Summary: Mrs B complained about delays and failures in assessing her son C’s special educational needs, providing him with suitable full-time education, arranging the special provision in his Education, Health and Care Plan, and issuing a final plan after a review. On the evidence available we found fault in the Council’s actions. We have asked the Council to pay Mrs B £2400 for the benefit of C’s education, £500 for her time and trouble, £295 for a private report she obtained and to provide evidence of how the major review of its service is progressing in terms of adherence to statutory timescales.

The complaint

1. Mrs B complained that Suffolk County Council (the Council) in respect of her son, C, failed to:
• adequately assess his special educational needs;
• ensure since September 2020 that C has been provided with suitable full-time education;
• arrange the provision specified in section F of his current Education, Health and Care (EHC) plan;
• seek advice and information as part of the review of his EHC plan; and
• issue a final EHC plan following the review process.
2. The Council also delayed in responding to her complaint.
3. These failures have caused significant frustration and distress to Mrs B and C. He has missed out on over two years of full-time education and Mrs B has not been able to work.

Back to top

What I have and have not investigated

4. I have not investigated the quality of the assessment of C’s special educational needs as Mrs B had the right to appeal against the outcome of the assessment to the SEND Tribunal.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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.
8. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
9. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Back to top

How I considered this complaint

10. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
11. 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 found

Provision of education

12. Councils must “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.” (Education Act 1996, section 19(1))
13. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. 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))
15. 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)
16. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

The Ombudsman’s view

17. 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)
18. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school 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.

Special Educational Needs assessments

19. 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 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;
• 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
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
20. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
21. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

The Council’s complaints policy

22. The Council operates a two stage complaints procedure. Stage one is local resolution, and a response should be provided within 20 working days. The policy allows a second stage one response to be sent within a further ten working days if additional information relating to the complaint is presented after the Stage one response is provided or if the initial response did not address all the points in the original complaint.
23. Stage two investigations should normally be completed within five weeks but can be extended to 13 weeks in complex cases.

What happened

24. Mrs B’s son C experienced problems at school in the autumn term of 2020 when he returned after the COVID19 lockdown. He was placed on a part-time timetable, attending for the mornings only.
25. In October 2020 he was diagnosed with autistic spectrum disorder.
26. On 5 November 2020 the school (School1) referred C to the Council’s inclusion service for support. Later in November the Council referred C to a pupil referral unit (AP1) which provides placements for small groups of children to help them develop skills to work with others in a mainstream setting. The 12-week placement started in January 2021 with C attending for two days a week at AP1. Mrs B says C only attended AP1 for two days a week and did not attend School1 at all.
27. In March 2021 School1 completed a request for an EHC needs assessment. The Council agreed to the assessment which started on 28 April 2021. Mrs B says that from 8 March 2021 C attended AP1 for two days a week and mornings only at School1. From 19 April 2021 C attended School1 only for five mornings as the AP1 provision had ended.
28. The Council issued two draft EHC plans and a third in July 2021. It referred to this as a final and named School1 but said it was going to consult Mrs B’s preferred school (School2) and did not give her a formal right of appeal against it.
29. School2 offered C a place in August 2021, but the Council’s Specialist Education Panel (SEP) did not agree the request and asked for more information. Mrs B said she wished to appeal against the EHC plan. On 8 October 2021 Mrs B attended mediation with the Council.
30. C was still attending School1 on a part-time basis (five mornings a week). The SEP refused a referral to the Alternative Tuition Service at this point, saying the Council’s specialist education service needed to work with C first.
31. In November 2021 the SEP agreed to C starting at School2, following receipt of further information. The Council issued the final EHC plan naming School2. C started on 26 November 2021. Within a few weeks C was on a part-time timetable (mornings only) and School2 said it could not meet his needs. It provided evidence that incidents had occurred almost as soon as C started at the school and escalated to several fixed term exclusions after Christmas. School2 held an early Annual Review in January 2022 and sent the paperwork to the Council on 25 January 2022.
32. School2 said C’s EHC plan did not reflect his needs and required significant change in order to support him. School2 and Mrs B also noted that for the majority of the past year C had been on part-time timetables in three different settings. He was not able to access a full-time timetable without becoming overwhelmed and this was hindering his academic progress.
33. School2 requested alternative provision immediately and said the current 1:1 provision for two hours a day was insufficient: he needed 1:1 support for the entire time he was in school.
34. Mrs B also made a stage one complaint saying the EHC assessment and plan were inadequate, and the Council had failed to provide C with a suitable education. She also said that the requests for an urgent reassessment of C and alternative provision should not be tied to the annual review process as action was needed more quickly.
35. In mid-February the Council agreed that the placement had broken down. The SEP agreed to a reassessment, including sensory and educational psychology assessments and the Council started to look for a package of alternative provision for C. Mrs B also requested a personal budget (money paid directly to a service user so they can arrange their own service provision) to deliver some of C’s support.
36. C was removed from School2’s roll on 28 February 2022.
37. The Council responded to Mrs B’s stage one complaint saying it was considering a range of options for bespoke alternative provision for C and had already approached a number of providers. It had agreed to a reassessment of C’s needs. It agreed that the final EHC plan had not been issued until 19 November 2021 and there had been three draft EHC plans prior to this. It also said that C had been on the roll of School1 and AP1 until November 2021 and then School2 until 28 February 2022
38. On 1 March 2022 Mrs B requested that her complaint go to stage two of the Council’s complaints process. The Council made a number of referrals in respect of the reassessment and the alternative provision. A provider (AP2) agreed to a placement for C starting on 18 April 2022.
39. At the end of March 2022, the Council provided a further response at stage one of its complaints procedure. It described the action it had taken towards the reassessment and the bespoke package of support and it would get back to Mrs B shortly regarding her compensation request for the lack of education provision for C and her loss of earnings.
40. In April 2022 Mrs B continued to press the Council to provide full-time education for C. She said AP2 were providing 10 hours a week, but the Council needed to find a learning support mentor to provide supervision for the remaining 15 hours. The Council said it had offered to refer C to the ATS for 10 hours a week, but Mrs B had declined. She wanted C to settle into his new provisions.
41. In early May 2022 the Council sent Mrs B its third response to her stage one complaint. It said C had been registered at a school from September 2020 until 28 February 2022. It accepted there was a gap in his education until 18 April 2022 when AP2 started and offered £500 for this. Mrs B rejected the offer and asked to go to stage two. She also complained to us. We asked the Council to consider the complaint at stage two of its process.
42. Mrs B obtained her own private report for dyslexia as part of the reassessment and asked the cost of £295 to be reimbursed. She again requested the Council obtain therapeutic assessments which it had previously agreed to do as part of the reassessment process.
43. The Council responded on 17 May 2022 and apologised for not seeking information from four professionals identified by Mrs B. It said it would do so now and apologised for not meeting the statutory timescale for producing an EHC plan. It should have produced a final EHC plan by 20 May 2022.
44. At the end of June 2022 Mrs B confirmed that a package of alternative provision had been agreed. The Council issued two draft EHC plans. At this point C was attending AP2 for 15 hours a week over three days. A second provision had broken down relatively quickly due to C’s dysregulation.
45. In September 2022 it responded to Mrs B’s complaint at stage two, following an investigation by an independent investigator.
46. In respect of C’s education, the independent investigator agreed that C had missed out on education between 28 February and 18 April 2022. However, they concluded that the Council was not aware that C was on a part-time timetable at School1 and that was a matter between the parents and the school. They considered the school was ultimately responsible for the progress and development of pupils at school. The Council was aware that C was only attending School2 part-time but noted the Council had acted promptly following the emergency review.
47. The Council offered £500 for the loss of education and £100 for Mrs B’s time and trouble.
48. Mrs B complained to us. The Council issued amended draft EHC plans on 10 January and 14 February 2023.
49. In its response to our enquiries, the Council explained that since a personal budget was agreed in February 2022 Mrs B has supported C’s academic education with various online education programmes and she has also supported enrichment and physical activities. The Council has funded one hour a week of speech and language therapy and occupational therapy (OT) since September 2022, but the OT has not happened due to a lack of capacity at AP2 and C is not attending any other educational setting.
50. In terms of reviewing the alternative provision, the Council said that up to June 2022 it relied on feedback from Mrs B and AP2. Since 20 June 2022 a specialist teacher with family services has held regular review meetings with Mrs B along with weekly reports from AP2.
51. Mrs B says the alternative provision has been insufficient because it does not cover five days a week. Since September 2022 Mrs B says that the Council should provide some of the agreed extra 10 hours as supervision to replicate the full school week and allow her to work.
52. The Council has also offered Mrs B £900 for the loss of education.

Analysis

EHC plan process

53. The Council delayed in issuing a final EHC plan in 2021. The process should have been completed within 20 weeks, by 11 August 2021 but the Council did not issue the final plan until 19 November 2021, a delay of 14 weeks. This was fault which delayed the correct educational support being provided to C and caused Mrs B significant time and trouble in pursuing the matter with the Council.
54. I accept it was communicating with Mrs B throughout the period and trying to agree the final plan, taking into account her comments, but it issued at least three drafts over a six month period, which caused delay and denied Mrs B the right to appeal to the SEND Tribunal. It also used confusing language in July 2021 indicating the draft plan was final when it was not.
55. The Council has so far delayed for over 30 weeks in issuing a final EHC plan following the reassessment which started in February 2022. The delay is ongoing as it has only recently issued a second draft plan. It accepted fault in May 2022 in not consulting professionals agreed with Mrs B and apologised for the delay. But the delay is now over 30 weeks and the Council has still not issued a final plan. I understand this is a complex case, but the delay is unacceptable. This is fault which has caused, and continues to cause Mrs B distress, frustration and time and trouble and delay in getting C the right educational support in the right place. It has also denied Mrs B the opportunity to appeal to the SEND tribunal and caused her to spend £295 in obtaining her own professional’s report to contribute to the assessment.

Alternative educational provision

56. As I have explained above it is the Council’s duty to arrange provision of a suitable education for every child, where they are not attending school and regardless of whether they on a school roll. We expect the Council to act without delay and keep all cases of part-time education under review.
57. The Council was aware in November 2020 that C was only attending school part-time. It acted promptly in referring him to AP1 which started in January 2021. I accept this process took two months, but he was receiving some education at School1 during this period and there was a two-week Christmas holiday, so I do not find fault here.
58. Between 4 January and 8 March 2021 C was receiving education at AP1 for two days a week. From 8 March to 13 April 2021, he attended AP1 for two days and School1 for five mornings. I consider this was adequate to allow him to settle at AP1 and see if he was able to increase his attendance at School1.
59. However, from 19 April 2021 his provision decreased because the AP1 placement had ended (Mrs B says it was only a 12-week placement), and he only attended School1 for the mornings. Given that he had been receiving more education than this and coping with it, I consider the Council should have provided a replacement for AP1 after 13 April 2021 until 26 November 2021. It says C was on the roll of AP1, but that is not the same as providing education and it has not provided any evidence that education was provided by AP1 after April 2021.
60. From 26 November 2021 to 28 February 2022, he was on the roll of School2 but at best, was on a part-time timetable. There is no evidence the Council evaluated this provision or considered if C needed more. Given that Mrs B was supervising him at least every afternoon this was not sufficient. I accept that it was reasonable to allow a few weeks for C to settle into the new school and for the Christmas holidays. But it did not act quickly enough when the placement broke down. There is evidence that incidents occurred within the first few weeks of the placement and continued, escalating to two fixed term exclusions. The Council could have referred the case back to the SEP to consider alternative provision much more quickly.
61. The Council has accepted C was without any educational provision between 28 February and 18 April 2022.
62. Since April 2022 a bespoke package has been arranged. Mrs B was happy with the package up to the end of the summer term and declined extra tuition during this period to allow C to settle into the new provision.
63. From September 2022 Mrs B says the Council should provide more hours as supervision. The Council has a duty to provide education not supervision. The education should be suitable for the age, ability and aptitude of the child and full-time unless that would not be in the child’s best interests for health reasons. The Council offered a referral to the ATS in March 2022 for 10 hours of tuition but at this stage it was not in his best interests. However, this should have been considered again in September 2022 to see if C could cope with more education. I note this amount of tuition is included in the amended draft EHC plan and given the delay in producing this document, the failure to at least offer this again in September 2022 was fault.
64. This has caused Mrs B and C injustice: C has missed out on education which may have been suitable for him, and Mrs B has not been able to work as much as she would have liked.
65. It was also fault not to provide the occupational therapy. This may have been an issue of service failure rather than a lack of action, but C has missed out again on special educational provision which he needs and which the Council agrees he needs.

Complaint handling

66. The Council sent three stage one responses to Mrs B in February, March and May 2022. I note the Council’s complaints policy allows for a second stage one response to be sent if new information is presented or not all points have been addressed. But Mrs B did not present new information and it was the Council that delayed in answering the points and recommending a remedy. The whole stage one process took 15 weeks which was far too long, given that the maximum time allowed in the policy is six weeks. It caused Mrs B significant frustration and time and trouble in repeatedly requesting to go to stage two.
67. The Council also delayed in responding to the stage two complaint taking more than 16 weeks. This was fault.
68. I am also concerned that the complaint investigator at stage two did not obtain readily available evidence showing that the Council was aware in November 2020 that C was only attending School1 part-time and had been referred to alternative provision. The complaint investigator also erroneously concluded that the responsibility for alternative provision lay with the school, as long as the child was on the school roll. This was fault which meant Mrs B has had to pursue her complaint with us.

Back to top

Recommended action

69. I welcome the Council’s offer of £900 for the loss of education to C. But I consider the Council should pay an increased amount to C and a separate amount to Mrs C for the injustice she has been caused.
70. I recommend within one month of the date of my final decision that the Council:
• apologises to Mrs B and C;
• pays Mrs B £2400 for the benefit of C’s education, worked out as follows:
1. Two months of part-time education from December 2021 to 28 February 2022 @£250 a month = £500.
2. Six weeks of no education at all from 28 February to 18 April 2022: the Council has already offered £900.
3. Five months of part-time education from September 2022 to February 2023 plus the personal budget activities but no additional tuition offered and no OT provided, @ £200 per month = £1000;
• pays her £500 for her own time and trouble and distress.
• pays her £295 for the cost of the private report she obtained; and
• finalises C’s EHC plan, with no further drafts being issued.

Service improvements

Alternative provision

71. We have recently issued a report against the Council on the provision of alternative education (22 002 489). I note this provides a comprehensive summary of the service recommendations we have made in a number of recent complaints and makes further recommendations to improve the service in this area:
• to review its policies and procedures to ensure it considers making a referral to the Alternative Tuition Service or arranges alternative provision for children of compulsory school age who, because of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them;
• to issue guidance and written reminders to appropriate staff members (to include those in the teams mentioned throughout this report) of the above, to ensure co-ordination across services so prompt action can be taken when children are absent from school; and
• to carry out mandatory in-person training for all managers and staff members responsible for arranging alternative education provision. This training should in part focus on our findings against the Council in this topic from the past two years, the impact the Council’s fault has had on vulnerable children and the steps it is now taking to prevent recurrence of the same failings.
72. I would have made similar recommendations in this case, had this report not just been issued.

EHC plans

73. In the past year we have made recommendations in five complaints including a public interest report (ref 21 003 011) for the Council to review its processes and remind its staff of the importance of adhering to statutory timescales when dealing with EHC plans, the most recent being in January this year. I note the timeframe in these complaints overlaps the events in Mrs B’s complaint, so I do not wish to repeat the recommendations again.
74. I also acknowledge and welcome that the Council is in the process of wide-scale reform of its SEN service. Its latest update on progress in Autumn 2022 indicated improvements have been made and are being actively embedded into the service, requiring ongoing work and training. It would be helpful if the Council, within two months of the date of my final decision, could highlight the steps it has taken over the past year as part of this reform to improve the adherence to statutory timescales in producing new EHC plans following a needs assessment and responding to annual reviews of EHC plans and how these improvements are being monitored.

Back to top

Draft decision

75. Subject to comments from Mrs B and the Council I intend to complete my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman