Summary: Ms X complained the Council failed to issue her son, Y’s, Education, Health and Care Plan in line with the statutory timescales and failed to secure Y’s education from December 2019 to July 2021 and the provision in his Plan from February 2021 until July 2021. Our investigation was limited to the period March to July 2020 as Ms X used her appeal rights for the other periods. The delays in issuing Y’s draft Plan did not cause him an injustice. There was no fault in the Council’s actions in relation to securing Y’s educational provision.

The complaint

1. Ms X complained the Council failed to issue her son, Y’s, Education, Health and Care Plan (EHCP) in line with the statutory timescales.
2. Ms X further complains the Council failed to provide Y with an education from December 2019 to July 2021, and the provision in his final EHCP from February to July 2021.
3. Ms X says Y has lost over a year of education and social development as a result of the Council’s failings which has caused Y and the family distress, uncertainty and time and trouble.

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What I have investigated

4. I have investigated the Council’s actions from March to July 2020. I have not considered the Council’s actions from December 2019 to March 2020 and July 2020 to July 2021 for the reasons explained in paragraph 52.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement.
7. The law says 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. We cannot investigate a complaint if someone has already appealed to a tribunal (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. Caselaw has established that where someone may appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an Education, Health and Care Plan (EHCP) or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHCP. But, where there has been a delay in issuing an EHCP, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407)
10. In this case, Ms X’s appeal rights arose on three separate occasions. Because the matters she appealed were inextricably linked to the complaints she made to the Ombudsman, I can only look at a short period of time. I consider this matter in more detail below.
11. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
12. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether a council followed the relevant legislation and guidance at the time. (Local Government Act 1974, section 24A(6))
13. 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

14. I read the documents provided by Ms X and discussed the matter with her via email.
15. I read the documents provided by the Council in response to my enquiries.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plan

17. The Special Education Needs and Disability Act 2014 sets out what a council must do in assessing, planning and reviewing for children with special educational needs. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
18. The council must respond to all requests for an EHCP. It must decide whether an assessment is needed within six weeks of receiving the request.
19. If the council decides to proceed with an EHCP, it has a duty to request information from certain bodies, such as the child’s school and an educational psychologist. Those bodies must provide the information requested within six weeks.
20. The whole process from the point of request to the council issuing the final EHCP must take no more than 20 weeks.
21. If a parent disagrees with the council they can appeal to the SEND Tribunal about some matters related to an EHCP. These include:
• the council’s refusal to assess a child for an EHCP;
• the council’s refusal to issue an EHCP after completing an assessment; and
• the special educational provision in the EHCP and the school, or type of school the child will attend.
22. Section 45 of the Act states if a parent appeals to the SEND Tribunal about the council’s decision not to assess, and the council says it will not oppose the appeal before it has submitted its response, then the EHCP assessment must be carried out within four weeks. The council must then either tell the child’s parents of its decision not to issue an EHCP or provide a draft EHCP for the parent to comment on.
23. The Government amended the SEND Regulations due to COVID-19 between 1 May and 25 September 2020. It stated the specific timescales for particular processes may be changed if, for a reason relating to the transmission or incidence of COVID-19, it was not reasonably practicable for the council to complete the process. This included the six week timescale for other bodies to provide information, and the timescale for the council to give its decision not to issue an EHCP.

Council’s duty to ensure a suitable education

24. 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”.

What happened

Education

25. In November 2019 Y was on roll at School A but was attending Provision A.
26. In December 2019 Provision A terminated Y’s placement. Between December 2019 and February 2020, School A sourced three alternative providers for Y. Ms X declined them all.
27. In response to my enquiries the Council stated that after Ms X refused three alternative providers, it completed an Education Risk Assessment and Management Plan. It decided the final provision offered by School A was an appropriate school placement for Y given his known needs at the time.
28. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, except for children of keyworkers or pupils deemed ‘vulnerable’ which included children who had an EHCP. Pupils who did not fit in to that category were provided with resources and/or virtual education to complete at home. This applied until the end of the academic year in July 2020. The Council stated that School A offered Y suitable alternative arrangements in line with national guidance.

EHCP

29. In November 2019 Ms X asked the Council to assess Y for an EHCP as she believed he had undiagnosed and unmet special educational needs.
30. In December, four weeks after the request, the Council wrote to Ms X and told her it decided School A and Provision A could meet Y’s needs through their resources. It issued a decision notice which refused to assess Y for an EHCP and told Ms X of her right of appeal to the SEND Tribunal. Ms X appealed in January 2020.
31. In March the Council wrote to the SEND Tribunal and said it had reached an agreement with Ms X and it would assess Y’s special educational needs. In its response to my enquiries the Council stated it requested information about Y from various professionals including an educational psychologist, occupational therapy, speech and language therapy and children and adolescent mental health services (CAMHS). At that time Y was either on the waiting list for an appointment or waiting to attend an appointment with each service.
32. Two weeks after the Council agreed to assess Y, the country entered the first national COVID-19 lockdown. As a result, many health services stopped face to face appointments and extended waiting lists and waiting times for appointments.
33. In response to my enquiries the Council stated it received notice from the Occupational Therapist and CAMHS that Y was already on the waiting lists for assessment. Records shows the Educational Psychologist’s report was provided in June and the Speech and Language Therapist’s at the beginning of July 2020.
34. The records show that Ms X temporarily withdrew her consent for the Council to use the information within all the reports included in the EHCP assessment bundle.
35. The Council completed its assessment at the end of July without the CAMHS report and decided not to issue Y an EHCP. It wrote to Ms X and told her Y did not meet the criteria for an EHCP as School A could meet Y’s needs through its resources. It told Ms X of her right to appeal the decision to the SEND Tribunal. Ms X appealed in September.
36. In October 2020 an Educational Psychologist provided an updated report to the Council after they assessed Y. In November Y received a diagnosis of Autism Spectrum Disorder following an assessment by CAMHS and in December it provided a report to the Council.
37. The Council wrote to the SEND Tribunal in November and stated that following the receipt of the updated Educational Psychologist’s report, it had agreed to issue an EHCP, and it would issue a draft EHCP within two weeks.
38. At the beginning of December the Council issued a draft EHCP and told the SEND Tribunal it had done so.
39. In February 2021 the SEND Tribunal ordered the Council to issue Y’s final EHCP. The Council did so and told Ms X of her right of appeal to the SEND Tribunal. Ms X appealed the special educational provision and the named placement.
40. The SEND Tribunal considered the matter and issued a consent order in July 2021. Two weeks later the Council issued Y’s final amended EHCP.

The Complaints

41. In July 2020 Ms X complained to the Council. She said it had not met the timescales set out in section 45 of the SEND regulations 2014 for completing the EHCP assessment for Y. She said she believed the Council should have completed the EHCP assessment by the beginning of April 2020.
42. The Council responded and stated that section 45 did not apply to Y’s assessment and the completion date was the beginning of August 2020.
43. In March 2021 Ms X complained to the Council that Y had been unlawfully excluded from education since December 2019 and was not receiving the provision set out in his EHCP.
44. The Council responded in May 2021 and said it did not believe that Y was excluded from School A and it had offered him provision. It also detailed how it considered it was providing the support set out in Y’s EHCP.
45. Dissatisfied with the Council’s response, Ms X complained to us.

My findings

46. The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal to investigate events from the date the appeal right arises until the appeal is completed. As a result, the following periods are outside our jurisdiction:
• December 2019 to March 2020;
• July 2020 to July 2021.
47. This means I can only consider the Council’s actions from March 2020 to the end of July 2020.
48. The COVID-19 guidance issued by the Government applied from May 2020. However, I have applied the changes in the guidance from when the country went into lockdown on 23 March to 1 May. This is because the exceptional circumstances at the time often made it impossible for councils and public health bodies to act in a timely manner whilst resources were stretched.

Issuing of Y’s EHCP

49. We may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. In this case, I have decided not to continue with my investigation because although the Council delayed in issuing Y’s EHCP, this did not cause Y a significant injustice. This is because:
• the delays resulted from the professionals the Council consulted with not completing their assessments and providing their reports. Given the amendments to timelines introduced by the Government on 1 May 2020 and the unprecedented situation of the COVID-19 national lockdown, it is unlikely the reports would have been available any sooner had the Council made its decision not to issue an EHCP earlier; and
• the updated Educational Psychologist and CAMHS reports were pivotal to assessing Y’s needs and were not provided to the Council until October and November 2020 respectively. Without the reports the Council was unable to fully identify Y’s special educational needs. Once the Council received the relevant information, it issued Y’s EHCP without delay.

Y’s educational provision

50. In the months immediately prior to the period under investigation, Ms X was offered a number of alternative provisions for Y. The Council considered these were suitable to meet his needs. Therefore, it discharged its Section 19 duty. When Ms Y refused all the placements offered, alternative provisions were identified in a timely manner. The Council also assessed the situation and determined the provision Y was offered at that time was suitable to meet his needs and remained open to him until the end of the period under investigation. There was no fault in the Council’s actions.

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Final decision

51. I have completed my investigation. I have not found fault in the Council’s actions in ensuring a suitable education was offered to Y. There is insufficient injustice caused to Y by the delay in issuing his EHCP to justify further investigation.

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Parts of the complaint that I did not investigate

52. I have not investigated the Council’s actions from December 2019 to March 2020, and July 2020 to July 2021. Ms X had rights of appeal to the SEND Tribunal and used those appeal rights. As set out in paragraph 9 any loss of education or fault during this period which is a consequence of the decision being appealed is out of my jurisdiction.

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Investigator's decision on behalf of the Ombudsman