Summary: Miss Y complains about the Council’s failure to deliver suitable educational provision for her son, W, when he was too ill to attend school. She also complains the Council did not pursue a referral for Speech and Language Therapy and told untruths about her to delay a tribunal appeal. We find fault in the complaint, but we consider the fault did not cause a significant injustice or has already been remedied by the Council.

The complaint

1. Miss Y complains about the Council’s actions in relation to her son’s EHCP and his access to education. In particular, Miss Y says the Council has told untruths in an attempt to hinder the SENDIST appeal and refused to arrange Speech and Language Therapy despite it being a necessary part of the EHC needs assessment.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, we could not add to any previous investigation by the organisation, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
3. 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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How I considered this complaint

4. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
5. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance, referred to where necessary in this statement.
6. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Special Educational Needs

7. Children 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 EHCP 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. 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 EHCPs. The guidance is based on the ‘Children and Families Act’ 2014 and the SEN Regulations 2014.
9. 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.
10. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Provision of suitable education

11. 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))
12. 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”.
13. The guidance also 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”. 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))
14. 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)
15. 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, for example, 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’)
16. 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). We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils 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.

Access to education

17. The Council first issued an EHCP for W in August 2018 after he received a diagnosis of Autistic Spectrum Disorder (ASD). The first EHCP named a mainstream primary school which W attended until transferring to a secondary school. The Council says W’s transition from primary to secondary was carefully planned. Despite this, W’s anxiety and fatigue meant that he struggled to attend full time.
18. Miss Y contacted the Council in July 2021 about W’s attendance. The officer dealing with W’s case asked his school to arrange an emergency review.
19. The review took place in October 2021. The school told the Council that W’s anxiety and fatigue had impacted on his attendance and his ability to access education. Around the same time the Council completed a single assessment of W’s social care needs. The Council agreed that W should access hospital education and initially anticipated a 4-6 week period for W to reintegrate back into school.
20. The Council issued a EHCP in April 2022 naming a mainstream secondary school, which Miss Y appealed.
21. Although W was not able to attend mainstream school, he received some hospital education from November 2021. The minutes of a meeting held in May 2022 gave an overview of W’s progress and his capabilities. The hospital educators said, “Working carefully to increase education at [W’s] pace. Can support further increase but unsure what this would add” and “We need to make sure that we are working at the right pace for [W] and that his voice is heard in our planning”.
22. From October 2022 the Council commissioned alternative provision for W, initially for five hours each week. The Council noted that W would meet with CAMHS for one hour every two weeks to gather his views about the provision and to ensure it is increased at a pace which is suitable for W.
23. In paperwork submitted to the SEND tribunal, the Council confirmed, “the local authority is funding 15 hours per week to [W’s] named setting for the alternative education currently in place. He is not accessing 15 hours per week at this time, but we aim to support a gradual increase in hours under the guidance of his mental health workers. [W] also accesses a weekly woodworking session 1-2 hours and an hourly pastoral session with Gloucestershire Hospital Education Service. In addition to this the Local Authority are funding 2 hours per week mentoring”
24. Due to jurisdictional limits, I can only consider the period from July 2021 to April 2022. July is the starting point because this is when the Council became aware that W was not regularly attending school. The Council says the caseworker requested an emergency EHCP review but, due to delays by the school, the review did not take place until October. April 2022 is the end point because this is when the Council issued W’s final amended EHCP. This gave Miss Y a right of appeal and the period thereafter is outside of our jurisdiction for the reasons explained in paragraph ten of this statement.
25. From the records I have seen, it is apparent that W was able to access some education, via hospital educators, from November 2021. The Council accepts it is responsible for some delay between July and November because it should have done more to proactively chase the school to arrange an emergency review. As a result, the Council said there was an avoidable delay of four months. Miss Y told the LGSCO she has accepted £2000 as a remedy for this delay. This is an appropriate financial settlement and is in line with our Remedies Guidance.
26. I understand Miss Y considers the quantity of the provision delivered from November 2021 was too low. However, from the records I have seen, I am satisfied the Council considered the views of professionals when deciding what was suitable for W and kept this under review. This is in line with the statutory guidance quoted in paragraph 12 of this statement, and so I do not recommend any further remedy in addition to what the Council has already provided.

Speech and Language Therapy

27. During the single assessment in October 2021, the Council decided W needed local SaLT input. Miss Y had arranged some private intervention in another area, but this was too far away for the family to sustain. The Council agreed and in November emailed a private SaLT service to chase up a referral for W to be assessed.
28. In January 2022 the therapist commissioned by the Council contacted Miss Y to arrange a language assessment. The email exchange shows Miss Y had, in the meantime, arranged for W to receive an assessment which concluded that W needed 1:1 therapy for his anxiety and social skills. The therapist contacted by the Council said they did not have capacity to agree to ongoing therapy, but suggested online therapy sessions for W.
29. In February Miss Y attend a ‘Team around the Child’ (TAC) meeting. During this meeting, professionals discussed the difficulties W faced with engaging and that he was only managing 20 to 30 minutes during 1:1 sessions at home. The Council says the caseworker did pursue further SaLT costings, but decided it was not appropriate at that time to commission therapy for W.
30. In response to Miss Y’s first complaint, the Council acknowledged the caseworker was responsible for some initial delay. The Council said it wrongly assumed W’s school had made the SaLT referral. There was also a missed opportunity to explain to Miss Y what actions had been taken, and why.
31. I therefore find fault in this part of the complaint because there was some delay by the Council in pursuing the referral. However, I do not consider this created significant injustice for W. In early 2022 professionals gave their view that W was struggling to engage with education providers, and it would not be in his best interests to pursue a SaLT assessment at that time. When discussing the complaint with me, Miss Y also said that W was too ill to engage with the SaLT assessment. I do not consider that more prompt action by the Council would have led to a different outcome.

Officer conduct and appeal delays

32. Miss Y makes a number of complains about the conduct of W’s caseworker. She says the officer has told mistruths to gatekeep and frustrate the SEND appeal hearing. In summary, Miss Y says:
• After Miss Y submitted her appeal to SENDIST, she requested a ‘Request for Change’ which the Tribunal accepted. Miss Y then had to submit details of costings for a package of education other than at school (EOTAS). The caseworker wrongly told the Tribunal that Miss Y had not submitted the costs, even though Miss Y had done so before the deadline.
• In a professionals meeting held in September 2022, the caseworker wrongly stated that Miss Y had failed to share a copy of an independent Educational Psychologist (EP) report. Miss Y pointed out that she had shared the report in August. The caseworker apologised and contacted the professionals at the meeting to clarify.
• In the final evidence statement sent to SENDIST in December, the caseworker wrongly stated they had supplied Miss Y with version four of the working document. Miss Y says this is untrue and she had only received version two.
• Miss Y did not receive a paper copy of the appeal bundle by the deadline on 13 December 2022. Miss Y did receive an electronic bundle, but this was incomplete. She notified SENDIST about this.
• The Council failed to share the EP report, dated 29 November 2022, with Miss Y until 6 December; one and a half hours before the final evidence deadline.
33. From the records I have seen, I agree with Miss Y that the Council has sometimes made errors and miscommunicated about aspects of W’s case; both with professionals and the Tribunal. I recognise Miss Y feels this is sometimes done deliberately to frustrate her appeal, however I have seen no evidence of this. The records show the Council corrected its errors, apologised and met the deadlines set by the Tribunal. I understand the Council requested an extension of time from the Tribunal which Miss Y disagreed with, however the extension was not granted and so there is no injustice to consider.
34. Furthermore, the way in which the Council conducts itself during the appeal process is a matter for the Tribunal. This is because the Tribunal can make case management directions, has powers to deal with none compliance and can make costs orders as outlined in the The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (legislation.gov.uk) .Therefore, even if there was unremedied injustice to Miss Y, I would not propose a remedy because it is not for the LGSCO to extend the coverage of the Tribunal’s powers above what Parliament intended.

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Final decision

35. I have completed my investigation with a finding of fault causing injustice which has already been remedied by the Council.

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Investigator's decision on behalf of the Ombudsman