Summary: Miss X complained the Council produced a draft Education, Health and Care Plan which failed to identify and meet her son’s needs. Miss X also complained the Council delayed in producing the final Education, Health and Care Plan which has prevented her from appealing to the tribunal. Miss X says the Council’s actions have caused her son to miss education due to absence from school. Miss X also says this placed a financial burden on the family due to her needing to take time off work and caused mental stress and anxiety for the family. The Ombudsman found fault with the Council for delays in production the Education, Health and Care Plan and the failure to provide alternative educational provision. The Council agreed to pay Miss X £2,700 for her son’s missed education, £300 for the delays, distress and frustration caused, finish her son’s EHC Plan and provide suitable education to her son.

The complaint

1. Miss X complained the Council produced a draft Education, Health and Care Plan which failed to identify and meet her son’s needs. Miss X says the Council failed to identify a suitable school placement to meet her son’s needs and failed to consider relevant information about her son’s needs.
2. Miss X also complained the Council delayed in producing the final Education, Health and Care Plan which has prevented her from appealing to the tribunal.
3. Miss X says the Council’s actions have caused her son to miss education due to absence from school. Miss X says this also placed a financial burden on the family due to her needing to take time off work and caused mental stress and anxiety for both the family.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Miss X and the Council provided comments on my draft decision. I considered their comments before making my final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

8. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
9. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in regulations and Government guidance.
10. A council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to a council issuing the final EHC Plan must take no more than 20 weeks. (Special Educational Needs and Disability (SEND) Regulations 2014, Section 13 (2))
11. A council must send a draft EHC Plan to a parent or the young person and give them at least 15 days to give views or provide comments on the draft EHC Plan. (Special Educational Needs and Disability code of practice: 0 to 25 years 2015, Section 9.77)
12. A final EHC Plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s Plan. The law says that councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable, and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
13. If a council names a school within an EHC Plan the school must admit the child named in the EHC Plan. (Special educational needs and disability code of practice: 0 to 25 years 2015, Section 9.83)
14. Once a council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan.

Education for children with health needs

15. Councils must “make arrangements for the provision of suitable 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.” (Education Act 1996, section 19(1))
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs she may have. (Education Act 1996, section 19(6))
17. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
18. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
20. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that 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;
• decide, based on all the evidence, whether to require attendance at school 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 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.
21. The Ombudsman’s role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We have no powers to consider the actions of schools.

Ombudsman guidance on remedies

22. We expect bodies in jurisdiction to treat people fairly and with respect, and not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case.
23. When we assess distress, we consider the complainant’s individual circumstances (such as their state of health and age). In reaching a view on remedy we will consider all the circumstances including:
• The severity of the distress.
• The length of time involved.
• The number of people affected (for example, members of the complainant’s family as well as the complainant).
• Whether the person affected is vulnerable and affected by distress more severely than most people.
• Any relevant professional opinion about the effects on any individual.
24. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.
25. The Ombudsman’s guidance for fault resulting in a loss of educational provision recommends a payment of between £200 and £600 per month to acknowledge the impact of that loss.

Situation before June 2020

26. Miss X has a son and a daughter, both primary school age. Miss X’s son, who I shall refer to as Y, was awaiting a diagnosis of Attention deficit hyperactivity disorder (ADHD) and determination of a diagnosis of Autism.
27. From September 2019, Y’s school provided Y with 32 hours of non-teaching support before his referral to the Council for an Education, Health and Care (EHC) Assessment.
28. Y’s school also referred him to a Speech and Language Therapist (SALT) for observation and assessment in February 2020.

What Happened

29. Y’s school referred Y the Council for an EHC Plan assessment on 14 February 2020. Miss X signed off on the school’s referral on 24 February 2020.
30. Y’s paediatrician diagnosed him with ADHD on 6 March 2020.
31. SALT discharged Y on 20 March 2020 and advised that Y did not need continuing input from SALT.
32. The Council agreed to complete an EHC Plan assessment on 8 April 2020.
33. The school’s Special Education Needs Co-Ordinator (SENCO) and School Nurse provided input to the EHC Plan assessment in May 2020. Y’s paediatrician provided input on 4 June 2020 and an Educational Psychologist completed an assessment of Y on 15 June 2020. All parties commented that Y needed one-to-one support for both education and safety for himself and others.
34. Y’s paediatrician wrote to the Council on 25 June 2020 to advise Y was not attending school and to provide further details for his EHC Plan assessment.
35. The Council issued Y’s draft EHC Plan on 27 July 2020 and asked Miss X for her comments.
36. Miss X provided comments on 6 August 2020. Miss X said:
• The Council fails to quantify or specify provision within the draft EHC Plan.
• Y’s school cannot meet his needs and cannot put suitable provision in place.
• The information provided shows Y needs one-to-one support not just for education, but for safety of himself and others. The Council has failed to provide this in the EHC Plan.
• Y needs further cognitive and occupational therapist assessments.
• Y needs help with personal hygiene, eating and drinking, regulating body temperature and communication which the EHC Plan fails to consider.
• Y would benefit from an SEN school and recommended a school to the Council to contact to arrange a school placement suitable for Y.
37. The Council wrote the school proposed by Miss X on 14 August 2020 and asked it to consider Y for placement so it could name the school on Y’s EHC Plan.
38. Miss X’s proposed school told the Council it would need to complete further assessment of Y through an observation of Y at the school before it could commit to a place within the EHC Plan.
39. Miss X told the Council on 24 August 2020 she would take Y back to school in September 2020 when term started. Miss X said if the issues continued, she would withdraw him from school with consent from his GP. Miss X reaffirmed her preference for the SEN school as a placement for Y.
40. Miss X complained to the Council on 31 August 2020. Miss X complained the Council’s EHC Plan was incomplete and contained inadequate information about Y’s needs and provision. Miss X again confirmed her preference for her proposed SEN school.
41. Miss X withdrew Y from school on 2 September 2020 because of concerns over his safety due to the lack of suitable one to one support. Y has not returned to school since. Y’s GP wrote to the Council about Y’s absence from school. The Council confirmed Y’s absence was authorised.
42. The Council issued an amended draft EHC Plan on 1 October 2020. The Council gave 27.5 hours of non-teaching support for Y within mainstream education as part of the proposals of support for Y.
43. The Council sent its Stage 1 response to Miss X’s complaint on 2 October 2020. The Council said it had agreed to review Y’s EHC Plan following further information from the SALT and Educational Psychology Service. The Council said it issued the changed draft EHC Plan on 1 October 2020 and was waiting on Miss X’s comments.
44. Miss X provided her response to the draft EHC Plan and the Council’s stage 1 response on 12 October 2020. Miss X said:
• The Council’s stage 1 response was inadequate and did not address her complaint.
• The new EHC Plan failed to quantify or specific provision to meet Y’s needs.
• The school currently provided 32 hours of support for Y and this was insufficient to meet Y’s needs.
• Her preferred SEN school was the most suitable placement for Y and this was her parental preference.
• The Council should finalise Y’s EHC Plan so that she could approach the tribunal.
• Y was currently not attending school and the delays from the Council were damaging his education.
45. The Council sent its Stage 2 complaint response on 5 November 2020. The Council said:
• It was continuing with Y’s EHC Plan assessment.
• It would complete a new Educational Psychology assessment for Y.
• It would review the EHC Plan to ensure it captures Miss X’s parental views.
• It will consult with Miss X’s preferred SEN school and his school as part of the EHC Plan assessment.
• It was aware Y had not returned to school and would liaise wit the school to arrange a meeting to discuss Y’s education.
46. A panel of doctors for social communication difficulties met to discuss Y and decided that Y fulfilled the criteria for Autistic Spectrum Disorder. Y’s paediatrician confirmed this with the Council on 27 November 2020.
47. The Council issued a draft EHC Plan on 12 January 2021. Miss X provided comments on this draft EHC Plan prompting the Council to issue a further draft EHC Plan on 3 February 2021.
48. Miss X asked the Council to complete the EHC Plan on 17 February 2021 and reiterated her previous concerns about the EHC Plan.
49. The Council confirmed with Miss X it had not completed the Educational Psychology reassessment, as promised in the Stage 2 complaint response, on 22 April 2021. The Council said it would arrange an urgent reassessment.
50. At the date of this draft decision, 11 May 2021, the Council has not issued a final EHC Plan.

Analysis

EHC Plan

51. Regulations say a council must decide whether to accept a request for an EHC Plan within six weeks of receiving a request. A council must also issue an EHC Plan as soon as practicable, and in any event within 20 weeks of receiving a request to assess a child. There are limited circumstances in which a council does not need to meet this deadline, but they do not apply in this case.
52. Y’s school made a request for an EHC Plan for Y on 14 February 2020. The Council had until 27 March 2020 to decide if it would agree to the request and until 3 July 2020 to complete Y’s EHC Plan.
53. The Council did not confirm it agreed to complete Y’s EHC Plan assessment until 8 April 2020. Failure to respond to confirm agreement of the EHC Plan assessment until 8 April 2020 is fault.
54. To the date of this draft decision, the Council has not completed Y’s EHC Plan. This means the Council has delayed for just under 45 weeks over the 20-week deadline in completing Y’s EHC Plan. This is fault.
55. The Council’s fault caused Miss X frustration and distress by having to chase the Council on repeated occasions for completion of Y’s EHC Plan.
56. Miss X has also consistently asked the Council to consider a particular SEN school as a placement for Y with the view to Y starting at this school in September 2020. The Ombudsman cannot question whether the Council would consider this SEN school a suitable placement for Y. However, the Council must identify a suitable school to meet Y’s needs within 20 weeks of an EHC plan request. The Council should consult parents as part of this process but ultimately a council must decide on a school it believes is suitable to meet a child’s needs.
57. Parents have a right of appeal to the Tribunal if they disagree with the school named, or lack of school named, in their child’s EHC Plan.
58. The Council’s failure to complete Y’s EHC Plan has prevented Miss X from exercising her appeal rights to the tribunal. This has delayed the potential of Y getting a placement at Miss X’s chosen SEN school through either the EHC Plan directly or on appeal to the tribunal.

Alternative provision

59. Section 19 of the Education Act 1996 states councils have a duty to make suitable educational provision for children of compulsory school age who are absent from school because of exclusion, illness or otherwise.
60. Miss X took Y out of school on 2 September 2020. Y has not returned to school since this point. The Council has confirmed it has been aware of Y’s absence from school and received a letter from Y’s GP supporting medical absence from school. The Council has confirmed Y’s absence is authorised.
61. Miss X decided to keep Y at home because of concerns about Y’s safety due to the lack of one-to-one support. While Y remained on roll at his school he was no longer attending. Since the Council did not consider that Y’s lack of attendance was unauthorised, this invoked the Council’s Section 19 duty.
62. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more. This means the Council should have put in place alternative provision for Y from 10 September 2020.
63. The Council has advised it did not provide alternative provision for Y because the offer of educational provision remained in place at Y’s school.
64. A council must consider the individual circumstance of a child when it decides how to provide education. A council must also decide whether to require attendance at school or provide suitable alternative education.
65. The Council has decided not to require Y to attend school but has provided no suitable alternative education. The Council has also not shown any consideration of Y’s individual circumstances. This is fault.
66. This fault has directly caused Y to miss any form of education since 2 September 2020.
67. Most schools have been open for Y’s age range from September 2020 through to the end of the year. Primary schools in England closed due to the Covid-19 pandemic in January 2021 before re-opening on 8 March 2021 for four weeks before the Easter Holidays.
68. The Council should have arranged alternative provision from 10 September 2020. When considering closure for holidays and the impact of Covid-19 on school closures, Y has missed 18 weeks of education up to 11 May 2021. The Council is at fault for this missed education.
69. Y’s school has also repeatedly advised the Council Y always needs constant one to one support for both his education and safety. It is unrealistic to expect Miss X to provide constant one to one educational support for Y while also working and supporting another child.
70. Given Y’s particular need of constant one to one support and the impact of Y being out of education on Y’s family, I consider a remedy of £600 per month is reflective of the Council’s failing to provide any alternative provision.

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Agreed action

71. Within one month of the Ombudsman’s final decision the Council agreed to:
• Send Miss X a completed copy of Y’s EHC Plan.
• Apologise to both Miss X and Y for the loss of education, delay and distress experienced.
• Pay Miss X £300 for the delays in completing Y’s EHC Plan and the resulting distress and frustration this caused Miss X.
• Pay Miss X £2,700 to remedy the Council’s failure to provide any alternative provision for Y and his resulting missed education. Miss X may use this as she sees fit for Y’s educational, social and mental health needs.
• Provide suitable educational provision for Y in line with its Section 19 (Education Act 1996) duties.

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Final decision

72. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman