Summary: Mrs F complained about the Council’s handling of her request for an Education, Health and Care plan for her daughter and said it failed to provide suitable Alternative Provision. The Council agreed it was at fault for failing to meet statutory timescales and communicating poorly with Mrs F. We also found the Council at fault for failing to provide Alternative Provision and it caused delay to pay a personal budget. The Council agreed to apologise and make payment to Mrs F to acknowledge the injustice this caused her and her daughter.

The complaint

1. The complainant, whom I shall refer to as Mrs F, complained about the Council’s handling of her requests relating to her daughter’s (Miss X) education. She said it:
• caused delays following her request for an Education, Health and Care (EHC) needs assessment;
• caused delays in the EHC planning process and in issuing Miss X’s Plan;
• failed to provide Alternative Provision for 2 years when Miss X was unable to attend her school;
• failed or caused delay in responding to her communication.
2. As a result, Mrs F said Miss X experienced distress and had a loss of educational provision. She also said she experienced distress and had costs to provide some education for Miss X.

Back to top

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
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)
7. 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.

Back to top

How I considered this complaint

8. As part of my investigation, I have:
• considered Mrs F’s complaint and the Council’s responses;
• discussed the complaint with Mrs F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• consider the relevant law and guidance to the complaint.
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. 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 EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. The Code sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. 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.
12. Section 9.79 says, if a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child.
• the attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
14. Section 42 of the Children and Families Act 2014 states councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. 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)

Personal budgets

15. A child’s parent or young person has a right to request a personal budget to arrange provision set out in an EHC plan. Where a council has agreed to provide a personal budget, or there is already one in place, it should give an indication of the level of funding that is likely to be required to provide the provision specified. The final allocation of funding must be sufficient to secure the agreed provision specified in the EHC Plan and must set out as part of that provision. (SEN Code paragraph 9.102)
16. Where there is disagreement relating to the special educational provision to be secured through a personal budget the child’s parent can appeal to the SEND tribunal. (SEN Code paragraph 9.108)

Alternative Education Provision

17. 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))
18. 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”.
19. The statutory guidance 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”.
20. The Education Act 1996 states ‘suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. It 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. 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.

What happened

21. Mrs F said her daughter, Miss X, started having difficulties in school in 2019 and believed she may have an autism spectrum condition.
22. In 2020, Mrs F arranged for a private Educational Psychologist (EP) to see Miss X. Mrs F’s concerns were set out in the EP’s report, which found more assessment was needed to determine Miss X’s conditions and needs.
23. In Autumn 2020 Miss X attendance at school reduced as her anxiety had worsened. The school put in place some adjustments for Miss X, including a learning and support assistant (LSA), to improve her attendance and engagement with the school, but she only attended for seven weeks.
24. In January 2021, Miss X stopped attending school fully. Mrs F said this was because of Miss X’s difficulties and anxiety about school. Mrs F asked the Council to complete an EHC Needs Assessment for Miss X to identify whether she needed a EHC Plan to support her with her special educational needs (SEN).
25. Six weeks later, the Council told Mrs F it had considered her request, but it found Miss X’s needs were not great enough to require an EHC Plan. It said the school’s reasonable adjustments for Miss X’s attendance was enough to meet her needs.
26. Mrs F did not appeal the Council’s decision as she wanted to see what support the school would provide and if this was suitable for Miss X.
27. Miss X’s school put in place a plan for her to attend school virtually through live streaming of her class. The plan was for a gradual approach where Miss X would become more involved in lessons, and subsequently to start to attend some activities in school.
28. Miss X’s attendance or virtual attendance with school did not improve. Mrs F asked the Council again for an EHC Needs Assessment.
29. In June 2021 the Council told Mrs F it had not changed its view and refused the EHC Needs Assessment for Miss X. It also met with Mrs F to discuss her concerns.
30. In July 2021 Mrs F appealed the Council’s decision to refuse Miss X an EHC Needs Assessment.
31. In September 2021, before the Tribunal’s decision, the Council changed its view and agreed it should complete an EHC Needs Assessment for Miss X. It discussed the options of where Miss X education should be with Mrs F, which included in a school, Elective Home education, or Education Other Than at School (EOTAS).
32. Mrs F asked the Council for updates, but she did not receive the outcome of the Council’s EHC Needs Assessment of Miss X by the Council’s deadline.
33. In February 2022 the Council completed Miss X’s EHC Needs Assessment, which found Miss X should have an EHC plan to meet her identified SEN.
34. Shortly after, Miss X received a confirmed diagnosis of autism spectrum disorder (ASD), which was shared with the Council.
35. In Spring 2022, the Council issued its Draft EHC plan for Miss X, which Mrs F provided comments on.
36. In Summer 2022, Mrs F complained to the Council. She said:
• it had failed to issue Miss X’s EHC plan as agreed within the statutory timescales;
• it failed to put in place suitable educational provision for Miss X over a two-year period. Mrs F said she tutored Miss X during the whole of the 2021/2022 academic year, as Miss X could not attend her school and no EHC plan had been issued for her; and
• her communication with the Council had been ignored and not responded to, and she felt the Council had lied.
37. In response the Council partially upheld Mrs F’s complaint. It apologised for its delay in completing Miss X’s EHC plan and for poor communication when its officer allocated to her case had left the Council. It explained it had brought the learning from her complaint to its management’s attention, would ensure progress was made and a SEN officer had been allocated to her case and was now in regular contact.
38. The Council issued Miss X’s Final EHC plan in July 2022. This set out she should receive EOTAS through a personal budget.
39. In Autumn 2022, Mrs F was not satisfied with the Council’s response and asked it to escalate her complaint. She said she had continued to experience poor communication from the Council, it had caused delays in issuing Miss X’s Final EHC plan, and the personal budget had not been paid to her. She also said the Council had not responded to her concerns Miss X had not received a suitable education over a two-year period.
40. In November 2022, the Council provided its final complaint response to Mrs F. It reiterated its apology for the delays in the EHC Plan process and the poor standard of communication Mrs F had received from it. It offered £200 to remedy the injustice this had caused. It also said:
• Mrs F should direct her concerns about education provision before July 2022 when its Final EHC Plan was issued for Miss X to her school; and
• the Council had responsibility for securing the SEN provision in Miss X’s EHC plan from July 2022 when it issued her plan. It was aware the personal budget was not in place at the start of the 2022/2023 academic year, but this had since been resolved.
41. Mrs F asked the Ombudsman to consider her complaint as she believes the Council caused failures for Miss X over a three-year period, which had impacted her education and caused distress for their family.
42. In response to my enquiries the Council agreed its communication with Mrs F had not been as timely as it should have been and explained this was due to workload pressures and absence within its SEN team. It said it had allocated a Communications Officer to Miss X’s case and recruitments were taking place to reduce the workload issues.

Analysis and findings

43. Mrs F complained about the Council’s handling of Miss X’s educational provision and communication with her since 2020. Her complaint is therefore late. However, I have found it appropriate to consider her complaint from January 2021 when she first made her request for and EHC Needs Assessment for Miss X as she has continued to bring her concerns to the Council’s attention since.

Was there delay in the EHC Needs Assessment process?

44. Mrs F made her requests to the Council in 2021 for an EHC Needs Assessments of Miss X. The evidence shows the Council responded to her request within the six weeks required in Regulations.
45. I acknowledge Mrs F disagreed with the Council’s decisions Miss X did not have enough needs to require such assessment. However, as such decisions are appealable to the SEND Tribunal, I cannot consider this part of her complaint.

Was there delay in the EHC plan process?

46. The Council agreed it had caused delays between September 2021 and July 2022, which was when it agreed to complete Miss X’s EHC Needs Assessment until it completed the process by issuing her Final EHC plan.
47. I agree with the Council’s finding it was at fault. This included:
• causing a delay in completing the EHC Needs Assessment in Autumn 2021 within the statutory timescale of six weeks. It took the Council 21 weeks to do so; and
• causing a delay in issuing Miss X’s Final EHC plan within 20 weeks. It took the Council 40 weeks to do so.
48. However, I found the Council’s proposed remedy of £200 was not enough to remedy the injustice this caused Miss X and Mrs F. This is because:
• Miss X experienced a loss of SEN provision as set out in her Final EHC plan in July 2022, which would have been in place 20 weeks sooner had the Council not been at fault;
• Mrs F had to provide Miss X with some tuition and support which she did not received from the Council; and
• Mrs F and Miss X experienced distress and uncertainty as a result of the Council’s delays.

Was there fault in the Council’s communication?

49. The Council agreed it had missed communication from Mrs F when its allocated worker left the Council until it allocated another Officer. It also agreed at other times its communication was not as timely as it would have liked due to workload pressures on its SEN Team or staff absences. This was fault, which caused Mrs F some further distress and uncertainty since between January 2021.
50. I understand the Council allocated a Communications Officer and recruitment are taking place to reduce workload issues within its team. I am satisfied this may improve communication issues with parents or young people approaching its SEN team.

Did the Council consider Alternative Provision for Miss X?

51. Mrs F told the Council it had failed to provide Miss X with a suitable education when she was unable to attend her allocated school.
52. The Council said this was a matter she should address directly with Miss X’s school as she remained on roll until July 2022 when it issued her Final EHC plan.
53. The Council had a duty to make arrangements for the provision of suitable education at school or otherwise than at school for Miss X as she was unable to attend her allocated school due to illness. The duty applies if she would not for any period receive suitable education unless such arrangements are made for them.
54. I acknowledge the Council worked with Mrs F and the School in early 2021 when she made her EHC Needs Assessment request and Miss X stopped attending school. This resulted in a plan to support Miss X attend school virtually. However, it quickly became clear Miss X could not engage with the school’s plan to access her education and she remained without any meaningful education.
55. I therefore found the Council at fault for failing to properly consider its duty to provide suitable Alternative Provision to Miss X and to put such provision in place from May 2021 until July 2022 when it issued Miss X’s Final EHC plan.
56. While I cannot say what Alternative Provision would have been appropriate to Miss X at the time, I am satisfied it is unlikely to have been full time due to her anxiety and difficulties engaging in education at the time. However, the Council’s fault caused Miss X a loss of educational provision she should have received over a 14-month period. This also caused both Mrs F and Miss X distress and uncertainty, and Mrs F had to tutor Miss X herself, or arrange tutoring, to limit the impact the lack of Alternative Provision had on her.

Personal Budget

57. The Council agreed it had not paid Mrs F the personal budget for EOTAS set out in Miss X’s Final EHC plan by the start of the 2022/2023 academic year, but it had since been resolved.
58. This was fault. The Council should have ensured Miss X’s personal budget was paid before the academic year started so provision for her EOTAS could be arranged and put in place without delay.
59. I understand Mrs F did put some provision in place and the personal budget has since been paid. The injustice this caused was therefore limited to some further distress due to the uncertainty and further loss of trust in the Council this caused her.

Back to top

Agreed action

60. To remedy the injustice the Council caused to Mrs F and Miss X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F and pay her £400 to acknowledge the distress and uncertainty the Council’s faults caused her and Miss X; and
2. pay Mrs F a further £2,800, to use as she sees fit for the benefit of child X, to acknowledge the lack of suitable education Miss X was provided between May 2021 to July 2022 due to the delay in issuing her final EHC plan and failing to put Alternative Provision in place.

In total the Council should pay Mrs F £3,200.

61. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind it SEN staff to ensure the Council adheres to the timescales for the EHC Needs Assessments and the EHC plan process;
5. remind its SEN staff of the Council’s duty to provide Alternative Provision to children, or young people, who are unable to attend school due to health, or otherwise. This includes circumstances where adjustments and support by a school has not improved attendance;
6. remind its SEN staff to respond to communication from parents without delay, and review whether its shared mailbox and staff recruitment have had the desired effect to improve the timeliness of its responses; and
7. review how it can ensure payments for personal budgets in EHC plans are paid in a timely manner to ensure provision can be arranged without delay.

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

Back to top

Final decision

62. There was fault which caused an injustice. The Council has agreed with my recommendation, it is on this basis I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman