Summary: Miss X complained about how the Council prepared and issued Z’s Education, Health and Care plan. The Council delayed in issuing the plan and failed to put alternative provision in place when it was aware Z was out of education. This caused Miss X avoidable frustration and meant Y was without suitable education for seven months. The Council has agreed to apologise, make a payment to Miss X and makes service improvements to prevent the fault occurring again.

The complaint

1. Miss X complained about issues with how the Council prepared and issued her daughter Z’s Education, Health and Care (EHC) plan. Specifically, Miss X complained the Council:
• did not seek relevant information in its EHC assessment and made Miss X gather it herself;
• delayed in issuing Z’s EHC plan;
• failed to offer Z suitable alternative provision when she was out of education; and
• delayed in responding to her complaints.
2. Miss X said this was stressful for her and Z and negatively affected Z’s development.

Back to top

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. 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)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

EHC assessments and plans

9. The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code). One of the ways to meet the needs of children with SEN is to issue an Education, Health and Care (EHC) plan.
10. When a parent or young person requests an EHC assessment, the council must decide whether an assessment is necessary. It has six weeks to do this.
11. In an assessment, councils will consider what provision is needed to meet the child’s special needs, including what type of school or institution the child should attend. They must request information and advice from certain people. This includes:
• the parent or young person;
• the school;
• healthcare professionals with a role in relation to the child’s health;
• an educational psychologist;
• their social care departments;
• any person the parent requests as long as the council decides it reasonable to do so;
• any person, such as a speech and language therapist (SALT), the parent requests if the council decides it reasonable to do so. For example, a request may be reasonable if the child is already on a waiting list for an assessment.
12. If an assessment finds the child has a need for special educational provision, the council must prepare a draft Education, Health and Care (EHC) plan. The council must give the parent or young person at least fifteen calendar days to comment on the draft and express a preference for a school. The council must then consult with the requested school and other schools before naming them in the final EHC plan.
13. The council must name the requested school unless:
• the school would be unsuitable for the age, ability, aptitude or SEN of the child; or
• admitting the child to that school would be incompatible with the efficient education of others or the efficient use of resources.
14. In normal circumstances, the whole process from the date the parent or young person requests an assessment, to the date the council issues a final EHC plan must take no more than 20 weeks. From 1 May to 25 September 2020, the government replaced that timescale with a requirement to complete the process ‘as soon as reasonably practicable’, where the council's services were affected by the COVID-19 pandemic.
15. The SEND Tribunal is a tribunal that considers special educational needs and disability discrimination. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents can only appeal once the Council issues the final EHC plan.

Alternative provision

17. The Education Act 1996 (section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who would not receive a suitable education because of illness or other reasons.
18. Councils should arrange provision as soon as it is clear a child will be absent for health reasons for more than 15 days, whether consecutive or cumulative.
19. 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. It should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. Government guidance states that part-time one-to-one tuition can count as full-time because it is more intensive.

Complaints

20. The Council has a two stage complaints procedure. It says it will respond within 20 working days unless the issue is particularly complex.

What happened

21. Miss X asked the Council to assess Z for an EHC plan in late February 2020. She said Z met the Council's criteria for dyslexia, had ADHD, considerable anxiety and a disorder affecting her mobility. Ms X did not provide any copies of Z’s diagnoses.
22. The Council began considering whether to begin an assessment the following day. It contacted Z’s school (School A) for information in mid-March. School A noted Z’s attendance was around 50%. Miss X says that after classes moved online due to the COVID-19 pandemic, Z’s anxiety prevented her attending.
23. In early April, the Council made its decision to carry out an EHC assessment. In late July, the Council decided to issue Z an EHC plan and sent Ms X the draft plan. The Council told me the delay in issuing the draft plan was because it only received information from the education psychologist a week earlier. It asked Miss X to confirm what schools she wanted it to consult.
24. Throughout August Miss X emailed the Council. She said:
• she was unhappy with the content of the draft because it did not include Z’s diagnoses of dyslexia and ADHD;
• School A had originally found Z was at ‘low risk’ for dyslexia but a full assessment by the Council's Specialist Teaching and Learning Service (STLS) found she met the Kent criteria for dyslexia. She wanted the EHC plan to reflect that;
• she wanted the Council to arrange a Speech and Language (SALT) assessment and was unhappy it had not already done so; and
• she wanted the Council to consult with School B, an independent specialist school.
25. The Council responded to say:
• it could only include diagnoses for which it had formal evidence. It added Z’s diagnosis of ADHD after Miss X sent it a diagnosis letter in early August.
• the STLS report Miss X wanted it to use relied on School A’s assessment that Z was at ‘low risk’ for dyslexia; the service had not re-screened Z for the condition. Therefore, the information in the service’s report was not different from that provided by School A. It accepted that Z being ‘low risk’ still meant she met the Council’s criteria for dyslexia and so would add it to the EHC plan; and
• it would not seek a SALT assessment as that was not its role. It said she could seek an assessment herself, which it could consider in a review.
26. In early August, Miss X remained unhappy and asked for a meeting with a manager. She felt Z’s caseworker had not made the changes to the EHC plan she wanted. Z’s caseworker did not respond to Miss X’s request.
27. The Council sent the draft EHC plan to School B in mid-August. School B responded to say it did not have space to accept Z shortly after. The Council accepts that as School B could not accept Z, it should have named School A or a different school and issued the final EHC plan.
28. Miss X complained in mid-August. She said the Council had not sought appropriate information as part of its EHC assessment. She wanted it to contact two specialists for information on Z’s dyslexia and ADHD and get a SALT assessment. A few days later, Miss X also told the Council she was unhappy it had sent the draft EHC plan to schools.
29. In late August, Miss X had a telephone meeting a manager from the Council. The Council says Miss X told it she did not want to appeal to SEND and would prefer the Council amend the draft instead. She also wanted to speak to School A to discuss her concerns about its support for Z. She asked the Council to delay issuing the final EHC plan until the end of September to give her time to visit potential schools and for those schools to respond to the consultations.
30. Following the meeting, the Council sent Miss X an updated draft EHC plan in late August. The plan included the diagnoses of ADHD and that Z met the criteria for dyslexia. The only difference to Z’s educational provision was that it now included that the school should offer alternative pens/pencils, a writing slope and rose pink overlay. The Council said it would send the new draft EHC plan to a number of schools, including School B to see if it now had space. It also confirmed Miss X understood that if it could not find a school place for Z in time for the 2020/2021 school year, Z may have to stay in School A for the year. The Council has told me it accepts its attempts to resolve Miss X’s concerns with the draft plan was not in accordance with the Code and caused a delay in issuing the final plan.
31. From September, Miss X, School A and the Council made efforts to support Z to return to class for the 2020/2021 year.
32. In early November, the Council sent the consultations to the schools. It accepts it was at fault for not doing so in late August, when it told Miss X it would.
33. School A’s efforts to help Z attend school were not successful and in late November, it said it could not offer any further support. The Council therefore decided to issue Z’s final EHC plan, which it did in mid-December 2020. The plan named a ‘specialist setting’ but did not name a particular school.
34. The following day, the Council made a referral to a tutoring service to give Z online classes. The referral shows the Council intended to offer Z two hours of one-to-one tuition per day with the intention of building to three to four hours per day. The tuition began in early January 2021. The Council told me it accepts it should have arranged alternative provision sooner and offered to make a payment of £2100 to remedy the injustice caused by its failure to do so from April to December 2020.
35. In late January 2021, the Council responded to Miss X’s stage one complaint. It said:
• it was satisfied it had sought appropriate information to produce Z’s EHC plan;
• it had not felt a SALT assessment was necessary;
• Miss X had agreed to delay issuing the EHCP until the end of September to allow her to consult with School B. The COVID-19 pandemic had prevented Z attending taster days but it understood Z would soon attend a virtual session; and
• it had decided to issue the final EHC plan naming a specialist school. It would continue to offer tuition until it had arranged a placement.
36. Miss X responded in early February to ask for a stage two response. She said she had just asked the Council to name School B and it had not done anything. She said Z had been out of education since March 2020 and had only just started online tuition.
37. In mid-February 2021, the Council's Funding and Independent Schools Placement Panel considered whether to name School B in Z’s EHC plan. It decided to check whether another school would accept Z before naming School B. It did this because School B was more expensive.
38. In early March the Panel heard that the other school would not accept Z so it agreed to name School B in Z’s EHC plan. The Council issued the amended EHC plan in mid-March 2021. It named School B starting in September 2021.
39. The Council sent Ms X its stage two response in late April. It apologised for the delay in responding. It said:
• it was disappointing Miss X had not been able to meet with staff to discuss her concerns with the draft EHC plan. It felt this would have avoided the delay in issuing the final plan;
• it would use Miss X’s experience to train staff on how to ensure parental views were included in EHC plans and avoid delay; and
• it had to consider School B at the Panel because it was independent but there was still time to arrange Z’s transition to School A.
40. In answer to my enquiries, the Council accepted the complaint responses took too long and that it failed to keep Miss X updated. It said it had raised the issue with the responsible staff and that it had an escalation procedure for when complaints were delayed.
41. Miss X remained unhappy and complained to the Ombudsman. She said the Council had not taken responsibility for its actions and that she felt the two hours of tutoring Z had per day was not sufficient. She was unhappy the Panel recommended checking with another school before the Council named School A. She said this further delayed the final plan.

Findings

EHC assessment and plan

42. The Council made its decision to assess and issue Z with an EHC plan in line with the statutory guidance. There was a delay in issuing the draft plan because the educational psychologist did not send their report until late July. Given the impact of the COVID-19 pandemic at this time, I do not consider this delay amounts to fault.
43. After the Council issued the draft EHC plan in August 2020, Miss X became aware it did not include Z’s diagnosis of ADHD and that she met the criteria for dyslexia. She was unhappy the Council asked her to provide evidence of Z’s diagnoses instead of seeking the information itself. The Council is only required to seek advice and information from the individuals set out in the Code. It was not fault for the Council to expect Miss X to send it other information she wanted it to consider, including evidence of Z’s diagnoses.
44. The Code says that councils must make its officers available for a meeting on request to discuss the contents of a draft EHC plan. In early August, Miss X expressed her discontent with the plan and asked for a meeting. The Council has accepted it was at fault for not arranging a meeting between Miss X and staff when she asked for it. This caused Miss X frustration. The Council has taken suitable action to prevent the fault occurring again by carrying out staff training.
45. The Council also failed to respond appropriately to Miss X’s August 2020 requests for it to seek further information. It refused to seek a SALT assessment because it said that was not its role. It also did not respond to Miss X’s request for it to speak to two professionals about Z’s ADHD and dyslexia. The regulations state that where a parent asks the Council to contact a person for advice or information, it must do so where that request is reasonable. The Council's failure to explain its reasons for not seeking the information Miss X asked for was fault and also caused her avoidable frustration. However, in August and in its complaint response, the Council confirmed to Miss X that it was satisfied it had sufficient information to issue Z’s final EHC plan. Ultimately, the Council issued the plan with Miss X’s amendments without seeking more information.
46. Miss X asked the Council to consult with School B in early August. It did so and by late August School B confirmed it could not accept Z. The Council accepts it was at fault because at that point, it should have issued Z’s final EHC plan naming School A or another school. The failure to issue a final plan then was fault. Instead, it continued to communicate with Miss X about her concerns with the plan, issued a new draft plan and agreed to consult with more schools in late August. The Council did not send the consultations until November. This was also fault. The faults delayed Miss X’s right of appeal and caused her avoidable frustration.
47. However, I note that the Council agreed to amend the plan and carry out further consultations because Miss X was keen to avoid an appeal. Further, if the Council had acted without fault and Miss X appealed, it is unlikely she would have received the outcome of her appeal until spring 2021. This is around the time Council issued the final EHC plan which named Miss X’s choice of School B in March 2021.

Consultations with schools

48. Miss X is unhappy the Council sent the draft EHC plan to School B in August 2020. She said it was not representative of Z’s needs. The Council is required to consult with a school before issuing a final plan naming that school. It is standard practice to use the draft plan as part of the consultation. The Council was not at fault.
49. Miss X feels the Council should not have held the Independent Placement Panel in early 2021 after she confirmed she wanted Z to attend School B. School B is an independent school. Given the costs entailed in naming independent schools, the Council uses the Panel to consider whether naming those schools would be incompatible with the efficient use of resources. In Z’s case, the Council decided to see if another school could meet their needs at a lower cost. The Council was entitled to do this; it was not at fault. In any event, the Council named School B in Z’s March 2021 plan. The plan was in place well in advance of Z’s move to the school in September 2021.

Alternative provision

50. The report the Council received from School A as part of its EHC assessment was clear that Z’s attendance was significantly reduced, and she was not receiving a suitable education. This should have triggered action from the Council to put alternative provision in place. It has accepted it failed to do this until January 2021. I consider the Council's offer of £2100 to be a suitable remedy, in line with the Ombudsman's Guidance of Remedies. The offer was based on £300 per month for 7 months, after adjusting for school holidays. In deciding this level of payment was appropriate, I have taken into account Z’s SEN, the fact she was not at a key transition point in her education, the support that was provided by the school, and also the fact that most children were out of school for several months during 2020, as a result of the COVID-19 pandemic and were receiving education online.
51. Guidance states one to one tuition is more intensive than that in a classroom so fewer hours are needed. The Council offers two hours at first, building up to more hours if a child can cope. I am satisfied the Council's offer is suitable. While Miss X was unhappy the tuition did not give Z the ability to improve her social skills, it was appropriate provision given Z was unable to attend School A in the 2020/2021 school year.

Complaint handling

52. Miss X raised her stage one complaint in mid-August 2020 and the Council did not respond until late-January 2021, more than five months later. She asked for a stage two response in early February and the Council responded in late April, over two months later. The Council has accepted this delay was fault. It caused Miss X avoidable frustration. The Council has taken suitable action by raising the delay with the staff responsible.

Back to top

Agreed actions

53. Within one month of the date of my final decision, the Council will:
• apologise to Miss X for the frustration caused by the faults identified in this decision. It will also apologise to Z for the impact of its failure to put alternative provision in place;
• pay Miss X £150 in recognition of the frustration she experienced due to the fault by the Council; and
• pay Miss X £2100 for Z’s educational benefit to recognise the impact of the loss of education on them.
54. Within three months of the date of my final decision the Council will:
• remind staff they are able to seek new assessments if they feel it is necessary to write a child’s EHC plan.
• remind staff they must send consultations to schools without delay; and
• remind staff that when they become aware a child may not be receiving a suitable education due to ill health, they should promptly consider if the Council should put alternative provision in place.

Back to top

Final decision

55. I have completed my investigation. I have found evidence of fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman