Summary: Miss X complains the Council did not properly assess her child during the EHCP process and failed to ensure the provision in the EHCP was delivered. The Ombudsman finds fault with the Council for failing to suitably consider its duty to alternative provision for Child Y. The Council has agreed to pay a financial remedy for the lost education.

The complaint

1. Miss X complains the Council:

• failed to deal properly with an assessment of her daughter special educational needs and delayed in issuing a final Education, Health and Care Plan; and
• failed to provide education for her daughter meantime while she was out of school because of anxiety.

2. As a result she says she has suffered distress and anxiety, and her daughter missed out on education and support for over two years

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What I have and have not investigated

3. Miss X also complains about the Council’s decision to impose contact restrictions on her since 2018. She says the Council has no reasonable justification for doing so.
4. I will not investigate this part of her complaint as the original events took place too long ago. The Council has already offered to review the arrangements, and it is unlikely we could achieve more for her through an investigation.
5. Part of Miss X’s complaint is about the Councils actions in assessing Child Y for an EHCP and the initial decision not to assess. I will not be exercising discretion to consider these parts of the complaint as Miss X has already exercised her right to appeal to tribunal. I will include them below in reference to the chronology of events only.

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The Ombudsman’s role and powers

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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How I considered this complaint

7. I considered Miss X’s complaint and information she provided. I also considered information by the Council.
8. I considered comments from Miss X and the Council on two drafts of my decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

EHCP

10. A child with special educational needs may have an Education, Health and Care (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.

Responsibility for making arrangements

11. 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.

Appeal rights

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.

Alternative provision

13. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
14. 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))
15. 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”.
16. 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))
17. The education provided by the council 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. (Education Act 1996, section 3A and 3AA)

What happened

18. The Council received an application for an EHCP for Child Y in July 2020. The Council told Miss X in October 2020 that it would not assess Child Y for an EHCP.
19. In January 2021, Miss X appealed the decision not to assess Child Y.
20. At the same time, the Council also received concerns from School that Child Y had not been attending school since March 2020. The School said this was in part due to COVID-19 lockdowns, which she had not returned from.
21. The Council overturned its decision not to assess before the appeal, and agreed to assess Child Y for an EHCP.
22. The Council issued Child Y’s EHCP in June 2021. In the EHCP, the Council named the mainstream school that Child Y was already registered at. The provisions in the EHCP set out that Child Y needed;

• 1 to 1 mentoring in school
• Daily meet and greets
• Weekly sessions at school following the OT programme
• Daily opportunities for peer interaction
• Weekly small group social skills interventions
• 1 to 1 emotional literally interventions.

23. When the EHCP was issued in June 2021, Child Y had not been in school since March 2020. Miss X says this is because Child Y had additional needs that needed specialist placement and provision.
24. Miss X did not appeal the June 2021 EHCP. After the Council issued the EHCP, it sent consultations to specialist placements Miss X had expressed parental choice. This included a specialist provision I shall refer to as Placement Z.
25. Placement Z wrote to the Council to say it would assess Child Y to see if it could meet their needs, but it did not have availability to assess them until September 2021.
26. The specialist placement did not assess Child Y until November 2021. It then made an offer to the Council of a place for Child Y.
27. The Council considered the offer at panel in January 2022. The panel denied the approval of the placement and recommended the named mainstream school carry out an annual review. The Council wrote to the specialist placement declining the offer.
28. The Council held the annual review in February 2022. The Council agreed to seek alternative placement for Child Y from Placement Z again, and in the interim it offered online learning or home tuition. This was declined by Miss X, who said she wanted Child Y to attend Placement Z. The Council asked the mainstream school to send access to online learning in the meantime.
29. The Council also contacted Placement Z and asked for Child Y to start a trial placement.
30. The Council say in March 2022, Miss X told them she would be home educating Child Y.
31. The case was reviewed at panel again in April 2022, where a trial was agreed at Placement Z.
32. The Council issued the amended EHCP in May 2022. The amended EHCP named Placement Z as the placement for Child Y.
33. Miss X complained to the Council, She said it the Council delayed assessing Child Y for an EHCP, and did not fully take on board her needs when issuing the EHCP.
34. The Councils response to Miss X’s complaint recognised there had been delays in issuing the EHCP and considering information from Miss X. It said that both the mainstream and specialist placement had been named, which caused confusion. It said going forward it would only name one. It accepted there had been confusion about the provision for Child Y and offered £250 for the delay in the EHCP and £200 for the confusion of placement.

Analysis

June 2021 EHCP

35. Part of Miss X’s complaint is that the provision in the EHCP issued in June 2021 did not consider all of Child Y’s needs. She said if the Council had included all the information, it would have named a specialist school.
36. The Ombudsman does not exercise discretion to consider issues that have the right to appeal to tribunal. If Miss X remained unhappy with the content of the EHCP and the naming of the school, she had the right to appeal to tribunal.
37. The Ombudsman can consider whether the EHCP provision was available and whether the Council complied with its duties following issuing the EHCP. The Ombudsman can also consider whether the Council has had due regard for its duties to alternative provision where the child remains out of school.
38. The Council named the mainstream school in the EHCP to not delay Miss X’s appeal rights to tribunal. This is common practice by Councils and not something we would find fault with. The Ombudsman encourages Councils not to delay appeal rights to tribunal. As previously discussed, Miss X had the right to appeal to tribunal if she was unhappy with the naming of the school.

Alternative provision

39. The Council became aware that Child Y stopped attending school in January 2021, when the School told the Council Child Y had stopped attending in March 2020.
40. The Council has said that at the Annual Review in February 2022, it offered Miss X the opportunity to have home tuition for Child Y in the interim that it was consulting with schools. By this point, Child Y had been out of school for two years, and the Council had known this for a year.
41. Prior to February 2022, the Council has not been able to demonstrate that it considered it duty to alternative provision.
42. I asked the Council to clarify how it arrived at the decision that home tuition would have been able to deliver the provision in the EHCP. In response to my previous draft decision, the Council said that not all the provision would have been necessary via home tuition. It said some provision was directly to cope with school environments, however home tuition would have been able to achieve the rest of the provision. However, as Miss X declined the tuition the Council did not develop the support further.
43. The Council maintains that it offered alternatives and provision was available to for Child Y from February 2022 whilst it consulted with the school of Miss X’s choice.
44. I accept that the Council made continued attempts to set up the placement at Placement Z and took the matter back to panel several times. It arranged trials at Placement Z, however, it only considered its duty to alternative provision from February 2022.
45. In response to my previous draft decision, the Council has said it felt it should not compensate for the lack of provision as Child Y did not attend school. It says that when it offered alternatives they were refused.
46. I accept the Council gave options for alternative provision from February 2022. However, there was fault by the Council in not considering its alternative provision duty from the time it became aware Child Y was out of school in January 2021. This was at the same time the Council agreed to assess for an EHCP, and the information received from the school would have given the Council reason to believe Child Y was not accessing full time education.
47. The Councils records indicate that Miss X did not accept the offer of alternative provision in February 2022 because the Council had already consulted with her choice of school and was close to securing the placement. This was not the case in January 2021 when the Council had begun the assessment for the EHCP and it was not clear what options Child Y would have access to. It would therefore not be reasonable to say Miss X would have refused the offer if it had been made in January 2021, and I remain of the view the Council should remedy for failing to consider its duty sooner.
48. Additionally, if the Council had considered its duty sooner, and offered home tuition back when it became aware Child Y was not attending school, and Miss X had refused it, we would expect the Council to have been able to evidence how it considered whether to address the nonattendance to school with Miss X.
49. There was fault by the Council in failing to consider its duty to alternative provision between January 2021 and February 2022. This caused Child Y significant injustice. However, the injustice to Child Y was from March 2021 as schools and alternative provisions were closed between January 2021 and March 2021 due to COVID-19. This caused Child Y significant injustice. This equates to almost three terms of lost education.

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Agreed action

50. Within 4 weeks the Council has agreed to

• Write to Miss X and apologise for failing to consider whether it had a duty to alternative provision for Child Y.
• Pay Child Y £5750. This is calculated at £2000 per term for almost three terms Child Y was without provision.

51. Within 12 weeks the Council has agreed to

• Review how it considers and records whether it has an alternative provision duty where it has been notified that children are out of school long term.

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Final decision

52. I have completed my investigation. I find fault with the Council for failing to consider its duty to alternative provision.

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Investigator's decision on behalf of the Ombudsman