Summary: There was delay and fault in the way an EHC needs assessment was carried out and a delay in putting s.19 education in place. This caused unnecessary distress, time and trouble, some loss of education and uncertainty. The Council will apologise, make a remedy payment and carry out service improvements.

The complaint

1. Ms X complains on her own behalf and on behalf of her son, whom I shall refer to as Y, that the Council:
• Declined to carry out a request for statutory assessment for an Education, Health and Care (EHC) plan in February 2021 until ordered to by a Tribunal.
• Adjourned the Tribunal due to lack of staff.
• Did not communicate with Ms X for long periods of time.
• Failed to provide alternative education when Y stopped attending school in Autumn 2021.
• Provided only four hours per week tuition from February 2022.
• Failed to consult some parental preference schools so places were lost.
2. As a result of the alleged fault Ms X says
• Y missed out on educational support
• She had to give up work in 2021 due to her son’s mental state.
3. In response to my draft decision, Ms X also complained about loss of education during an earlier period of 2021, when she says Y was only attending school one to three days per week and was not receiving a suitable fulltime education.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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))
7. 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)
8. 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)
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) This applies even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
10. 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.
11. We consider whether there was fault in the way an organisation made a decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
12. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
13. 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)

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What I have and have not investigated

14. I have not investigated Ms X’s complaint about the Council’s refusal to assess Y for an EHC plan in February 2021, under Section 36 of Children and Families Act 2014. Ms X appealed the Council’s decision to the SEND Tribunal. The Ombudsman retains no discretion to investigate when an alternative legal remedy to the Tribunal has been used.
15. I have not investigated the Council’s conduct during the Tribunal proceedings, this is something that was or could have been raised by Ms X with the SEND Tribunal. I consider it would be impossible to investigate the Council’s conduct without encroaching on the jurisdiction of the Tribunal, whose Judges have their own case management powers to address delay in proceedings.
16. I have investigated the way the EHC needs assessment (EHCNA) was conducted and the Council’s response once Y stopped attending school in Autumn 2021.
17. I have not investigated if there was a loss of education in the period when Y was attending school part-time. Ms X’s original complaint asked the Council to consider loss of education to my son since October 2021. A complaint about an earlier period is too late for us to consider (Local Government Act 1974, sections 26B and 34D, as amended). I am also not satisfied the Council has had an opportunity to consider this complaint through its own complaint process. (Local Government Act 1974, section 26(5))
18. I have not considered any injustice arising after July 2022, when Y would have finished primary education. The Council’s complaint response is dated June 2022. I have only seen evidence covering the school year 2021/22 and the Council has only had an opportunity to comment on events in that year. I understand that an emergency review was arranged for August 2022, following which Ms X will have acquired a new right of appeal, which we would have expected her to use.

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How I considered this complaint

19. I have considered information provided by Ms X and the Council including:
• EHC documents
• Complaint documents and correspondence
• Consultations with schools
• Professional reports.
20. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Education Act 1996
• Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’.
21. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report: ‘Out of school…out of sight’.
22. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
23. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Relevant law and guidance

Alternative education

24. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
25. 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))
26. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”. Councils must reach a decision whether a child is well enough to attend school even if there is no medical evidence available.
27. 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)
28. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
29. We have issued focus reports (2016 and 2022) on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.

EHC needs assessment and EHC plans

30. 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 which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

31. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
32. 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.
33. 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:

• 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

34. Following a Tribunal order to carry out an EHC needs assessment (EHCNA), the Council must notify the parent it will make an assessment within two weeks. If the Council decides to issue an EHC plan it must notify the parent within ten weeks of the SEND Tribunal order and issue the final EHC plan within fourteen weeks of the order. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014)
35. 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.

36. The Council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
37. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
38. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

39. The following is a summary of key events. It does not include everything that happened.

Ms X’s evidence

40. Ms X says Y’s attendance at school started to fall from February 2021 and he stopped attending completely in November 2021 due to anxiety caused, she says, by lack of support in school. Ms X requested an EHCNA in Spring 2021, but this was refused by the Council. Ms X appealed this decision.
41. In August 2021, the Council was ordered by the SEND Tribunal to carry out an EHCNA for Y. Ms X says the Tribunal recommended the Council seek a range of reports across social care and health to identify Y’s needs, but it failed to do so. The wording of the order says the EHCNA should identify all Y’s special educational needs (academic, social and emotional).
42. Ms X complains that while there were speech and occupational therapy reports from 2019, she was advised these could not be used. Ms X wanted new therapy assessments. The Tribunal order did not make specific recommendations about occupational or speech therapy advice.
43. Ms X also complained she was told not all Y’s diagnoses could be included in the EHC plan.
44. Ms X says as her son could not attend school, this had an adverse impact on her employment; she went part-time in or about September 2021 and then had to change career.
45. Ms X says she had no EHC coordinator between April and August 2021 and no contact between August and November 2021.
46. Ms X has provided evidence she chased the Council about the draft EHC plan in mid-November at which point she mentioned her son had only been able to attend school twice in the previous two weeks. Ms X has also shared with me a private report about her son’s mental health she commissioned in August 2021. Ms X says the Council knew from the Tribunal proceedings her son had not attended school fulltime since April 2021.
47. The private report of August 2021 provided to me by Ms X refers to attendance. It says prior to the summer holidays Ms X’s son was attending school three days per week. The Tribunal documents show that Ms X explained her son’s low attendance as being due to sleep issues although she also had concerns about his mental health. At the hearing in August 2021 Ms X told the panel her son was unable to attend due to anxiety and the Tribunal noted attendance only dipped very recently. School evidence referred to Ms X’s son missing morning lessons due to problems with punctuality with attendance averaging 80%.
48. Ms X says the Council failed to consult schools at draft plan stage, causing delay. When the final EHC plan was issued in January 2022, it only included a school up to July 2022, no secondary placement.
49. In Spring 2022, Ms X complained about delay and poor communication including a failure to provide Y with alternative education since October 2021 and problems consulting schools. Ms X says some tuition started at the end of February 2022. Ms X also requested a personal budget so Y could receive education otherwise than at school (EOTAS) until he was fit to return to school.
50. An amended final EHC plan was issued in April 2022. At this time all schools consulted had declined a place, so no secondary school was named.
51. From Easter 2022, Ms X frequently emailed the Council for updates on the plan for Y for September. Ms X said Y should be receiving all the provision in his EHC plan but was only receiving four hours of tuition per week. Ms X also complained that only an EP report was obtained during the original EHCNA, not speech and occupational therapy reports.

The Council’s evidence

52. There was contact between Ms X and the Council from when the appeal was registered in April and heard in August 2021.
53. The Council’s complaint response says following the Tribunal decision it initiated the EHCNA in late September 2021 and issued a draft EHC plan in early December.
54. Documents show advice was obtained from CAMHS, Educational Psychology (EP), the School and the Paediatrician in Autumn 2021. No social care advice is included. The EP report references historical advice from occupational and speech therapy and explained both had discharged Y after a period of intervention.
55. The Council says Y was attending school in October 2021 as the EP saw Y at school, however Ms X’s response to the draft plan in December stated he had stopped attending. The Council held a meeting in January 2022 when this was discussed. The Council said there was no medical evidence to support absence due to mental health issues. The Council says it offered its provision for children with medical needs with a plan to reintegrate Y into school. It says Y was awaiting intervention from CAMHS and it sought updated advice and issued the final plan in January 2022. The Council said the view of professionals at that time was that mainstream school was still appropriately named in Section I of the EHC plan.
56. The Council said after receiving the final plan, several revisions took place with a final agreed version issued in early April 2022 with additional wording Ms X wanted included.
57. Documents show the Council was consulting schools from January 2022. There is email correspondence with Ms X where an officer said they would not consult schools before obtaining professional advice. The Council acknowledged in its complaint response there had been some administrative confusion which led to an assessment day being cancelled in error, and to a slight delay consulting all Ms X’s choices (as she had sent two parental preference forms). The assessment day was reinstated, and all choices consulted, but none offered a place.
58. Y was wrongly allocated a secondary school through the usual secondary transfer process without the school allocated being given sight of the EHC plan. Again, the Council acknowledged this error in its complaint response.
59. In March 2022 the Council asked Ms X to provide medical advice supporting school absence for tuition to continue. Ms X provided a letter from the general practitioner (GP) that Y could not attend school due to anxiety and would benefit from home tuition. At that time Y was on the waiting list for behavioural intervention from CAMHS.
60. Initially the Council told Ms X it was minded to agree that Y required EOTAS, and would seek updated advice to reflect the new circumstances of Y being out of school. However, in June 2022 the Council told Ms X it was not persuaded there was sufficient evidence that Y required EOTAS on an ongoing basis; it would review this once Y had been seen by CAMHS.
61. The Council advised me Y continues to receive home tuition / EOTAS.
62. The Council’s final response to the complaint is dated June 2022 and found:
• No significant delay. It issued the draft plan within eighteen weeks of the Tribunal order and a final plan within twenty-four weeks. It said the statutory timeframe was twenty weeks.
• There was a gap between one caseworker leaving in July 2021 and a new one being appointed in November, but Management and agency workers covered this period.
• The Council did not need to follow the Tribunal recommendation about health and care advice, this was just a ‘recommendation’. It did seek advice from Health, Social Care and EP, but not speech and occupational therapy as Y had been discharged from both services.
• It had asked Ms X to send in old speech and occupational therapy reports to be sure which reports she was referring to; it did not misplace previous documents sent.
• No fault in its handling of the case that had caused a significant injustice. It declined to offer ‘compensation’ Ms X had requested.
• It did not agree to Ms X’s request to change caseworker.

Analysis

63. The Council was wrong to say it had twenty weeks to issue a final EHC plan following the Tribunal order in early August 2021. Twenty weeks is the timeframe where a request for assessment is agreed. Where it is refused, and the Tribunal overturns this decision, a Council must issue a final plan within fourteen weeks of the Tribunal order. The final plan should have been issued by early November and was not issued until mid-January, a delay of ten weeks. The failure to know the statutory timeframe or abide by it was fault.
64. When the first final EHC plan was issued in January 2022, Ms X had a right of appeal against the description of needs, the provision and the placement named in the plan. Ms X told the Council she intended to appeal but did not do so. The final EHC Plan named a mainstream primary school until July 2022, but no secondary placement. It is understandable Ms X did not appeal at that time as she was expecting a secondary placement to be named once one was identified.
65. The Council should have named a secondary placement by 15 February 2022. It did not do so because it did not start to consult schools until January, after it had issued the final plan. This was fault. The Council knew Y was approaching secondary transfer when it carried out the EHCNA and it should have been discussing and consulting schools in time to name a school by 15 February.
66. I acknowledge Y’s situation changed in November 2021, when he stopped attending his mainstream school, and the Council says it only found this out in December. However, there was still time to consult a range of schools, including specialist schools, before 15 February. I do not agree further professional advice was required before schools could be consulted. The Council may have wanted updated advice from the EP about school choice, but this did not prevent consultations being sent out. Professionals could have been consulted once the replies were received.
67. There is little medical evidence to support Y’s absence from school. The private report does not advise that Y was unfit to attend school in August 2021. The GP provided a letter in March 2022, but CAMHS evidence in January 2022 made no reference to Y being too unwell to attend. The Council accepted the GP evidence and provided four hours tuition a week. It also did not take any action for non-attendance. This indicates it was satisfied Y was not able to attend school.
68. There was a delay in putting tuition in place, the Council says it was aware Y had stopped attending school completely in December 2021, but tuition did not start until the end of February 2022. Ms X advised the Council in mid-November 2021 Y was attending rarely. Statutory guidance says provision should be put in place without delay. I am satisfied provision should have been in place by the start of January 2022, even allowing for time to hold a meeting and collect medical evidence.
69. The tuition provided was well below fulltime and did not meet the requirements of the EHC plan. The Council should have sought medical evidence about the amount of education Y could manage, given his anxiety, kept the provision under review, and increased it when possible.
70. However, I am not able to say with any certainty the amount of tuition provided was less than was suitable for Y. The evidence that is available from tutors suggests Y was struggling to manage the four hours that were in place. I note Ms X’s request for a personal budget included a laptop, animal therapy sessions and swimming, but to continue with just four hours academic tuition. This would seem to suggest four hours of academic tuition was all Y could manage, although Ms X’s evidence suggests he might also have been able to access therapeutic activities.
71. The Council does not have to follow recommendations by a Tribunal (only orders) but in any event I have found the Tribunal did not recommend speech and occupational therapy reports be obtained. It left this to the discretion of the Council. The Council was required to consider any ‘reasonable request’ for advice under SEND Regulation 6(1), but this did not mean it had to agree to new health assessments. A council may decide a request is not reasonable when it is satisfied another professional, for example an EP, can address the same needs.
72. The Council did have to respond to any request for advice from a parent and if it believed Ms X’s request was not ‘reasonable’ it should have explained this to Ms X at the time. The Code requires councils to discuss the range of advice to be obtained with parents. There is no evidence this was discussed until Ms X raised complaints after the final EHC plan was issued. This is fault. However, I cannot say whether specific advice was required, this is something only the Council or Tribunal could decide.
73. When the Council reissued the final EHC plan in April 2022, Ms X gained a new right of appeal against the content of the plan and the fact no secondary school was named. We would have expected Ms X to use this appeal right given she had by then raised concerns about Y’s lack of education. If Ms X was not satisfied with the therapy provision in the EHC plan she should have appealed this to the Tribunal. The Ombudsman cannot give a view on what education Y should receive, only the Tribunal can decide that. Ms X will have gained a further appeal right after the review in August 2022.
74. I have not seen evidence of long gaps in communication between Ms X and officers. There was contact about the Tribunal appeal in Spring / Summer 2021, when the EHCNA started in September 2021, and when the draft plan was issued in December. There was a meeting in January 2022. There was clearly a period of uncertainty between April and July 2022 when the Council was awaiting further evidence whether Y could return to school or required EOTAS to continue. This appears to have been due to Y being on the waiting list for CAMHS intervention, not fault or delay by the Council. The previous CAMHS advice in January 2022 did not support alternative education.
75. The Ombudsman would not normally criticise a decision not to change a case officer, staffing decisions are matters for the council to determine.

Summary of fault

76. I have identified the following fault:
• A ten week delay in issuing the EHC plan and a lack of knowledge about the correct statutory timeframe.
• A two month period when alternative education was not in place.
• A failure to consider providing alternative education that was therapeutic in nature in addition to academic provision.
• A failure to obtain medical evidence to support non-attendance and advice on how much education was suitable for Y given his mental health needs.
• A failure to discuss the range of advice to be sought during the EHCNA with Ms X and to provide a written decision with reasons when the Council decided not to obtain new assessments from speech and occupational therapy.
• A delay in consulting schools, so the secondary transfer date was missed.
• An apparent absence of social care advice.

This is in addition to the administrative faults the Council identified during its own complaint investigation.

Injustice

77. As a result of the above fault:
• The Council caused unnecessary distress, inconvenience and uncertainty about what provision would be in place for Y.
• Y lost out on education between when he stopped attending school completely until tuition was put in place in late February 2022. I acknowledge that the level of education Y could have tolerated is likely to have been low.
• I have not found loss of education after February 2022, as although only four hours per week tuition was in place, the evidence tends to suggest Y was not managing to cope with this amount. I do acknowledge there is uncertainty whether Y could have managed non-academic, therapeutic activities in addition to the academic tuition because no medical evidence on this issue was sought, nor social care advice provided. This uncertainty whether provision was missed out on, is in itself an injustice.
78. I have not found that Ms X lost out on earnings as a result of the Council’s fault. The evidence supports that Y was medically unfit to attend school and was only able to manage a few hours of education per week. Ms X’s employment would have been affected even if there had been no fault by the Council.
79. I have not seen evidence school places were lost due to delay. Ms X was also of the opinion that Y needed to continue with EOTAS until his anxiety had reduced and he was ready to gradually reintegrate into a school.

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Agreed action

Within four weeks of my final decision:

80. The Council will apologise to Ms X and Y for the further fault identified during this investigation.
81. The Council will make a financial payment to acknowledge the impact of the fault as follows:
• £750 to Y for the loss of education, uncertainty and distress caused
• £250 to Ms X for the distress, uncertainty and time and trouble caused.

Within two months of my final decision:

82. The Council will provide updated guidance or training to staff to ensure:
• They are aware of the different timescale for EHCNA after a Tribunal decision
• They consider with parents the range of advice to be sought during an EHCNA and where requests for advice are refused a written decision with reasons is provided.
• Social care advice is obtained during an EHCNA and the need for social care input is reviewed when a child is absent from school for an extended period.
83. The Council will review its processes to ensure:
• Medical advice is sought to support decisions to provide alternative education that is less than full-time.
• Alternative provision is put in place without delay and kept under regular review, with a view to increasing it where possible.
• Requests for non-academic or therapeutic alternative provision are properly considered especially where there are special educational needs that may be met by such provision.
• Special educational provision in an EHC plan is put in place where possible where a child is unable to attend school; the duty under s.42 Children and Families Act remains.
• Social care advice is obtained during every EHCNA and the need for social care input reviewed when a child is out of school for an extended period.
• Statutory timescales for phase transfers are met.
84. The Council will provide us with a report detailing what service improvements is has made.

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Final decision

85. I have completed my investigation. There was delay and fault in the way an EHC needs assessment was carried out and a delay in putting s.19 education in place. This caused unnecessary distress, time and trouble, some loss of education and uncertainty. I am satisfied the above agreed actions represent a satisfactory remedy to the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman