Summary: Mrs X complained about the Council’s actions in relation to her son’s Educational Health Care Plan. This included delay, failure to provide the support outlined in the Plan, and failure to make alternative provision when her son could not attend school for medical reasons. There is fault with the Council for the delays in issuing Y’s Plan. This delayed Mrs X’s appeal rights causing distress and uncertainty. The Council has agreed to apologise and pay Mrs X to remedy the injustice caused by the fault.

The complaint

1. Mrs X complained the Council did not provide her son (Y) with adequate education when he was unable to attend school due to his mental health needs.
2. She said there had been significant delays issuing Y’s Education Health Care Plan (EHC Plan).
3. Mrs X said this has had a huge impact on Y’s education and his behaviour.
4. Mrs X wants the Council to apologise and recognise their failure to support a vulnerable child. She would also like financial compensation for loss of earnings and the trauma suffered by Y and as a family.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with an organisation’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

7. I have considered Mrs X’s complaint and have spoken to her about it.
8. I have also considered the Council’s response to Mrs X and to my enquiries.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

Education Health Care Plan timescales

10. 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;
• 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.

Responsibility for making arrangements specified in EHC Plan

11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. 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.
13. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

General section 19 duty

14. 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.
15. 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)

Inability to attend due to health needs

16. 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.
17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
18. 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”.
19. 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))
20. 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)
21. 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’)
22. 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])

SEND Code of Practice 2015

23. Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person)
24. These details must be included only in the final EHC plan, not the draft EHC plan sent to the child’s parent or to the young person

Council policy for the education of children unable to attend school because of heath needs

25. The Council is responsible for ensuring pupils with health needs are not at home for more than 15 working days without access to education. All pupils will remain on roll of their school and prime responsibility for their education lies with that school.
26. Medical evidence and advice are essential in order for schools to refer a child who is unable to attend school because of their health for a sustained period of time. Medical advice will generally be made available to schools and councils through the child’s parents.
27. Medical evidence and advice should describe the child’s medical need, advise how the child can participate in education, advise how the school/council should support the child, and what the plan could be moving forwards.

What happened

EHC Plan delay

28. The Council issued Y’s draft EHC Plan in July 2020 and the final Plan in February 2021. The Council apologised for the delay but said that Y was not without education provision and support throughout the process.

Alternative provision when Y was unable to attend school

29. In September 2020, Mrs X informed the Council that Y was unable to attend School A due to mental health reasons. The Council said School A put measures in place to support Y. The Council said this included the offer:
• of online learning sessions with work which Y could access via the school website.
• to attend Y’s home and spend time with Y including doing artwork with him for non-academic activities.
30. In January, the Council contacted the school for an update regarding Y. At this point nothing had been actioned by the school. The school said it had offered Y the option to attend school during national COVID-19 lockdown, but his parents had declined.
31. The Council said it had not received a medical referral from the school. A letter from the GP stated the family had not been successful in gaining an assessment from the NHS or CAMHS and there was no information about Y receiving treatment from a consultant. The GP letter did not state that Y was too unwell to attend school. The Council made the judgement it did not owe a section 19 duty.
32. The Council said School A arranged, in discussion with parents and School B, for Y to attend School B part time to help and also as a way of transitioning to the new school from September 2021.

Safeguarding issues

33. Mrs X said there were safeguarding concerns regarding Y attending school. Mrs X said that Y had attempted to exit a moving car in an attempt to avoid school. The Council said it was not aware safeguarding concerns in respect of a moving vehicle. Mrs X said she has evidence she told her caseworker.

Naming the school in Y’s EHC Plan

34. Mrs X requested the Council named School B in Y’s EHC Plan.
35. The Council initially named the type of provision in the EHC Plan to enable placements to be considered. School B, which was parental preference, did not have space but were planning to apply to the Department of Education for an increase in registered capacity.
36. The Council issued the first final EHC Plan in February 2021 – naming School A for the rest of the academic year as this was still the school that Y was on roll for. From September 2021 the Council named ‘Special School’ as type of provision as this gave the parents the right of appeal.
37. In May 2021, after Mrs X started appeal proceedings, the Council agreed a revised final EHC Plan. This was issued in May 2021. This named School B from September 2021 and Y remained on roll at School A until places were available at School B in September 2021.
38. Mrs X said by delaying naming School B in Y’s EHC Plan, the Council jeopardised his place there. The Council said there was no delay as it was arranged with School B that Y would start full time in September 2021. The Council said Y’s placement was secure.

Occupational Therapist (OT) support for Y

39. Mrs X informed the Council that School A was not providing OT support for Y as agreed in his EHC Plan. This included one hour weekly sessions.
40. The Council acknowledged that the school failed to provide this in its response to Mrs X’s complaint. The Council said it did not take action as there was nothing on Y’s school file stating that School A could not meet the OT provision.

My findings

EHC Plan delay

41. The Council took significantly longer than the 20 weeks set out in national guidance. This is fault.
42. This fault delayed Mrs X’s opportunity to appeal the Plan. This caused uncertainty regarding which school Y would attend.
43. The Council agreed to name School B once Mrs X began appeal proceedings. Therefore, on balance, it would have agreed to name the school sooner if Mrs X would have been able to appeal sooner.
44. Y would not have been able to start full-time at School B until September 2021 due to capacity issues. However, he may have been able to start on a part-time basis sooner. This would seem likely as he started part-time at School B in June 2021, after the Council agreed to name the school in the May.

Alleged lack of alternative education provision

45. I have seen the GP’s letter which explains that Y is not attending school. It does not advise the school or the Council that Y should not attend school due to a medical condition.
46. The Council considered the GP letter but as it did not specifically state that Y was too unwell to attend school and required medical tuition, it did not consider the Council had a duty under section 19.
47. The Courts have found that this is a judgement for a council to make. Therefore, I cannot question the Council’s decision not to accept a duty under section 19.

Occupational therapist support

48. It was the Council’s responsibility to ensure the arrangements specified in Y’s EHC Plan were carried out. It relied on the fact that the school did not mention that it did not have OT provision. This was fault.
49. However, Y was not attending school and the COVID-19 lockdown would have meant face to face OT at home would be unlikely. Therefore, the fault did not cause Y or Mrs X a significant injustice

Conclusion

50. The Council was at fault for the delaying the issuing of Y’s EHC Plan. This would have delayed Mrs right of appeal. This caused distress and uncertainty and the Council has agreed to apologise and pay Mrs X to remedy the injustice she experienced.
51. There was no fault with the Council for not accepting a section 19 duty. This was the Council’s judgement to make after it considered the medical evidence available.
52. The Council was at fault for failing to provide OT as set out in Y’s EHC Plan. Given the circumstances at the time, this did not cause Y a significant injustice.

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Agreed action

53. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise for the uncertainty and distress caused by delaying Y’s EHC Plan.
2. Pay Mrs X £500 for the avoidable distress caused by the Council’s fault.

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Final decision

54. I have completed my investigation. The Council was at fault for delaying Y’s EHC Plan and Mrs X’s right to appeal.

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Investigator's decision on behalf of the Ombudsman