Summary: Mrs J complains the Council delayed issuing a final EHC Plan for her grandson and has failed to provide him with a full-time education or with a personal budget for education out of school. We have found fault causing injustice. The Council has agreed to make a payment to Mrs J and review its procedures.

The complaint

1. Mrs J complains the Council delayed issuing a final EHC Plan for her grandson and has failed to provide him with a full-time education or with a personal budget for education out of school.
2. As a result her grandson’s education has suffered and he has felt isolated and increasingly anxious. The family have had to pay for educational provision and have been left feeling extremely anxious.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
6. 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. (Local Government Act 1974, section 26(6)(a), as amended)
7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34A, as amended)
8. 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)
9. 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.

Back to top

How I considered this complaint

10. I considered the information Mrs J sent, the Council’s response to my enquiries and:
• The special educational needs and disability code of practice: 0 to 25 years ("the Code")
• Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
11. Mrs J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Provision of education

12. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education. Councils have the power to prosecute parents who fail to ensure their child's regular attendance at school.
13. Under section 19 of the Act 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.
14. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. The Courts have found that it is a judgment 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 [2020])
16. The alternative 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)
17. 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’)

Part-time timetables

18. The Government’s non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
19. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind?, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Special educational needs

20. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
22. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Timescales and process for EHC assessment

23. The Code 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 take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child's parent or the young person 15 days to comment on a draft EHC plan.

Gathering advice for assessments

24. As part of the assessment councils must gather advice from relevant professionals. This includes:
• the child's education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an educational psychologist;
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
25. Those consulted have a maximum of six weeks to provide the advice.

Personal budgets

26. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan, where the parent or young person is involved in securing that provision. Parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed. A personal budget may be provided in the form of direct payments to the young person or their parent, for them to purchase the support themselves.
27. Where a local authority decides not to make direct payments it must tell the child's parent its decision in writing and give the reasons for its decision. Parents have a right to request a review of the decision. Councils must consider any representations made and inform the parent in writing of the outcome of the review, giving reasons.

What happened

28. Mrs J is the legal guardian of her grandson, M. M was attending a mainstream secondary school, School 1. Mrs J requested an assessment of M’s EHC needs on 27 February 2020, when he was in Year 7. The request said M struggled to communicate and had a history of self-harm. His SEMH (social, emotional and mental health) needs were affecting his learning. He was only attending school for 54% of the time and had a reduced timetable to support his mental health.
29. The Council agreed to assess M on 1 April 2020. The final EHC plan should therefore have been issued by 15 July 2020.

Gathering advice for the EHC needs assessment April 2020 – August 2021

30. In early April 2020 the Council sought advice from M’s school and an educational psychologist. It emerged that M’s GP was based in a neighbouring area so the Council sought advice from a community paediatrician in that area. The deadline for responses was 17 June 2020.
31. The educational psychologist’s and School 1’s advice was received by the end of May 2020. The community paediatrician’s advice was received in September 2020. It said that M was “under the care of [the neighbouring area’s] CAMHS” (child and adolescent mental health services) and that “CAMHS’ recommendations should be taken into consideration in supporting M’s needs at school.”
32. On 26 November 2020, the Council’s multi-agency statutory assessment panel considered the outcome of M’s assessment and agreed to issue a draft EHC plan for M.
33. The Council contacted CAMHS on 3 December 2020. The letter said the Council was assessing M’s education, health and care needs and therefore required CAMHS “to carry out an assessment of [his] health needs” and to “provide advice … on the nature and extent of [his] health needs in order to determine if an EHC plan will be issued.” The deadline was 14 January 2021.
34. The Council contacted CAMHS on 25 January 2021. The service replied it would be carrying out an initial assessment of M in February. Following that assessment CAMHS sent questionnaires to Mrs J and School 1.
35. The Council again asked CAMHS for a response on 4 March 2021. It advised it would need to carry out a more detailed assessment of M. On 29 March 2021 CAMHS said it had only just had the questionnaire back from School 1 and needed a further discussion with Mrs J to discuss treatment. It would then write up a report on the assessment. The psychotherapist asked the Council what report it required. I have not seen whether the Council replied to this.
36. Following further contact in July 2021, the Council told CAMHS it could not issue the EHC plan until it had received CAMHS input. The CAMHS psychotherapist replied she had “not been asked for advice on an EHCP before” and was working on her assessment and treatment plan for M. CAMHS sent its report to the Council on 9 August 2021. M had a diagnosis of ADHD and possible anxiety.

The development of the EHC plan

37. To meet the statutory 20-week deadline, the Council needed to issue a draft EHC plan on 19 June 2020. By then it had received responses from the educational psychologist and School 1.
38. The community paediatrician’s advice was received in September 2020, but the Council did not ask the Panel whether an EHC plan should be issued until 26 November 2020. The Panel agreed to issue a plan, but the Council then asked CAMHS to assess M.
39. In March 2021 the Council sent Mrs J several draft EHC plans. It said these were working documents as it was still awaiting CAMHS’ input. The Council used the working documents to consult with schools including School 2, a special school. Mrs J says the Council consulted schools which specialised in autism, but M had SEMH needs so they were not appropriate. The Council consulted more schools in May and June 2021.
40. Once CAMHS’ report was received, the Council issued a draft EHC plan on 10 August 2021. It re-consulted with School 2.
41. The Council issued a final EHC plan naming School 2 on 20 October 2021. This was 15 months after the statutory deadline.
42. Mrs J did not want M to attend School 2 and said she would appeal to the SEND Tribunal.

M’s education provision February 2020 – November 2021

43. M was on the roll of School 1 from September 2019 to October 2021. In February 2020 the request for an EHC needs assessment made clear he was on a part-time timetable at that point and his attendance was 54%. I have not seen any evidence that the Council reviewed the part-time timetable or considered whether M could have had full-time education.
44. In December 2020 Mrs J asked the Council for information about alternative schools. She was concerned that School 1 could not meet M’s needs and “had put very little structure in to support him”. Mrs J considered that none of the alternative schools suggested by the Council were suitable for M. She asked for funding to purchase a computer and for a personal budget to support M with maths tutoring (£300 a month) and art therapy (£175 a term). Mrs J also asked the Council to consult with an independent school (School 3).
45. The Council refused these requests. It wrote to Mrs J on 15 January 2021 that:
• It expected additional support with maths to be provided in school.
• A computer would be provided by the school to support M with the provision in the EHC plan working document.
• There was no evidence within the reports provided that art therapy was required, but the Council would reconsider if CAMHS recommended this.
• It was unclear whether School 3 specialised in SEMH needs and it was a middle school that M would need to leave in July 2021.
46. In March 2021 Mrs J told the Council that School 1 had placed M on a reduced timetable and asked for funding for extra lessons. She said M was anxious about attending School 1 and again stated it could not meet his needs. The Council replied that School 1 was responsible for providing M’s education for the times when he was not in school and that it should seek support from agencies if necessary.
47. School 1 replied to the Council’s consultation in April 2021 that it was unable to meet M’s needs. In June 2021 School 2 said it could offer M a place.
48. Mrs J told the Council she would ask for a personal budget as no schools could meet M’s needs. She had found errors in the EHC plan and she asked for M to have education otherwise than at school (EOTAS).
49. School 1 told the Council on 14 September 2021 that M had not been attending since the start of term. After the final EHC plan was issued naming School 2, M was taken off School 1’s roll and placed on School 2’s roll on 8 November 2021. Mrs J has refused to complete the admissions paperwork for School 2 as she does not consider it suitable for M. The Council has since referred M to its education welfare officer and has recorded M as a child missing education.

Mrs J’s complaint

50. Mrs J complained in March 2021 that an EHC plan had not been issued. This was passed to the SEND team to deal with and Mrs J followed it up with further concerns about the refusal of a personal budget and to consult with School 3.
51. The Council replied in May 2021 that none of the schools it had consulted so far could meet M’s needs and it was consulting others. School 1 should make a referral to a support service if they needed support to meet M’s needs and a personal budget could not be provided until the final EHC plan was agreed. It had declined to consult with School 3 as it had a duty to consider local options that could meet M’s needs as well as ensuring the effective use of public funds.
52. Mrs J complained again on 8 June 2021 that the Council had not provided M with a full-time education in an alternative setting out of school. She said M had been on a reduced timetable for over a year. She asked to be reimbursed for the money she had spent on providing M with art therapy and tuition and asked for a personal budget.
53. The Council’s reply on 2 July 2021 said it could not issue a final EHC plan without the information from CAMHS. Unfortunately, this had not been received despite chasing by the Council. The Council had issued a working draft EHC plan and was consulting with schools. It had considered Mrs J’s request for a personal budget but had declined this.

My findings

The EHC plan

54. The Council has a statutory duty to issue a final EHC plan within 20 weeks of a request for an assessment. In this case, the plan should have been issued by 15 July 2020 but was not issued until 20 October 2021. This is fault.
55. I accept that the Council was not responsible for the length of time it took CAMHS to assess M and issue its report. I cannot investigate the actions of the NHS. However, I find the following was fault by the Council.
• It had received all the advice requested by September 2020 but did not put M’s case to its panel until 26 November 2020. I have seen no reason why this could not have been done sooner, so I find this was delay.
• It failed to issue a draft EHC plan when the panel had agreed to it in November 2020.
56. The Council says it did not issue a draft or final EHC plan because it needed advice from CAMHS. The Regulations say councils should seek “advice and information” from the NHS. The Council had received input from a community paediatrician in September 2020. I consider the Panel was right to agree that a draft plan could be issued before the CAMHS assessment was received. We do not find councils at fault if an EHC plan is issued without NHS advice because it has not been provided. Our view is that councils should issue the EHC plan and update it once it receives the health advice. In M’s case the Council could have issued an EHC plan which stated that a CAMHS assessment had been sought.
57. I therefore find it was service failure for the Council not to issue an EHC plan, even if it had done everything it could to obtain professional advice.
58. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
59. I also find the Council’s formal request to CAMHS in December 2020 was unclear as it asked for an assessment and also for advice and information for the EHC plan. I consider this led to confusion by CAMHS and I can see that the service asked more than once for clarification on what was being requested. The CAMHS service was in a neighbouring area, but I find it was fault to have unclear arrangements for working with the NHS.
60. In response to my draft decision, the Council said it had arrangements with its local NHS body and it was not for the Council to have “direct arrangements” with other bodies in neighbouring areas. The Council must have clear arrangements with all partner organisations it liaises with in relation to EHC plans. From the evidence I have seen in this case, the arrangements with the neighbouring area's CAMHS were unclear.

Provision of education

61. Mrs J complains the Council failed to ensure M received a suitable education. It is not the Ombudsman's role to determine the suitability of the education provision, either quality or amount, that M received. My role is to consider how the Council determined this.
62. In February 2020 and March 2021 the Council was aware that M was on a part-time timetable. I have seen no evidence the Council reviewed the reduced provision or considered if it needed to make M’s education full-time, or up to the maximum number of hours M could benefit from. This was fault.
63. The Council’s duty to arrange suitable education starts if a child cannot attend school because of exclusion, illness or other reasons. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
64. Mrs J told the Council M was anxious about attending School 1 in March 2021 but she did not provide any medical evidence that M was unable to attend. Nor have I seen evidence that the Council was aware M was not attending school at all until September 2021. It then issued an EHC plan naming School 2, but M did not attend as Mrs J considered School 2 was unsuitable.
65. In the absence of any evidence that M could not attend School 1 or School 2, it was not fault for the Council to be satisfied there was suitable educational provision for M at School 1 and later at School 2 and that it was reasonably practicable for him to attend. I therefore find that the Council did not have a duty to secure alternative educational provision for M.
66. Mrs J complained the Council refused to consult with School 3, which was her parental preference. The Code says councils must comply with parental preferences, but in relation to independent schools only if the school has been approved by the Secretary of State. School 3 had not, so the Council was not required to consult and there was no fault in its refusal.

Personal budget

67. Mrs J requested a personal budget whilst the draft EHC plan was being prepared. The Council refused this in January 2021 and when the final plan was issued.
68. There was no fault in the Council’s refusal as the provision Mrs J was requesting a budget for was not provision set out in M’s EHC plan. It was therefore not possible for the Council to provide a personal budget for it.

Did the fault cause injustice to M or Mrs J?

69. I have found fault by the Council as the EHC plan was not issued until 15 months after the statutory deadline and the Council did not consider whether M could or should have full-time education. I have considered the impact this had on M and Mrs J.
70. If there had been no fault in issuing the final EHC plan, it would have been issued in July 2020. I consider that on the balance of probabilities, it is likely the plan would have named School 2 as this was the only school consulted which said it could meet M’s needs. Mrs J would then have been able to appeal to the SEND Tribunal. Mrs J would have had two months to register an appeal. Tribunals usually take 16 weeks from when the person appeals to issuing their decision. So it is likely the Tribunal’s decision would have been made in January 2021.
71. The delay in issuing the EHC plan therefore deprived Mrs J of her appeal rights from July 2020 to October 2021. I cannot say whether the Tribunal would have upheld Mrs J’s appeal, but she is left with uncertainty about what would have happened.
72. I realise the Council considered it could not determine M’s SEN provision without the input of CAMHS, but the failure to issue the final EHC plan in July 2020 meant M lost out on any provision he could have had from September 2020. The final EHC plan includes:
• Structured social skills intervention for 30-40 mins a week
• Key adult support
• 1:1 learning support assistance to be available
• ICT support
• Weekly 20 mins touch typing practice
• Weekly 40-50 mins 1:1 emotional literacy intervention (therapeutic support)
• To be supported by CAMHS as appropriate
• A referral for art psychotherapy
73. It may be that without the CAMHS advice not all of this provision would have been set out in an earlier EHC plan. However, a July 2020 plan would have included some provision which M did not then receive for nine school months; this is his injustice.
74. In relation to M’s part-time timetable, I have seen no evidence the Council reviewed this, which is fault. However I cannot say that if the Council had reviewed it, it would have found that M was able to cope with a full-time curriculum and he may not have consistently accessed full-time education in any event. But again, there is uncertainty about what would have happened. That is M’s and Mrs J’s injustice.
75. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
76. The Ombudsman's guidance on remedies recommends a payment in acknowledgement of lost education of £200-600 per month. Given the circumstances of this case, I consider an appropriate figure for the loss of SEN provision to be £200 per school month from September 2020 to July 2021 (a total of nine school months).
77. For uncertainty caused by fault, our guidance recommends a symbolic payment of up to £300.

Back to top

Agreed action

78. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs J and pay her:
• £300 to acknowledge the uncertainty caused by fault.
• £1,800 to acknowledge the loss of SEN provision to be used for M’s educational benefit
79. Within three months the Council has agreed to:
• Remind SEND staff to consider seeking advice from the multi-agency statutory assessment panel if professional advice or information for an EHC needs assessment has not been received within six weeks.
• Review its arrangements with neighbouring NHS bodies in relation to seeking information and advice for an EHC needs assessment, to ensure what is being requested and the timescales are clear.

Back to top

Final decision

80. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman