Summary: there was fault by Hampshire County Council in the form of delay in completing an assessment of Ms B’s child’s special educational needs and in making adequate educational and special educational needs provision for a prolonged period. This caused injustice to Ms B and her daughter. The Council will take the action recommended to remedy this injustice.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that Hampshire County Council has failed to properly meet her daughter, X’s, educational and special educational needs since September 2020. Specifically, she says:

1. it delayed completing the assessment of X’s education, health and care needs failing to meet statutory timescales;
2. it failed to make adequate alternative educational provision from November 2020; and
3. its communication with her during this time was poor with staff failing to respond to her correspondence and failing to follow up on agreed action, particularly with regard to putting in place additional tuition and support.

2. The injustice Ms B claims is that X has missed out on several months of education and special educational needs support. Ms B says her own university studies were affected as she had to try to provide X with education during the period where inadequate provision was put in place by the Council.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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. 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 EHC Plan 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) [2014] EWCA Civ 1407).
5. 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 EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged 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) [2014] EWCA Civ 1407).
6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

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How I considered this complaint

9. I discussed the complaint with Ms B and considered the information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
10. For the reasons given in paragraphs 3 and 4 above we cannot consider education provision after October 2021, which is when Ms B appealed to the SEND Tribunal about the school named in Section I of the EHC Plan.
11. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received 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

What should have happened

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
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. 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; and
• 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).

15. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) 

16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. 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.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. 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)
19. The courts have considered the circumstances where the section 19 duty applies. 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)
20. 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’)
21. 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 [2020])

What happened

Assessment

22. X’s school asked the Council to arrange an EHC assessment of X’s needs in December 2020.
23. The Council wrote to Ms B in mid-February 2021 confirming it agreed to undertake an EHC assessment of X.
24. The Council issued a draft EHC plan initially in June then a second version in August 2021. After receiving the draft plan in June Ms B asked for a specialist school placement for X.
25. The Council issued the final EHC Plan in late August 2021. This named X’s existing primary school as provision. X was due to start in year 6 (the final year of primary school) in September 2021. The Council’s letter to Ms B which was sent to her with the EHC Plan told Ms B of her right to appeal to the SEND Tribunal.
26. Ms B appealed to the SEND Tribunal in October 2021 over the Council’s decision to name the existing primary school in Section I of the plan issued in August.
27. Section F of X’s EHC Plan includes:
• Social communication skills intervention to be provided for 30 minutes a day initially by a teacher skilled at working with children with social communication and emotional needs;
• Develop safe and trusting relationships with one or two key teachers at home or in an education setting to be provided 1:1 by a teacher skilled at working with children with social communication and emotional needs;
• Support to help X understand and manage difficulties using speech when she is anxious to be provided by a teacher skilled at working with children with social communication and emotional needs and CAMHS if it considered its involvement was necessary;
• A skilled teacher to enable X to be able to ask adults for help;
• Individual teaching in a suitable environment daily delivered by a suitably skilled teacher;
• A curriculum to address gaps in learning as a result of not having access to a full curriculum since March 2020 delivered 1:1 by a suitably skilled teacher; and
• A weekly social and emotional skills development programme delivered by a suitably skilled adult

Alternative provision

28. In 2017 an EP assessment was undertaken because X would not speak to adults in school. Difficulties for X attending school appear to date back to 2018. X was diagnosed with autism in 2019. By late 2020 the situation had deteriorated to the point that she refused to attend school as a result of increasing levels of anxiety about attending. Around mid-November 2020 the Council’s SEN inclusion service was involved and had recommended a reduced timetable for X. This does not appear to have been successful as shortly after X refused to attend at all.
29. In November 2020 the head teacher of X’s school completed a medical referral form and sent this to the Council. The form confirmed that X had been diagnosed with autism, was electively mute with adults and was refusing to attend school. It confirmed that the school was in the process of requesting a statutory assessment of X’s education, health and care needs. The form appears to have been provided to the Council’s attendance officer. In September 2020 X appears to have made her views clear stating she did not want to be at school and wanted to be home schooled. She said "I don't like being at school, I can't talk at school, I can't ask for help at school…”. Ms B says that X particularly struggled with the changes introduced in schools in the Autumn term in 2020 as a result of the Covid-19 pandemic.
30. I have seen no evidence that the Council asked for more evidence to confirm that X was unable to attend school at this time so assume it accepted the information the school had provided.
31. The Council argues that the primary school was responsible for alternative education between November 2020 and August 2021 as she was on roll at primary school then. It accepts it became responsible for provision after the EHC Plan was issued in August 2021.
32. In November 2020 Ms B arranged a home tutor four days a week. It appears that in November the Council also agreed to pay for three weeks of home tuition but said the school was responsible for paying for this after the three weeks. Ms B contests this and has no recollection of three weeks tuition being provided by the Council.
33. The Council says that its attendance officer arranged a medical referral and reintegration meeting with the school and Ms B in March 2021. The Council says that as a result of this meeting the school submitted a medical referral form and home tuition was discussed with a view to X being reintegrated into school. The Council then arranged home tuition for X from March 2021. This amounted to two hours a week.
34. The Council held a meeting about X in June 2021. It was attended by Ms B, the educational psychologist who had assessed X, the primary school head teacher and SENCO. The notes appear to confirm that the agreed plan was to try to increase the tutoring time with a view to getting X back into her current allocated school. Ms B says that for the last six weeks of the summer term in 2021 the Council agreed to increase the home tuition to 6 hours a week but this was never implemented.
35. In August 2021 the Council emailed Ms B suggesting it would arrange a package of 1 to 1 tuition for X from September with a view to teaching core subjects in the longer term but building trust and relationships initially plus some horse riding and horse care. Ms B says this was never provided. The plan was to build on this depending on how things progressed. Special needs school placements were also being sought.
36. In early September Ms B asked when the hours of 1 to 1 tuition might be increased. Provision remained at two hours a week.
37. In November the Council confirmed its panel had agreed to X taking up a place at one of two special needs schools she had visited in September with a view to her starting there in January 2022. It said it would be naming the school in X’s EHC Plan shortly. Ms B withdrew her appeal to the SEND tribunal in January when the preferred school was named on X’s EHC Plan. X began attending a special needs school in January 2022.

Ms B’s complaint to the Council

38. Ms B complained to the Council in May 2021. The Council provided its response at stage 2 of the complaint procedure in June. The Council accepted that it had not completed X’s EHC assessment within the statutory timescales. It apologised for this stating increased pressure of work as a result of an increased number of EHC plans which resulted in a poorer service and level of communication than the Council wanted. It said the situation was being improved by the employment of additional staff and ongoing training of these staff.
39. Ms B wrote to the Council again as she was dissatisfied with the response at stage 2 of the complaints procedure stating the draft EHC Plan had still not been issued and that her daughter remained out of school. In July the Council provided its response at stage 3 of its complaints procedure stating:
• the draft EHC Plan had been issued but had been further delayed before this happened; and
• it partially upheld her complaint that the delays had resulted in X not returning to school and that she would not be at school until September 2021.
40. In September 2021 it appears Ms B submitted a further complaint. A stage 2 response was provided in September. It:
• Said that whilst the EHC assessment was being completed the primary school was responsible for providing education to X. But that following the issue of the final EHC Plan in August it would provide home tuition and a support package including horse riding for X while it consulted with special needs schools; and
• apologised for the delays in the process and said that as a result of increased workload it was not always able to offer the “level of communication and service that parents and children should expect”.
41. A stage 3 response November 2021 confirmed that a placement and transport had been agreed for X and Ms B was happy with that. The Council accepted that communication about this had been poor and attributed this to the case worker having been unwell. The Council offered Ms B £100 to recognise the time and trouble she had been caused in having to pursue a complaint to get the matter resolved.

Was the Council at fault and did this cause injustice?

42. The Council delayed completing the EHC assessment. Had the time limit of 20 weeks been met the final plan would have been issued by 20 April 2021. It was not issued until late August and so the amount of time actually taken was 38 weeks. This amounts to fault. Both Ms B and X were caused injustice as a result of this delay. Had it been completed on time X would have been eligible to receive education and special needs support from the beginning of the Summer term in 2021 so she missed out on this due to the delay. The delay caused Ms B and X avoidable anxiety, uncertainty and frustration. It also delayed the right of appeal to the SEND Tribunal by 18 weeks.
43. I do not consider the primary school was responsible for making provision between November 2020 and July 2021. This is because I consider the Council’s Section 19 duty was triggered from November 2020 when X’s school advised the Council in writing in a completed medical form that X was no longer attending school, that she was electively mute in school, diagnosed with autism and the school was seeking an EHC assessment. Although the Council says this medical form was submitted in March 2021 the only completed medical form I have seen is dated November 2020 and I have no reason to believe it was not submitted then. I accept therefore that the Council knew from November 2020 that X was not attending school and it had already been involved in trying to reintegrate X to school shortly before she completely stopped attending. In reaching this view I have taken careful account of the caselaw that 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. Also that the “acid test” is whether educational provision the council has offered is “available and accessible” to the child. Based on what the school told the Council I consider the provision at the school was not “available and accessible” to X at that time given her stipulated special and medical needs. The Council has not provided evidence to suggest it did not accept that X could not attend school. In fact it appears the Council arranged the following provision between November 2020 and July 2021 which indicates it accepted a section 19 duty:
• three weeks of home tuition in November 2021 (though Ms B contests this);
• 2 hours individual tuition a week from March to June 2021; and
• agreed an increase to 6 hours individual home tuition a week from June to July 2021.
44. For the reasons given in paragraph 5 I cannot consider what provision was made after the EHC Plan was issued in August 2021 as form this time Ms B had a right of appeal to the SEND tribunal.
45. To summarise, I therefore consider the Council failed to make Section 19 provision in December 2020. The Council says that during a Covid-19 lockdown period in January and February 2021 schools were closed and that X was able to particpate in lessons and complete and return school work delivered online during that period. I therefore accept that during that period X was able to participate in and receive the same education that was available to all children during that time as it was delivered in a form she could access. The Council says it says it made some provision in November 2020 and then a small amount of home tuition between March and July 2021. Its failure to take responsibility and ensure full time provision (or equivalent) during this period with the exception of January and February amounts to fault. This caused significant injustice to X as she missed out on education during these periods. It also caused Ms B injustice in the form of avoidable anxiety, costs incurred as a result of paying for tuition and lost opportunity to properly undertake her university studies.
46. Had the EHC Plan been issued within 20 weeks the Council would have been responsible for making the provision detailed in the final EHC Plan from 20 April 2021. This means it would have been responsible under section 42 for ensuring provision was made in the Summer term 2021. As this was the case and I have already found fault in the form of delay in completing the EHC assessment it follows that but for that fault, the Council would have been responsible for the EHC Plan provision in that summer term and in September 2021. So, X missed out on special needs support as well as education provision from April to July 2021.
47. In late November 2021 the Council accepted that its communication with Ms B had been poor. This amounts to fault that caused injustice in the form of avoidable time and trouble and frustration.

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Agreed action

48. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
49. To remedy the injustice to Ms B and X the Council will, within four weeks of the final decision on this complaint:
• apologise to Ms B and X for the identified faults;
• make a payment of £500 to recognise the avoidable anxiety, uncertainty and frustration and the delayed opportunity to appeal to SEND as a result of the delay in completing the EHC Assessment;
• make a further payment of £3050 to recognise the inadequate education and special educational needs support provided to X between November 2020 and September 2021. This comprises:
1. £500 to recognise the complete lack of educational provision made to X in December 2020;
2. £900 to recognise the small amount of home tuition provided to X in March and April; and
3. £1650 to recognise the very limited education and absence of special educational needs support in May, June and July when the EHC Plan should have been issued.
• pay Ms B £1000 to recognise the avoidable distress, time and trouble, lost opportunity and frustration she has been caused as a result of the Council’s failure to make adequate educational and special educational needs support for X between November 2020 and September 2021.
50. The Council has been making improvements to its SEN service and has agreed to previous service improvement recommendations made by the Ombudsman. The only service recommendation I therefore made in respect of this complaint is that the Council provides us with details of how it will ensure that it correctly and promptly considers its section 19 duty where a school provides it with written information stating a child is unable to attend school as a result of medical needs and disability. The Council will provide us with this information within three months of the date of the final decision on this complaint.

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Final decision

51. There was fault by the Council that caused injustice to X and Ms B. The Council will take the action detailed in paragraph 49 to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman