Summary: Miss X complained the Council delayed in completing an Education, Health and Care plan for her son, and left him in an unsuitable education setting which did not meet his educational needs. We found the Council at fault. We recommended it apologise to Miss X, pay her £3,300 for loss of education and special educational needs provision, £500 for distress, £250 for time and trouble and act to prevent recurrence.

The complaint

1. Miss X complains:
2. The Council delayed completing an Education, Health and Care plan (EHCP) for her son (Y) from July 2019 to March 2021, and left him in an unsuitable education setting, which did not meet his educational needs.
3. This meant Y:
• could not access the specialist provision he needed and lost out on special education.
• had no EHCP and was not eligible for a school place during school closures.
• could not develop lasting friendships as other pupils at School A left after short periods of time.
4. Miss X also complains Y was sent home from school regularly when he started at School A, disrupting Miss X’s ability to work and study. She said this occurred from January 2019 to July 2019.
5. Miss X said the Council offered her a payment, but it does not fully remedy the injustice and distress the fault has caused. Miss X would like a significantly higher payment for tutoring to help Y catch up with missed work and help in integrating him with children his age.

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What I have investigated

6. I have investigated Miss X’s complaint that the Council delayed in completing an EHCP and left her son in an unsuitable education setting. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

7. 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)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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)
10. 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)
11. 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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How I considered this complaint

12. I spoke to Miss X, and I reviewed documents provided by Miss X and the Council.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

EHCP assessments

14. Under the Children and Families Act 2014, councils have a duty to identify and assess the special educational needs of children in their area. To do this, councils carry out Education, Health and Care assessments. In an assessment, councils will ask for information from sources including the child and their family, the school, medical professionals and social care providers. It will consider what provision is needed to meet the child’s special needs, including what type of school or institution the child should attend.
15. If the assessment finds the child has a need for special educational provision, the council must prepare an Education, Health and Care (EHC) plan.
16. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ 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:
• 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).

Right to education

17. If a child of compulsory school age (CSA) cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide suitable full-time education either at school or elsewhere, such as home. This is known as alternative provision. (Education Act 1996, section 19 as amended)
18. Statutory guidance sets out what local authorities should consider when arranging alternative provision. (Alternative Provision Statutory guidance for local authorities January 2013 and Ensuring a good education for children who cannot attend school because of health needs statutory guidance for local authorities January 2013 (amended May 2013)) including the following:
19. Full time provision is not defined in law but pupils in alternative provision should receive the same amount of education as they would in a maintained school.
20. Local authorities must have regard to good alternative provision which appropriately meets the needs of pupils using it and enables them to achieve a good educational attainment on a par with their mainstream peers.
21. A pupil in alternative provision should have the same opportunities as their peer group including a broad and balanced curriculum. And as far as possible they should receive the same range and quality of education they would have experienced at their home school.
22. To help minimise disruption to a pupil’s education, part time or temporary intervention should complement and keep up with the pupil’s current curriculum timetable and qualification route.

School closures during COVID-19

23. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and ‘vulnerable’ children. These included children with EHCP’s. The government asked councils to carry out risk assessments for children who had an EHCP to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
24. Schools, colleges and local authorities have latitude to use special educational needs and disability (SEND) risk assessments also for children and young people who have SEND without an EHCP, where they feel it would be beneficial, for instance children on SEN support who have complex needs. This means they can use this as a mechanism to bring back pupils and students with SEND who need it, in other year groups, even if they do not have an EHCP.

Background

25. Y has a history of short-term education placements due to his social and emotional needs, attention and learning avoidance.

What happened

26. Y moved to School A in January 2019, joining in Year 7, from his mainstream secondary school.
27. School A is a Pupil Referral Unit, specifically set up to provide education for children unable to attend mainstream schools. It is a form of alternative provision with placements made under Fair Access Protocols for excluded pupils.
28. Placements at School A are short term with the aim of reintegrating pupils into mainstream schools or identified specialist provision.
29. Miss X said School A had a curriculum, but it was not academic, with Y cooking, watching T.V and playing.
30. School A’s website says it provides a Key Stage 3 curriculum of English, maths, science, art, literacy, PE, design technology, food technology and relationships, sex and health education. It does not provide the compulsory national curriculum subjects of history, geography, languages, music, citizenship or computing.
31. The Council’s response to our enquiries said School A requested an EHCP assessment on 18 September 2019.
32. Miss X and the Council’s final complaint response both say the EHCP assessment was requested in July 2019.
33. While records show meetings took place to discuss Y’s progress at School A in July 2019, the date on the EHCP assessment request is 17 September 2019, emailed to the Council on 18 September.
34. On balance, I consider School A requested an EHCP assessment on 18 September and the 20-week timeframe to complete the EHCP process started then.
35. In March 2020, when schools closed under government Coronavirus guidance, Y received remote learning. Miss X said School A dropped off paper packs with ‘puzzles and other things’, however Y struggled and would not do the work.
36. Miss X said Y could not attend school during this time as he did not have an EHCP and was not considered vulnerable.
37. The Council said in response to enquiries, it had received no formal complaints from Miss X about this and had limited detail about difficulties in Y accessing a suitable education during this period.
38. It said the lack of any EHCP did not prevent Y accessing learning due to the pandemic and it risk assessed Y, the same way as pupils who had an EHCP, in line with the Department for Education’s procedures at the time. It found his needs could be met at home.
39. Y returned to School A when schools reopened in September 2020.
40. The Council completed Y’s EHCP on 30 March 2021 and named School B, a SEN Specialist College as Y’s new education setting.
41. The Plan said Y should receive amongst other things:
• A weekly programme of support to develop ‘social awareness’, thinking and competence skills;
• Regular discussions with key adults in school to teach social expectations using comic strip conversations and social stories;
• Scenario based discussion in a social communication group, modelling how to resolve disagreements and to keep himself safe;
• Taught in small groups with a higher level of support in any larger class;
• Daily precision teaching with key skills for 10 minutes per day;
• Mentoring support and careers advice each term.
42. The EHCP was based on information from:
• Miss X, 9 April 2020;
• Educational advice, 21 June 2018, amended 17 September 2019;
• Health advice, 26 September 2019;
• Educational Psychology advice, September 2019;
• The Council’s database, 9 April 2020.
43. Miss X said the Council forgot to ask for new medical reports before producing the EHCP and it would therefore need amending, accounting for any new medical information received.
44. Miss X complained to the Council in May 2021 about the delay in Y’s EHCP and his continued placement at School A. The Council issued its response on 28 May 2021.
45. Miss X was unhappy with the response and requested the Council look at her complaint at stage 2.
46. The Council said in its final response of 11 August 2021:
• Placements are School A are short term with the aim of reintegrating pupils info mainstream schools or identified specialist provision;
• The time Y spent at School A was considerably over the usual time young people spend there;
• While Y had been accessing education at School A, it should have found a more suitable placement to meet Y’s needs;
• It accepted a number of young people Y knew at School A moved provision and Y would have struggled in making long term friendships;
• There were unreasonable delays in the EHCP process for Y, and he could not access the specialist provision he required.
• It had implemented a plan to address timeliness and quality during the EHCP process, including new ways of working for officers and co-production meetings to bring parents and professionals together in the process.
47. The Council offered a written apology and a payment to Miss X. It offered £750 for the delay in the EHCP, and £250 for time and trouble spent communicating with the Council to progress Y’s EHCP.
48. The Council gave no reason for the delay in completing the EHCP but did note the action it had taken to improve its EHCP process moving forward.
49. Miss X brought her complaint to the Ombudsman in August 2021 because she was unhappy with the financial remedy offered by the Council. She said the payment should be significantly higher to pay for catch up tutoring for Y and to recognise the missed SEN provision.
50. Miss X told me she spent a lot of time chasing the Council to push for the completion of Y’s EHCP. She said the Council told her there were delays but it never explained what the delays were.
51. The Council issued a further final EHCP on 6 September 2021, updated to reflect new medical reports.
52. The Council provided a copy of Y’s final EHCP from 30 March 2021 and final amended EHCP from 6 September 2021.
53. While the amended final EHCP contained information from updated medical reports, the reports did not alter the provisions set out in Section F.
54. The amended final EHCP was also based on the same educational information gathered and used for the earlier final EHCP.
55. In response to our enquiries the Council said Y received a suitable education at School A and attended regularly. It maintained its offer of an apology and payment to Miss X. It also confirmed from 31 August 2021, Y moved to School B, where he is currently receiving education.
56. The Council also said it has increased its number of staff by recruiting 17 new casework officers, it has developed a communication policy anchored in the EHCP timescales and introduced support systems across the team.
57. Miss X told me Y is now in Year 10 at School B and is struggling with both education and social skills.
58. She said Y is unable to take his GCSE’s in Year 11 due to missing too much of the curriculum and he has not made any friends at School.
59. She said Y struggled to make any friends at School A as placements were short term and any friendships made, ended soon after when the pupils left the school.
60. She said she would like support for Y to access social inclusion activities to help develop his social skills due the negative impact School A had on his social ability.

Analysis

61. I am exercising discretion to investigate the complaint of delay in the EHCP process from September 2019, as any fault and injustice was continuing until the completion of the EHCP in March 2021 and Y starting School B in September 2021.
62. Miss X complains about the Councils delay in producing Y’s EHCP following the request in September 2019. The law requires the Council to issue an EHCP within 20 weeks of the request, i.e., by 5 February 2020. The Council did not issue Y’s EHCP for a further 14 months. This is a significant delay and is fault.
63. This fault meant Y had no special educational provision for 14 months. The final EHCP was largely based on the information gathered at the start of the EHCP process, therefore on balance, any SEN provision set out in the final EHCP would be no different from an EHCP issued in the 20-week timescale.
64. The Council named School B in March 2021 yet Y did not start at School B until September. The Council has provided no reason for this delay. I therefore find fault.
65. While Y received some education at School A, he did not receive the full curriculum in Year 7 and Year 8. The Council did not provide suitable alternative provision; this is fault.
66. This fault meant Y is educationally behind his peers, due to loss of education. While it is possible Y could sit some GCSE’s, I accept, on balance, the fault has impacted his ability to sit his GCSE’s on time.
67. Miss X and her family also experienced distress and uncertainty due to the long delays in the EHCP process and Y’s loss of education.
68. The Council acknowledged Y’s ability to form long term friendships was hindered by his extended stay at School A. Miss X said this has negatively impacted his social skills and confidence. I will take this into account when looking at a suitable remedy for distress.
69. The Council has accepted fault in the delay of the EHCP and offered a payment to Miss X of £750. While the Council consider this payment is reasonable, I am not satisfied it adequately remedies the injustice identified above.
70. The Council has offered Miss X a payment of £250 for time and trouble she was put to in communicating with the Council over the period. Based on the information seen I am satisfied this is in line with our remedies guidance.
71. Having an EHCP during school closures from March to September 2020, did not entitle a child to a school place. Places were dependent on risk assessments conducted by Councils. The Council said it assessed Y for a school place during that time, the same way as it assessed pupils who had an EHCP. Therefore, whether Y had an EHCP or not, did not affect this process.
72. Miss X said Y did not receive schoolwork during this time, only paper packs with ‘puzzles and other things’. The Council said it had limited detail about this time and no record of any complaints from Miss X. If the Council was not aware of the issues, at the time, it could not address them. Therefore, I find no fault on this point.

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Agreed action

73. To remedy the fault set out above I recommend the Council carry out the following actions:
74. Within one month of the date of my decision:
• Provide a written apology to Miss X for the failings identified;
• Pay Miss X £2,800 for missed SEN provision and loss of education from February 2020 to March 2021.
• Pay Miss X £500 for loss of education from April to September 2021.
• Pay Miss X £500 for the distress and uncertainty suffered by Y and his family.
• Pay Miss X £250 for the time and trouble in pursing the EHCP process with the Council.
75. Within three months of the date of my decision:
• Provide evidence of the Council’s process to ensure oversight of the EHCP timescales to prevent recurrence.
• Identify the reasons for delay in moving Y to School B, take action to prevent recurrence and inform us of the action taken.
76. The Council has accepted my recommendations.

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Final decision

77. I have found fault by the Council. This fault caused Miss X injustice and the Council has agreed to my recommendations therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

78. I have not investigated Miss X’s complaint about Y being sent home from school from January to July 2019 as:
• It is out of time and there is no good reason to exercise discretion;
• We cannot look at what happens in schools.
• I am also not investigating the Council’s actions in securing a school place or suitable alternative provision for Y prior to September 2019. This is because this is out of time and there is no good reason to exercise discretion.

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Investigator's decision on behalf of the Ombudsman