Summary: The complainant alleged that the Council delayed in preparing her son’s Education, Health and Care Plan and, as a result, he missed out on receiving a suitable education and support. The Council has accepted there was an avoidable delay. We have recommended an improved remedy for the injustice caused to the family, which the Council has accepted. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council had:

1. failed to provide appropriate education to her son, Child B, during the assessment of his special educational needs (SEN) between October 2019 and June 2021;
2. failed to commission appropriate SEN assessments during the Education, Health and Care (EHC) planning process, in particular speech and language (SALT), occupational therapy (OT) and physiotherapy assessments;
3. delayed in completing Child B’s EHC Plan (October 2019 to November 2020);
4. failed to take proper account of the medical information provided and that the Council said that such advice has to ‘support the entirety of the advice’ received, without explaining what it meant;
5. that the Educational Psychologist’s report disregarded important medical advice and recommended a school placement, despite the medical information suggesting Child B was unfit to attend school;
6. failed to recognise that the appointed tutors were unable (in November 2020) to meet Child B’s medical needs and therefore could not provide interim education; and
7. the Council’s complaint responses were inadequate because they did not consider all the facts properly or consider the adverse impact of the Council’s actions.

2. Mrs X says that the Council’s actions have caused avoidable distress and frustration and Child B has also lost out on receiving suitable education and therapies.

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What I have investigated

3. I have investigated events between October 2019, when the Council received a request for a statutory assessment, to June 2021 when the Special Educational Needs and Disability (SEND) Tribunal upheld Mrs X’s appeal.
4. I have not investigated complaints (2), (4) and (5) for the reasons set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

5. 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)
6. We cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

11. The Council has investigated Mrs X’s complaints under its three stage complaints process.
12. At the final stage of the Council’s complaint process, it upheld Mrs X’s complaint about its delay in completing Child B’s EHC Plan and it offered a remedy for the injustice caused covering the period of March 2020 (when the Council said the final EHC Plan should have been issued) to June 2021. Mrs X considered the remedy offered was inadequate and did not reflect the avoidable distress and adverse impact caused by the Council’s actions.
13. The Council did not uphold other aspects of the complaint.
14. I made enquiries of the Council, and Mrs X has provided further information in response. I have spoken to her on the telephone.
15. Mrs X received a final EHC Plan in November 2020. The Council considered a special mainstream school was appropriate.
16. Mrs X considered it was not safe for Child B to be in a school setting and requested ‘Education Than Otherwise At School’ (EOTAS). In November 2020. Mrs X had a right of appeal to the SEND Tribunal, which she exercised.
17. The Council accepted that Child B was medically unfit to attend school and therefore it agreed to provide alternative education at home.
18. I have investigated events from November 2020 to June 2021 (the Tribunal appeal period) because, on receipt of Mrs X’s appeal, the Council agreed to provide home tuition pending the Tribunal decision, because it accepted Child B was medically unfit to attend school. It therefore had a duty to provide this.
19. The Council has agreed to the scope of this investigation.
20. I issued a draft decision statement to the Council and to Mrs X and I have taken into account their further comments when reaching my final decision.

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What I found

Legal and administrative background

21. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Code of Practice (the Code) provide guidance to councils about how to do this.
22. Councils must decide whether to carry out an EHC needs assessment within six weeks of the referral and must notify the parent or young person it is considering doing so.
23. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the Code. This states that EHC Plans should be completed within 20 weeks from the date of the referral unless certain exemptions apply.
24. The Regulations set out the list of people to consult, which includes:

• the child’s parent or the young person;
• educational advice (usually from the head teacher or principal);
• medical advice and information from a health care professional;
• psychological advice and information from an educational psychologist;
• advice and information in relation to social care;
• advice and information from any other person the local authority thinks appropriate; and
• advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from the Child and Adolescent Mental Health Services.

25. If a parent or young person already has their own advice and reports, these can be submitted as part of their own advice, which councils must ask for. This will ensure the advice and reports form part of the assessment process. This evidence must then be considered by the council when it makes its decision about whether to issue an EHC Plan.
26. Professionals should provide their advice within six weeks of the request.
27. The Early Years Foundation Stage (EYFS) is the statutory framework for children between the ages of 0-5. Early Support helps the better delivery and co-ordination of services for disabled children.
28. Some Early Years support can be provided at home by a structured programme to help parents develop their child’s skills and learning (Portage). Referrals for this can come from health, education and social care.
29. Parents and young people can request a council provides a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))

Legislative changes due to Covid 19

30. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties to provide returned.

Children out of school because of medical needs

31. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.

Events of this complaint

32. As a toddler, Child B suffered a severe regression in his abilities, affecting his speech and mobility, along with debilitating pain. Mrs X says that he changed from a normal toddler, meeting all his milestones, to a very disabled child, unable to speak, unsteady on his feet and unable to manage social interaction as he had before. He was diagnosed with a serious inflammatory condition affecting his brain and requiring complex treatments to control the symptoms.
33. Child B has had extensive involvement with the medical profession, had numerous hospital admissions for specialist care, and has had to undergo regular medical treatment to control his symptoms. Child B can have periods of intense head pain which severely impacts on his daily life and his sleep. This has been, and is, very distressing for Child B and for his family.
34. Child B received help from the Portage service. In September 2018, he started at his local pre-school with intermittent attendance because of his medical condition. Staff at the pre-school and Mrs X worked well together to help Child B. She would pick him up from the pre-school when Child B’s medical condition prevented him remaining. The pre-school was very close to Child B’s home.
35. On 18 October 2019, the pre-school completed a referral for a special educational needs assessment, and this was received by the Council on 29 October 2019.
36. Child B became of statutory school age in September 2019. Mrs X asked for entry to reception year (first year of school) to be deferred to September 2020 because of Child B’s severe medical and learning difficulties and because he would be young for his age group (summer born child). The Council agreed to this.
37. The Council should have decided on the request for a statutory assessment within six weeks, so by 9 December 2019. But the Council says that the request sat in its backlog and was not agreed until 4 February 2020. The Council then requested advice from its Educational Psychologist and from its standard health contact, which I refer to as Agency Z.
38. The Council says that it follows the guidance in the Regulations about who should be able to contribute to a needs assessment. The parents provided professional reports and asked the Council to contact Child B’s medical professionals. The Council asked for the contact details of these professionals on 25 March 2020, and it was given the details of Child B’s Consultant Paediatric Neurologist (the Consultant).
39. The Council says that it had a SALT report dated 21 February 2020. It was willing to commission assessments for therapy provision. However, the proposed providers, which they wished to approach, said that they were unable to assess Child B because they did not have the necessary expertise of his medical condition.
40. The Council says that the parents did not suggest another provider. Mrs X says that is not correct. They suggested an organisation whose name the Council had given to them originally. Mrs X says that the Council insisted on using their chosen providers.
41. The Council received the Educational Psychologist’s report dated 17 March 2020, within six weeks of the request. However, the Council says that Mrs X asked for amendments and the final report was completed on 23 April 2020.
42. On 12 May 2020, the Council issued a draft EHC Plan. But the Council had failed to seek advice from the Consultant, a key medical professional who had detailed knowledge of Child B’s condition. Mrs X says that she had to make a complaint to ensure the Council sought advice from the key medical professionals responsible for treating Child B’s complex condition.
43. The Council apologised for this error and sought advice from key medical professionals.
44. A Specialist Doctor in Developmental Paediatrics (the Doctor) issued a report on 9 June 2020. The Doctor stated she would request an OT assessment. The Doctor concluded that Child B had global developmental delay, likely to have been caused by a post infectious inflammatory syndrome.
45. The Consultant completed his report by August 2020. The Council accepts it should have been more proactive in ensuring health advice was received within the required timescale.
46. Mrs X says that the Council arranged a virtual meeting with the Consultant without the parents’ consent. Mrs X says that the Council asked the Consultant ‘to change his report’. After this, Mrs X says that she asked for all communication to be in writing.
47. The Council issued a final EHC Plan in November 2020, naming a special maintained school as appropriate provision. Because of Child B’s severe medical condition, and that the named school was a distance from home (which meant Mrs X could not get to the school quickly in the event of an emergency or if Child B was in intense pain), she asked for alternative education at home under s19.
48. The Council accepted that Child B’s medical condition meant he was medically unfit to attend school and it agreed to Mrs X’s request for interim provision at home.
49. The Council contacted three tuition providers in accordance with its procurement policy. It agreed to approach Agency W. However, after considering Child B’s needs, Agency W said that it could not provide education at home.
50. The Council says that it asked two other providers to provide the interim education. One provider did not respond; the other said that it could not meet Child B’s needs.
51. In June 2021, the SEND Tribunal upheld Mrs X’s appeal and ordered EOTAS.
52. Mrs X has raised a concern about the Council’s delay in implementing the Tribunal decision. But this complaint has not been part of this investigation.
53. Mrs X applied to the Tribunal for a wasted costs order to recoup her costs in obtaining assessments, which she considered the Council should have commissioned. The Tribunal did not grant this.
54. Mrs X says that Child B is now receiving a package of EOTAS with a team of ten professionals and is making excellent progress. She will always be left wondering whether, but for the Council’s delays, Child B could have made such progress sooner.
55. Mrs X says her main complaint is that the Council delayed significantly in completing the EHC process and delayed in consulting the professionals who had the medical expertise about Child B’s complex and unusual condition.
56. In addition, the final EHC Plan was completed without the necessary assessments, which meant Mrs X had to request these through the Tribunal process.
57. Child B was at an important stage in his education, due to start reception year in September 2020, having been decelerated a year because of his medical condition.
58. Mrs X says that, if Child B had had an EHC Plan, during May to July 2020, he could have attended the pre-school as it remained open for pupils with an EHC Plan and for keyworkers’ children. This would have been an ideal opportunity for Child B because there would only have been a small cohort of pupils and that would have lessened his medical vulnerability as well.
59. Instead, during this period, the family received a telephone call once per fortnight from the Portage worker. There was no other support.

The Council’s comments

60. The Council fully accepts that it delayed in completing the EHC process and considers a final EHC Plan should have been issued in March 2020 (20 weeks from the needs assessment request). The Council accepts that by delaying the EHC process, it delayed Mrs X’s appeal right and EOTAS provision.
61. The Council accepts Child B has missed out on valuable specialist education, it says for seven school months (March to November 2020) and seven school months (November 2020 to June 2021).
62. The Council used the Ombudsman’s guidance on remedies whereby we recommend between £200 to £600 per month for lost education. The Council offered Mrs X £200 per school month, a total of £2,800 and £200 for Mrs X’s avoidable distress and time and trouble.

Analysis

63. There is fault by the Council in its delay in completing the EHC planning process. I also accept that the Council did not seek the necessary medical advice from Child B’s Consultant, in good time, once it agreed a statutory needs assessment was required. It seems that it must have been clear at the outset that Child B had complex medical needs and the Council required expert advice from the treating Consultant. Mrs X should not have had to complain to ensure this happened.
64. The Council also did not ensure the Consultant’s advice was received within the required six weeks.
65. Child B received education at his pre-school between October 2019 and April 2020. But he did not receive any education at the pre-school between May and July 2020, which he would have done, but for the delays in completing his EHC Plan.
66. He therefore lost out on specialist education for three months during the summer term 2020 (three pre-school months). However, I will take into account that, at this stage, the Council had to make reasonable endeavours to make provision set out in an EHC Plan because of Covid-19.
67. As from September 2020, Child B should have started at primary school in the reception class. He did not and in November 2020 the Council agreed with Mrs X that it was not safe for him to do so and he was medically unfit to attend school. So, the Council offered interim education, at home, under s19 and it had a duty to provide this.
68. However, the Council’s chosen tuition provider could not meet Child B’s needs and the Council was aware of this. But I cannot see that there were concerted efforts to find an alternative provider. Also, it seems that the Council was able to put together an EOTAS package once the Tribunal ordered this. So, it seems the provision of home tuition could have happened sooner.
69. Mrs X is concerned that the Council told her that it could only consider the ‘entirety of the advice available’. She is unsure what the Council means by such a statement. I cannot answer that query. But I consider that this was for the Tribunal to consider.
70. In respect of the Council’s complaints process, the Council should have identified that there had been unacceptable delays in completing Child B’s EHC Plan, and a failure to seek the Consultant’s assessment, at stage one and two.

What injustice has been caused?

71. Mrs X and her family witnessed a serious and unexpected deterioration in Child B. The Council’s delays and other faults have compounded an already distressing situation. It has also meant Child B has had lost opportunities to have specialist education during the summer term 2020.

How the Ombudsman remedies injustice caused by fault

72. The Ombudsman’s guidance on remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

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Agreed actions

73. Within six weeks of the final statement, the Council will pay:
1. £1,500 for the missed specialist provision for the summer term 2020 (£500 per month). I have reduced the Ombudsman’s tariff to take into account that the Council had to make reasonable endeavours to make provision. However, the tariff is still at the higher end because I am satisfied, that having Child B at the pre-school, would have offered support and respite to the family, over and above any educational input;
2. £5,400 for the lost specialist educational provision for nine school months during September 2020 to June 2021 (£600 per month);
3. both payments should be used for Child B’s educational benefit as considered appropriate by Mrs X;
4. pay £1,000 for Mrs X’s avoidable distress. I consider her avoidable distress was over a prolonged period and therefore merits a symbolic payment at the higher end of the Ombudsman’s tariff; and
5. pay £500 for Mrs X’s time and trouble in having to chase up the Council for a final EHC Plan.
74. This case has highlighted the need to obtain professional advice within six weeks. The Council has told me that it has taken action to ensure that this happens in future.
75. I had recommended the Council considers, when it agrees a statutory needs assessment, to speak to parents/carers about who should be consulted. The Council says that there are a number of improvements made to its SEN case management, one of which is having a named case officer to whom parents/carers can contact and more staff to manage the Council’s SEN hub.
76. I am satisfied that this should improve communication between parents/carer and SEN staff and therefore I have removed this recommendation.

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Final decision

77. There is fault causing injustice. The Council has agreed the recommended actions and therefore I am closing the complaint.

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Parts of the complaint that I did not investigate

78. I have not investigated Mrs X’s complaint about the Educational Psychologist. Mrs X has made a complaint to the Educational Psychologist’s professional body, the Health and Social Care Council.
79. I have not investigated whether the Council should have commissioned a SALT, occupational therapy (OT) or physiotherapist’s reports, thereby saving Mrs X the cost of commissioning these. Parents/carers can apply for their unnecessary costs to the Tribunal. The Ombudsman normally expects parents/carers to use this remedy avenue and Mrs X has done so. The Ombudsman will not trespass on matters which could be or have been considered by a Tribunal.
80. I have not considered the complaint about alleged delay in July 2021 in implementing the Tribunal decision. This is a new complaint. But I have asked the Council to consider this without Mrs X having to contact the Council again.

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Investigator's decision on behalf of the Ombudsman