The Ombudsman's final decision:
Summary: Mrs C complained the Council delayed in providing her son with an Education, Health and Social Care Plan naming a suitable school. Also, that it failed to provide him with suitable education while she appealed the content of that plan. We uphold a complaint the Council took too long to finalise the plan. This delay caused both Mrs C and her son injustice. The Council accepts this finding and at the end of this statement we set out the action it agreed to remedy that injustice. The statement also explains why we are unable to investigate or uphold other parts of Mrs C’s complaint.
- I have called the complainant ‘Mrs C’. She complains the Council:
- delayed in providing her son, ‘D’, with an Education, Health and Social Care Plan (EHCP) naming a suitable school.
- failed to ensure ‘D’ received suitable education while she appealed the content of the EHCP.
What I have investigated
- I am limited in the extent to which I can investigate Mrs C’s complaint. I explain at the end of this statement why I cannot investigate those parts of the complaint which concern:
- how the Council responded to a request made by Mrs C in August 2019 that it assess D to see whether it should provide him with an EHCP;
- the actions of the Council between May 2020 when it issued a final EHCP and January 2021 when a First-tier Special Educational Needs and Disability Tribunal heard an appeal brought by Mrs C on the content of that plan;
- some of the complaint about the education provision D received between September 2020 and February 2021 while the EHCP was under appeal.
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)
- 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. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter complained about. (Local Government Act 1974, section 26(6), as amended)
- 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)
How I considered this complaint
- Before issuing this decision statement I considered:
- Mrs C’s written complaint to the Ombudsman and any supporting information she provided;
- correspondence between Mrs C and the Council about the matters covered by this complaint which pre-dated this investigation;
- information provided by the Council in reply to my written enquiries;
- any relevant law or guidance as referred to below.
- I also sent Mrs C and the Council a draft decision statement, giving them opportunity to comment on my proposed findings. I took account of any comments made in response before finalising this statement.
- 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.
What I found
Key law and guidance
EHCP assessments and appeals
- Statutory guidance contained in the ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act and SEN Regulations 2014. It says:
- where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
- the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
- the whole process from the point when an assessment is requested until the final EHC Plan is issued must usually take no more than 20 weeks.
- However, the Special Educational Needs and Disability Regulations 2014 provide an exception to the timescale set out in the final bullet point above. They say that where a SEND Tribunal has directed a council to undertake an assessment then it must do so “as soon as practicable and in any event within 14 weeks” of the Tribunal order. This would apply to cases where a council has agreed to assess following a parental appeal and the SEND Tribunal has issued a consent order stating this.
- The courts have established that if someone has lodged an appeal to a 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 placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407).
Children absent from school for health reasons
- Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them (Education Act 1996, section 19(1)).
- Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
- The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
- 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))
- The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
- The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
- The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority )
Chronology of key events
- The following sets out what I consider are the key events forming Mrs C’s complaint. The chronology is not intended to be exhaustive and does not refer to every interaction that Mrs C had with relevant others – such as the Council, schools or professionals working with D.
- I note first that Mrs C made a request that D be assessed for an EHCP in August 2019. At the time D attended a mainstream primary school and was about to enter Year 6 of his education. D was already known to Council education services and known to have special education needs (SEN). For several years D’s school had provided him additional support.
- I found that from March 2019 there were references to D’s behaviours at school changing, due to his anxiety and this suggested he may need more support. A specialist Council service that supports schools teaching children with SEN visited D’s school and offered further advice on his teaching. While I saw concern expressed for D’s behaviour and progress I found no reference in any papers before August 2019 to D potentially having an EHCP. Although Mrs C has explained to me her understanding that around April 2019 D’s school were considering an approach to the Council to carry out a EHC assessment. She understands guidance issued by the Council to schools discourages this.
- As noted, Mrs C wrote to the Council in August 2019 requesting a EHC assessment. She set out a chronology of D’s involvement with specialist health services and the support he had received with his education.
- Around four weeks later the Council refused the request. In November 2019 the Council was notified by the SEND tribunal that Mrs C had appealed its refusal to assess D’s needs.
- The Council decided it could not sustain any objection at appeal to carrying out an EHC assessment. So, in December 2019 it agreed to undertake such an assessment. On 12 December 2019 the SEND Tribunal closed Mrs C’s appeal and issued a ‘consent order’, which confirmed the Council would undertake an EHC assessment.
- In March 2020 the Council issued a draft EHCP. It issued copies to two local mainstream secondary schools, neither of which Mrs C wanted D to attend. I find the Council knew why Mrs C’s objected to it naming either school.
- In both cases the schools advised that they did not think they could meet D’s SEN. However, the Council decided to name one of the schools on D’s EHCP despite both its objections and those of Mrs C.
- The Council issued a final EHCP naming that school on 5 May 2020. Mrs C appealed the naming of the mainstream school and other parts of the EHCP to the SEND Tribunal.
- The tribunal was not held until January 2021. It upheld Mrs C’s appeal and agreed changes to the EHCP including to the school named.
- I noted that in the interim:
- the Council acknowledged not sending the final EHCP to the named school straight away. In early July 2020 Mrs C noted the school had until recently not known it had been named as the setting for D’s education;
- after the school was named a request was made by the school on behalf of Mrs C to arrange a ‘moving forward’ meeting. The Council failed to arrange such a meeting.
- in August 2020 D’s GP wrote to the school named in the May 2020 EHCP saying D would “not be able to attend mainstream school until December” because of severe anxiety. The GP wrote a second letter in similar terms in January 2021, this time saying D would not be able to attend before April 2021 at the earliest. In September a school employee forwarded a copy of the GP’s letter to the Council and referred to it again in a later email sent in October 2020;
- D was due to attend the school named in the May 2020 EHCP from September 2020 but did not do so. I have seen emails between Mrs C and the school (of which the Council was aware) where there was some discussion of alternative provision being made for him including the school offering to hire a robot or use an online teaching service. In November 2020 the school agreed to fund three hours a week of tuition at home, which lasted only a few weeks. D received only around 17 hours tuition in this time.
- In September 2020 the School had suggested it might contact a medical tuition service for support and asked Mrs C if D’s pediatrician would support such a referral. A letter from the pediatrician from October 2020 did not support the referral saying that the service was unsuitable for D and that he should “continue to seek educational input from school”. The letter described Mrs C as taking the decision not to let D start at the named school because of her disagreement with it being named in the EHCP.
- that Mrs C did for a time, pay for D to attend a weekly forest school for home-educated children but that D could not integrate because of his SEN;
- that the Council entered further discussions with Mrs C about naming an alternative school for D to that named in the May 2020 EHCP.
- Mrs C complained initially in June 2020 at the naming of the secondary school in D’s EHCP. The Council responded to that letter noting that Mrs C had appealed the placement. Mrs C replied saying that her appeal did not prevent the Council working with her to try and secure alternative provision for D and that it had not replied to her requests to meet to discuss this. Mrs C has copied to me emails where those requests were made.
- My investigation can focus on only three key questions. First, is there any evidence of fault in the Council’s actions before August 2019 when Mrs C requested it assess D’s needs to see if they should be met via a EHCP. Second, is there any evidence of fault in the time taken between the Council agreeing to that assessment in December 2019 and it issuing a final EHCP in May 2020. Third, should the Council have regarded D as a child missing from education between September 2020 and February 2021 as a result of illness and therefore been making alternative provision accordingly. I will address each in turn.
The Council’s actions before August 2019
- It is clear the Council knew of D before August 2019 and that he had SEN. Further that he received support from his primary school and that his progress (which had been noted as good in 2018) had stalled by around April 2019. In this context, I see no reason to doubt Mrs C’s account that around April 2019 there was some discussion with the school around the possibility of D being assessed for an EHCP.
- I also note with concern Mrs C’s understanding the Council may issue advice to schools discouraging them from requesting an EHCP. The law allows for schools to make such requests, although this should usually be with parental consent. Having such a policy maybe evidence of fault therefore.
- However, there is no written record I have seen which reflects that discussion. And there is nothing to show the school made any approach to the Council to undertake an EHC assessment and was told not to make such a request.
- Consequently, I am unable to find any fault in the Council’s actions before August 2019. Because there is no evidence that it overlooked any request to begin the assessment process sooner.
The time taken to issue a final EHCP
- As I have explained above the relevant Regulation requires the Council to complete an EHCP assessment within 14 weeks, where its agreement to assess follows the making of a consent order by the SEND Tribunal (and in the absence of any directions from the SEND tribunal to the contrary). In this case the Council took 21 weeks to complete the assessment further to the consent order being made.
- I consider this delay of seven weeks a fault as I can see no special circumstances that justify the delay.
- I find this delay will have caused both D and Mrs C an injustice. In D’s case the delay meant his final EHCP was issued later in Year 6 of his education. It meant any appeal process would inevitably be prolonged into Year 7 - a critical time for any child. So, D faced uncertainty going into that year. And given the appeal resulted in a different, more suitable placement for D’s needs, I can also say he was unable to access that placement sooner as a result of this delay.
- In Mrs C’s case she was caused unnecessary distress in the form of uncertainty waiting for the Council to issue a final EHCP.
- The Council accepts these findings. It has agreed action that I consider is fair to remedy the injustice caused to both and this is detailed below.
- I noted Mrs C’s further concern that the Council’s consulted two mainstream secondary schools, neither of which she thought suitable for D, during the assessment. I understand Mrs C’s reasons for not thinking either school suitable and she explained these to the Council. However, I cannot find fault in it consulting the schools notwithstanding Mrs C’s wishes. Because while the Council must take account of the parent’s views it is not bound by them. At the time it clearly felt D’s needs could be met within a mainstream secondary school setting and I think it reasonable it consult those schools which were the nearest to D’s home.
Did the Council fail to treat D as too ill to attend school between September 2020 and February 2021
- I note the two letters signed by D’s GP which suggested he was too ill to attend the school named by the Council on his EHCP in May 2020. The GP cited D’s anxiety as a factor. I note there is evidence from several sources which links D’s anxiety to his SEN.
- However, I am not persuaded that this evidence alone means the Council should have treated D as a child too sick to attend school and therefore one for which it was obliged to make alternative provision. Two factors are relevant here.
- First, I am satisfied the Council should have been aware of the GP’s letter as it was brought to its attention by the School. But the evidence suggests D’s absence from school was linked to his SEN. This is something confirmed by the paediatrician’s letter of October 2020 who also suggested D’s absence was due to Mrs C deciding not to send him to school. I take no view on this latter suggestion, but I am satisfied this was not a straightforward case of medical absence. Instead, the reasons for D’s absence were inextricably linked to his SEN and the manner in which his SEN should be met was something then under appeal to the SEND Tribunal.
- Second, leading on from the above, the Council was clearly aware D was not in school. But also aware of the liaison between the school and Mrs C around D having some education provision. D therefore continued to have access to education, albeit one that was clearly not full-time. I consider the Council could reasonably defer consideration of how his needs might be better met until after the SEND Tribunal made its ruling given that it was fulfilling its statutory duty by making a school place available to D.
- My analysis above is not intended to detract from Mrs C’s understandable concerns about the education setting the Council chose for D. Concerns which were ultimately accepted (at least in part) by the Council and upheld by the SEND Tribunal. But it is an acceptance that while a child’s EHCP naming a school is subject to an appeal, it is not for the Ombudsman to usually decide what education that child should receive. Not unless the evidence is clear that the child could not have attended the school named in the EHCP for reasons of sickness and not for reasons related to their SEN. In this case I do not find such clarity.
- The Council has agreed action to provide a remedy for the injustice caused to Mrs C and D set out at paragraphs 39 and 40 above. The action takes account of the Ombudsman’s published guidance on remedies. The Council has agreed that within 20 working days of this decision it will:
- apologise to Mrs C accepting the findings of this investigation;
- pay Mrs C £900; £750 of this is to reflect the injustice caused to D in the delay in completing his EHCP and £150 to reflect her uncertainty caused by the delay.
- The Council has also agreed that within 20 working days of this decision it will issue a reminder to relevant staff of the timescales they must work to in completing an EHCP assessment when that is agreed by way of a consent order or other SEND Tribunal order.
- For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs C and to D. The Council has agreed action that I consider will l provide a fair remedy for that injustice. So, I have completed my investigation satisfied with its response.
Parts of the complaint that I did not investigate
- I could not investigate the Council’s response to Mrs C’s request, made in August 2019, that it carry out an EHC assessment. There is evidence which shows the Council’s response to refuse the assessment, went against advice it received which set out the extent of SEN support D received at primary school. An internal note recorded the Council saying its position could not be upheld on appeal and this led it to agree the consent order in December 2019 accordingly.
- However, the law is clear that where a complainant has used the alternative remedy of appeal to a tribunal, the Ombudsman does not have power to investigate (see paragraph 5 above). In this case Mrs C appealed the refusal of the Council to assess D in September 2019 to the SEND Tribunal. The Council’s actions in rejecting Mrs C’s original request and the time taken for it to change its position are therefore outside our powers to investigate.
- I am also unable to investigate the actions of the Council between May 2020 when it issued a final EHCP and February 2021 when the SEND Tribunal heard an appeal brought by Mrs C on the content of that plan. I note Mrs C’s dissatisfaction with the actions of the Council in this time. In particular, the extent of the service it provided when she wanted to discuss her concerns for the content of D’s EHCP; including when a request was made on her behalf for a ‘moving forward’ meeting. I also note Mrs C considers she had no alternative but to instruct independent expert reports and professional advice for the Tribunal, frustrated with the Council’s response to her contacts. Further that the Council did not always comply with Tribunal directions leading to delay and her being put to more time and trouble.
- However, caselaw makes clear the Ombudsman’s limited jurisdiction once a parent has made an appeal to the SEND Tribunal (see paragraph 12 above). Not only are we prevented from investigating those contents of the EHCP which the parent has appealed but also matters which are ‘inextricably linked’ to the appeal – such as the evidence the Council chooses to rely on in support of the content of the EHCP or its conduct during the appeal process.
- I have also explained above while this legal restriction prevents me making findings on the education provision D received between September 2020 and February 2021 while the EHCP was under appeal.
Investigator's decision on behalf of the Ombudsman