Summary: the Council delayed issuing a final education, health and care plan and failed to consider providing alternative education provision when Mr B’s daughter stopped attending school. As a result Mr B’s daughter missed out on education and special educational needs provision. An apology, payment to Mr B and review of the process to manage completion of education, health and care plans is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council
• delayed issuing a final education, health and care plan (EHCP) for his daughter;
• failed to provide full-time education for his daughter from March 2020; and
• issued a final EHCP which does not meet his daughter’s needs.
2. Mr B says as a result his daughter has missed out on full-time education and there has been an impact on her mental health. Mr B says he and his partner have had to spend time chasing the Council and it has impacted on his partner’s health.

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What I have investigated

3. I have investigated those parts of the complaint which relate to the delay issuing the final education, health and care plan and for failing to provide full-time education. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
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 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

7. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

What should have happened

10. The Special Educational Needs Code of Practice (the code of practice) says a local authority must make a decision and communicate the decision on whether to complete a needs assessment for an EHCP to the child’s parent or to the young person within 6 weeks of receiving the request.
11. The code of practice says the whole process of EHCP needs assessment and EHCP development, from the point when an assessment is requested until the final EHCP is issued, must take no more than 20 weeks, subject to various exemptions.
12. The Special Educational Needs and Disability Regulations 2014 set out specific exemptions. These include where:
• appointments with people from whom the local authority has requested information are missed by the child or young person;
• the child or young person is absent from the area for a period of at least 4 weeks;
• exceptional personal circumstances affect the child or his/her parent, or the young person, and
• the educational institution is closed for at least 4 weeks, which may delay the submission of information from the school or other institution.
13. The code of practice says the child’s parent or the young person should be informed if exemptions apply so that they are aware of, and understand, the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should endeavour to complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements.
14. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability, and aptitude, including any special needs.
15. Statutory guidance, 'Alternative Provision', published in January 2013, sets out that such provision should start as quickly as possible and enable pupils to achieve on a par with mainstream children. Further statutory guidance, 'Education for children with health needs who cannot attend school' published in May 2013, states that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
16. The Ombudsman published a focus report on education for children out of school in July 2022, which updated an earlier publication. ‘Out of school, out of sight’ makes clear if a child is not attending school and the council decides not to prosecute the parents, the council is likely required to make alternative arrangements for the child’s education.

What happened

17. Mr B’s daughter has special educational needs and Mr B and his partner requested a needs assessment for an EHCP on 11 October 2020. The Council agreed to complete an assessment on 18 November.
18. The Council undertook the necessary consultations and received information from the school, social care, health and occupational therapy in December 2020. The Council received information from the educational psychologist in January 2021.
19. The Council was to present the case to its panel in January 2021 to decide whether to proceed with an EHCP. Mr B and his partner chased the Council in February 2021. The Council subsequently told them it intended to issue an EHCP.
20. Mr B and his partner contacted the Council on 17 March as it had breached the 20 week timeframe to issue an EHCP. Mr B provided the Council with a draft plan he had created and told the Council his daughter was receiving part-time education and was being pressurised by the school to attend full-time. Mr B explained the delay putting in place provision was preventing his daughter accessing the curriculum. Mr B told the Council about the school he had identified as suitable for his daughter and asked the Council to consult it.
21. The Council issued a draft EHCP on 23 April. That did not name the school Mr B had requested.
22. Mr B and his partner submitted comments on the draft EHCP on 7 May. Mr B also told the Council his daughter had stopped attending school due to her anxiety as the school placement was not meeting her needs.
23. The Council sent Mr B and his partner a revised draft EHCP on 2 June. The Council said though it was still seeking some advice from the educational psychologist before making changes to the provision. The educational psychologist provided advice to the Council later that month. The Council then issued a revised EHCP.
24. The school allocated to Mr B’s daughter contacted the Council on 8 June to tell it Mr B’s daughter was not attending. A representative for Mr B and his partner later contacted the Council to ask what provision it could put in place for Mr B’s daughter while she was not attending school.
25. The Council asked the school whether it had put in place any steps to try and get Mr B’s daughter back into school. The school explained it had set up a return to school plan in March 2021 and Mr B’s daughter had been attending in the morning only between October 2020 and March 2021. The school told the Council Mr B and his partner had said they would not be returning their daughter to the school.
26. Following comments from Mr B and his partner on the revised EHCP the Council issued another draft EHCP on 13 July. Mr B and his partner subsequently asked for a video meeting to discuss the areas of the plan that remained in dispute.
27. In September the school allocated to Mr B’s daughter told the Council she had not returned. Mr B and his partner also asked for further amendments to the plan and asked the Council to finalise it.
28. On 22 September the Council told Mr B and his partner it had identified what it considered a suitable school which had a place for their daughter to start immediately. The school the Council had identified was not the school Mr B and his partner had requested. Mr B and his partner told the Council they did not feel the school could deliver the provision and said they would appeal if the Council named that school in the EHCP.
29. On 15 October the Council issued the final EHCP naming the school it had identified. Mr B and his partner submitted an appeal on 25 October.
30. A tribunal hearing took place on 4 March 2022. By that time the Council and Mr B/his partner had reached agreement on various parts of the appeal which included the school to be named in the EHCP. The Council issued a final EHCP on 27 April naming the school Mr B and his partner had requested. Mr B’s daughter now attends that school.

Analysis

31. Mr B says the Council delayed issuing a final EHCP for his daughter. The Council accepts there was a delay in this case which it says was caused by the impact of COVID-19 as officers were working in a different way and supporting and training others during the pandemic. I refer in paragraph 11 to the timescales for completion of the EHCP process. This makes clear the timescale for completion from the point at which an assessment is requested is a maximum of 20 weeks unless exceptional circumstances apply. The Council has not identified any special circumstances. I appreciate COVID-19 impacted on the Council’s processes. However, the Government only relaxed timescales for completion of assessments between May and September 2020. I am therefore satisfied those relaxed timescales did not apply and Mr B’s case. Clearly the Council did not comply with the 20 week timescale given Mr B asked for an EHCP for his daughter in October 2020 and the Council did not issue the final EHCP until October 2021, more than 12 months later. Failure to comply with the timescales in the code of practice is fault. I appreciate during part of that period the Council was liaising with Mr B and his partner about requested changes to the EHCP. While that is commendable the Council should not allow that to delay production of the final EHCP beyond the 20 week timescale set out in the code of practice.
32. It is clear from the EHCP the Council has issued that Mr B’s daughter is entitled to significant support as a result of her special educational needs. I am therefore satisfied as a result of delay by the Council Mr B’s daughter has missed out on special educational needs provision for around seven months longer than she should have, taking into account the fact I cannot comment on any period after the final EHCP was issued as Mr B had appeal rights. The delay also meant Mr B’s appeal was delayed. That is a significant injustice.
33. Mr B says the Council is also fault for failing to put in place education for his daughter from March 2020 onwards. The evidence I have seen satisfies me Mr B’s daughter had access to the same out of school provision available to her classmates during the COVID-19 lockdown from March 2020. I am also satisfied the school had in place a part-time timetable for Mr B’s daughter between October 2020 and Easter 2021. I therefore do not criticise the Council for any lack of provision before Easter 2021. I do not have any evidence to suggest the Council knew Mr B’s daughter was out of education until May 2021. Nevertheless, the Council is responsible for ensuring a child receives full-time education. Failure to provide education between Easter and May 2021 is therefore a service failure.
34. I am also concerned about the failure to put in place alternative education between May 2021 and October 2021, when the Council issued a final EHCP. I have seen nothing in the documentary evidence to show the Council made any attempt to identify alternative education for Mr B’s daughter during that period. That is fault. I recognise the Council was in the process of drawing up the EHCP during that period and Mr B’s daughter remained on the school roll. However, the responsibility for ensuring a child receives full-time education falls to the Council. Failure to arrange alternative education between May and October 2021 is therefore fault. I cannot comment on any failure to provide education after 15 October 2021 as the Council had issued a final EHCP, naming the school it considered appropriate at that point. The Ombudsman cannot comment on the lack of education from the point at which a final EHCP is issued.
35. I now have to consider what remedy is appropriate for the complaint. As I said earlier, fault by the Council means Mr B’s daughter missed out on special educational needs provision for seven months longer than she should have. Mr B’s daughter also missed out on education between the end of the Easter holidays in April 2021 and October 2021. The Ombudsman normally recommends between £200 and £600 per month for missing special educational needs provision and missing education. In this case I consider £600 per month appropriate from Easter 2021 to October 2021 given Mr B’s daughter received no special educational needs provision during that period and no education. I recommended a payment of £300 per month to reflect the missing special educational needs provision between March 2021 and the easter holidays given Mr B’s daughter received part time education during that period. That equates to £3,300. I also recommended the Council pay Mr B £500 to reflect the impact on Mr B and his partner and the time and trouble they had to go to, as well as the delay in them being able to exercise their appeal rights. I further recommended the Council apologise to Mr B and his partner for the failures identified in this statement. In addition I recommended the Council review its procedure to ensure it can identify when production of an EHCP is approaching the 20 week date to ensure timescales are not breached. The Council has agreed to my recommendations.
36. I have not recommended the Council meet Mr B’s request to pay £200 for a report he obtained from the specialist dyslexia teacher after he appealed. That is because the Ombudsman cannot consider matters which relate to the tribunal process.

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Agreed action

37. Within one month of my decision the Council should:
• apologise to Mr B and his partner for the delays completing the EHCP and for failing to offer his daughter alternative education from Easter 2021;
• pay Mr B £3,300 to reflect the lost special educational needs provision and education; and
• pay Mr B an additional £500 to reflect the impact on him and his partner.
38. Within two months of my decision the Council should review its procedure to ensure there is a process in place to identify when production of an EHCP is approaching the 20 week date to ensure timescales are not breached.

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Final decision

39. I have completed my investigation and uphold the complaint.

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Parts of the complaint that I did not investigate

40. I have not investigated Mr B’s concerns about the content of the EHCP issued by the Council. That is because Mr B had a right of appeal in relation to that issue, which he exercised.

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Investigator's decision on behalf of the Ombudsman