Summary: Miss X complained about delays in the Council assessing and meeting her child, Y’s, special educational needs between 2019 and 2021. The Council accepted there were significant delays in assessing and planning for Y’s needs and that it failed to provide a suitable education for over two years. The Council agreed to apologise to Y, pay the financial remedy it has now offered and a further payment to recognise the time and trouble caused to Miss X.

The complaint

1. Miss X complained about delays in the Council assessing and meeting her child, Y’s, special educational needs between 2019 and 2021. She said the Council:
• failed to request advice about Y’s needs;
• delayed making an Education Health and Care plan for Y;
• told her not to appeal the content of the plan;
• failed to provide an education for Y when they could not attend school; and
• failed to communicate with her and tell her who was responsible for arranging support for Y.
2. As a result, Miss X said Y missed education and other support between October 2019 and 2021, Y’s mental health became worse and both she and Y were caused significant distress.
3. She wanted the Council to provide education and support which meets Y’s needs, recognise the distress and missed education it caused and appoint someone to oversee Y’s education.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. 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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What I found

Education health and care plans

13. Children and young people aged up to 25 who need more support to access education may have an Education Health and Care (EHC) plan. This identifies their educational, health and social care needs and sets out the support required to meet those needs.
14. Statutory guidance ‘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 EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. 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.
15. 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 (EP);
• 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.

(Special Educational Needs and Disability Regulations 2014, Regulation 6(1))

16. A council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
17. Those consulted have a maximum of six weeks to provide the advice.
18. Councils should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

Alternative provision

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
20. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))

What happened

22. Miss X’s child, Y, has special educational needs caused by health problems including chronic fatigue syndrome and anxiety.
23. In September 2019, Miss X asked the Council to carry out an EHC assessment for Y’s needs. She told the Council Y had not been attending school and she had arranged some home tutoring, but that Y needed more support.
24. The Council agreed to assess Y’s needs and says it prepared requests to gather the necessary advice. However, it did not send the requests.
25. In February 2020, Miss X chased the Council, which realised it had not sent the requests. It apologised to Miss X and sent the requests. It also referred Y to its ‘Alternative Provision team’ recognising that it “had let the family down and the situation does sound pressing.”
26. In April 2020, the Council deferred making a decision about whether to make an EHC plan for Y. It said it did not have enough advice about Y’s needs, so it decided to ask for more evidence. Miss X says this was because the Council lost the information she had previously provided and that the Council told her, months later, that it had found the information on an old system.
27. In early June 2020, the Council again deferred its decision about whether to make an EHC plan, again citing insufficient evidence. Again, the Council decided to ask for more advice, including from medical professionals.
28. Miss X complained to the Council about the delays. In late July 2020, the Council accepted there had been unacceptable delays and apologised. It said it would issue a draft EHC plan within two weeks.
29. Miss X complained again to the Council in September 2020, saying nothing had been done. In response, the Council arranged a meeting of its reorganised SEND team to review Y’s case.
30. In late November 2020, the Council referred Y to a home education provider which started to provide a small number of hours of education a week from the end of 2020.
31. The Council responded to Miss X’s complaint in late January 2021, again apologising for the delays.
32. In mid-February 2021, the Council issued a draft EHC plan for Miss X to comment on. It then issued the final EHC plan in early March 2021. The plan said Y’s needs could be met in a mainstream secondary school, though it did not specify a particular school or arrange a school place for Y.
33. Miss X said she did not know the Council had issued either the draft or final EHC plans until July, when she chased the Council again, so she did not have a chance to comment on the draft plan. She had concerns about whether the final plan properly provided for Y’s needs and that Y still had no school place. Miss X said the Council discouraged her from appealing to the SEND tribunal, saying that it would try to find Y a school and it could then review the plan.
34. The Council started consulting schools in late July 2021 and, as of the end of 2021 Y still did not have a school place.
35. After Miss X’s complaint to the Ombudsman in July 2021, the Council reviewed Y’s EHC plan and decided to make amendments. Miss X has further complained to the Council and the Ombudsman about the delays following that review.

The Council’s response to my enquiries

36. In its response to my enquiries the Council acknowledged there had been significant delays in both assessing and planning to meet Y’s needs. It also accepted the apologies it had made did not make up for the education Y missed or the impact of this on both Y and Miss X.
37. It offered to pay Miss X:
• £13,500 to recognise the education Y missed since September 2019; and
• £1,500 to recognise the distress and emotional impact to both Miss X and Y.
38. The Council also said it has appointed a named member of staff to review and reassess Y’s needs. It said it hoped to complete this review by February 2022.

My findings

39. The events Miss X complains about started in September 2019. However, Miss X complained to the Ombudsman in July 2021. We cannot usually consider events which happened more than 12 months before someone complains to us, unless there are good reasons to do so.
40. Although Miss X could have complained to the Ombudsman sooner than she did, the Council made repeated promises of action which it then failed to keep. Only after the Council failed to keep these promises several times did Miss X decide to complain to the Ombudsman. It was the Council, not Miss X, which was responsible for many of the delays. I am therefore satisfied that there are good reasons to consider the Council’s actions from September 2019.
41. Miss X also had the right to appeal the March 2021 EHC plan to the SEND tribunal. However, I am not satisfied the Council sent the EHC plan to Miss X at the time it made it and Miss X’s focus after she became aware was finding a school for Y. In the circumstances, I am satisfied it was not reasonable for Miss X to appeal to the SEND tribunal.

Delays in the EHC process

42. The Council accepted there were significant delays in the EHC assessment and in making the EHC plan. After it agreed to assess Y’s needs in September 2019, it should have issued a plan within 20 weeks, by the end of January 2020. However, the Council did not make an EHC plan until March 2021, over a year late.
43. There were significant failures during the EHC process particularly in gathering the necessary advice on which to base a plan and a complete lack of oversight by the SEND team, leading to many deadlines being missed and promises not being kept.
44. After the Council eventually issued the final EHC plan in March 2021, it did not start consulting possible schools until July. Normally, a council would have done this as part of making an EHC plan, not waited until after the plan was made.

Alternative provision

45. Despite the Council identifying it had a duty to arrange alternative education provision for Y in September 2019, there is no evidence it made any such arrangements until the end of 2020. Even then, the Council accepts it provided only a small number of hours of education. Miss X says this provision was only about re-engaging Y with education and had no academic content.
46. This meant Y received no education for over a year, and then only a partial education after this.

The Council’s proposed remedy

47. The Council accepted its apologies to Miss X were not a suitable remedy for the effect of its failures.
48. It has proposed to pay Miss X £500 per month to recognise that missed education since September 2019, which it calculates to be 27 months as of the end of 2021. The amount the Council has offered is in line with our Guidance on Remedies and given Y’s particular needs and the effect of the missed education on them, I am satisfied this is a suitable remedy. I cannot consider the impact of any new delays which happened after the Council reviewed Y’s EHC plan in September 2021. Miss X has complained separately about this.
49. The Council accepted that Y being out of education for so long has had a significant personal impact on both Y and Miss X. To recognise this, the Council has offered to pay Miss X £1,500 to be split between Y and Miss X. Given the significant impact on both Miss X and Y, I am also satisfied this is a suitable remedy for the distress caused to them both.
50. The Council also said it has started a review of Y’s needs and EHC plan. It should ensure this review is completed without any further delay. This review will give Miss X fresh appeal rights if she does not agree with the Council’s decision or any amended EHC plan it issues.
51. Although the Council has offered suitable remedies for the distress and missed education, it has not fully addressed the significant time and trouble Miss X has been put to by having to complain to the Council several times and then to the Ombudsman. The Council should pay Miss X a further £300 to recognise this.
52. Given Y’s age, the Council should also apologise to Y individually. It should consult with Miss X to ensure the apology is made in a way which meets Y’s needs.

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Agreed action

53. Within one month of my final decision the Council will:
• apologise directly to Y, in a way which meets their individual needs, for the delays and failure to provide them with a suitable education;
• pay Miss X, for Y’s future educational benefit, the £13,500 it has offered in recognition of the education Y has missed;
• pay Miss X £1,500 to recognise the personal impact and distress to her and Y;
• pay Miss X a further £300 to recognise the time and trouble caused by having to complain to the Council and the Ombudsman; and
• complete its review of Y’s needs and EHC plan, including sending Miss X a written decision in line with the legal timescales.
54. Normally, I would also have recommended that the Council carry out a review of its SEND service to ensure that such delays did not occur in future. However, the Council agreed to carry out such a review in a complaint we decided in September 2021. Since the events Miss X complained about happened before this, I have not repeated that recommendation.

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Final decision

55. I have completed my investigation. The Council accepted there were significant delays in assessing and planning for Y’s needs and that it failed to provide a suitable education for over two years. The Council agreed to apologise to Y, pay the financial remedy it has now offered and a further payment to recognise the time and trouble caused to Miss X.

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Investigator's decision on behalf of the Ombudsman