Summary: Mrs X complained about how the Council carried out an Education, Health and Care (EHC) needs assessment for her daughter F and about a failure to provide suitable alternative provision between June and December 2022. The Council failed to consider whether it was necessary to obtain new Occupational Therapy advice which caused uncertainty around whether provision in F’s final EHC plan could have been different. It also failed to have proper oversight of alternative provision put in place for F. On balance this meant F went without suitable alternative provision during this period. The Council agreed to apologise to Mrs X and make payments to her to acknowledge the injustice this caused her and F. It will also carry out service improvements.

The complaint

1. Mrs X complains how the Council assessed and issued her daughter F’s Education, Health and Care (EHC) plan during 2022. She says the Council failed to obtain relevant advice which meant the final EHC plan was inadequate.
2. Mrs X also complains the Council failed to provide F with suitable alternative provision between June and December 2022 when she stopped attending school for health reasons.
3. Mrs X says the matter has caused F a loss of education and has caused her distress and time and trouble.

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What I have and have not investigated

4. Part of Mrs X’s complaint is that the Council obtained an inadequate Educational Psychologist report during the EHC needs assessment which in turn meant the special educational provision outlined in the final EHC plan was inadequate. Mrs X has appealed to the SEND tribunal about the content of the final EHC plan and so the tribunal will consider the EP report as part of the hearing. I have therefore not considered this further.

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The Ombudsman’s role and powers

5. 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)
6. 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.
7. 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)
8. 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.

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How I considered this complaint

9. I spoke to Mrs X about her complaint and considered information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

12. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
13. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so.
15. Councils do not have to seek new advice if advice already exists. However, the person providing that advice, the council and the parent of the child or young person must be satisfied the previous advice is sufficient. Previous advice is usually only sufficient for an EHC needs assessment if it is relatively up to date and accurately reflects the child or young person’s current needs. (para 9.47 SEND Code of Practice SEND 2015)

The SEND Tribunal

16. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
17. Some of the decisions which are appealable, and we would not usually investigate, include the content of a plan and the named placement.

Alternative Provision

18. 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.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
20. 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)
21. We made some recommendations. This included that councils should:

• consider the individual circumstances of each case and be aware that a council 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 (and therefore prosecute parents if they do not ensure attendance) or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

22. Mrs X has a daughter, F, who is autistic and in early 2022 attended a mainstream primary school in year 6. F was due to transition to secondary school in September 2022.
23. F started struggling to attend school in February 2022. Mrs X said the school made various attempts to re-integrate her however these failed.
24. In May 2022 Mrs X requested the Council carry out an EHC needs assessment on F. Records show Mrs X made the Council aware that F had stopped attending school completely as part of the EHC needs assessment request.
25. The Council declined the request, deciding that F’s school could meet her needs. Mrs X appealed the decision to the SEND tribunal.
26. Mrs X said the school provided 1:1 tuition for an hour each day for the remaining weeks of the term. Mrs X said she paid for private tutors and used online resources to provide F with education on top of the 1:1 tuition.
27. In September 2022 the Council decided it would carry out an EHC needs assessment. It wrote to Mrs X and told her it would make a decision whether to issue the plan by the end of October, and then issue the final EHC plan by the end of November. It provided Mrs X with a named SEND officer responsible for co-ordinating the assessment.
28. As part of the EHC needs assessment the Council obtained an Educational Psychologist (EP) report. It also considered a previous Occupational Therapy (OT) report which was written in 2019, Speech and Language Therapy advice and an autism assessment from a third party.
29. F transitioned to secondary school (school 2) in September 2022 however remained at home. Records show school 2 had put in place transition plan to try and integrate F into school. School 2 said F did attend at times to begin with, which it said went well, however this stopped. School 2 said it had put in place a bespoke timetable which it adjusted on a number of times, however it said Mrs X put up barriers with every adjustment. Mrs X says this was not the case and despite her best efforts could get F to attend.
30. Records show in October 2022 Mrs X emailed the Council and told it she was unhappy with the provision school 2 was providing. The Council responded to Mrs X telling her that as F was on roll with school 2 then it was school 2’s responsibility to source provision for F. Mrs X contacted the Council again early November telling it the reintegration attempts had failed.
31. The Council issued F’s draft EHC plan in mid-November 2022. Mrs X contacted the officer dealing with F’s EHC needs assessment. She was unhappy the Council used an old OT report which she said did not reflect F’s current needs and asked the Council to obtain an up to date one. Records show the Council officer said this was not possible as ‘the information gathering phase was complete’. Mrs X was also unhappy the EP report did not contain medical advice.
32. Mrs X complained to the Council in early December 2022. She complained the Council had failed to obtain up to date OT advice despite her request and she was unhappy with adequacy and content of the EP report. Mrs X says the EP report did not take account of information provided in a Paediatric report. She also complained about various content of the draft EHC plan. Mrs X further complained that F had not had any education for the last ten months despite the Council being aware F was not attending school.
33. Records show that in early December 2022 school 2 met with Mrs X to discuss F’s alternative provision to change her timetable. The new package included 1:1 teaching assistant support at home and online learning. Mrs X told us that appropriate provision was in place from January 2023 onwards.
34. The Council issued F’s final EHC plan during December 2022, four weeks after the statutory deadline. It named school 2 in section I as F’s placement.
35. The Council issued a final complaint response to Mrs X at the end of December. The Council said it used both the old OT report and an autism assessment report to identify F’s sensory needs. It said it was aware F’s primary school and school 2 put in place a transition plan. It said it had agreed funding with school 2 for it to provide an appropriate level of provision until F could reintegrate back into school. The Council apologised the final EHC plan was late which is said was due to an administrative error.
36. Mrs X remained unhappy and complained to us. On top of the above issues she further complained she had asked the Council to consider a personal budget for identified needs within the EHC plan which do not have provision. Mrs X said the Council has failed to respond to this request.
37. Since complaining to us Mrs X has appealed to the SEND tribunal about both the content and named placement in F’s EHC plan.

The Council’s response to us

38. The Council told us it sought OT advice from the NHS which responded that F was ‘not known to service’. It said it was satisfied the advice from 2019 alongside the advice from the autism assessment report was sufficient.
39. The Council apologised for the four-week delay in issuing F’s final EHC plan. The Council said the details of Mrs X’s request for a personal budget would usually be covered by social care. It apologised for failing to make a referral to social care following Mrs X’s request.
40. The Council said School 2 provided transition support and a bespoke plan for F which is says has now proven successful and has led to Mrs X withdrawing her appeal against the naming of school 2 in the EHC plan.

My findings

41. The Council has accepted it delayed issuing F’s final EHC by four weeks. The delay was fault and caused Mrs X frustration. However, the Council has apologised for the delay which it said was due to an administrative error. That is sufficient to remedy the injustice the delay caused to Mrs X and F.
42. Mrs X was unhappy with how the Council sought advice from professionals during the EHC needs assessment. She asked the Council to seek new OT advice because the only other report was three years old. The Code says councils should ‘consider’ what advice is necessary to ensure the assessment covers all of the child’s relevant education, health and care needs. It also says previous advice is usually only sufficient for an EHC needs assessment if it is relatively up to date and accurately reflects the child or young person’s current needs. There are no records explaining why the Council decided the old OT report was sufficient. Given the age of the OT report and Mrs X’s request, and in line with the law and the Code, the Council should have considered, at the time, whether it was necessary to seek new OT advice. Not doing so was fault and has caused Mrs X uncertainty around whether a new up to date OT report may have led to OT provision in the final EHC plan.
43. The law says education must be full-time unless the Council decides full-time education would not be in the child’s best interests due to their physical or mental health. We expect a council to demonstrate how it has considered the child’s needs and decided what provision to make. The Council was aware F had stopped attending school in June 2022 and there are no records showing the Council took any enforcement steps regarding non-attendance. F’s primary school put in place one hour tuition each day for the remaining seven weeks of the term. However, there are no records showing the Council had any oversight of this provision or whether it considered this was a suitable education to meet F’s needs. The failure to have proper oversight is fault. F was accessing private tutors and online resources paid for by Mrs X. Therefore, it is likely, on balance the Council would have found F required additional provision to that being provided by the primary school had it had proper oversight.
44. In September 2022 School 2 had put in place a transition plan and bespoke timetable for F to reintegrate back into school. Mrs X said this did not work and School 2 say Mrs X put up barriers. F was having difficulty attending school, and from the records I have seen, the bespoke timetable only started working when support was provided for F in her home environment. Where a school does not make appropriate arrangements for a child who is missing education through illness or otherwise, councils must intervene and make such arrangements. Mrs X contacted the Council on at least two occasions to inform it that School 2’s reintegration plans were not working. There are no records showing the Council had any oversight or consideration around whether the provision being offered by School 2 from September onwards was appropriate. That was fault and meant F did not have suitable alternative provision in place from September 2022 until January 2023. Had the Council had proper oversight it is likely, on balance, that support in the home environment could have been put in place for F earlier.
45. Regarding Mrs X’s request for a personal budget the Council has accepted it should have both responded to Mrs X and referred her request to social care. Not doing so was fault and caused Mrs X further avoidable frustration. The Council has apologised for the oversight, which I welcome. I also made a recommendation to ensure it makes this referral without delay.

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Agreed action

46. Within one month of the final decision the Council agreed to take the following actions.
1. Apologise to Mrs X for the injustice caused to her and F as a result of failing to consider whether to request up to date OT advice, failing to have proper oversight of F’s alternative provision and for failing to refer her request for a personal budget to social care.
2. Pay Mrs X £1000 to recognise F’s loss of educational provision between June and December 2022.
3. Pay Mrs X £150 as a symbolic payment to recognise the distress and uncertainty caused to her by the Council’s faults.
4. Refer Mrs X’s request for a personal budget to social care.
5. Remind relevant SEND staff who co-ordinate EHC needs assessments of the requirement to properly consider, at the time, whether it is necessary to obtain new advice from professionals if parents and carers make a request. If officers decide it is not necessary, they should make a record of that decision.
47. Within two months of the final decision the Council agreed to review its procedures to ensure it has measures in place to retain sufficient oversight around the suitability of alternative provision for children it is aware of that are not attending school. The Council will also remind staff that it retains overall responsibility for arranging alternative provision and ensure officers consider the individual circumstances of the child when deciding whether that provision is suitable.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault and prevent the fault occurring again.

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Investigator's decision on behalf of the Ombudsman