Summary: Mrs B complained that the Council delayed in completing an Education, Health and Care (EHC) assessment and issuing an EHC plan for her daughter C. It also failed to provide suitable alternative education while she was unable to attend school, communicated poorly with Mrs B and delayed excessively in responding to her complaint. We found fault causing injustice. We have asked the Council to apologise to Mrs B, make a financial payment and improve its procedures for the future.

The complaint

1. Mrs B complained that Kent County Council (the Council), in respect of her daughter, C, delayed completing the Education, Health and Care (EHC) needs assessment and failed to issue an EHC plan within the statutory timeframe of 20 weeks. It also failed to provide alternative education for C since September 2021 and delayed excessively in responding to Mrs B’s complaint at both stage one and two of the complaints process. C missed out on education at an important stage of her education, along with social interaction and Mrs B experienced significant distress and time and trouble in pursuing the Council for the correct provision.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. 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)
5. 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 EHC plan 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).
6. 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

7. I have not investigated the period between 27 September 2022 and 30 May 2023 as Mrs B had appealed to the SEND tribunal about the EHC plan including the named school.

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How I considered this complaint

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the organisation 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

Special educational needs

9. A child with special educational needs may have an 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

EHC assessment

11. Statutory guidance sets out the process for carrying out EHC assessments and producing EHC plans. 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Failure to secure provision

12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative education provision

13. 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. (Education Act 1996, section 19). This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

14. Mrs B’s daughter, C, stopped attending school in September 2021 due to anxiety. At the end of September 2021 Mrs B requested an EHC needs assessment with a view to getting additional support for C to enable her to attend school. The request included the information that C was not able to attend school due to anxiety. The Council received this on 1 October 2021
15. The Council acknowledged the request on 25 October 2021. Mrs B chased the Council several times throughout November 2021 and on 20 December 2021 the Council informed her that the Council had decided to do an assessment.
16. As C had been out of school since September and the School had not offered any alternative education, Mrs B had arranged and paid for tuition via an online provider. It cost nearly £5000 per year.
17. In January 2022 the occupational therapy (OT) service said C had been known to the service briefly in terms of sensory processing. Her parents had been offered a place on a sensory workshop and C was discharged. The service considered C’s needs could be met by universal provision.
18. Mrs B chased the Council throughout February and into March 2022, asking for an update on progress with the assessment. She noted that the 20 week deadline passed in mid-February. She did not receive a response or acknowledgement.
19. On 11 March 2022 she made a formal complaint. She said C was too ill to attend school, was under the care of the child and adolescent mental health service (CAMHS) and neither the school nor the Council had put any alternative provision in place. Mrs B also sent a letter from C’s GP confirming the medical reasons for her non-attendance at school.
20. On 5 May 2022 Mrs B tried to find out who her caseworker was, as she had received no communication from her existing one. She sent another email on 18 May 2022. On 13 June 2022 her new caseworker emailed her and said the draft EHC plan was waiting to be approved by a manager. She said she was going to name a different school in the plan.
21. Mrs B said the suggested school was not suitable and wanted C to continue with the online school as she was progressing well with her GCSE courses. Mrs B met with her caseworker in July 2022 and provided comments on the draft EHCP.
22. The Council responded to Mrs B’s complaint on 12 August 2022. It apologised for the delay in responding to her complaint (made on 24 and 28 March 2022), which it said was due to staff absence. It summarised the assessment process and said it was waiting for more information from C’s current school. It said it was aware that C was enrolled on an online learning programme, and it would finalise the EHC plan as soon as it had decided on an appropriate placement.
23. Mrs B escalated her complaint to stage two in the same day. She said the Council had broken all the statutory timescales, it had removed all her comments from the recent draft, it had not consulted with the OT service as part of the assessment, it had not made any alterative provision and was showing no signs of taking any action to provide C with a suitable education.
24. At the beginning of September 2022, the online school responded to the consultation saying that C was welcome to register at its school but as it was not a maintained school, it could only be used for alternative provision and could not maintain an EHC plan.
25. The alternative school suggested by the Council declined to offer C a place. On 27 September 2022, the Council issued a final EHC plan naming C’s existing school. Mrs B appealed to the SEND tribunal about the content of the plan and the named school.
26. On 12 January 2023 the Council responded to Mrs B’s complaint at stage two of its complaints procedure. It said it did not take responsibility for Mrs B’s decision to fund C’s tuition since 2021. It considered the parental comments had been included in section A of the EHC plan and were not required in the other sections which were based on the advice of professionals .It said the rest of the issues including the content of the EHC plan and the OT provision, would be considered by the tribunal.
27. Mrs B complained to us in March 2023.
28. In May 2023 the SEND Tribunal issued a consent order and an amended final EHCP was issued on 30 May 2023 naming C’s current school in section I with an additional package of 15 hours of Education Other Than at School, including equine therapy as health provision in section G.
29. Mrs B contacted the Council numerous times throughout the summer asking for payment of the equine therapy and for implementation of the EHC plan. In August 2023 the Council suggested a placement at a farm for 15 hours a week. C was very keen on this option and the Council issued an amended final EHC plan on 21 August 2023 naming this provision for 15 hours a week.
30. C did not sit any GCSEs due to her anxiety.
31. In response to my enquiries the Council said:
• When C stopped attending school in September 2021, she did not have an EHC plan so the responsibility for arranging alternative provision lay with the school.
• It said it should have referred C to the SEN inclusion team once it was aware that C was not attending school. This did not occur until October 2022.
• It said it had reviewed its alternative provision policy in 2022 but the new version was still awaiting approval by the Council.
• It acknowledged it delayed in completing the needs assessment and producing the EHC plan and apologised for this. It said part of this delay was due to a delay in receiving the educational psychology report (March 2022) due to a national shortage of educational psychologists. It did not consider the delay had disadvantaged C as she was receiving online tuition during this period.
• It said it should have arranged alternative provision from the date the EHC plan was due to be issued. It said the date for this was 8 May 2022. It apologised for the failure to do so and the fact that C missed out on 11 weeks of education to the end of the summer term.
• It also apologised for the failure to implement alternative provision from 30 May 2023 to the end of the summer term (7 weeks).
• It had carried out an annual review/phase transfer on 2 May 2023. The casework team received the paperwork on 13 July 2023 and the Council intended to amend the EHC plan but did not inform Mrs B. It apologised for this failure.
• It apologised for the unacceptable lack of response to Mrs B’s emails and the failure to inform her that her caseworker had left.
• It apologised for the delays to the complaints process and said the complaint was one of those in the backlog of complaints identified in a recent investigation into another complaint. It was taking steps to implement the recommendations made.

Analysis

EHC assessment and plan

32. The Council received the request for the needs assessment on 1 October 2021. It should have decided whether to do the assessment by 12 November 2021 and issued the EHC plan by 18 February 2022. It did not issue the final EHC plan until 27 September 2022, almost a year later.
33. I accept that some of the delay was due to difficulty in obtaining an Education Psychology report. But even once this advice was provided in March 2022 the Council still took another six months to complete the process.
34. The delay was exacerbated by the complete lack of adequate communication with Mrs B during this period. She sent countless emails which were often not even acknowledged, and she rarely received a substantive response. The Council also failed to inform her that as a result the assessment it had decided to issue an EHC plan.
35. This was fault which caused distress, frustration and time and trouble to Mrs B and meant C did not receive the support she needed to attend an educational placement and receive a full-time education.

Alternative provision

36. The Council has a statutory duty to provide 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. C was out of school due to medical reasons from September 2021. The Council was aware of this from 1 October 2021. By this time Mrs B had arranged alternative tuition at an online school and paid for it herself.
37. The Council said when C stopped attending school, she did not have an EHC plan and so the responsibility for providing education lay with the school. This is wrong: the section 19 duty to provide a suitable education is not dependent on or linked to having an EHC plan and the Council had a duty to provide an alternative education for C when she had been unable to attend school due to medical reasons for 15 days.
38. Mrs B made alternative arrangements for C, but I do not consider this absolved the Council of the responsibility to check what was being provided to assess its suitability. There is no evidence the Council made any enquiry about the education C was receiving between October 2021 and September 2022. This was fault.
39. The Council accepts it was at fault in not referring C to the SEN Inclusion Service once it was aware she was not attending school. This was not done until October 2022. If it had done this a year earlier, it would have taken more action to support C in receiving a suitable full-time education. This may have meant C was able to take some exams and Mrs B may have spent less money on education for C.
40. I do not accept the Council’s view that it should have provided alternative education only from 8 May 2022: it had a duty to provide education after 15 days of non-attendance at school. Furthermore, the EHC plan should have been issued by 18 February 2022, not 8 May 2022.
41. In terms of the period after 30 May 2023 I welcome the Council’s recognition that it failed to put alternative education in place following the new EHC plan, meaning C missed out on seven weeks of provision.

Alternative provision policy

42. In 2022 I investigated a complaint against the Council about alternative provision in similar circumstances. I made the following recommendation:

“In respect of providing alternative education, we have asked the Council on three occasions in the past 12 months to remind staff of the Council’s statutory duty to do so. In order to ensure these reminders will lead to an improvement, I recommended the Council, within three months of the date of the final decision:

• undertakes a detailed review of the Council’s policy and procedure for responding to situations where a child is out of school and not receiving education, identifies the reasons why the Council repeatedly says the responsibility for education in these circumstances is down to the school and suggests improvements which can be made to improve staff understanding and implementation of this key duty.”
1. The Council sent us a copy of the new draft policy in January 2023. I understand this is the policy which has not been approved through the Council’s democratic process. This delay in completing the agreed remedy is evidently affecting staff knowledge of the Council’s statutory duty to provide education to all children and causing continuing errors in this area.

Complaint delays

44. The Council took five months to respond to Mrs B’s stage one complaint and another five months to respond to her stage two complaint. This was far too long and caused Mrs B significant distress, frustration and time and trouble.
45. I understand this problem has been highlighted in our recent public interest report and I welcome the Council ‘s commitment to continue to implement the recommendations made.

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Agreed action

46. In recognition of the injustice caused to Mrs B and C by the fault identified above, I recommended that the Council within one month of the date of my final decision:
• Apologises to Mrs B. (We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings).
• Pays Mrs B a total of £600: £300 for the lack of communication and £300 for the delays in the complaints process.
• Pays Mrs B £4000 towards the costs of the online tuition from 1 October 2021 until 26 September 2022.
• Pays Mrs B (for the benefit of C):
1. £1500 for the uncertainty caused by the failure to consider or assess C’s education between October 2021 and September 2022.
2. £500 for the lack of education, including special educational provision from 30 May 2023 until the end of the summer term.
47. I also recommend that the Council:
• within three months of the date of my final decision ensures the draft alternative provision policy is approved and implemented; and
• within six months as part of that process, ensures training is provided to staff on the new policy with particular emphasis on the correct application of the section 19 duty.
48. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

49. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman