Summary: Ms B complained there was delay by the Council in issuing an Education, Health and Care plan (EHC plan) for her daughter, X. She also complained that the provision named in the plan was not suitable and the Council failed to make alternative educational provision for X while she was unable to attend school. She said that as a result X missed education and it caused stress to the whole family. There was fault by the Council which it will remedy by making a payment to Ms B and taking the action set out at the end of this statement.

The complaint

1. I refer to the complainant as Ms B. She complained there was delay by the Council in issuing an Education, Health and Care plan (EHC plan) for her daughter, X. She also complained that the provision named in the plan was not suitable and the Council failed to make alternative educational provision for X while she was unable to attend school. She said there was delay by the Council in dealing with the complaint. She said that as a result X missed education and it caused stress to the whole family.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I considered the complaint and documents provided by Ms B and spoke to her I asked the Council to comment on the complaint and provide information. Ms B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
7. 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

Summary of the relevant law, guidance and good practice

Provision of alternative education

8. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
9. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
10. We have issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
11. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

EHC Plans

12. 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. It sets out time frames for each stage. 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).

What happened

Summary of events

13. X started in reception at school P in September in 2020. In November Ms B requested the Council assess X for an EHC plan. In December the Council declined to assess and Ms B went to mediation as the precursor to making a formal appeal against the decision. In February 2021 the Council conceded and agreed to assess X. Also at this time X was increasingly suffering from anxiety about going into school and by mid-May was too distressed to attend.
14. In June the Council issued a draft EHC plan which named school P as appropriate provision.
15. Ms B appealed against the decision to name school P. She also complained to the Council and then to her MP. The complaint concerned not just the EHC plan process but the Council’s failure to make an alternative provision while P had been unable to attend school.
16. In October 2021 the Council agreed to name a specialist independent school, school R, and X started there in November where she has settled well.

Analysis

School provision for X

17. At the heart of this complaint is what educational provision was right for X. It is not for us to determine that point. When the Council issued the EHC plan naming school P Ms B exercised her right of appeal to the SEND tribunal. That means we cannot consider any aspect of complaints about the provision that X needed. But we can consider events leading to that.
18. The Council agreed to assess X in early February which meant the final EHC plan should have been issued on 20 May. The Council explained to Ms B it had wrongly calculated the date for completion of the plan as 12 May. The plan was issued on 1 June. The Council accepted there was a delay of 20 days. The Council has commented that the reason for the delay was because the advice from the speech and language therapy team was delayed. I recognise that was the case but, nonetheless, the responsibility rested with the Council to issue within the specified timeframe. This is fault and has meant all the subsequent events relating to the EHC plan were also delayed.
19. Ms B suggested that faults with the consultations with possible schools also meant that X starting at school was delayed. I do not agree on this point. The school X eventually attended, school R, had agreed it could offer a place in early July. The issue was that the Council did not agree she needed specialist provision, so the consultations and responses did not contribute to any delay in X starting at school R.
20. Ms B considered the Council failed to obtain adequate specialist reports to enable it to assess X. This meant they had to obtain their own reports. I cannot consider this point. If the Council’s assessment was flawed, as Ms B believes, then that was something that would have to be considered by the Tribunal – we cannot consider it.
21. I will refer to what the Council needs to do to remedy the injustice to X and Ms B from the delay in completing the EHC plan further below.

Alternative educational provision

22. X last attended school P in mid-May. In early-June at a meeting with the school and the Council Ms B requested home tuition for her. She followed that up with a written request a week later. In response the Council said that there was “no professional evidence to indicate this is required at this time”. And went on that there was “no medical diagnosis of anxiety based school avoidance”.
23. In responding to Ms B’s complaint on this point the Council said “there is no current professional evidence to suggest that X’s current school placement is unsuitable or that she requires education otherwise than at school due to medical needs/illness.” And it concluded “the council do not currently have a duty to provide alternative provision given there is no medical evidence within the scope of the relevant statutory guidance or professional evidence that states the current setting is not sufficient.” This position was confirmed in the second stage complaint response.
24. We asked the Council why it considered there must be medical need to trigger its duty to make alternative provision. It said the school offered a home learning package which was both online and in the form of physical resources that could be collected from school and so alternative provision was in place via school. And that was considered to be sufficient by the team involved with the family. This is a change of position by the Council and does not reflect the reasons it gave at the time. It is clear from its complaint response that it would not consider alternative provision because it considered there was no medical need. The Council has commented that this was because Ms B had referred to it as a health matter. I am not persuaded by this. The Council should have been alert to the fact that X was not in school at all so it needed to be certain she was receiving appropriate education. The reasoning in all of the Council’s correspondence at that time was that unless there was an established medical reason for her not to be in school then there was no duty on it to make alternative provision. Our guidance makes clear it is still necessary for a council to make alternative provision where a child is not able to attend school for any valid reasons; not just medical needs. The Council’s decision making was made not on the proper basis.
25. Where there has been fault we have to consider what impact that has had on the complainant. If there was adequate alternative provision in place then that would have meant X was receiving appropriate education. The Council argues the provision made by the school was sufficient. Ms B does not agree. She said there was no home work set for X individually by school online; nor was any home work sent home during the summer term time. All that was accessible online was via an app which was the weekend home working for the whole class that the school put out on a Friday to be done for the Monday. I recognise there may be some difference of view between Ms B and the school as to exactly what provision it was making. I also note that other options such as attending breakfast club and changes to start and finish times was discussed. But I have not seen evidence to suggest that adequate provision other than at school was considered. It was not until a meeting in early September that the Council officer instructed the school that it should be providing work to be done at home and arrangements were then put in place.
26. Therefore for the summer term there was no suitable educational provision in place for X and there was only limited provision from September onwards until she started at the new school.

Conclusions

27. The delay in the EHC plan process meant all the events were delayed by three weeks and so X’s start at school was so delayed. A payment of £200 for that loss would be in-line with our guidance. For the lack of alternative provision for the second half of the summer term when there was nothing in place a payment of £400 a month giving a total of £600 is fair. For the period from September to when she started at school, two months, there was some provision so £200 a month is a fair level giving a further £400. All that is in recognition of the impact on X’s education but the Council should also make a payment of £200 to Ms B to recognise the impact on her of the faults.

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Agreed action

28. Within a month of this decision the Council will apologise to Ms B and pay her £1400.
29. The Council will also confirm to us that it has reminded officers of the factors they should consider when deciding whether alternative educational provision needs to be made. Specifically, that there is not a requirement for there to be medical reasons for non-attendance before the Council will make alternative provision. The Council should provide evidence to show the action taken within two months of the decision.

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Final decision

30. There was fault which caused injustice to Ms B.

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Investigator's decision on behalf of the Ombudsman