Summary: Mrs J complains on behalf of son (Child A) who has special educational needs. She says the Council unlawfully refused to assess him for an Education and Health Care Plan (EHCP). Further, Mrs J complains that once the Council eventually did so, the assessment process was flawed, delayed and led to an unsuitable EHCP being maintained for Child A. Mrs J also complains the Council is failing to provide her son with a suitable education and is not meeting his EHCP provision following him no longer attending his educational setting. We found the Council delayed in issuing Child A with an EHCP which meant the support he needed was also delayed. Further, we found significant delays in the Council’s complaint handling responses to Mrs J. We do not have the legal jurisdiction to investigate any other matters because these are waiting to be heard in tribunal proceedings. That said, the fault identified in this statement has caused a serious injustice to Mrs J and Child A. The Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mrs J, is making a complaint in relation to her son (Child A) who has special educational needs (SEN). She raises a number of concerns about the way the Council has prepared an EHCP to support Child A’s educational needs. Specifically, Mrs J alleges the following:
1. The Council unlawfully refused to carry out an EHCP needs assessment which she later successfully appealed to the SEND Tribunal.
2. The Council subsequently failed to carry out a full assessment of Child A’s needs in determining what support he needs.
3. The Council exceeded the statutory timescale for issuing a final EHCP which starts from the date a request for an EHCP is made.
4. The Council’s draft EHCP is ambiguous in multiple areas and does not refer to necessary reports concerning Child A’s needs.
5. The Council is not providing Child A with suitable alternative education which is needed because of his EHCP placement being unsuitable for his needs.
6. The Council has delayed in responding to her formal complaints.
2. In summary, Mrs J says the alleged faults have caused significant hardship and distress for her and her family. She also says Child A is not receiving the support he requires as a result of the Council undertaking a poor EHCP assessment process. Mrs J says the Council is not providing a suitable education to Child A which is having an adverse effect on his educational development and wellbeing.
3. As a desired outcome, Mrs J wants a formal apology from the Council for the alleged faults. She also wants the Council to ensure Child A is properly assessed through appropriate professional input and advice to ensure his needs are met.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended).
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).

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How I considered this complaint

8. I have read Mrs J’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable guidance and legislation. Moreover, I have held a number of telephone calls with Mrs J to discuss her complaint in further detail. I invite both Mrs J and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made in this case.

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What I found

Background and legislative framework

Council’s duty to provide alternative education

9. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by s19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

10. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and Health Care Plan

11. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
12. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
13. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
14. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
15. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Timescales for issuing EHCP

16. 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:
1. 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;
2. 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;
3. 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); and
4. councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
17. Section 44 (Compliance with the Orders of the First Tier Tribunal) states:

“where, following the assessment or reassessment, it decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to [the child's parent or the young person under regulation 14(2) and] those specified in regulation 13(2) as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal's order;”

EHCP provision

18. A council has a duty to secure the specified special educational provision in an EHCP for the child or young person (s42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
19. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Chronology of events

20. In April 2021, Mrs J made an application to the Council that Child A be assessed for an EHCP. A month later, the Council wrote to Mrs J with its decision to not assess Child A for an EHCP. Mrs J appealed the decision to the SEND Tribunal.
21. In September 2021, the SEND Tribunal considered Mrs J’s appeal. It Ordered the Council carry out an education and health care assessment to determine whether an EHCP should be maintained for Child A.
22. In December 2021, Mrs J made a complaint to the Council about a delay in the EHCP assessment process and the initial refusal to assess Child A. The Council issued a stage one response to Mrs J two weeks later. Still dissatisfied, Mrs J escalated her complaint to stage two in January 2022. However, the Council did not provide a response until May 2022 which exceeded the timeframe to do so.
23. In March 20202, Mrs J submitted a further complaint to the Council in relation to EHCP assessment process and the professional input sought as part of this. The Council did not respond until late May 2022, again exceeding its policy timeframe.
24. In early April 2022, the Council issued a final EHCP for Child A which named a mainstream secondary school for him to attend. Mrs J does not agree the named school is a suitable placement for meeting Child A’s educational needs.
25. In late April 2022, the Council wrote to Mrs J to explain that it recognised Child A’s EHCP placement was not the right setting for him. It therefore offered to put in a place a home learning package for Child A, though emphasised that he remained on the school roll and could attend if need be. Mrs J later complained to the Council that the alternative education provision was unsuitable and failed to meet the outcomes identified in Child A’s EHCP.
26. In May 2022, Mrs J lodged a further appeal to the SEND Tribunal. She appealed the contents of the EHCP, as well as the named mainstream secondary school. The appeal is waiting to be heard and the Council has been providing alternative education provision for Child A in the interim. However, Mrs J alleges the alternative education is neither full-time nor suitable for meeting Child A’s needs.

My assessment

Initial refusal to carry out needs assessment

27. In April 2021, Mrs J requested the Council assess Child A for an EHCP and it declined to do so. I appreciate why Mrs J has complained about this issue, but I have no legal jurisdiction to investigate this part of the complaint. When the Council refused to carry out the assessment, Mrs J successfully appealed to the SEND Tribunal on this specific issue. I have no discretion to investigate in these circumstances as the restriction I outline at Paragraph 5 applies.

Contents of the final EHCP

28. Part of Mrs J’s complaint concerns what input went into Child A’s EHCP, as well as what is included in it. In particular, she says the Council failed to take account of needed practitioner reports on the subject of Child A’s needs. Moreover, Mrs J says that the EHCP maintained by the Council is ambiguous in multiple areas and demonstrates a failure to carry out the assessment process with due regard to process. These are all matters which relate to the contents of the EHCP. Mrs J appealed the contents of the EHCP in May 2022 and for that reason, I do not have the legal jurisdiction to investigate. As with the initial decision by the Council to not assess Child A for an EHCP, the restriction I outline at Paragraph 5 applies.

Delay in issuing a final EHCP

29. In September 2021, the SEND Tribunal issued an Order that the Council assess Child A for an EHCP. As to the deadline to do so, this is regulated by s44 of the Special Educational Needs and Disability Regulations 2014. I have included the text of this provision at Paragraph 17 (above).
30. In its complaint responses to Mrs J, the Council stated it has 20 weeks in order to finalise the EHCP. Though this is normally the case, this is not correct in the context where an assessment has been Ordered by the SEND Tribunal and so I find fault by the Council over the advice given to Mrs J. It also raises concerns relating to whether the Council is routinely misadvising service users. I welcome the comments of the Council on this point and concern. In any event, the Council was required to issue a final EHCP for Child A by no later than early January 2022. However, it did not do so until early April 2022. This constitutes a delay of three months and so I find fault by the Council. This caused a serious injustice to Child A because it meant the identified provision to support his SEN was delayed.
31. In particular, Child A’s EHCP makes provision for him to receive tailored support within the school environment, including within lessons and physical education. This tailored support would have been provided to Child A three months earlier, but for the delay by the Council in issuing his EHCP. This caused a serious injustice to Child A because it meant the identified provision to support his SEN was not provided when it needed to have been.

EHCP and alternative education provision

32. Separately, Mrs J has complained to the Council in relation to a failure to provide Child A with a suitable education. She says that from November 2021, Child A was frequently being placed into isolation by his school on account of perceived behavioural problems associated with his SEN. By January 2022, Mrs J says Child A was placed on a reduced timetable of 2 hours a day. Subsequently, there was a safeguarding incident whereby Child A placed himself in a dangerous situation by climbing the school railings. Mrs J explained that Child A has been unable to attend school since May 2022 and she appealed the suitability of the placement the same month. The Council then arranged home tuition for Child A. However, Mrs J has complained the alternative education provision is unsuitable for Child A’s needs and is inconsistent with the provision identified in his EHCP.
33. I recognise Mrs J does not feel Child A received an adequate education while attending his educational setting. I also note the school’s comments relating to its difficulties supporting Child A and that it felt an alternative education package would be more suitable for him. However, I have no jurisdiction to investigate what happens in schools (see Paragraph 6). Therefore, what level of education Child A received while at school, as well as the suitability of this, is outside the remit of my investigation. I cannot take account of the school’s comments relating to Child A requiring an alternative education package, or questions about its own suitability to provide a satisfactory education to him. These comments were made prior to an EHCP being issued for Child A which detailed the level of support he should expect to receive while attending the educational setting.

34. Turning now to when Child A stopped attending school in May 2022. As set out at Paragraph 8, a local authority has a legal duty to arrange full-time alternative education where a child or young person is unable to attend school by reason of illness, or otherwise. The Ombudsman does generally have jurisdiction to investigate a complaint in relation to a breach of the s19 duty. However, where the duty has arisen as a result of dispute in relation to the named EHCP school placement, the situation is more complicated.

35. By law, I cannot investigate any matter which is inextricably linked to a matter currently awaiting to be heard by the SEND Tribunal (see Paragraph 19). Mrs J appealed the named placement in Child A’s EHCP in May 2022 because she does not consider it is suitable for meeting his needs. Therefore, if the reason why Child A is unable to attend his named placement is materially connected to Mrs J exercising her right of appeal, I cannot by law investigate. The question to answer is whether the reason for Child A being out of school, and therefore requires alternative education provision, is sufficiently separate to Mrs J’s appeal to the SEND Tribunal. If it is not separatable, I cannot by law investigate.
36. I have carefully considered the circumstances as to why Child A is currently out of school. In my view, the events described by Mrs J are that, even prior to the safeguarding incident, the named EHCP placement was not providing Child A with a suitable education which met his SEN needs. As I understand, the safeguarding incident occurred as a result of Child A’s needs. It is Child A’s needs and the question of the school’s suitability which is why Child A is currently out of school. The Council has told me it has not informed Mrs J that Child A should not attend his named EHCP placement. The Council said however that it recognised Child A’s school is not right for him and it has therefore arranged a package of tuition at home for him. That said, this does not necessarily constitute that the school is unable to meet Child A’s educational needs and EHCP provision.
37. In my view, the primary reason for Child A’s alternative education provision arises due to questions of the school’s suitability for his needs. Mrs J has made an appeal on that basis. The Council has confirmed to me that Child A’s school, unless determined otherwise by the SEND Tribunal, is a suitable placement for him to attend. It also said the alternative education provision was put in place as it recognised Mrs J did not want Child A to attend. The dispute over the EHCP placement is currently waiting to be heard by the SEND Tribunal.
38. To investigate the suitability of the alternative provision would be to accept that Child A’s EHCP placement is unsuitable for his needs. That is matter for the SEND Tribunal and not the Ombudsman. The issues are inextricably linked and I do not have the legal jurisdiction to investigate them. I also recognise Mrs J says Child A is also not receiving his EHCP provision. I have reviewed Child A’s EHCP and his provision is specifically targeted to supporting him within the school environment. The ECHP does not make home targeted provision. Should Mrs J wish to challenge this, she may do so through her appeal to the SEND Tribunal which she has confirmed she is doing.

Complaints process

39. As a general rule, where we cannot deal with the substantive issues of a complaint, it is not a good use of our resources to investigate complaints about the complaints process. However, there is one aspect of this complaint I have been able to investigate and for which I have identified fault by the Council. I also recognise the Council’s complaint responses have by far exceeded its own timeframes. As a maximum, the Council commits to responding to complaints within 20 working days. The evidence shows serious and significant delays by the Council in responding to Mrs J which I consider has caused her distress and uncertainty. I am therefore finding fault which has caused Mrs J an injustice.

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Agreed actions

40. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 20 October 2022:
1. The Council will provide a written apology to Mrs J which addresses the fault and injustice identified in this statement.
2. The Council will pay Mrs J £450 (£150 per month) as a result of the delay in Child A accessing his EHCP provision.
3. The Council will pay Mrs J £150 as a result of Council’s delays in responding to her formal complaints which caused her distress and uncertainty.
41. In addition, the Council will perform the following actions by 20 December 2022:
1. The Council will review its complaint handling responses against its own written policy timeframes and determine what steps are required to ensure compliance with this going forward.
2. The Council will also review its compliance with issuing EHCP’s in accordance with the Regulations and adopt measures to prevent delays occurring.
42. The Council will provide evidence to the Ombudsman it has satisfied the above recommendations by the deadlines set out above.

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Final decision

43. I intend to partially uphold the complaint in relation to the outcomes I have been able to investigate. The Council delayed in issuing Child A with an EHCP which meant the support he needed was also delayed. Further, I found significant delays in the Council’s complaint handling responses to Mrs J. Because Mrs J submitted an appeal to the SEND Tribunal, I do not have the legal jurisdiction to investigate any other matters for the reasons I have outlined. That said, the fault identified in this statement has caused a serious injustice to Mrs J and Child A and so I have recommended a number of remedies to address this.

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Investigator's decision on behalf of the Ombudsman