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Norfolk County Council (21 013 897)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 Jun 2022

The Ombudsman's final decision:

Summary: Miss X complained the Council delayed in completing an Education, Health and Care Plan assessment for her daughter Y. Miss X further complained the Council failed to provide Y with an appropriate education between May 2021 and April 2022. The Council failed to issue the Education, Health and Care plan in line with the statutory timescales and failed to properly consider its duty to provide alternative education provision when Y was not attending school. The Council agreed to pay Miss X £450 to recognise the uncertainty and distress caused to her and Y.

The complaint

  1. Miss X complained the Council delayed in completing an Education, Health and Care Plan (EHCP) assessment for her daughter Y. Miss X further complained the Council failed to provide Y with an appropriate education since May 2021. Miss X says that as a result Y has missed education and this has affected her, and Miss X’s mental health.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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)
  4. 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

  1. I read the documents provided by Miss X and discussed the complaint with her on the telephone.
  2. I read the documents the Council provided in response to my enquiries.
  3. Miss 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

Education, Health and Care Plan

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  2. 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).
  • As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist.

Alternative provision

  1. 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 should generally be full-time unless it is not in the child’s best interests. (Education Act 1996, section 19).
  2. 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)
  3. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016).
  4. In that report we recommended councils consider the individual circumstances of each case and be aware that it may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis).
  5. We also said councils should decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education.

What happened

  1. In April 2021, Y was in year nine at high school. She had a diagnosis of autism spectrum disorder. Y did not have an EHC plan in place at this point. Y had 100% attendance on the days available between October and December 2020 and in March 2021. Due to COVID-19 restrictions Y was not able to attend school in January and February 2021.

Attendance and education

  1. In April 2021 Y’s attendance dropped to 43%. Miss X contacted the Council and asked for support in helping Y to attend school. She said Y had a history of low attendance at school. She said the school was not supporting herself or Y.
  2. The Council spoke to the school who stated Y was on a reduced timetable, had a reintegration plan and support in school. Miss X told the Council the plan was not working as Y still refused to attend. The Council told Miss X to continue trying to encourage Y in to school and make any complaints about the provision offered to the school. The Council said it would check with the school to see if the plan was successful.
  3. The Council spoke to the school and requested a copy of the reintegration plan. The school said it was trying ‘everything possible’ to support Y into school.
  4. In May Y’s attendance increased to 68%. In June Y’s attendance went down to 39%.
  5. In June the Council spoke with the school and recorded that Y was not attending and the reduced timetable was unsuccessful.
  6. In July Y did not attend school at all. The Council spoke with the school and recorded Miss X was following the school complaint procedure because she felt it was not meeting Y’s needs. The Council recorded that Y and Miss X were also being supported by a Family Support Practitioner.
  7. In September Y went into year 10. That month Y’s attendance was 95% and in October it dropped to 60%.
  8. In November 2021 Y’s attendance was 5%. The school contacted the Council and asked for advice as the provision it offered had not been successful.
  9. In December Y did not attend school at all.
  10. At the beginning of December Y’s GP wrote to the Council. It confirmed that while Y was physically fit to attend school, her autism meant she needed extra support and help to do so. The Council considered if Y should receive educational support due to medical needs. It decided Y was not absent due to a medical need so it would not offer medical support.
  11. The Council asked the school to consider intervention attendance plans with Miss X and Y to support attendance. The Council said it considered this was the most appropriate approach given the support the school and Family Practitioner were offering Y and Miss X.
  12. In January 2022 Y’s attendance was 31%, she did not attend at all in February and 25% of the time in March.
  13. In March 2022 the Council considered the school’s request to issue a fine to Miss X for Y’s low attendance. The Council declined and advised the school to consider a supportive fast track and robust plan to improve Y’s attendance.

EHCP

  1. In June 2021 Miss X requested an EHC plan needs assessment for Y. She said that Y had a diagnosis of autism and needed additional support in school which was not being provided through the current provision.
  2. In July 2021 the Council agreed to carry out an EHC needs assessment for Y. It began to collate the information it needed from other services.
  3. At the end of November 2021, the Council requested a private psychologists assessment for Y.
  4. Miss X complained to the Council in December about the delay in assessing Y for an EHC plan. The Council responded and explained the delay was caused by a lack of Educational Psychologists. It said it had asked the psychologist to prioritise Y’s assessment as a result of Miss X’s complaint.
  5. Miss X responded and said the delay would continue while Y waited to see the Psychologist face to face. She said Y was not receiving an education and she asked the Council to consider her complaint at stage 2.
  6. The Council responded to Miss X and stated that it had nothing further to add and directed her to us if she remained dissatisfied. Miss X complained to us about the matter.
  7. In January 2022 the Council decided to issue an EHC Plan for Y. It wrote to Miss X and told her of its decision.
  8. In April 2022 the Council issued Y’s final EHC plan. The EHC plan set out what provision Y needed to meet her special educational needs.
  9. In response to my enquiries the Council stated due to a shortfall of Educational Psychologists it used private psychologists when necessary. It said it allocated Y’s assessment to a private Educational Psychologist as soon as one was available. It said that private psychologists were also working at capacity. The Council stated it had experienced the shortage since 2018 and had taken many steps to try and resolve the issues which had not been successful.

My findings

Education

  1. When the Council was made aware of Y’s struggles with attendance it should have considered its duties to provide alternative provision.
  2. Y’s attendance at school in the months before April 2021 was good. The Council considered the school’s plan for helping Y to reintegrate in May 2021. It decided the plan and support offered by the school was appropriate. The Council considered it again in July and identified that Miss X and Y were being offered extra support by the school and decided the provision was appropriate. There was no fault in how the Council reached that decision.
  3. In December 2021 the Council knew the support and reintegration plan had not been successful. It was also aware that Y’s GP said her special education needs affected her ability to attend school. At this point the Council should have considered whether the provision Y was being offered was accessible to her, and whether it should provide her with an alternative provision.
  4. The Council said it considered an attendance plan appropriate. However, I have not seen any evidence the Council considered if the provision was accessible to Y or how the ongoing plans and part-time timetable were suitable or sufficient. That was fault and caused Y and Miss X uncertainty about whether an alternative provision would have supported Y’s attendance in education.

Education, Health and Care plan

  1. Miss X asked the Council to assess Y for an EHC plan in June 2021 which it agreed to do. The Council should have issued the final plan within 20 weeks of the request. The Council did not issue the final EHC plan until April 2022 which was 20 weeks longer than the guidance allows. That was fault and caused Y and Miss X uncertainty and frustration although I can not say that the EHC plan would have made any difference to Y’s attendance.
  2. In response to my enquiries the Council offered to apologise to Miss X for the delay and pay her £150 to recognise the uncertainty and frustration caused by the delay. That is an appropriate remedy to recognise the injustice caused to Y by the delay.

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Agreed action

  1. Within one month the Council agreed to:
    • apologise to Y and Miss X for the injustice caused by the identified faults;
    • pay Miss X £150 to recognise the uncertainty and frustration caused to her and Y by the delay in issuing Y’s EHC plan;
    • pay Miss X £300 to recognise the uncertainty caused by the Council’s failure to properly consider its duties under section 19 from December 2021 until April 2022. The payment should be used towards Y’s education in a manner that Miss X sees fit; and
    • remind relevant staff to consider, and suitably record its decision about its duty under section 19 of the Education Act for children who are absent from school.
  2. The Council will provide us with evidence it has completed the recommendations.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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