Summary: Miss B complains the Council delayed in putting in place an Education Health and Care Plan (“EHCP”) for her child, Y, following a tribunal decision. She says the Council has not ensured Y receives the services set out in the EHCP since that point, meaning she has not been able to access education. We find the Council is at fault for the delay in finalising Y’s EHCP and for not ensuring alternative education provision was available and accessible.

The complaint

1. The complainant, who I refer to as Miss B, complains the Council took too long to put in place an EHCP for Y after it withdrew its opposition to her appeal to a SEND tribunal. She says this led to a delay in Y receiving support that was set out in the EHCP. Miss B also says the Council has not provided the support to access education set out in the EHCP. She says this means Y continued to be out of school and did not receive any education during her GSCE year.

Back to top

What I have and have not investigated

2. I have investigated Miss B’s complaint about the delay completing an EHCP and lack of education provision following the tribunal decision.
3. Miss B also raised concerns about the alternative education the Council provided before the tribunal. I have not investigated events before the tribunal decision. This is because Y was out of school for reasons that were intrinsically linked to unmet special educational needs. The Council decided not to carry out a needs assessment and Miss B appealed against this to the SEND tribunal. 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. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
4. I have investigated whether the Council provided alternative provision in the time between the tribunal decision and the Council issuing a final EHCP. This period is not out of our jurisdiction as Miss B did not have appeal rights.
5. I have also investigated whether the Council provided adequate alternative education provision after the final EHCP was issued. This is because Miss B did not appeal the EHCP. Again, the reason Y was out of school from this point on was linked to the provision set out in the EHCP. Miss B could have appealed. However, any appeal at this point would not have concluded before the end of the academic year, which was Y’s GCSE year. Therefore, appealing would not have achieved anything in respect of that academic year. For that reason, I do not believe it was reasonable to have expected Miss B to have appealed.
6. I cannot investigate the contents of the EHCP as the only way to challenge this would have been through the tribunal. However, I can look at whether the Council arranged alternative provision during that time as Y remained out of school.

Back to top

The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. 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)
9. 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.
10. 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

11. I considered the information Miss B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Miss B and the Council for their comments before making a final decision.

Back to top

What I found

Law and Guidance

12. A child with special educational needs may have an Education, Health and Care plan (“EHCP”). 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. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
15. Where the Tribunal orders a council to issue an EHCP, the council shall produce the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
16. 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 it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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)
18. 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))
19. 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)
20. 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.

Background

21. In 2020 Y was diagnosed with autism spectrum disorder (“ASD”). Miss B says Y suffers with severe anxiety and struggled to cope at school. In late 2020 Y stopped going to school due to difficulties with anxiety and coping within the school environment.
22. In December 2020 Miss B asked the Council to carry out a needs assessment for an EHCP. In February 2021, the Council informed Miss B it did not consider it was necessary to do a needs assessment. Miss B appealed this decision and in May 2021 the Council said it would reconsider.
23. From March 2021, the Council put in place online tutoring for Y. However, Y struggled to engage with this. Miss B says Y only completed two hours of online tutoring between March and June 2021. In June 2021, the Council agreed to instead provide a tutor in person. However, again Y struggled to engage. Miss B says this is because the tutor was not trained to deal with Y’s needs.
24. The Council carried out a needs assessment. In July 2021 it informed Miss B it had decided not to issue an EHCP. Following mediation in September 2021, the Council agreed to reconsider its decision. In October 2021 the Council again decided not to issue an EHCP. Miss B appealed the decision to the SEND tribunal. The Council decided not to oppose the case.
25. In early November 2021, the SEND tribunal made an order that instructed the Council to make an EHCP for Y within five weeks. The Council produced a draft decision in late November 2021. However, the final EHCP was not issued until 8 March 2022. Miss B says the tutor lessons for Y also stopped in November 2021, following the tribunal order. This was because Y had not engaged, and the Council reached the view it was not beneficial to continue.
26. The final EHCP named Y’s original, mainstream school. It set out support that Y would receive to reintegrate into the school, such as being taught in a smaller area of the school, a quite and calm learning environment, possibly starting with 1:1 teaching and working towards a classroom setting.
27. The Council then issued a further amended EHCP in April 2022, which named a Post-16 education provider for Y to transition to in September 2022.
28. Y did not return to school during the 2021/22 academic year. The Council says the school sent a tutor to Y’s home once a week. Miss B says the tutor would only play games with Y and did not provide any form of education.

Findings

29. I have separated my findings into the following issues:
• Delay in producing the EHCP
• Lack of education provided following the tribunal decision

Delay in producing the EHCP

30. I find fault in the delay. The Council accepts it should have finalised the EHCP within five weeks of the tribunal decision. This was a statutory requirement. It did not complete the EHCP until around 17 weeks after the tribunal decision.
31. The delay caused an injustice to Miss B I have addressed the injustice this caused at Paragraphs 41 to 43.

Lack of education provided following the tribunal decision

32. Between November 2021 and March 2022, Y was out of school and not receiving any alternative provision, with no EHCP in place. I understand the Council previously provided tutoring, and this arrangement broke down because Y did not engage. However, the Council had a s19 duty to ensure alternative provision was available and accessible to Y.
33. Miss B says the tutoring was unsuccessful because the tutor did not have adequate training to meet Y’s needs. Therefore, she does not believe the alternative provision was accessible to Y.
34. I have not investigated the period that tutoring was provided for the reasons outlined at Paragraphs 2 to 6. However, if the Council believed the ongoing alternative provision, by way of tutoring, was no longer worthwhile because Y was not engaging, it needed to work with Y, Miss B and any relevant professionals involved, to identify any different arrangements that had a better chance of success. I cannot say exactly what changes the Council should have made, but if it was clear current arrangements were not working, it needed to consider the views of those involved and make a decision about what changes it could make. The Council could not just stop the tutoring and allow Y to remain out of school without receiving any education.
35. I cannot see evidence the Council put in place any alternative education provision for Y, between November 2021 and March 2022 and find this is fault.
36. From March 2022 Y had an EHCP in place that set out what support the Council would provide with Y’s education. The EHCP did not refer to home tutoring. It was based on Y returning to and receiving support at her old school.
37. Miss B says this was not appropriate as Y had stopped going to that school because she could not cope there. She says the school repeatedly said it could not meet Y’s needs. I have not investigated the contents for the reasons outlined at Paragraphs 2 to 6. However, it was clear from early on, following the introduction of the EHCP, that it was not proving successful. Y did not return to school, so none of the support outlined in the EHCP could be provided. The Council did not take enforcement action for non-attendance at school. In these circumstances, the Council’s s19 duty to provide alternative provision remained.
38. Y continued to be out of education from March 2022 until the end of the school year. I understand the school sent a tutor to Y’s home once a week. However, Miss B says Y did not receive any substantive education during these sessions.
39. The Council’s response suggests its approach was that, because it had put in place an EHCP and funding for the school, the school was responsible for providing education to Y. However, the EHCP did not make any specific arrangements for the school to provide tutoring to Y at Home. The support outlined in the plan could not be provided as Y was not attending school. The s19 duty remained with the Council, so it was the Council who was responsible for providing suitable alternative provision to Y.
40. Again, I can see no evidence the Council considered or put in place suitable alternative provision for Y, from March 2022 until the end of the year. It arranged for staff from the post-16 provider to attend to aid transition at the end of the year. But this was separate to Y’s education for the remaining part of her GSCE year. I therefore find fault.

Consideration of Remedy

41. I have found fault on the following basis:
• The Council delayed in completing a final EHCP for Y
• The Council did not ensure alternative education provision was available and accessible to Y, in line with its s19 duty, between early November 2021 and late July 2022. This is a period of seven school months after deducting school holidays.
42. The delay in finalising the EHCP caused distress to Miss B. It also meant there was a delay in finalising arrangements for the provision set out in the plan. However, Miss B’s main concern about the lack of provision is in relation to education provision. The lack of education provision spanned the time before and after the plan was put in place. The introduction of the plan did not materially alter the loss of provision either side. Therefore, I have considered the delay separately to educational provision.
43. I recommend the Council pay Miss B £200 to recognise the distress caused by the 12-week delay in finalising the EHCP.
44. I have considered whether the Council could remedy the lack of education provision by way of additional tutoring for Y going forward. However, Y has struggled to engage with tutoring in the past. She now has a post-16 provider, and the focus will be on encouraging her to engage with this provider. Recommending additional tutoring on top of that post-16 provision is unlikely to be beneficial to Y.
45. I have also considered a payment to acknowledge the loss of education provision. I have considered several factors in determining the amount, in line with our guidance on recommendations. The first is that it was Y’s GSCE year, so a very significant year in her education. She received almost no education provision over a period that covered most of the school year. This cannot be remedied by additional provision going forward.
46. I acknowledge that a tutor attending once a week from the school, but that very limited education was provided during these sessions. Also, that Y was not able to engage with tutoring in the past. It is not clear to what extent she would have been able to engage with any altered provision the Council arranged. I cannot say for certain the Council could have arranged provision that Y was consistently able to access. However, education provision should have been available to Y and the Council needed to properly consider any barriers to her accessing this.
47. I recommend the Council pay Miss B £400 for each month it did not make available and accessible alternative education provision for Y. This is a total of £2,800.
48. I also recommend the Council make service improvements going forward, by sending a reminder to staff that the duty to arrange s19 education provision is with the Council, that it remains if the child does not attend school in line with an EHCP and cannot be delegated to schools.

Back to top

Agreed action

49. The Council has agreed to, within a month of this decision:
• Apologise to Miss B and Y for delay in completing the EHCP and for not ensuring alternative provision was available and accessible to Y
• Pay Miss B £200 to recognise the distress caused by the delay in finalising the EHCP
• Pay Miss B £2,800 to recognise the loss of education provision
50. The Council has also agreed to, within three months this decision:
• Circulate a reminder to staff that the duty to arrange s19 alternative provision lies with the Council and cannot be delegated to schools. Also, that regardless of whether an EHCP provides for support in school, the s19 duty will exist if the child is not attending that school.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. The Council is at fault for the delay in finalising Y’s EHCP and for not ensuring alternative education provision was available and accessible to Y.

Back to top

Investigator's decision on behalf of the Ombudsman