Summary: Mrs F complained the Council delayed finalising her son’s Education, Health and Care plan and delayed providing him with education and specialist provision. We find the Council was at fault for the delay in providing Mrs F’s son with education and specialist provision. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs F complained the Council delayed finalising her son’s Education, Health and Care (EHC) plan. She also complained the Council delayed providing her with son with education and specialist provision. Finally, she says the Council’s communication with her was poor and she had to constantly chase for responses.
2. Mrs F says the Council’s faults have caused an immeasurable amount of distress to her and her family.

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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. 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.
5. 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)
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered information Mrs F submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
9. Mrs F 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

Special educational needs

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. An EHC plan describes the child’s special educational needs and the provision required to meet them. Parents have a right to appeal to the SEND Tribunal if they disagree with the provision or the school named in the child’s EHC plan.
11. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person.
12. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request.
13. 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).

Alternative provision

14. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
15. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.

What happened

16. Mrs F’s son, G, has special educational needs. Mrs F decided to remove G from the school he was attending in September 2020 and home educate him. She also applied to the Council for an EHC needs assessment.
17. The Council refused to complete an assessment. It recommended for Mrs F and G to take part in the multi-agency assessment programme. This programme brings multi-agency professionals together to work with a child and their family to assess, plan and review an early education strategy that suits the child’s needs.
18. Professionals assessed G and recommended for him to receive an EHC needs assessment.
19. Mrs F applied for an EHC needs assessment on 13 April 2021. The Council agreed to assess G on 18 May.
20. The Council gathered key information from other professionals. It sent Mrs F a draft EHC plan on 11 July.
21. Mrs F commented on the draft EHC plan on 16 July. She sent a further email confirming her preferred schools.
22. Mrs F emailed the Council on 23 July and said she would no longer be home educating G. She said she wanted the Council to take responsibility for his education.
23. The Council took the case to the special educational panel on 23 August and requested a specialist setting.
24. The Council consulted with two schools on 2 September. Both schools responded and said they could not offer G a place.
25. The Council referred G to its alternative tuition service on 4 October.
26. The Council issued G’s final EHC plan on 7 October. It did not name a specific school.
27. The Council referred G for therapeutic provision on 10 October. This provision was not listed in his EHC plan but it would provide some social and emotional support.
28. Mrs F complained to the Council on 11 October. She said it finalised G’s EHC plan four weeks late. She said it had been responsible for his education since September, but it had not provided anything.
29. The Council consulted with two further schools. It emailed Mrs F on 29 October and said it was waiting for a response about the therapeutic provision. It also said G was on the waiting list for tuition, and it was not clear when he would receive it. Therefore, it suggested getting a personal budget which Mrs F could use to pay for a tutor for up to five hours a week.
30. G started receiving tuition five hours a week and therapeutic provision twice a week in November.
31. The Council responded to Mrs F’s complaint on 10 November. It apologised for not finalising G’s EHC plan within the 20-week deadline. It also said it had consulted with two more schools and was working hard to secure a school for G.
32. Mrs F asked to escalate her complaint to stage two of the Council’s complaints procedure. She said the Council was not fulfilling its legal duty. The Council responded and said it accepted there had been a delay in securing provision for G, but until it secured the provision it could not assess the injustice.
33. The Council received responses from the two schools it had consulted with in November. They both said they could not meet G’s needs. Therefore, it consulted with three further schools.
34. Mrs F’s preferred school confirmed on 19 January 2022 it would accept G. The Council said it had to wait and see if it was placing children at the school. It confirmed this on 26 January, and G started his new school in February.

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Analysis

35. Mrs F could have appealed to the SEND Tribunal about the Council’s decision not to name a school in the final EHC plan on 7 October 2021. I have decided it was not reasonable for Mrs F to have appealed and therefore I will exercise discretion to investigate her complaint after this date. There was no disagreement about the content of G’s EHC plan. The Council was actively seeking a school place for G, and so it was reasonable for her to allow it to continue with this process rather than appealing.
36. The Council was aware on 23 July that from September 2021 G would not be receiving any education. Therefore, it had a duty to provide him with alternative education until it secured a school place for him. The Council says the timing of the school holiday impacted its ability to secure a school placement. While I appreciate this, it has a legal duty to ensure children who are out of school receive alternative education.
37. G did not receive any education in September and October 2021. He received a minimal amount of education from November 2021 onwards, but this was not anything like the full access to education and specialist provision that was in his EHC plan.
38. The Council was also four weeks late in finalising G’s EHC plan. It apologised for this delay when it responded to Mrs F’s complaint.
39. Mrs F says the Council’s communication with her poor and it delayed responding to her complaint. The Council responded to Mrs F’s complaint two days outside of the timescales in its complaints procedure. I do not consider this minor delay significant enough to be fault.
40. I find there were some occasions when the Council should have done more to keep Mrs F updated on what it was doing to secure the provision.
41. The Council’s faults have caused G a significant injustice as he was without full time education and specialist provision for several months. Children have a legal right to an effective education and any time they miss is difficult to replace later.
42. There was also an injustice to Mrs F. She was caused distress and frustration and she was put to time and trouble chasing matters up.
43. It is not for the Ombudsman to say the amount of education that would have been suitable for G. Our recommendations for financial remedy are usually a payment between £200 and £600 per month (£600 to £1800 per term) based on the child’s needs, whether any provision was in place and whether the period affected was a significant time in a child’s schooling.
44. I recommend a payment of £400 per month from September 2021 to the end of January 2022, a total of £1,600. This calculation takes into consideration the school holidays.

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Agreed action

45. To address the injustice caused by fault, by 22 July 2022 the Council has agreed to:

• Apologise to Mrs F.
• Pay Mrs F £1,600 to reflect the missed education and specialist provision. We suggest Mrs F uses this payment for G’s educational benefit.
• Make a further payment of £200 to Mrs F for her distress, frustration and time and trouble.

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Final decision

46. There was fault by the Council, which caused Mrs F and G an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman