Summary: Mrs X complained the Council delayed in producing an Education Health and Care Plan for her child. Ms X says her child has been out of education since December 2021. We found fault with the Council’s delays and lack of education provision for Mrs X’s child. The Council agreed to apologise to Mrs X and pay her £400 for delays outside the Education Health and Care Plan assessment process and £6,000 for missed education.

The complaint

1. Mrs X complained the Council has delayed in producing an Education Health and Care Plan (EHC Plan) for her child, Y.
2. Mrs X also complained Y has been out of education since December 2021.
3. Mrs X says the Council’s delays have placed stress on her family and is costing Y valuable time without suitable support and provision. Mrs X says the lack of provision is negatively impacting Y.

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What I have and have not investigated

4. I have not investigated Mrs X’s complaint about the Council’s decision not to assess Y for an EHC Plan. I have also not investigated the contents of the EHC Plan, or the lack of interim provision from the final EHC Plan.
5. This is because Mrs X has appealed to the SEND Tribunal. Mrs X’s appeal is about the evidence the Council considered, the failure of the Council to name a specific school and the educational provision detailed in the EHC Plan. When a person appeals to the SEND Tribunal, the Ombudsman cannot investigate the same matter.
6. We also cannot investigate the failure of the Council to put in place the educational provision detailed in an EHC Plan while a person awaits the outcome of a SEND Tribunal application.
7. I have also limited my investigation to 4 January 2023. The Ombudsman cannot investigate matters which the Council has not had opportunity to address or matters that could arise in the future. The Council has had opportunity to address the full matters about Mrs X’s application for an EHC Plan and has been aware that Y has been out of education up to 4 January 2023. Any failure to provide educational provision for Y after 4 January 2023 would be the subject of a new complaint.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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)
11. 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.
12. 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 report with Ofsted.
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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How I considered this complaint

14. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
15. Mrs X provided comments on my draft decision which I considered before making my final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

16. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
17. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in regulations and Government guidance.
18. A council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to a council issuing the final EHC Plan must take no more than 20 weeks. (Special Educational Needs and Disability (SEND) Regulations 2014, Section 13 (2))

Education for children with health needs

19. 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))
20. 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))
21. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
22. The education provided by a council must be full-time unless a 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)
23. 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)
24. 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 (with the exception of 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.
25. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council corporate complaints process

26. The Council’s complaints procedure say it will acknowledge a complaint within three working days of receipt.
27. The Council says it will provide a Stage 1 complaint response within 20 working days of receipt of a complaint.
28. If a person disputes the Stage 1 complaint response they can request consideration of their complaint at Stage 2 of the Council’s complaints process. The Council says it will aim to provide a response to a complaint at Stage 2 within 25 working days of receipt of request.

What happened

29. In December 2021, Mrs X and her family returned to live in the UK after spending a time abroad. Mrs X had a child, Y, who was of compulsory school age and had special educational needs.
30. On 28 January 2022, Mrs X contacted the Council’s In Year Transfer team to request a Special Education Needs and Disabilities (SEND) school placement for Y.
31. Mrs X applied for an EHC Plan on 14 March 2022. The Council acknowledged this application on 16 March 2022 and confirmed this marked the start point of her application. The Council said it would advise within six weeks if it was advancing with an assessment of Y.
32. The Council’s In Year Transfer team responded to Ms X’s contact of 28 January 2022 on 22 March 2022 advising her to apply for an EHC Plan.
33. The Council completed the paperwork for Y’s EHC Plan application to put before the panel but failed to submit the paperwork in April 2022. Mrs X chased the Council for a decision on whether to assess Y on 29 April 2022, 4 May 2022, 10 May 2022 and 13 May 2022.
34. On 6 May 2022, the Council decided not to assess Y for an EHC Plan but only sent a letter to Ms X on 17 May 2022; Ms X says she did not receive this letter. In the Council’s notes about its decision not to assess Y it stated that it considered Y should be in mainstream education and that Mrs X should make an application for an in-year school placement.
35. Mrs X complained to the Council on 21 May 2022. Mrs X provided extra information to the Council on 31 May 2022 to support the need for an EHC Plan for Y.
36. On 6 June 2022, the Council decided to assess Y for an EHC Plan. The Council confirmed this with Mrs X.
37. The Council sent Mrs X a Stage 1 complaint response on 17 June 2022. The Council said:
• It apologised for the delay in deciding not to assess Y from 14 March 2022 until 17 May 2022.
• Y could not attend a SEND school without an EHC Plan.
• Mrs X could apply for Y to attend a mainstream school at any time and provided advice to Mrs X about how she could do this.
• It had now accepted Y for an EHC Plan assessment.
38. Mrs X disputed the Council’s Stage 1 complaint response on 20 June 2022.
39. The Council sent Mrs X a Stage 2 complaint response on 16 August 2022. The Council said:
• It apologised again for the delay in deciding to assess Y for an EHC Plan.
• It decided not to assess on the evidence available and changed its mind when presented with new evidence.
• It would issue a draft EHC Plan for Y in a timely manner.
• It could only decide what provision Y needed after it completed the EHC Plan assessment.
40. On 23 August 2022, the Council produced a draft EHC Plan for Y. This draft plan confirmed Y was out of education. Mrs X provided her comments on the draft EHC Plan on 30 August 2022.
41. The Council issued a second draft EHC Plan on 26 September 2022 before issuing the final EHC Plan on 18 October 2022. The final EHC Plan confirmed Y was still out of education and did not name a school placement for Y other than stating Y needed a “specialist setting that caters for children with MLD”.
42. Mrs X appealed to the SEND Tribunal on 19 October 2022 about the failure of the Council to consider evidence, the lack of educational provision and failure to name a school placement.
43. The SEND Tribunal registered an appeal for Mrs X in January 2023 for March 2023.
44. Y remained out of school until 4 January 2023.

Analysis

Delays in EHC Plan assessment

45. Ms X applied for an EHC Plan for Y on 14 March 2022. The regulations say a Council must decide whether to assess a child within six weeks of an application. This gave the Council until 25 April 2022 to decide whether it should assess Y. The Council only decided not to assess Y on 17 May 2022. This was three weeks outside the regulation timescales and was fault.
46. The Council was not at fault for any delays between 17 May 2022 and 6 June 2022. The Council decided on 17 May 2022 not to assess Y before changing its mind on 6 June 2022. The Council was entitled to change its mind on receiving new evidence from Mrs X.
47. While the Council made its decision on 17 May 2022, Ms X says she did not receive the letter telling her about its decision. While the Council’s failure to tell Ms X about its decision would be fault, this did not cause Ms X an injustice as the Council reconsidered its decision following Ms X’s contact on 21 May 2022. It is unlikely Ms X would have both received and been able to respond to the Council’s letter of 17 May 2022 sooner than 21 May 2022 even if she had received it.
48. From 6 June 2022, the Council’s responsibility to complete an EHC Plan assessment, and produce an EHC Plan reinstated.
49. The regulations allow the Council 20 weeks to complete the whole EHC Plan assessment. Ms X requested an EHC Plan assessment on 14 March 2022. The Council had 20 weeks from this date to produce the final EHC Plan. Considering the time period from 17 May 2022 to 6 June 2022, the Council should have produced the final EHC Plan by the latest of 22 August 2022 (being the closest working day). The Council produced the final EHC Plan eight weeks after this date. This delay was fault.
50. The Council’s delays in handling Mrs X’s EHC Plan assessment for Y have delayed in Mrs X being able to take this matter before the Tribunal. These delays have also meant that Y has been delayed in receiving the educational provision, outside normal education, detailed in the final EHC Plan.
51. The Council should apologise to Mrs X for the delays experienced. The Council should also provide a payment of £400 to reflect the 8 weeks of delays outside the EHC Plan assessment process. This will reflect the impact this had on Mrs X being able to appeal to the SEND Tribunal and Y receiving the educational support detailed in the final EHC Plan.

Alternative educational provision

52. Section 19 of the Education Act 1996 states councils have a duty to make suitable educational provision for children of compulsory school age who are absent from school because of exclusion, illness or otherwise.
53. Y was of compulsory school age when Mrs X first made contact in January 2022 and remains of compulsory school age to the date of the Ombudsman’s decision.
54. The Council has at no point from 28 January 2022, detailed any consideration that Y’s lack of attendance at a school was unauthorised. This included when the Council declined to assess Y for an EHC Plan and said that Y should be attending mainstream education. Since the Council did not consider that Y’s absence from school was unauthorised, this invoked the Council’s Section 19 duty.
55. Ms X first contacted the Council on 28 January 2022 to request a SEND school placement for Y. The Council was correct in its response, of 22 March 2022, that Y would need to have an EHC Plan before it could admit Y to a SEND school. However, the Council took seven and a half weeks to respond to Ms X’s contact; this delay was fault.
56. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
57. When Mrs X first contacted the Council on 28 January 2022, she told the Council Y had been out of school since their return to the UK in December 2021. Mrs X also told the Council that Y did not have a school placement. It would have been clear to the Council that Y had already been away from school for 15 days or more and would be moving forwards.
58. This means the Council should have put in place alternative provision for Y from 7 February 2023. This is the sixth working day after 28 January 2022.
59. The Council has provided no education for Y, either through a school placement or alternative provision. When considering the school holidays from 7 February 2022 to 4 January 2023, Y has been without any form of education, let alone suitable full-time education, for 42 weeks.
60. Our guidance for fault resulting in a loss of educational provision recommends a payment of between £200 and £600 a month to acknowledge the impact of a loss in education.
61. Given Y’s particular needs and the impact of Y being out of education had on his family, we consider a remedy of £600 a month reflects the Council failing to provide any form of alternative provision or any school placement for Y for the full duration of these 42 weeks.
62. The total of Y’s missed education at £600 a month for ten months amounts to £6,000.

Complaint handling

63. The Council issued the Stage 1 and Stage 2 complaint responses within its complaint timescales and I do not find fault with the Council for how it handled Mrs X’s complaints.

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Agreed action

64. Within one month of the Ombudsman’s final decision the Council should:
• apologise to Mrs X for the delays experienced and provide a payment of £400 to reflect the 8 weeks of delays outside the EHC Plan assessment process and the impact this had on Mrs X being able to appeal to SEND Tribunal and Y receiving the educational support detailed in the final EHC Plan.
• pay Mrs X £6,000 to remedy the Council’s delay in finding a suitable school placement for Y and the subsequent missed education. Mrs X may use this as she sees fit for Y’s educational, social and mental health needs.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman