Summary: Ms X complains the Council failed to provide suitable alternative education for her son. Further the Council failed to complete her son’s Education, Health and Care Plan accurately, and within the legal time limits. We find fault with the Council for failing to adhere to statutory timescales, failing to communicate properly with Ms X, and failing to complete the EHCP as agreed causing frustration and distress to Ms X. We agreed a symbolic payment and other remedies for the injustice caused.

The complaint

1. Ms X complains the Council failed to:
1. provide suitable alternative education for her son, J, from 6 December 2021 until 7 February 2022;
2. give Ms X correct information about school placements as part of the EHCP process;
3. complete J’s EHCP within the legal time limits;
4. put relevant information in the EHCP, instead putting it in the covering letter;
5. consider therapies for J to meet his needs;
6. consider the personal budget set by a solicitor Ms X employed to help her with the EHCP;
7. carry out a social care assessment as part of the EHC needs assessment;
8. request a qualified professional to deliver J’s therapy provision, instead asking an academic tutor to deliver it;
9. give Ms X the details of the case workers line manager when asked.
2. Ms X had to attend mediation to correct all the Council’s faults. She had to wait 100 days which is longer than the legal expectation of 30 days.
3. Ms X would like the SEND team at the Council to undergo intense training so the failings do not continue, and for her legal costs to be refunded.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. 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)
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

Back to top

How I considered this complaint

8. I have considered:
1. The information provided by Ms X and in discussion with her;
2. The Council’s comments on the complaint and the supporting information it provided; and
3. Relevant law and guidance.
9. Ms X 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

Education, Health and Care Plan

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Timescales and process for EHC assessment

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 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.

Alternative education

14. 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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absence for health reasons for more than 15 days.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19 (6))

Service failure

16. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

Delay - education provision (complaint a)

17. Ms X removed her son J from school in early December 2021. She applied to the Council for an Education Health Care Needs (EHCN) assessment in January 2022.
18. J is autistic and has ADHD. He is now in his final year of primary school.
19. The Council sent Ms X a list of mainstream schools J could attend. Ms X said J could not attend a mainstream school and pushed for a tutor at home.
20. Ms X complains the Council told her it “sometimes” arranges education. She said the Council arranged for a tutor in February 2022 after she instructed a solicitor to contact the Council on her behalf.

Delay - EHCP (complaints b and c)

21. The draft EHCP should have been issued on 16 May, and the deadline to issue the final plan was 13 June. The draft was issued on 3 August and the final EHCP was issued on 3 October, however it contained mistakes which had to be rectified by mediation in January 2023.
22. When Ms X was looking into education settings at the beginning of the EHCN assessment process the Council said she would be “consulted as part of the process. Information would then be shared with the schools and she can request a tour as part of the process. The EHCP coordinator will be able to advise on potential placements once she is further into the process.”
23. However when Ms X chased the Council in July, not knowing whether a plan would be issued or not, it said “if you have a preference for a placement or if you have any further information that you would like the EHC Panel to consider, please do not hesitate to contact us.”
24. On 4 August Ms X still had no further update or information about J’s EHCP. She sought legal advice and her solicitor issued a Letter before Action advising the Council she would consider bringing a Judicial Review if it did not provide confirmation of its decision to issue a plan.
25. Her solicitor received a copy of the draft EHCP on 11 August, which the Council said had been sent to Ms X on 3 August. Ms X said she did not receive this via secure email on the 3 August and asks why it took the Council eight days to send it to her solicitor.
26. The Council say there was a delay in getting a report from an Educational Psychologist (EP) which delayed the EHCP. It did not receive the report until 12 July.

EHCP (complaints c and d)

27. When Ms X received the EHCP, the cover letter from the Council referred to tutoring for J but this was not in the EHCP. Ms X instructed her solicitor to check the EHCP and provide draft amendments.
28. The solicitor sent these to the Council on 24 August. The Council failed to return the draft plan within the four week deadline.
29. On 26 September Ms X contacted the Council as it had missed the statutory deadline and she did not have the final EHCP. The final EHCP was now 15 weeks past the due date of 13 June.
30. The Council issued the final EHCP on 3 October. It was 16 weeks late, and it did not include any of the solicitor’s amendments.
31. Again the Council referred to tutoring for J in the cover email but not within the EHCP.

Complaint (complaints e, f and g)

32. Ms X complained to the Council about several issues in the EHCP, with issues around communication with the Council, as set out in paragraph one above.
33. The EHCP did not include the therapies suggested by Ms X. Ms X has been paying for animal therapy for J. The Council said these are not in the EHCP as the EP did not recommend them in their report.
34. A social care assessment should have been carried out as part of the EHCN assessment. It was not and there was no mention of it in the EHCP other than “not known to social services”. The Council agreed to carry out a social care assessment after mediation took place.
35. The tuition hours were not in the EHCP. The complaint response says the tuition hours will be extended as in the amendments from the solicitor.
36. The Solicitor’s amendments also sought a personal budget for Ms X. This was not in the EHCP, but a letter from the Council to Ms X says the panel approved the budget.
37. The Council said the EHCP was drafted and referred for quality assurance on the 21 July. It also said:

“There are some changes being made within our team and our processes are currently being reviewed with an aim to improve our service to families and young people. We endeavour to move as quickly as we can within our processes.”

38. When Ms X brought a stage two complaint the Council responded that it would not continue its investigation as the matters raised were all set for a mediation in January, and would be subsequently appealable to a tribunal.
39. The Council signposted Ms X to the Ombudsman and she brought her complaint to us.

Line manager (complaint i)

40. As Ms X did not always get a response to emails she sent to her case worker, she would also copy in the Director of Children’s Services. Her case worker said the Director was not her line manager so she should not feel the need to “duplicate communications”.
41. Ms X then asked for her line managers details, but did not get a response. She since found out the Director was her case workers line manager. The Council advised me in comments on the draft decision that case workers in the SEND Team report to the SEND manager who reports to the Head of Service for Education, and this has always been the case.

Therapy provision (complaint h)

42. The Council wrote to Ms X in November suggesting that J’s tutor should deliver the Occupational Therapy, and if he was in school someone would be able to provide access to CBT materials. Ms X disagreed and said a qualified professional should be delivering therapy to J, and does not like the insinuation that J must attend school to receive therapies to meet his needs.

Mediation

43. Ms X requested mediation on 14 October 2022. The Council instructed an organisation to facilitate this and was told on the 30 December that mediation would take place in January which was the first available date and time.
44. Ms X says she sought mediation to get the EHCP completed to her satisfaction. She instructed her solicitor to attend as she was worried she would not achieve a positive outcome if she attended alone. She says until the mediation the Council had not considered her concerns about the legal breaches, the EHCP was not lawfully written and all the therapies she had asked for had been rejected.
45. Since Ms X brought the complaint to the Ombudsman she has attended mediation with the Council. It was agreed at mediation to:
1. put J’s increased hours of tuition in the EHCP;
2. carry out a social care assessment of the family;
3. carry out a CAMHS assessment for J so Cognitive Behavioural (or other) therapy can be considered;
4. add various platforms and materials for J to access for his education; and
5. J underwent an assessment with an Occupational Therapist (OT) and further treatment is to be agreed and included in the EHCP.
46. Ms X has now received the final EHCP dated 16 May 2023.

Analysis

Delay - Education provision (complaint a)

47. J was without tuition for 34 days in total. J was “officially” removed from school on 7 January, and discussions around a tutor started nine days later.
48. In response to our enquiries the Council said organising tuition took a little longer as Ms X wanted a tutor with experience of ASD and ADHD. The Council also had to organise a suitable location as Ms X did not feel it would be appropriate for J to have tutoring at home.
49. During this time the Council say it:
1. supported Ms X to look for a school with space in Year 5,
2. gave her advice on her appeal to the school of her choice,
3. supported her to send an EHC referral,
4. organised an EP assessment, and
5. organised tuition with a suitable tutor in a suitable location.
50. I do not find fault with the Council as it took a reasonable time to find a specific tutor for J. Further it had started to organise this before Ms X instructed a solicitor.
51. The Council emailed Ms X on 19 January with a list of schools that had places in Year 5. It said “we can sometimes offer home tuition if children are out of school due to illness”. I do not find fault with this as it is true. The Council can only offer home tuition in certain circumstances.

Delay - EHCP (complaints b and c)

52. The school can only be agreed once the needs of J have been agreed in the EHCP. The Council have given Ms X contradictory advice at paragraphs 22 and 23 above.
53. In response to our enquiries, the Council said both the attempts to advise Ms X on possible placements “should have been more explicit in stating she was able to put a preference for a placement and not just stating that the council were seeking her views prior to completing section I” of the EHCP.
54. The Council have suggested it writes a formal apology to Ms X, “specifically the requirement for letters to be more explicit that parents are able to put a preference for a placement”. I agree this is a suitable remedy.
55. There is a shortage of EP’s which delayed J’s needs assessment. We accept the delays caused by the shortage of EP’s was beyond the Council’s control. But the Council’s failure to issue J’s EHCP within the statutory timescales is service failure and fault even though it was caused by external reasons. The Council did seek a private EP to complete the assessment.
56. The Council is at fault for failing to meet the statutory time scales in delivering the completed EHCP. Ms X had to keep chasing the Council for a response, causing her frustration and distress.

EHCP (complaints c and d)

57. The Council did not complete the EHCP in time, or accurately. Information that should have been in the EHCP was instead in the cover letter.
58. Ms X failed to get any or any satisfactory response to her communication with the Council so she felt she had to instruct a solicitor to get the EHCP completed.
59. Ms X brought a complaint to the Council who accepted the breach of the time scales and apologised for it.
60. The Council is also at fault for referencing provision in the covering email to Ms X and not in the EHCP itself.
61. I acknowledge why Ms X believes the Council should pay (or contribute) towards her legal costs. However, we only consider repayment of legal costs, or contributions towards such costs, in exceptional circumstances. At this stage, I found it was not necessary for Ms X to incur legal costs.

Complaint (complaints e, f and g)

62. The Council is not at fault for not including all the therapies Ms X requested in the EHCP. It can only go by the recommendations in the EP report. The Council has now agreed to get an assessment from an OT.
63. The Council is at fault for not adding the personal budget or tuition hours in the EHCP. This was rectified at mediation.
64. This caused inconvenience and frustration to Ms X who had to request mediation to get a complete EHCP. This delayed further the completion of the EHCP which meant J had to go even longer without the provision he was entitled to.

Line manager (complaint i)

65. The Council should have been transparent about the Line Managers details and given them to Ms X when she asked.
66. At the start of the process the Council did communicate well with Ms X, and Ms X often thanked her case worker for the thorough and kind responses. However communication seems to have broken down a little once the EHCP was delayed.
67. When communicating with Ms X the Council failed to follow the rules of good administrative practice by keeping her updated, which is fault.

Therapy provision (complaint h)

68. Although I haven’t seen the correspondence, often tutors will be given training by the OT to pass on to children who have an EHCP. This may take the form of appropriate exercises. It would be disproportionate to investigate this further but on the balance of probabilities I do not find fault with the Council for suggesting J’s tutor could deliver the therapy.

Mediation

69. Although the mediation meeting was set up by a facilitator organisation, in response to our enquiries the Council accept the delay in setting up the meeting. The Council recommend writing a formal apology to Ms X to acknowledge the delay and her time and trouble in continuing her complaint with the Ombudsman.
70. The Council have offered £500 as a remedy to Ms X, which we agree.

Back to top

Agreed action

71. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
1. for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
2. distress can include anxiety, uncertainty, lost opportunity and frustration.
72. I agree with the remedies the Council have put forward. Within one month of the Ombudsman’s final decision, the Council should:
1. write a personal apology to Ms X covering the faults identified above;
2. pay Ms X £500 to recognise her avoidable distress, frustration and uncertainty; and
3. ensure the provision is secured and provide additional provision / therapy to address any shortfalls due to the delay in finalising the EHCP.
73. We note the Council are making changes within the SEN team and reviewing its processes. We would also recommend within three months of the final decision the Council ensure the SEN staff:
1. are aware of the EHCP timescales;
2. improve monitoring of EHCP timescales with the aim of finalising the process within eight weeks of sending the proposed EHCP amendments to the parents/young people, and
3. are aware of the importance of thorough and timely communication with parents and young people, keeping them updated throughout the EHCP process.
74. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

75. I find fault with the Council for failing to complete the EHCP as agreed and within the statutory timescales, causing frustration and distress to Ms X. We agreed a symbolic payment and other remedies for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman