not begin the assessment until the beginning of September 2018 when the new school year began.
55. It is fault for the Council to say that Ms C made two requests. However, Ms C believes that this fact means that the Council is therefore at fault for greater delay in preparing X’s EHCP plan. I do not support that part of her complaint. Councils are allowed, under the rules, to delay an EHCP assessment over the summer holidays as they are seen as an ‘exceptional circumstance’ which justifies delay. Therefore, while the misstatement that Ms C had made two applications was fault, it did not cause her or X any injustice. The Council was allowed to delay as it did.
56. Having received the Council’s decision not to assess X, Ms C appealed the decision to the Tribunal. The Tribunal did not hear the case until February 2019 and did not issue a decision until early March 2019. This delay was not the Council’s fault. Her appeal also reset the EHCP timer. Where an EHCP assessment is carried out because of a Tribunal order, the time limit starts from the day the order is issued. Where a Council decides not to issue an EHCP, it must issue that decision within 10 weeks. If it decides that an EHCP is necessary, it must issue that decision within 14 weeks.
57. The Tribunal decision was issued in early March. The Council says it provided Ms C with a draft EHCP by the end of May. The Council says it was two weeks late with its EHCP assessment. If it was, then this was fault but, again, I do not find that this fault caused X or Ms C any significant injustice.

Trying to make X attend school which could not meet his needs

58. The law says councils must provide education which meets a child’s special educational needs, but they are not required to provide children with ‘the best possible education’. (R v Surrey County Council obo H [1984] 83 LGR 219)
59. While Councils are required to bear in mind the views of parents and children when choosing an educational setting for a child with SEN, they are not required to provide education at the setting a parent wants.
60. For this reason, the Council was not at fault for continuing to name School 1 in Section I of X’s EHCP for as long as it did.

Failure to ensure that X was in education

61. Councils have a statutory duty under s.19 of the Education Act 1996 to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’. Councils usually expect schools to arrange off-site provision in the first instance, but the duty to provide full-time education remains with the council.
62. In order to meet this duty, the Council must either provide an alternative education or take action to pressure parents to make their children go to school through legal or other action.
63. The Council did not originally provide any evidence that it had done so and I found that it had failed in this duty and was, therefore, at fault. However, on receipt of my first draft decision, it discovered letters sent to Ms C in late 2018 which show that first the school and then the Council took action to require Ms C to take X to school. They warned her of possible fines and then met with her to arrange a personalised, limited timetable which was all that Ms C felt X would be able to cope with.
64. For that reason, I have now found that the Council complied with its duty in 2018 and is not therefore at fault.
65. The Council says that it again tried to make Ms C take X to School 1 in 2019 but found that, on this occasion, she would not do so. She had decided that X would be better off at another school. It therefore waited for her to select another school and altered the EHCP when she had found one.
66. There is an argument that the Council should have begun another Pupil Entitlement Investigation. However, on the facts as I now understand them, I do not believe I can say that the failure to do so amounted to fault.

Impartial mediation

67. Ms C says the mediation organised by the Council in November 2019 was not impartial. I have seen only a brief note of the mediation which sets out the agreements reached. I have no record of the discussions between Ms C and the Council. I can only see that the outcomes of the mediation do not seem to be one-sided. There is, therefore, not enough evidence for me to reach a view as to whether the mediation was impartial or not. I do not, therefore, uphold this part of Ms C’s complaint.

Failure to share key information

68. Ms C says that the Council failed to share key information with her. In particular, she says she asked for and did not receive:
1. The Council’s reasons for its initial refusal to assess X in October 2018,
2. The fact that it had refused to issue a plan,
3. The fact that one school said it could not meet X’s needs.
69. The Council says it has sent all the information it holds on X to me but has not provided any of this information to me nor evidence that it sent it to Ms C. I therefore find, on balance, that it is likely that it did not do so.
70. Further, after receiving my first draft decision, in which I found the Council at fault for a failure to take action to ensure that X attended school, the Council sent me further information which showed that it did take this action. It said that this information had been held in different files by another department.
71. This indicates that the Council’s does not keep adequate records. Keeping records, the Ombudsman says, is a vital part of good administration. I have made a recommendation to remedy the injustice caused and the system failure which caused it.

Failure to deal with complaint made in January 2021

72. The Council says the Council refused to deal with the complaint because it dealt with events that had occurred in 2018, three years earlier and that it had dealt with these concerns at the time.
73. It is the Ombudsman’s policy not to respond to out of time complaints, that is those made more than a year before the complaint. I do not find fault.

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Agreed action

74. Within two weeks of the date of this decision, the Council should write to Ms C and apologise for the fault found. It should pay her £100 for the time, trouble and distress caused.
75. The Council should take steps to improve its information management systems and to ensure that important information is stored in easily accessible form. It should write to the Ombudsman within two months of the date of this decision and set out what steps it has taken.

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Final decision

76. I have found the Council was at fault for a failure to share information with Ms C. The Council has agreed to my suggested remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman