The Ombudsman's final decision:
Summary: The complainant alleged that the Council delayed in issuing his granddaughter’s Education, Health and Care (EHC) Plan and has failed to provide suitable education. The Council has accepted fault and has accepted the recommended ways to remedy the resulting injustice. We are therefore closing the complaint.
- The complainant, who I refer to as Mr X, complained that:
- there was an excessive delay by the Council in issuing a final Education, Health and Care (EHC) Plan for his granddaughter, Child C; and
- there has been very little education provided to Child C since mid-June 2019.
What I have investigated
- I have investigated events since June 2019.
- Matters, which I have not investigated, are set out in the last paragraph of this statement.
The Ombudsman’s role and powers
- 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)
- 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)
- SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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.
- 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)
- 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.
How I considered this complaint
- I made enquiries of the Council and have spoken to Mr X on the telephone.
- The Council has accepted fault on both aspects of the complaint, I have therefore considered the injustice caused to Child C and to Mr X and to Child C’s parents by these faults, and a suitable remedy.
- Child C’s parents had a right of appeal to the SEND Tribunal on 24 September 2020 when the Council issued a final EHC Plan naming School Y. They did not appeal.
- Mr X says that the parents did not fully understand how important it would have been to appeal at this point. Mr X also says that the Council had indicated it would be looking for a specialist school. Hence the parents did not properly explore the appeal avenue.
- While sympathetic that the parents might not have fully understood the benefits of appealing, I have decided that the SEND Tribunal would have been the appropriate means of redress if dissatisfied with the named placement. This precludes me from looking at any complaint about the Council naming School Y in the EHC Plan.
- But I can consider whether the Council ensured the provision set out in the EHC Plan of September 2020 was provided.
- I issued a draft decision to the Council and to Mr X. I have taken into account their further comments before reaching my final decision.
What I found
Legal and administrative background
- 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.
- 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.
- 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.
- Professionals should provide their advice within six weeks of the request.
- 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.
- 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.
- In certain cases, councils can direct a school to take a pupil where it is considered its reasons for refusing admission are not reasonable.
- 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))
- Councils must review EHC Plans annually. Where a council decides to reassess the child’s needs, it should issue a final amended EHC Plan within fourteen weeks of that decision. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
Children out of school because of medical needs
- 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”.
- 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.
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
Case law regarding section 19 alternative educational provision
- In G v Westminster City Council  (followed more recently in DS v Wolverhampton City Council , 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”.
- 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.
Legislative changes due to Covid 19
- On 1st 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.
- In recognition of this, the government implemented temporary changes until 25th 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.
- 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.
Brief facts of this complaint-2019
- In September 2017, Child C started at secondary school, School Y. She had problems settling in.
- In February 2019, Child C was diagnosed with autistic spectrum disorder (ASD) which was causing significant problems in her relationships with peers and adults and meant that she could be aggressive and challenging. The ASD report noted that Child C had difficulty in communicating her feelings. Mr X says that Child C was self-harming.
- It is also reported that Child C suffers from a medical problem which means that she has problems with maintaining hygiene or understanding the need to do so.
- In June 2019, Child C started at a small off-site unit but remained on the register of School Y. She moved to a smaller group within this unit, with one to one tutoring with the same tutor on a reduced timetable. Mr X says that it was suggested to School Y that it made a request for a statutory assessment of Child C’s needs. He says that School Y lost the paperwork.
- In September, Child C was refusing to attend the off-site unit.
- On 11 October 2019, School Y asked the Council to undertake a statutory assessment of Child C’s special educational needs (SEN). The Council should have decided on this request within six weeks. But it was not until February 2020 it agreed to assess.
- The Council says that this delay was caused by a shortage of Educational Psychologists (EPs), a rapid rise in requests for assessments, staffing difficulties and a growing backlog of SEN requests.
- School Y arranged for Child C to attend a specialist educational provider, (Agency Z), again with one to one tuition, starting in mid October 2019 and increasing over time. It seems that Child C engaged better with this provider.
Events of 2020
- In January 2020, Child C went to live with her grandparents (Mr and Mrs X) with her parents’ agreement. Mr X took Child C to Agency Z and collected her. Children’s social care undertook an assessment and reported that Child C’s behaviours had put considerable strain on her family; hence she had come to live with her grandparents.
- Child C told the social worker that she felt she would be helped in a small school with regular support.
- Agency Z increased the tuition provided. But, in March, the Council says that the parents said that they would not be sending Child C because they did not want to put tutors at risk due to Child C’s lack of understanding around hygiene. At this time, Covid-19 cases were on the increase.
- Mr X says that Child C received no education after this and no online tuition during the lockdown period of 23 March to July.
- By May 2020, there was still no EP assessment. The Council chased this up, and an EP report was issued later that month.
- On 21 July, the Council issued a draft EHC Plan. It did not name a school placement. But the Council invited Child C’s parents to express a preference for a particular school. Mr X says that the parents did express a preference, but they were told that, because it was an independent school, the Council would not consider it.
- Mr X also says that the Council agreed that Child C should be placed in a specialist placement for young people with ASD. So, the parents thought the Council would successfully pursue this option.
- The Council consulted a number of possible schools, all of which said that they could not meet Child C’s needs. Mr X says that the parents were not told that a number of schools had been consulted until the annual review of November 2021. Mr X says that it would have been helpful if the parents had been told this at the time and given the name of the schools and why they would not admit Child C.
- On 24 September 2020, the Council issued a final EHC Plan, naming School Y although Agency Z had recommended a specialist placement. School Y had also indicated that it could not meet Child C’s needs.
- The Council told Child C’s parents that they had a right of appeal to the SEND Tribunal if dissatisfied with the EHC Plan and named placement. Also, when sending the EHC Plan, the Council told the parents that it would continue to look for an appropriate specialist school and that it would work with School Y to implement alternative provision and activities for Child C.
- The Council says that it recognised that Child C required a specialist school placement but, despite its efforts, it could not find a school which would admit her. The Council considered it was better to finalise the EHC Plan, naming a school, rather than indicating a type of school. At least then there was a school which had responsibility for making provision for Child C. And School Y would have been provided with additional funding to do so.
- The Council also considered it was better to finalise the EHC Plan so that the parents could exercise their right of appeal to the SEND Tribunal. This would have been the best way for them to challenge the appropriateness of the named placement at School Y.
- Between September and November, online tuition was offered to Child C. The Council says that the parents declined this because they said they were looking for a long-term specialist placement. Mr X says that online learning was not suitable for Child C.
- The Council did consult many more schools, some specialist in the independent sector. But none of the schools were willing to admit Child C.
Events of 2021
- Child C received no offers of education between January to December 2021. The Council says that it was not fully aware of this lack of educational offers until recently. Mr X says that he thought the Council would have been aware of the lack of education before this time.
- The Council is now investigating School Y’s failure to provide Child C with education as a separate matter.
- There was an annual review of Child C’s EHC Plan on 2 November 2021, arranged by School Y. On 8 November, School Y offered a bespoke educational package, but the Council says that the parents refused this. Mr X says that was not the case. The parents looked into the offer and learnt that it involved two different providers and therefore would involve two transitions during the day. They considered Child C would not have been able to cope with this.
- School Y is now looking for a tutor for Child C. Mr X says that to date this has not been provided.
- The Council agreed to amend Child C’s EHC Plan and told the parents this on 1 December. The Council has accepted that Child C’s needs have changed and that a reassessment is required. A social care and EP assessment have been requested.
- Once these assessments are completed, the Council will need to issue an amended draft EHC Plan. Once the EHC Plan is finalised, the parents will have a right of appeal to the SEND Tribunal if dissatisfied. The Council should be completing this reassessment within fourteen weeks of the decision to reassess.
Complaint (1): delay in completing Child C’s EHC Plan
- I appreciate Mr X considers the delay dates back to June 2019, when School Y agreed to make a referral to the Council for a statutory needs assessment, but then lost the paperwork. However, I cannot investigate School Y’s actions and I have taken the date of the request to when the Council received it.
- The Council should have issued a final EHC Plan by mid March 2020, 20 weeks from the October 2019 request. The Council accepts it delayed in issuing this.
- However, as the parents did not appeal the EHC Plan, I cannot conclude that their appeal rights were also delayed. I also cannot comment on the suitability of naming School Y even though the Council was aware that it was not the most suitable placement for Child C. I recognise that the parents now regret not appealing. But that does not alter the Ombudsman’s jurisdiction.
- The Council consulted other schools which it thought would be more suitable. But none agreed to admit Child C.
- There is no evidence to suggest that the Council challenged the refusals to admit. But, had the parents appealed, this is a matter which they could have explored within the SEND Tribunal setting.
- So, overall, my view is that the injustice by the Council’s delay in issuing the EHC Plan is limited to time and trouble and frustration for the parents and that Child C did not have an EHC Plan in March 2020, just before the national lockdown.
- Had she had this, the Council would have had to make ‘reasonable endeavours’ to provide the SEN provision, carry out a risk assessment and consider the appropriateness of online learning or whether she should be attending a school setting.
Complaint (2): failure to provide an education
- There is evidence that there was some one to one tuition for Child C between June 2019 to the national lockdown in March 2020.
- Once schools opened again in September 2020, some online tuition was offered. However, the parents did not consider online learning was suitable and, at this stage, the parents believed the Council would find a specialist school placement soon.
- As from January 2021, it seems there was no offers of education although the Council says it only recently became aware of this, through the November 2021 annual review process. School Y should have told the Council that it was not providing education given it had a duty to provide this and was receiving additional funding. But I cannot investigate why School Y did not do this.
- The Council says that, since November 2021, when it became aware of the lack of education provided by School Y, there was an offer of online learning. But, as the parents explained, this was not considered suitable. The Council therefore agreed to reassess Child C in December 2021.
- The Council has accepted that Child C has not received the education to which she was entitled. It is difficult to assess the injustice caused to Child C by the lack of education because there is evidence that, at times, she has been unwilling to engage.
- The key difficulty is that the Council has not been able to obtain a specialist placement, despite consulting a number of schools. Although the parents did not fully understand the value of appealing to the SEND Tribunal, the fact is this would have been the appropriate remedy to pursue to have secured appropriate specialist education for Child C.
- Since September 2020, School Y was the named placement, and the Council expected the school to make the educational provision. It is now investigating why School Y failed in its duty to do so.
- In respect of education in early 2020, had the Council issued the final EHC Plan by mid-March 2020, as it should have, the Council would have had to make ‘reasonable endeavours’ to ensure Child C received the education as set out in her EHC Plan. So, that would have provided some protection and requirement on the Council to ensure Child C’s needs were met during the lockdown period of 2020.
How the Ombudsman remedies injustice?
- 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.
- The Council has already apologised to Child C’s parents and to Mr X for the faults identified. The key requirement now is to progress the amendments to Child C’s EHC Plan and, in doing so, reconsider what might be a suitable educational placement. As the EHC Plan can last until Child C is 25, it is important to try to get this as right as possible so that Child C can catch up on lost education.
- Mr X also tells me that Child C’s behaviours have improved with no self-harm and is better able to manage her emotions. That is encouraging. He also says that Child C is a bright young girl and there should be no reason why she cannot, over the next two/three years, obtain the necessary GCSEs to enable her to obtain a college placement.
- With the above aims in mind, the Council has agreed that within four weeks of the date of the final statement:
- the Council will complete its investigation into the actions of School Y for its failure to provide the required education, and inform the parents and Mr X the outcome and any remedial action it intends to take;
- the Council agreed to reassess and amend Child C’s EHC Plan in early December 2021. The Council should now issue an amended final EHC Plan within fourteen weeks of the decision. I had recommended the final amended EHC Plan should be issued by the end of March 2022. But I understand there have been some unexpected delays, so the Council should issue a final amended EHC Plan by mid-April 2022. Once the EHC Plan is finalized, Child C’s parents will have the right to appeal to the SEND Tribunal if dissatisfied with the named placement or description of needs;
- the Council will tell the parents of advocacy or SEN agencies in its area which can help them to appeal if this is the route they wish to take;
- the Council will make a symbolic payment of £500 to the parents for the avoidable distress, frustration and time and trouble by the delay in issuing Child C’s EHC Plan;
- if the Council still finds that educational settings are unwilling to admit Child C, it must consider its power to direct admission, where it considers the educational setting is suitable and the reasons for refusal unreasonable;
- the Council will ensure the proposed tutoring for Child C is provided now so that Child C can get back into the routine of learning;
- the Council will pay £1000 to Child C’s parents (£250 for the months from November 2021, when the Council became aware of the lack of education, to February 2022) to be used for her educational benefit in a way they consider will be helpful in consultation with the SEN department. This could include the purchase of a laptop for Child C. I have recommended a remedy at the lower end of the Ombudsman’s tariff because some provision was offered (regardless of whether it was declined or not); and
- the Council will pay £500 to the parents for Child C’s benefit to recognize that the Council should have issued an EHC Plan by mid-March 2020 and, in turn, it would have had to make reasonable endeavours to meet her needs during the lockdown period.
- There is fault causing injustice. The Council has agreed the recommended ways to remedy that injustice and to ensure that Child C’s needs are now properly re-assessed and that an amended final EHC Plan is issued. I have therefore completed my investigation and I am closing the complaint.
Parts of the complaint that I did not investigate
- The Ombudsman cannot investigate the actions of School Y or other educational providers involved because our jurisdiction does not permit this. Complaints should be made directly to the schools involved.
- I cannot investigate the Council’s decision to name School Y in Child C’s EHC Plan because the parents had a right of appeal to the SEND Tribunal, and I consider it was reasonable for them to use this.
Investigator's decision on behalf of the Ombudsman