Summary: We upheld some of Mr and Mrs X’s complaints. There was a failure to ensure Mr Y had suitable alternative education when he was too unwell to attend school, a delay in issuing his Education, Health and Care plan following an appeal and a resulting loss of education provision. The Council will apologise, make payments described in this statement and arrange catch-up provision.

The complaint

1. Mr and Mrs X complained Leicestershire County Council (the Council) failed to:
1. Commission Occupational Therapy (OT) and Speech and Language Therapy (SALT) assessments for their son Mr Y
2. Arrange or secure suitable education Mr Y could cope with between December 2020 and November 2021
3. Arrange or provide an Emotional Literacy Support Assistant (ELSA)
4. Amend the EHC plan within the required timeframe following the Council conceding a SEND tribunal appeal
5. Deliver the OT and SALT provision in the second EHC plan of February 2022 between February and May 2022
2. Mr and Mrs X said this caused avoidable distress and time and trouble and a loss of suitable education provision for Mr Y.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Mr and Mrs X complained to us in February 2022. So complaints about things which happened before February 2021 are late. As the Council accepted in its complaint response that there had been delay, this a good reason to investigate from November 2020 when Mr Y’s school (School A) referred him for an EHC needs assessment.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. The courts said we have no jurisdiction to investigate the consequences of a decision if investigation of the decision itself is excluded by Section 26(6) of the Local Government Act 1974 (see last paragraph). (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
7. 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)
8. 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)
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.

Back to top

What I have and have not investigated

10. I have investigated complaints (d) and (e). I have also investigated complaints (b) and (c) from November 2020 - April 2021 and September 2021- February 2022. My reasons for not investigating some of the complaints and for restricting time is in the next paragraph.
11. I did not investigate complaint (a) because Mr and Mrs X appealed to the Special Educational Needs and Disability Tribunal at the start of June 2021 seeking an order for SALT and OT assessments and to name a particular school. Mr and Mrs X said as a result Y did not receive suitable education provision during the appeal period. This complaint is outside our remit because of the legal case in paragraph six. The alleged lack of suitable provision is a consequence of the Council’s failure to commission SALT and OT assessments.
12. Provision during the appeal period (May to August 2021), in complaints (b) and (c)) is outside our remit for the same reason.

Back to top

How I considered this complaint

13. I considered the complaint to the Council, its response and her complaint to us. I also considered documents set out later in this statement and discussed the complaint with Mrs X.
14. Mr and Mrs X had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

15. 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. Before issuing an EHC plan, a council carries out an EHC needs assessment.
16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014).
17. Regulation 45 of the SEND Regulations 2014 says where a council notifies the tribunal it won’t oppose an appeal, the tribunal does not have to make an order. Where the appeal was about the contents of a plan, the council should issue the amended plan within four weeks of the council notifying the tribunal it was not opposing the appeal.
18. Regulation 4(1) of the First Tier Tribunal (Health, Education and Social Care Chamber) Rules 2008 (delegation to court staff) says court officers may carry out judicial functions. Regulation 4(3) says if a party receives a decision notice from a tribunal officer, they may apply in writing within 14 days for the decision to be considered by a judge.
19. 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. (Education Act 1996, section 19). We refer to this as ‘the Section 19 duty’ or ‘alternative provision’ (AP).
20. 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))
21. Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013) says:
• 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.
• Local authorities should address the needs of individual children in arranging provision
• Local authorities should review the provision offered regularly to ensure it continues to be appropriate.
• AP should address a pupil’s individual needs, including social and emotional.
• Local authorities should work together with agencies and parents to ensure best outcomes.

What happened

Background

22. Mr Y has autism and selective mutism (a severe anxiety disorder where a child or young person is unable to speak in social situations). Mr Y was on the roll of School A, a mainstream secondary school, but he stopped attending in 2019. The Council’s inclusion service was aware of Mr Y from February 2020 because School A had referred him as a child who was missing education. The Council and School A had offered AP through its Children with Medical Needs service, including home and on-line tuition, but this had not been successful.

Chronology

23. In November 2020, the Council commissioned two sessions a week from an alternative education provider at Mr and Mrs X’s request and Mr Y attended a few sessions in November and the start of December. The provider’s records indicate those sessions he attended went well. However, he stopped going due to anxiety.
24. School A referred Mr Y for an EHC needs assessment in November 2020. He had been receiving SEND support at school due to anxiety. School A’s referral said Mr Y had not attended school since having a breakdown at the end of 2019, despite school providing a mentor and home tutoring.
25. School A’s referral included a report from an Educational Psychologist (EP) which it had commissioned. The EP’s report noted:
• Mr Y was receiving five hours a week tuition from the out of school tuition team, but he was struggling to engage with this because of anxiety.
• He was on an NHS waiting list for an assessment for autism but was yet to be diagnosed.
• They had spoken to Mr Y’s parents who said he needed a smaller setting to deal with his sensory needs.
26. The Council agreed to carry out an EHC needs assessment.
27. The Council kept the placement with the alternative education provider open (see paragraph 23), and reduced the weekly sessions from two to one after discussion with and agreement of Mr and Mrs X. An email from the alternative education provider to the Council said Mr Y was not able to leave the house because his anxiety was too high.
28. At the end of January 2021, the Council received health advice. Mr Y was also assessed for and diagnosed with autism.
29. The Council received advice from one of its EP at the start of February. The report noted Mrs X wanted Mr Y to attend a therapeutic school and noted he was finding it difficult to leave the house.
30. Also in February, an officer from the inclusion service, a member of staff from School A and Mr and Mrs X met to discuss Mr Y’s progress. The plan was to try and get Mr Y to attend another session at the alternative education placement and to explore other APs.
31. The Council issued a draft EHC plan at the end of February. This proposed 20 hours of funding for additional teaching assistant support, based on the Council’s EP recommendations.
32. By the start of March 2021, all those involved agreed to suspend the placement with the alternative education provider as Mr Y’s anxiety continued to prevent him from attending. There was a multi-agency meeting including Mr and Mrs X and professionals. The agreed actions were for a Graduated Response Inclusion Practitioner (GRIP) to be allocated to work with Mr Y. The Council told me the GRIP sent messages to Mr Y, met with his parents and visited the family home, but it was not possible for her to meet Mr Y. The Council also told me the GRIP ended her involvement later in the year with Mrs X’s agreement. There are no records of further AP being offered or commissioned for Mr Y.
33. In March, Mrs X asked for amendments to the draft EHC plan. Her preference was School B (a small specialist school). She also asked why the Council had not obtained SALT or OT assessments because she considered Mr Y had extensive needs around communication.
34. A caseworker emailed Mrs X to say she had made some changes to the draft EHC plan. The caseworker went on to say:
• School A needed to send a referral form for SALT and OT involvement
• She had made changes to some of the outcomes in Section E and provision in Section F
• The Council would consult on her preferred school and also its own schools as well, due to place availability.
35. At the end of March, the Council’s funding panel confirmed funding for a specialist education placement for Mr Y.
36. In April, the Council consulted with seven specialist schools to see if they would offer Mr Y a place. Six schools said no. A seventh did not reply.
37. In the middle of April, Mrs X emailed asking for Mr Y’s EHC plan to be finalised.
38. The Council issued a final EHC plan on 15 April. The final plan did not have any SALT or OT provision. It did include half an hour of individual support from an ELSA once a week. It named a type of placement (specialist autism school).
39. Mrs X appealed to the SEND tribunal at the start of June 2021. Her appeal included a request for the tribunal to order SALT and OT assessments and to name School B or another specialist setting.
40. On 20 August, the Council sent its response to Mrs X’s appeal application to the SEND tribunal. The Council copied Mrs X into the email to the tribunal. The response said the Council agreed to source appropriate specialist (autism) provision and was chasing outstanding consultation responses. It said it was happy to work with Mr Y’s parents to address other issues.
41. On 24 August, Mrs X emailed the caseworker requesting EOTAS for Section I of Mr Y’s EHC plan. (EOTAS stands for Education Otherwise Than At School). It is education outside a formal school environment. Children who receive EOTAS under an EHC plan are not on the roll of an educational setting and receive their special educational provision either at home or in a setting that is not a registered educational setting) for Mr Y. Mrs X said she intended to ask the tribunal for an amendment to her appeal application. Mrs X noted School B (the school she had wanted Mr Y to attend) had declined to offer him a place.
42. The case worker did not reply to Mrs X’s request for EOTAS.
43. On 2 September, Mrs X submitted an application to the tribunal to vary her appeal. She copied the caseworker into her email which said she wanted EOTAS for Mr Y because he could not cope even in a specialist school.
44. The tribunal did not respond to Mrs X’s submission to vary her appeal. But, the following day (3 September), an email from a tribunal clerk to the parties said the Council had conceded the appeal and so the final hearing was cancelled. The clerk reminded the Council that Regulation 45 applied (see paragraph 18).
45. In September, the Council consulted with three specialist schools. One school offered a place provisionally, inviting Mr Y to visit to see if he liked it.
46. Also in September, School A (Mr Y remained on its roll although he was not attending due to anxiety) commissioned an OT to advise on Mr Y’s SEN. The report recommended weekly sessions with an OT, some sensory and physical activities and specialist equipment. A SALT report was commissioned at the same time. Both the SALT and OT reports are dated September 2021
47. Also in September, the inclusion service held a multi-agency meeting with professionals and Mr and Mrs X. The minutes noted what was working well and not so well and next steps. The minutes say EOTAS was being looked into as well as a ‘functional skills package which Mr X would not access’. There is no evidence the Council or the school were providing any AP for Mr Y other than the GRIP worker who Mr Y had not met.
48. At the end of September there was a second multi-agency meeting organised by the Inclusion Service. The minutes note Mr Y’s EOTAS package was being put together. There is no evidence any suitable AP was in place.
49. In October, the caseworker emailed a provider asking for costs for individual sessions for OT and SALT. Mrs X also provided some costs from another company she had found.
50. In the middle of October there was a third multi-agency meeting organised by the Inclusion Service. The minutes suggest costs were being put together to request approval for funding for EOTAS.
51. At the end of October, the funding panel declined a request for an EOTAS package that Mrs X had put together. The proposed package included six hours a week of tuition from a tutor specialising in autism, animal therapy and weekly SALT and OT provision. The panel said School A needed to provide a package to see if Mr Y would engage and the panel wanted to know why the hospital school had declined to offer Mr Y support.
52. Emails show the Council commissioned specialist tuition for Mr Y at the end of October 2021 and this commenced and continues. Mrs X confirmed this to me and also confirmed Mr Y started having mentoring at the same time and this continues.
53. A few days later, the Council changed its mind about EOTAS. A caseworker emailed Mrs X with a different EOTAS package for Mr Y including one hour a week each of SALT and OT for 38 weeks a year (so for the school year), specialist tuition, 2 on-line GCSE courses and two hours a week of mentoring.
54. Mrs X complained to the Council in December. She said Mr Y had been out of education and the Council had not provided anything he could access.
55. In January 2022, the Council issued a draft EHC plan for Mr Y. It said Mr Y was receiving one to one tuition from the specialist tutor and he would be offered weekly SALT and OT sessions. The draft plan named School A and ‘Element 3 funding’ (This is up to 25 hours of teaching assistant support or equivalent provision.)
56. Mr Y’s final EHC plan of February 2022 set out SEN provision including SALT, OT, small group communication skills, half an hour a week individual support with an ELSA and an individual learning programme to support his re-engagement with education. The placement was School A until July 2022 and an alternative education provider (for the GCSE courses and mentoring) from September 2022.
57. The Council’s response to the complaint Mrs X made in December 2021 apologised for the delay in obtaining SALT and OT reports and said it had received these in September and October 2021. The response went on to say:
• Mr Y remained on the roll of School A but was not attending.
• The EOTAS package Mr and Mrs X had first requested did not have enough focus on education and so the Council had put together a different package with an education provider and with OT and SALT and specific ASD support
• Due to his age, Mr Y could not transfer to the education provider’s roll until September 2022. Meantime he would stay on School A’s roll and complete a study programme with the education provider
• The independent EP’s recommendations were included in the final EHC plan
• The Council did not contest her appeal based on the appeal papers she submitted
• The Council had commissioned the specialist tutor at the end of October 2021 to ensure Mr Y was getting some of the provision on his plan.
58. Mrs X complained to the Council separately about OT and SALT provision. The Council responded in April 2022 apologising for the delay and saying it had contacted a company about providing SALT and OT but had not had a reply. It recognised there was a failure to provide the therapies in Mr Y’s EHC plan and so it was prepared to offer catch-up hours to make up the shortfall or a payment.
59. The Council confirmed Mr Y’s SALT sessions started on 9 May 2022 and OT sessions on 20 May 2022.
60. Mrs X told me she had wanted to carry on with the tribunal hearing as they were waiting for SALT and OT reports which were due to be ready before the hearing in November. She feels the Council should not have conceded the appeal. She also seeks payment of her legal costs in appealing.

Was there fault?

Complaint b: failure to arrange/secure suitable education Mr Y could cope with between December 2020 and November 2021

61. Between December 2020 and March 2021, the Council commissioned an alternative education provider. Mr Y could only attend a few sessions due to his anxiety. The Council reduced the sessions by one in response to Mr and Mrs X’s request. This was in line with the Section 19 duty described in paragraphs 19 and 20. That Mr Y could not attend because of ill-health was not within the Council’s control and I note the inclusion team commissioned the provider Mr and Mrs X had identified as their preference. This indicates an appropriate partnership approach as set out in the guidance in paragraph 21. In March 2021, the inclusion service suspended the placement, again with parental consent. There was then a multi-agency meeting including Mr and Mrs X to review the case. This was appropriate and in line with guidance.
62. However, after the meeting in March there were no further review meetings until September. Mr Y was not attending School A because of ill-health, not accessing the alternative provider which was cancelled and his EHC plan had no placement named. While the Council consulted schools, it did not receive any offers. The lack of reviews meant Mr Y’s case with the inclusion service was allowed to drift while the appeal was taking place. There was a failure to act in line with the guidance in paragraph 21 and meant Mr Y was without any education provision in line with his EHC plan between March and the end of October.

Complaint c: Failure to secure ELSA support

63. ELSA support was on both EHC plans. It was not secured until the end of October 2021 when the mentor started working with Mr Y. It should have been in place from March 2021 as Mr Y was entitled to the provision on his plan.

Complaint d: Failure to amend the EHC plan within the required timeframe following the Council conceding the appeal

64. Regulation 45 of the 2014 SEND Regulations required the Council to issue Mr Y’s final amended EHC plan within four weeks of notifying the tribunal it was not opposing Mrs X’s appeal. The Council told the Tribunal it was conceding the appeal on 20 August. So, in line with Regulation 45 of the 2014 SEND Regulations, there should have been a final amended plan by 17 September. This would have given Mrs X fresh appeal rights if she did not agree with the placement or the provision in Section F. I find the Council failed to act in line with Regulation 45 because it took until February 2022 to issue a final amended plan. This was a delay of about four and a half months and was fault.
65. Mrs X told me the Council should not have conceded the appeal in August 2021 and it should have let it run to a final hearing because she wanted the tribunal to decide on an EOTAS placement for Mr Y. On the evidence available, the tribunal did not respond to Mrs X’s application to vary her appeal to include EOTAS. I cannot comment on this as the tribunal is not a body within our jurisdiction. It was not fault by the Council to concede the appeal because the aim is for the parties to try and avoid litigation where a dispute can be settled. I note Mrs X could have asked the tribunal under Regulation 4(5) of the First Tier Tribunal Regulations 2008 for the clerk’s decision to end the appeal to be considered by a judge, if she had wanted the appeal to continue to a final hearing. As she did not make this request, the appeal concluded without a final order or a hearing.

Complaint e: Failure to deliver the SALT and OT provision in the second EHC plan of February 2022

66. The Council accepts Mr Y did not receive this provision between February and May. This was fault because councils are legally required to secure provision on an EHC plan. This has likely affected Mr Y’s educational progress and attainment.

Did the fault cause injustice?

67. Between March and 15 April 2021 Mr Y was without any education. However, the evidence indicates he was housebound due to anxiety and as previous home tuition and on-line tuition had also failed, my view is Mr Y was likely too unwell to access any type of education, even if the inclusion service had carried out further reviews and offered other AP. As set out in paragraphs 11 and 12, I have not investigated injustice caused by fault during the appeal period.
68. The delay in amending Mr Y’s EHC plan after the Council conceded the appeal delayed a further right of appeal and was a loss of opportunity to have the case heard again; I note however that Mr and Mrs X did not issue a further appeal in February 2022 so the injustice is limited.
69. Had the Council acted without fault and in line with the timescales required in Regulation 45, there would have been a final EHC plan on 17 September 2021 and Mr Y would have been entitled to the provision on that plan from that date. The OT and SALT assessments were available in September 2021 and the provision recommended in those assessments was included in the February 2022 plan. As this plan should have been issued by 17 September 2021 at the latest (to comply with Regulation 45), on a balance of probabilities the OT and SALT recommendations would have been included in section F had the plan been issued at the right time. It follows Mr Y missed out on SALT and OT provision from 17 September 2021 until 9 May 2022 (SALT) and from 17 September 2021 until 20 May 2022. (OT)
70. The failure to secure SALT and OT provision and the ELSA support (March to 15 April 2021) was a loss of educational provision.

Back to top

Agreed action

71. From 15 April 2021, Mr Y should have been receiving the provision in the EHC plan of that date, but he did not receive any education until the end of October 2021. Note I cannot recommend a remedy for the lack of provision for the period of appeal. I can recommend a remedy for the loss of special educational provision once the appeal ended.
72. The Council will, within one month of my final decision:
• Apologise to Mr and Mrs X for the avoidable distress caused by the delays I have identified and pay them £250 to reflect this.
• Apologise to Mr Y to reflect the distress caused by the delay in securing mentoring (which is equivalent to ELSA support) and SALT and OT provision.
• Make a payment of £200 to reflect the delay in securing ELSA support. The affect of the delay on his progress is hard to assess, so this figure is symbolic.
• Arrange 29 OT and 27 SALT sessions for Mr Y to make up for the lost sessions between 17 September 2021 and 9 May 2022 (when SALT started) and 20 May 2022 (when OT started).
73. Mr and Mrs X seek repayment of their legal costs. We do not generally recommend this because the tribunal has powers to order costs and I consider it reasonable for them to have pursued this option.

Back to top

Final decision

74. I upheld some of Mr and Mrs X’s complaints. There was a failure to ensure Mr Y had suitable alternative education when he was too unwell to attend school, a delay in issuing his Education, Health and Care plan following an appeal and a resulting loss of education provision. The Council will apologise, make payments described in this statement and arrange catch-up provision.
75. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman