Summary: The complainant alleged that the Council delayed in completing the complainant’s son’s Education, Health and Care (EHC) Plan which, in turn, delayed the son being placed in a suitable school. The complainant also complained that the Council failed to offer any interim alternative provision. We find the Council at fault on the first aspect and have recommended actions to remedy the injustice caused. But we do not find the Council at fault by not offering alternative education because the complainant decided to withdraw her son from school and home educate.

The complaint

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

1. delayed in completing her son’s (Child B’s) Education, Health and Care (EHC) Plan; and
2. failed to take action to ensure that Child B received appropriate education after the complainant took Child B out of his junior school in November 2019 as he had been threatened with a permanent exclusion.

2. The Council has investigated the complaint and accepted that there has been a delay in completing Child B’s EHC Plan. But Miss X remains dissatisfied and considers that the Council has not dealt with her complaint about Child B not receiving education for two years or considered the adverse impact of the Council’s actions on Child B and the complainant.

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What I have investigated

3. I have investigated events between November 2019 to September 2021.
4. Matters, which I cannot investigate, are 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. I made enquiries of the Council and Miss X has commented on what the Council has said. I have spoken to her on the telephone.
12. In March 2021, the Council issued a final EHC Plan naming a primary school for the summer term 2021 and a secondary school for September 2021.
13. At this point, Miss X had a right of appeal to the SEND Tribunal if she was dissatisfied with the named placements. Miss X did not exercise this right.
14. As required, I have considered whether it was reasonable for her not to appeal. On balance, my view is that, because Miss X was satisfied with the named placement at secondary school, and Child B had only one term left at primary school, there was little point in appealing.
15. I have therefore exercised the Ombudsman’s discretion to look at events between November 2019 to September 2021.
16. I issued a draft decision statement to the Council and to Miss X and I have taken into account their further comments before reaching my final decision.

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What I found

Legal and administrative background

17. 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.
18. 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. Parents have a right of appeal to a SEND Tribunal if a council refuses an assessment.
19. 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.
20. Professionals should provide their advice within six weeks of the request.
21. Once a draft Plan has been issued, parents/carers are entitled to request a particular educational placement. Councils should name the placement requested unless they believe that the placement would not meet the needs of the child, would be incompatible with the efficient education of others and incompatible with the efficient use of resources.
22. Section 9.83 of the Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school. The Code at 9.78 to 9.80 encourages councils to work in partnership with parents when deciding on a suitable school placement.
23. In certain cases, councils can direct a school to take a pupil where it is considered its reasons for refusing admission are not reasonable

Children out of school because of medical needs

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”.
25. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education.

Case law regarding section 19 alternative educational provision

26. In G v Westminster City Council [2004] (followed more recently in DS v Wolverhampton City Council [2017], the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in [section 19, Education Act 1996], is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling”.

27. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.

Elective Home Education

28. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
29. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’.
30. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (S436A, Education Act 1996).
31. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.

Legislative changes due to Covid 19

32. On 1 May 2020, some aspects of the law on EHC needs assessments and plans changed temporarily due to the significant extra pressure put on local authorities because of Covid-19.
33. In recognition of this, the government implemented temporary changes until 25 September 2020 relating to the timescales for EHC needs assessment and plan processes. The change meant that, where a council decided it was necessary to issue an EHC plan, following an EHC needs assessment, but the incidence or transmission of Covid-19 made it impractical to do so within the 20 weeks, they were to discharge the duty as soon as practicable.
34. 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.

The Council’s procedures

35. In respect of elective home education, the Council has a form which should be completed, setting out what education the parent is providing so that it can assess its suitability. The Council advises parents to put in writing to the nominated school that they intend to home educate. Costs in providing education have to be met by the parents.
36. The Council’s procedures for children unable to attend school for medical reasons states that schools must satisfy themselves the pupil’s absence is due to ill-health before making a referral to the Council’s Inclusion Support Service (ISS). After 15 days of absence, schools are advised to contact the ISS for guidance.

Events of this complaint

37. The Council says that Child B was known to its Primary Behaviour Service since November 2018 as he was showing signs of emotional and behavioural difficulties, like being disruptive in class, abusive to staff and absconding from school. At this stage, he was at a primary school, School Y.
38. In January 2019, there was a managed move and Child B started at another primary school, School D. The Council says that he remained on the school roll at School Y, so was dual registered.
39. On 29 August 2019, School D asked the Council to assess him for possible special educational needs (SEN). Miss X says that School D excluded Child B for a week and threatened to permanently exclude him.
40. On 6 November 2019, the Council agreed to the assessment. This should have been agreed by 9 October 2019. The Council consulted the professionals for advice, this included advice from School D and the Education Psychologist service.
41. On 20 November, Miss X emailed School D to say that she was withdrawing Child B. She said that she did not consider School D was meeting his needs and wrongly labelling him. She explained that she had bought a Maths and English book to educate him at home, was looking at other schools and was awaiting the completion of his EHC Plan.
42. The Council says that its Elective Home Education (EHE) team prioritised his case and offered to visit Miss X. But she declined because she was hoping Child B would be starting at another school, which she had approached.
43. Miss X visited another primary school, School Z. School Z said that it would admit Child B in the new year if he had an EHC Plan. Miss X told the Council this.
44. Miss X confirmed with the EHE team that she did not intend to return Child B to School D.
45. Miss X’s Member of Parliament (MP) made a complaint to the Council about the lack of support for Child B. By this stage, the Educational Psychologist’s (EP’s) report had not been received. The Council says that there was a national shortage of EPs, and this accounts for the delay in receiving an EP report.
46. The Council pursued this, and the EP’s report was received on 17 February 2020. The next day, Miss X asked when the EHC Plan would be issued. The Council told her the matter was still being assessed and the EHC Plan should be issued within a month.
47. On 20 April 2020, Miss X again chased up the matter, asking when the EHC Plan would be issued.
48. On 1 June 2020, the Council issued a draft EHC Plan and consulted four possible schools, including School Z, the primary school, which Miss X had approached. It declined admission.
49. Miss X expressed a preference for another school and the Council consulted a further primary school. Both declined to admit Child B.
50. In July 2020, the EHE team telephoned Miss X to enquire about the education being provided. The Council says that Miss X told the EHE team that she hoped that, through Child B’s EHC Plan, he would be placed at a school by September 2020. Miss X said that Child B was missing school and that she was keen to get him back into fulltime education.
51. In September 2020, Miss X’s MP complained. Miss X says that she had bought the uniform for School Z. She says that she had assumed the draft EHC Plan was in fact the final Plan and Child B could start at School Z.
52. In December 2020, School Z said that it now had a place for Child B and it agreed to admit Child B but with a comprehensive transition plan.
53. On 3 March 2021, the Council issued a final EHC Plan, naming School Z and a community secondary school, starting in September 2021; this was some nine months after the draft EHC Plan had been issued.
54. In April 2021, School Z reported Child B as missing from education as he did not attend the school.
55. Miss X says that she was unhappy with the transition plan as she thought it was too extended and Child B should be back in school. Miss X was also concerned that Child B might have difficulty in starting a new school just for a term. She continued to educate Child B at home.
56. Child B is now currently attending a small unit at the named secondary community school and Miss X says that he is doing very well. But she wonders how much better he would have done but for missing so much schooling.

Findings

Complaint (1): that the Council delayed in completing Child B’s EHC Plan

57. The Council accepts that it delayed significantly in issuing the EHC Plan. The Council has explained that this was because of a shortage of EPs, a backlog of assessments and difficulties in consulting schools during the Covid-19 period and school holidays.
58. The Council has apologised to Miss X for its significant delay. But my view is that the Council has not fully recognised the adverse impact of this delay.
59. The Council should have issued a final EHC Plan within 20 weeks from 29 August 2019, approximately by mid-February 2020 and certainly before the Covid-19 lockdown on 23 March 2020. I appreciate the Council was struggling to recruit EPs to carry out assessments and I can see that this accounted for the delay between September 2019 to February 2020 in progressing the assessment.
60. However, we consider statutory timescales should be met and, if they are not, it can cause significant injustice to children and young people with possible SEN requiring the protection of an EHC Plan. I also recognise that the Council wanted to work with Miss X and it responded to her preferred school options. But working with parents/carers should not be at the expense of meeting the statutory timescales.
61. I also note that School Z would have offered Child B a place in early 2020 had he had an EHC Plan.
62. I consider that the Council’s failure to issue a final EHC Plan by mid-February 2020 has meant that Child B has missed out on a suitable school placement since that date. And, on the balance of probability, given School Z had said it would admit Child B in early 2020, he could have been placed at that school had he a final EHC Plan by mid-February.
63. Moreover, School Z did offer a place to Child B in March 2021, when his EHC Plan had been finalised. So, that supports my view that Child B could have attended this school from mid-February 2020, when the Council should have issued his final EHC Plan.
64. But I am mindful that Covid-19 legislation required councils to make reasonable endeavours to provide the provision set out in EHC Plans from 1 May 2020 to September 2020, and that might have affected the amount of education Child B received between those dates.
65. I have taken this into account when assessing the appropriate remedy.
66. It is also clear that Miss X went to considerable time and trouble in chasing up the Council to complete the EHC Plan and approached her MP for assistance. Miss X also looked for other primary schools herself and was willing to explore options. My view is that she has been caused avoidable distress, frustration and time and trouble by the Council’s fault.

Complaint (2): that the Council failed to provide alternative education during November 2019 to March 2021

67. There is evidence that Miss X told School D and the Council at various stages during this period that she was educating Child B at home. Miss X says that she was not ‘educating’ Child B as she is not a trained teacher. But she felt that she had no choice as School D told her Child B would be permanently excluded if he returned.
68. I have not seen evidence that School D said this to Miss X. But I understand that she was fearful that this might happen. Miss X did complain to School D about its approach to the Governing Body.
69. I appreciate that Miss X felt educating Child B at home was her only option because she was not willing to return Child B to School D in his best interests. It is difficult for parents in these circumstances and it is clear that Miss X wanted Child B to be at an appropriate school fulltime. But, on balance, Miss X considered that educating Child B at home herself was the better option rather than sending him to a school which she thought was detrimental to his welfare.
70. That was Miss X’s choice to make.
71. Therefore, because Miss X had told the Council she was educating Child B at home, I consider that the Council’s duty to provide alternative education under s19 was not triggered. Child B had a place at School D, however tenuous Miss X thought it was, and therefore the Council could be satisfied that there was a fulltime school place available to him if Miss X chose to take it up.
72. And, by choosing to home educate, it did mean that Miss X could not be prosecuted for failing to send Child B to school.
73. However, it is not clear how the Council satisfied itself that the education Miss X was providing at home was suitable, although it is too late and inappropriate for this to be considered now. But I consider that the Council is at fault here because I cannot see evidence that it made any assessments of the suitability of the education being provided to Child B, as required.

How the Ombudsman remedies injustice caused by fault

74. 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;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month.

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Agreed actions

75. Child B has been caused an injustice because, but for the Council’s faults, he could have been placed at School Z by mid-February 2020 and therefore could have been in fulltime education from that date to when he started at secondary school in September 2021.
76. I appreciate that the Council might consider there is some uncertainty whether Child B would have remained at School Z throughout this period. The Council might also consider that Miss X might not have sent Child B to School Z in February 2020 given she did not do so in April 2021.
77. But circumstances were different in April 2021 in that Child B had been out of school for some time and Miss X had some doubts of sending Child B to a new school just for a term. Whereas, in early 2020, it is clear Miss X wanted a fulltime placement, had visited School Z and considered it was suitable.
78. Therefore, on the balance of probability, this would have been an available and suitable school placement and it is likely Miss X would have sent her son to that school at this time.
79. In addition, Miss X has been caused avoidable distress, frustration and time and trouble.
80. Within two months of the final statement, the Council will;
1. pay Miss X £1,000 for her avoidable distress and time and trouble. This is at the high end of the Ombudsman’s tariff because the distress was prolonged;
2. pay £600 for the lost education between mid-February and March 2020 when Child B could have been at School Z;
3. pay £1,050 for the lost education between May to July 2020 during the Covid-19 period (£350 per month to take account that the Council had to make reasonable endeavours to make SEN provision);
4. pay £5,400 for the lost education between September 2020 to September 2021, nine school months at £600 per month, when Child B could have been at School Z; and
5. these payments should be used by Miss X for Child B’s educational benefit in a way she considers appropriate.
81. The Council has been making improvements to its SEN service and has agreed to previous service improvement recommendations made by the Ombudsman. That is welcome. We have also recommended to the Council that it should have a protocol with its partner agencies (health, social care and education) to ensure professional advice is received within six weeks, as required. Without this joint working protocol, there will continue to be delays in completing EHC Plans and complaints.
82. But the Council has agreed the following new service improvement within four months of the final statement:

• the Council should have a timetable for assessing the suitability of elective home education. I would suggest that the Council should be able to decide on suitability within three months of the EHE team being told that a parent is home educating.

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Final decision

83. I consider that there is fault by the Council causing injustice. The Council has agreed actions to remedy the resulting injustice. I am therefore closing the complaint.

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Parts of the complaint that I did not investigate

84. I have not investigated the actions of Schools Y, D and Z as the Ombudsman is not permitted to look at the internal management of schools.

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Investigator's decision on behalf of the Ombudsman