Summary: Mrs C complained the Council failed to provide a suitable education for her son when he stopped attending school in September 2021 because of his special educational needs. She also complained the Council delayed issuing her son’s Education, Health and Care plan and it delayed providing the provision in the plan. We find the Council was at fault as it delayed securing alternative provision. It also delayed finalising the Education, Health and Care plan and it delayed securing the provision in the plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs C complained the Council failed to provide a suitable education for her son, D, when he stopped attending school in September 2021 because of his special educational needs. She says it delayed issuing D’s Education, Health and Care (EHC) plan, it delayed providing home tuition and it delayed providing the provision in his plan. Finally, she says the Council delayed responding to her complaint.
2. Mrs C says D’s mental health has been impacted during a critical time in his education. She also says the matter has caused distress and she has been put to significant time and trouble chasing the Council.

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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. 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.
5. 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

6. I considered information from Mrs C. I made written enquiries of the Council and considered information it sent in response.
7. Mrs C 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

Alternative provision

8. 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.
9. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have.
10. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

Education, Health and Care needs assessment

11. 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.
12. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
13. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary or it decides not to issue an EHC plan after an assessment, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.

What happened

14. This chronology provides an overview of key events and does not detail everything that happened.
15. Mrs C’s son, D, has special educational needs. He stopped attending school completely in September 2021 due to anxiety. The school facilitated D’s participation in online learning by allowing him to watch the lessons live.
16. Mrs C asked the Council to complete an EHC needs assessment for D on 16 February 2022.
17. The school met with Mrs C in March. It said it would change its approach and D would access online learning through a virtual learning platform. Mrs C contacted the school a couple of weeks later and said the new platform was inadequate as D was teaching himself.
18. Mrs C attended a parent surgery with a senior officer from the Council at the end of March. She outlined D’s issues with school, and she also said she was unhappy with the virtual learning platform. The Council agreed to discuss the issues with the school.
19. The Council agreed to assess D for an EHC plan on 5 April. It contacted the school on the same day and asked whether home tuition could be explored for D. It asked it to complete a medical home tuition form.
20. The school asked for the form the following day and said it would complete it when it reopened on 19 April after the Easter holidays. The Council discussed matters further with the school on 20 April. It said it would not revert to the online learning D was previously receiving. The Council provided the form, and the school returned it with supporting medical evidence on 25 April.
21. The Council agreed in May to provide D with a minimum of 12 hours per week of 1:1 tuition. It provided Mrs C with an update and confirmed it would send the funding request to senior officers. Mrs C said D was struggling with a lack of appropriate education. The Council agreed the virtual learning platform was inappropriate for D’s academic capabilities.
22. Mrs C complained to the Council on 1 June. She said it had failed to provide D with appropriate educational support.
23. Mrs C emailed the Council on 2 and 9 June and chased for an update regarding the tuition.
24. The Council sent emails to various providers seeking tuition for D.
25. Mrs C asked the Council to escalate her complaint to stage two on 1 July because of the delays she had experienced.
26. The Council sourced tuition for D from 11 July.
27. Mrs C chased for a response to her complaint on 25 July and 1 August. The Council responded and said it was struggling to respond to complaints within the timescale set out in its complaints procedure.
28. The Council sent D’s draft EHC plan on 10 August and the final plan on 23 August. This stated D would receive a bespoke Education Other Than At School (EOTAS) package to include home tuition, equine therapy and IT equipment. This was to be delivered by a personal budget.
29. Mrs C emailed the Council on 6 October and said although it had finalised D’s EHC plan, he still did not have access to resources and IT equipment. She asked it to finalise the personal budget.
30. The Council sent Mrs C the personal budget forms the following day.
31. The Council responded to Mrs C’s complaint on 10 October. It apologised for its delays in responding. It said the officer failed to correctly submit paperwork to the tutoring agency which led to the delay in sourcing alternative provision. It accepted it failed to finalise D’s EHC plan within statutory timescales and its communication should have been better. It also accepted it had delayed finalising the personal budget. It apologised to Mrs C for the distress caused.

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Analysis

32. The first time the Council was fully aware of the issues D was having was at the end of March 2022 after Mrs C attended the parent surgery. It liaised with D’s school in April and gathered further information. It accepted alternative provision was appropriate for D and the virtual learning platform was not suitable for his needs. It had all the information back from the school on 25 April, so I consider after that point it had a duty to secure alternative provision for D. It failed to secure any provision until 11 July. This is a significant delay, which is fault.
33. The Council also failed to finalise D’s EHC plan within statutory timescales and it delayed setting up the personal budget to enable him to access the provision in the plan. It should have issued his plan by 6 July, but it did not do so until 23 August. It then did not finalise the personal budget until 7 October.
34. The Council’s faults have caused Mrs C avoidable distress and upset that D did not receive appropriate education and provision. She was put to significant inconvenience chasing matters up.
35. The Council’s faults have also caused D a significant injustice because he was without the education and specialist provision he was entitled to. Children have a right to an effective education and any time they miss is difficult to replace later. I recommend a payment of £450 per month from May until 11 July. This reflects that D received very limited education, but that it was inappropriate for his needs. I recommend a payment of £250 from 11 July to 7 October as D received more suitable online learning, but not the specialist provision set out in his EHC plan. D would have received this provision if the Council had not delayed issuing his EHC plan.
36. The Council was also at fault for its complaints handling and its communication with Mrs C. It should have issued its response to Mrs C’s stage one complaint within 20 working days. However, it took four months to issue a response, which caused Mrs C upset and frustration. It failed to keep her updated during this time and she was put to time and trouble chasing a response. The Council also failed to keep Mrs C properly updated on what it was doing to secure alternative provision for D and when it would finalise the personal budget, which caused her further frustration.

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Agreed action

37. To address the injustice caused by fault, by 3 May 2023 the Council has agreed to:

• Apologise to Mrs C and D.
• Pay Mrs C £1,450 to reflect the missed education and provision. We suggest Mrs C uses this payment for D’s educational benefit.
• Pay Mrs C £350 for her distress, upset, frustration and time and trouble.

38. By 2 June 2023 the Council will issue written reminders to relevant staff to ensure:

• They are aware they must respond to complaints within the timescales set out in the complaints procedure. They should keep complainants updated if there are going to be delays.
• They are aware they should arrange alternative provision for children who cannot attend school without unnecessary delay.
• They comply with the statutory timescales after an EHC needs assessment is requested.

39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council, which caused Mrs C and D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman