Summary: There was fault by the Council in failing to provide suitable full-time education when a child could not attend school for health reasons. There was also delay and fault in the way the Council carried out a statutory reassessment of education, health and care needs. This led to loss of education, unnecessary expense, distress and uncertainty. It also delayed a right of appeal to the SEND Tribunal. The Council will apologise make a financial payment and carry out service improvements.

The complaint

1. Ms X complains on her own behalf and on behalf of her daughter, whom I shall refer to as Y. Ms X complains the Council:
• Failed to provide suitable alternative education from when Y was unable to attend school in June 2021 until the Council issued a new Education, Health and Care Plan in late May 2022
• Delayed in carrying a re-assessment for an Education, Health and Care (EHC) plan
• Failed to put in place special educational provision in the EHC plan
• Delayed in responding to complaints
• Failed to carry out agreed actions.
2. Ms X says because of the alleged faults Y missed out on education and social opportunities, faced uncertainty and distress, and the situation put financial and emotional strain on the family.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
• We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

Back to top

How I considered this complaint

7. I have considered information provided by Ms X and the Council including the complaint correspondence and documents relating to the Education, Health and Care (EHC) plan process.
8. I have considered relevant law and statutory guidance.
9. I have spoken to Ms X by telephone.
10. 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.
11. Ms X and the Council 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

12. A child with special educational needs may have an 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.
13. Statutory guidance ‘Special educational needs and disability (SEND) Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and re-assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEND Regulations 2014.
14. Councils must review EHC plans at least annually (SEND Regulation 44). It must secure a re-assessment of the EHC needs of a young person if a request is made by the young person, parent or education institution, or at any other time if it considers it is necessary.
15. Where a Council agrees to carry out a reassessment for a child who already has an EHC plan, and then decides to amend the plan, it must send the finalised EHC plan within fourteen weeks of the date on which it agreed to reassess.
16. As part of the re-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.

17. Those consulted have a maximum of six weeks to provide the advice.
18. 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. 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.
19. Councils have 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). 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)
20. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless this is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. ‘Suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. 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, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
23. The statutory guidance for children with health needs says councils should:
• have a named officer responsible for children with additional health needs;

• have a written policy on arrangements to comply with their legal duty towards children with additional health needs
• work closely with medical professionals and consider the medical evidence.

24. The Courts have found that it is a professional judgment for a council to decide whether a child’s health needs prevent them from attending school and what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Key events

25. In 2021, Y was attending mainstream school with an EHC plan. She had been referred to Children and Adolescent Mental Health Services (CAMHS) in Autumn 2020 due to anxiety at school causing low attendance.
26. In Spring 2021, Ms X told the Council health needs were affecting Y’s attendance. In June 2021 Y stopped attending school completely.
27. CAMHS wrote to the Council about Y in July 2021 stating it required urgent updated advice or new assessments from:
• Educational psychology (EP)
• Advisory teaching service
• Speech and Language therapy (SLT)
• Occupational therapy (OT).
28. The Council received a letter from the general practitioner (GP) supporting that Y could not attend school in August 2021.
29. Ms X says Y missed forty-nine days of school in the 2020-21 academic year.
30. A meeting was held between Ms X and the Council at the start of the next term. The Council says in agreement with Ms X an online learning package was commissioned in September 2021. Minutes of the minutes for this meeting record that Ms X did request online learning to remove the pressure on Y to attend school. Ms X however disputed the minutes and wrote to the Council and School after the meeting stating online learning was not suitable. Y had tried this unsuccessfully during COVID-19 and could not process the information. As they were pre-recorded videos Y could not access any support if she did not understand the lesson.
31. Ms X has provided emails that show the Council did respond to her concerns as in September Ms X was advised a tutor had been sourced for 12 hours per week. However, in early October this tutor withdrew. Ms X was advised by the Council that due to difficulties finding a tutor, an application for live online learning had been made.
32. Ms X says when the Council did not do anything to get the updated assessments requested by CAMHS, she made a request for a statutory reassessment of the EHC plan in Autumn 2021. The Council agreed this request at the start of November. Any amended final EHC plan was due within fourteen weeks of this date. Professional advice was due by mid-December and a final plan by early February.
33. At a further meeting in late October 2021, the Council agreed to provide alternative education for fifteen or eighteen hours per week depending on whether the provider was registered with OFSTED. Ms X says by the time the Council made this decision Y had missed out on thirty-two days education in the academic year 2021/22.
34. In response to my draft decision, the Council told me when it became clear online learning was not working it organised 9 hours per week tuition from late November with the view of increasing this when Y’s health allowed. The Council says tuition was increased in January to 11.5 hours per week.
35. The Council says its understanding was that Y could not manage more education at that time. It says the school’s view was Y could not manage more education and this was based on work submitted.
36. Ms X says only 5 hours of tuition per week was provided from November 2021. This increased to 9 hours in February, and 11 hours in late April 2022.
37. In May 2022 the Council responded to Ms X’s request tuition be increased to 15 hours saying its team had been working with her to find an additional provider and that 11 hours was in place which had been built up gradually in line with [Y’s] needs.
38. Ms X says much of the special educational provision in Y’s EHC plan was not provided, for example she had no emotional or pastoral care for her social, emotional or mental health needs, and no speech therapy. The Council told me it disputes it failed to provide a key worker as this provision was predicated on Y attending school and working with her in that environment to ensure she was engaging with peers and learning. It says speech therapy was not included in the EHC plan at that time.
39. The Council told me it does not have a policy for children with medical needs who cannot attend school.
40. Ms X says in addition to the reports CAMHS had already requested (EP, SLT, OT and the Advisory teaching service) she asked the Council to obtain advice to inform the reassessment from:
• a clinical psychologist / CAMHS
• the GP and
• the alternative education provider.
41. The Council should have considered whether these were reasonable requests and if so, obtained this advice, or provided a decision with reasons to Ms X explaining why it did not consider this advice was needed. Ms X says GP and CAMHS advice was never obtained.
42. Ms X complained to the Council in January 2022 about delay. The final EHC plan was due in February, but the Council had not yet obtained EP or other advice.
43. The Council’s response to the complaint acknowledged there had been delay but said it had sought the advice on time and it was not responsible for how long professionals took to provide it. The Council acknowledged a shortage of EP’s had led to a delay. It said its only duty to obtain advice from health professionals was to ask the Designated Clinical Officer (DCO) for advice, not to seek health advice directly from specific professionals.
44. Ms X raised various concerns about poor communication, that notes of meetings were not shared, and that the Council did not seek advice from a SLT until Spring 2022.
45. In May 2022, the Council agreed to issue a final plan without advice from SLT to avoid delaying Ms X’s appeal rights further. The EHC plan named a mainstream secondary school which Ms X says had already stated it could not meet Y’s needs. Ms X considered alternative placements should have been consulted earlier.
46. The final EHC plan shows advice was received by the Council from:
• OT in November 2021
• EP in February 2022
• Advisory teacher in December 2021.
47. No advice was obtained from the education placement, CAMHS or social care.
48. Ms X commissioned her own independent reports from an EP and SLT in January 2022. Ms X shared these with the Council, and they are listed as reports relied on in the amended EHC plan. Ms X told me she had to get her own reports because of the delay and because the Council’s EP would not do cognitive assessment tests. Ms X says her experts identified two additional diagnoses following testing.
49. Ms X complained on several occasions that the tuition promised in October 2021 was not fully in place.

Analysis

Scope of investigation

50. I have considered the delay in the EHC plan and the loss of education for the period from Spring 2021 until the issue of the final EHC plan in May 2022. These events have been considered under the Council’s own complaint process and a final complaint response provided.
51. Ms X has since raised concerns about Y’s education from June 2022, including implementation of the May 2022 EHC plan at Y’s school placement from September 2022 and Y’s reintegration plan. I consider these are premature for the Ombudsman to consider as Ms X raised them after she brought her complaint to the Ombudsman in July 2022. The Ombudsman would treat these as a new complaint and we would require confirmation the local complaint process had been completed before we could consider this period. (Local Government Act 1974, section 26(5))

EHC plan

52. The Council received advice from CAMHS that the EHC plan was out of date and updated advice and assessments to reflect Y’s current difficulties were needed in July 2021. The Council was also aware from information provided by Ms X in February 2021, and at an annual review meeting in April, that Y’s school attendance was low. In August it received advice Y could not return to school in September.
53. I find the Council should either have sought the additional assessments as part of an early review or considered whether to carry out a re-assessment no later than August 2021. On the balance of probabilities, as it did consider a re-assessment was required in November, it is likely it would have reached the same decision in August. This would have led to the Council obtaining the requested professional advice three months earlier and a final plan being issued earlier.
54. The Council should have issued a final EHC plan within fourteen weeks of deciding to re-assess in early November. It took seven months. This was excessive delay and was fault. The Council has acknowledged delay in its complaint response, but it did not accept full responsibility, blaming those providing the advice, and it did not offer a remedy other than an apology.
55. The Council said its only duty was to request the DCO seek health advice. I do not agree. It is correct that when a Council is not sure what health advice is required, the DCO will make this decision. However, in a situation where a child already has an EHC plan and various health professionals and therapists are already involved, I would expect the Council, as the lead agency responsible for issuing the EHC plan, to ensure advice from specific relevant professionals was sought. Where there are delays by health professionals, I would expect councils to chase up advice or have a mechanism to escalate problems though managers under agreed commissioning arrangements.
56. SEND Regulation 6 says where a parent requests advice from specific professionals or disciplines, the Council should seek such advice unless it does not consider the request reasonable. From the evidence I have seen the Council did not disagree (with CAMHS and Ms X) that advice from clinical psychology, EP, OT and SLT was required. I find the Council should have requested this advice at start of the reassessment and sought to ensure this was provided within six weeks, that is by December 2021.
57. The Council failed to obtain advice from CAMHS, the GP, the education placement or social care. This was fault.
58. The report mainly responsible for delaying the issue of the EHC plan was from the EP. This was solely the responsibility of the Council, not Health, to obtain and due to capacity issues for which the Council was responsible.
59. Ms X says she had to seek her own EP advice. I find the Council did agree to obtain EP advice so there was no necessity for Ms X to obtain an EP report herself. I acknowledge that the Council’s evidence created delay. It is not for the Ombudsman to make a professional judgement as to the nature of the advice an EP should provide or whether cognitive testing was required. This was a professional judgement for the Council and if Ms X disagreed with the Council’s advice she could raise this as part of her appeal.
60. I find it was reasonable for Ms X to obtain her own SLT advice as the Council did not do so even though CAMHS had stated this was required. The Council did not provide Ms X with a decision explaining why a request for SLT advice was not considered a reasonable one and so was in breach of SEND Regulation 6 in failing to obtain this advice. The Council only sought its own SLT advice in April 2022 after it had sight of Ms X’s independent SLT advice. If the Council wanted its own SLT advice it should have sought this at the start of the reassessment process. The Council did agree to issue a version of the final plan without waiting for SLT advice to avoid further delaying Ms X’s right of appeal.
61. The Council received all advice on which it relied on to update the plan by February but failed to issue the plan until May 2022. There is no explanation for this delay.
62. The Council agreed during the complaint process to issue the final plan in April. It then failed to meet this date. Failing to comply with an agreed complaint remedy was further fault.
63. Ms X told me she has used her right of appeal to challenge the provision and placement in the EHC plan and has a hearing date in Spring 2023. The Ombudsman cannot comment on the provision or placement in the Plan as this is properly a matter for the SEND Tribunal.

Alternative education

64. Y stopped attending school in June 2021. The Council was made aware of health needs affecting attendance from Spring 2021. With mental health conditions it is not always immediately apparent that a child will be unable to attend school as such conditions can fluctuate. Councils are only expected to intervene and provide s.19 education when it becomes apparent that there is a pattern of persistent or prolonged absence and a school is not able to make its own arrangements to provide alternative education.
65. I find that it was apparent Y was not going to return to school by August 2021, when she had not attended at all since June and the Council had also received medical advice, which it appears to have accepted, from the GP.
66. The Council put in place online learning in September but Ms X immediately advised the Council this was unsuitable and had been unsuccessful in the past. When Ms X advised that online pre-recorded videos were not appropriate for Y, the Council must have agreed to find face to face tutors, as there is email correspondence about this in September. Tutors were not in place until late November, a delay of two months.
67. There is a dispute between the Council and Ms X about the number of hours of tuition provided. The Council told me it was 9 hours which increased to 11.5 in Spring 2022. Ms X says it was 5 hours in November, 9 hours in February and 11 hours in April. The Council must have intended to provide 12 hours in September 2021 as this is what it commissioned (but this tutor withdrew). The Council also did not dispute Ms X’s facts about hours delivered at the time of the initial complaint. Further the Council refers to provision having built up gradually. I consider the evidence tends to support Ms X’s recollection of 5, then 9, then 11 hours as accurate as 9 to 11.5 would not suggest provision building up over a period of time. I invited the Council to provide evidence, such as invoices, that show more than 5 hours provision was in place from November but it was unable to do so.
68. I find the Council failed to provide suitable full-time education, or as much education as Y could manage, from October 2021. I am not persuaded Y could only manage 5 or 9 hours due to heath needs. I have seen no evidence from the school about the amount of education Y could manage, nor did the Council seek medical evidence about this. The presumption is that provision should be fulltime unless medical evidence indicates otherwise. The Council initially commissioned 12 hours in September so it must have been satisfied at that time that Y could manage 12 hours. In October 2021 it agreed to source 15 or 18 hours. This did not happen and was fault.
69. For reasons given above my investigation has only considered the loss of education up to the date the amended final EHC plan was issued in May 2022.

Injustice

70. I find Y missed out on fulltime suitable education from September 2021 until May 2022.
71. Ms X incurred expenses to support home education, including travel expenses for educational trips and materials for art and baking of approximately £275 for the period September to May.
72. The faults I have identified in the EHC reassessment process caused delay, inconvenience, uncertainty, and distress to the whole family. The delayed appeal right is an injustice.

Back to top

Agreed action

73. Within four weeks of my final decision:
• The Council will apologise to Ms X and Y for the further faults identified in this decision statement.
• The Council will pay Y £3100 to acknowledge its failure to provide suitable full-time education and special educational provision between September 2021 and May 2022 and the impact this had on her.
• The Council will refund Ms X £635 for the SLT report she obtained.
• The Council will refund Ms X £275 for her out of pocket expenses to support Y’s education while Y was unable to attend school between September 2021 and May 2022.
• The Council will pay Ms X £500 for her time and trouble and to acknowledge the distress the delay and uncertainty caused to her.
74. Within twelve weeks of my final decision, the Council will review its processes and training to ensure:
• Officers carrying out statutory assessments or reassessments discuss with families the advice to be obtained and where a parent or young person makes a request for specific advice that the Council provides a response, with reasons.
• Officers carrying out statutory assessments or reassessments use all reasonable endeavours to obtain professional advice in a timely way by chasing up delayed advice and escalating through appropriate channels.
• Children unable to attend school and entitled to s.19 education receive suitable full-time education on par with what they would receive in school (except where evidence is available that this is not in their best interests) and, where relevant, special educational provision.
• Where another professional or health body brings a child to the Council’s attention it considers without delay whether a statutory assessment is required, or when a EHC plan is already in place, whether the plan requires review.
75. Within twelve weeks of my final decision the Council will consider the requirements of statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs' in relation to having a named officer and written policy statement for children with health needs.
76. Within twelve weeks of my final decision the Council will report to the Ombudsman the steps which it has taken or intends to take to secure service improvements in light of this complaint.

Back to top

Final decision

77. I have completed my investigation. There was fault by the Council in failing to provide suitable full-time education when a child could not attend school for health reasons between June 2021 and May 2022. There was also delay and fault in the way it carried out a statutory reassessment of education, health and care needs. This led to loss of education and unnecessary expense, distress and uncertainty to the family. It also delayed a right of appeal to the SEND Tribunal. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

Back to top

Investigator's decision on behalf of the Ombudsman