Summary: Ms X complained the Council mismanaged her daughter’s education and SEN provision. There was delay in issuing a final plan, but this was not unreasonable in the circumstances. The Council should have done more to ensure Y received an education when it was aware she was not attending school during the autumn term. This is fault.

The complaint

1. Ms X complains the Council mismanaged her daughter’s (Y) education and SEN provision. Ms X says the Council caused unnecessary delays and failed to communicate properly. Ms X says the Council assigned an unsuitable placement to Y, resulting in her being out of education for a year. This has caused Ms X and Y frustration, anxiety and missed opportunities.

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The Ombudsman’s role and powers

2. 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.
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
5. 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

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Education Act 1996, The Children, Schools and Families Act 2010, The Children and Families Act 2014, the Special Education Needs Regulations 2014, Special education needs and disability code of practice, Statutory guidance Alternative Provision, Mental health issues affecting a pupil’s attendance: government guidance for schools and Out of school out of sight (Ombudsman focus report).

7. Ms X and the Council 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

Relevant legislation

Education, Health and Care assessments and planning

8. 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. The EHCP 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.
9. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) assessments and producing EHCPs. 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 EHCPs “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 EHCP 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 EHCP.

11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
13. Those consulted have a maximum of six weeks to provide the advice.
14. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

Education when children are out of school

15. 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.
16. 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)
17. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.

What happened

18. I have summarised below the key events; this is not intended to be a detailed account.
19. Y lives with her mother, Ms X, and her brother. She visits her father at weekends.
20. In conversation with me, Ms X said she knew something was “not quite right” with Y from an early age. This became more obvious as Y moved to secondary school. When Ms X brought this complaint, Y was in year eight.
21. At the end of December 2021, Y’s head of year left the school. Y found this difficult as they had formed a bond.
22. Y’s attendance at school from September 2021 to June 2022 was 79.3%. Attendance was good at the start of the year. Y had a few late starts and days off in February and March. Following the Easter holidays there was a significant drop in her attendance.
23. Ms X describes Y having a “melt down” around February and March and says Y’s “anxiety was through the roof”. She describes Y crawling around the floor with abdominal pain. On one occasion it was that bad, Ms X took Y to hospital.
24. On 16 March 2022, Ms X wrote to the Council and asked it to assess Y. Ms X considered Y needed support via an EHCP.
25. On 5 April, Y’s case went to the Council’s Panel. The Panel’s decision was to refuse to assess Y for an EHCP. They considered the local offer (information about education, health and social care provision available to children and young people in the local area who have SEND) with reasonable adjustments could meet her needs. The Council wrote to Ms X the following day setting out its decision.
26. On 29 April, Ms X attended mediation. At this point, Y was attending school three hours a day. The Council said this did not trigger the provision of alternative education as Y attended school as much as her mental health allowed.
27. After the Easter holidays, Y’s attendance declined significantly. The school Special Education Needs and Disabilities Coordinator (SENDCO) said Y was only attending for small amount of hours in the support room whilst Ms X was present.
28. Ms X provided extra information during mediation. She said Y was on the neurodevelopmental pathway for assessment for ADHD and autism. The decision of the mediation meeting was to overturn the original Panel decision.
29. On 13 May, the Council contacted several departments within the NHS and explained it was carrying out an EHC needs assessment. The email requested the services provide statutory advice if it was involved with Y. The Council received advice from CAMHS on 23 June and an Educational Psychologist on 27 June. The Council also received advice from Y’s school on 24 June.
30. The Educational Psychologist completed as assessment on 27 June. The report says at this time, Y was attending school for an hour a day. The Psychologist report outlined a small steps plan to get Y back into school.
31. The Panel met again on 12 July (11 weeks after mediation) and decided not to issue an EHCP. The Panel considered Y’s needs could be met with the local offer. The Council had provided a Needs Assessment Document for the school to use as a guide together with advice from the EP. The Panel believed the small steps plan and support could be provided by the mainstream school from its delegated funding. The Panel decided Y did not meet the threshold for an EHCP.
32. The Council told Ms X of the decision over the telephone the following day and in writing on 20 July. During the telephone call, Ms X said she would not take X back to the mainstream school and would ‘fight’ to get her into an alternative school. Y had attended some classes at an alternative school which had places and Ms X said it was perfect for Y. At this point, the Council became aware Y was not attending her original mainstream school at all. The school attendance records show Y attended school for the odd session over five days in May and June and did not attend at all in July.
33. The Healios multidisciplinary neurodevelopmental team met on 19 July to discuss Y’s case. The professionals agreed a diagnosis of autism. Y had not been assessed for ADHD at this point. A letter was sent to Ms X explaining the decision on the same day.
34. On 21 July, the Council and Ms X attended a mediation meeting. Ms X said Y had received a diagnosis of autism. She also said Y had attended a few classes at an alternative preferred school she had found which currently had places available. The meeting discussed proposals from Y’s current mainstream school, it offered a referral to an Alternative Provision (AP) class within a Pupil Referral Unit (PRU) which provides emotional support to students within small classes. The current school also offered several other interventions, such as personalised learning service for students with emotionally based nonattendance.
35. The attendees at the mediation meeting agreed several actions. The Council asked Ms Y to send the letter confirming Y’s autism diagnosis and any further evidence. Ms X sent the letter the same day. The Council rewrote the needs assessment including the autism diagnosis.
36. Towards the end of August, the Council spoke to Ms X on the phone. A senior manager had considered the evidence including the Healios letter and said they did not identify extra needs. The Council considered Y’s needs could be met through the local offer.
37. The case went to Panel on 6 September. The Council had updated the needs assessment document with the autism diagnosis. Ms X refused to send Y back to her mainstream school. The school said it could not meet Y’s needs but did not provide any evidence or information. The Panel suggested Y attend the AP at the PRU which could engage with Y and identify extra needs. The Council told Ms X of the decision on the telephone, Ms X refused to send Y to the AP. The Panel maintained its decision not to issue a plan.
38. On 15 September, Healios provided a full report which provided diagnoses of autism and ADHD and provided extra information about how the conditions impacted on Y. The Council updated the needs assessment to reflect this.
39. The case went to Panel on 11 October. The members agreed an EHCP with 15 hours support. There was no educational placement named on the plan. The panel suggested the AP could support Y back into mainstream school. The original school Ms X wanted Y to attend was no longer available.
40. On the same day, Ms X complained to the Council. She complained about the disappointing service she had received for both Y and her other child, Z (her complaint to the Ombudsman focused on Y). Regarding Y, she referred to the Council’s refusal to assess, delay and refusal to issue an EHCP. She also expressed concerns about the Council maintaining Y’s existing school can meet her needs when it has said it cannot and suggesting Y goes to a PRU.
41. On 17 October, the Council asked Ms X for parental preference schools to consult. The Council sent the consultation letters to the schools Ms X requested on 19 October. This included the original preferred school Ms X had found, and Y had attended classes. The Council did not receive any positive responses. It sent extra consult letters to other schools on 3, 17, 18, 21, 28, 29 November and 6 December. The schools consulted this time were a mix of mainstream school, mainstream schools with Additionally Resourced Provisions (ARP) and SEN provisions as well as schools which specialise in teaching pupils with SEN requirements.
42. The Council issued the draft plan on 19 October.
43. On the 15 November, Ms X sought a personal budget to pay for personal tuition and support for Y. The Council offered Ms X £9,000, the equivalent of 15 hours funding included in the EHCP for extra support for Y. Ms X refused. In correspondence with me, Ms X said the figure was not high enough for the amount of education missed and asked for this to be reviewed.
44. On 1 December, the Educational Psychologist visited Ms X and Y at home. On 19 December, the EP provided a further report to be read with the earlier report. It states Y attendance at school during spring and summer term was poor, declining to one hour a day attending with Ms X. It refers to Y’s diagnosis of autism and ADHD and explores the situations and environments she is more and less able to cope with. The summary of findings states the ‘outcomes and provision within the Psychological Advice remain appropriate.’
45. The AP offered Y a place on 19 December. This was the first establishment that offered a space since the EHCP was drafted. On 20 December, Panel asked Ms X and Y to visit the school, it considered the AP was a suitable provision within the area. At the same meeting, the Panel discussed Ms X’s second preferred school (the first was no longer available). It said it ‘feels that it is not the right provision regardless of costs’ and referred to travel being lengthy and the challenging behaviour of other students.
46. Ms X and Y visited the AP the following day but did not like it.
47. The Council issued a final plan on 21 December. The final plan named the AP within the PRU as the education placement for Y.
48. In January 2023, the Attendance Team visited Ms X and Y but did not take enforcement action.
49. On 3 January 2023, Ms X presented appeal documents against section I. She asked that her preferred school was named in the EHCP.
50. The Council issued a stage one response on 1 November and a final complaint response on 5 January 2023. It said it had reviewed the case and it was clear the Council was working with Ms X and Y to ensure Y is placed in a school correct for her needs. It confirmed the PRU was named in the EHCP, if Ms X did not agree, this was something she would need to appeal to the SEND tribunal and not something which could be changed through the complaints process. It said it did not identify any fault.
51. Ms X’s preferred school was agreed with a start date on 13 January. The Amended Final EHCP dated 17 January named the school. Y started at the new school on 17 January.
52. In conversation with me, Ms X said Y is ‘really happy in her new school’ and is ‘top of the class’. She said she has the outcome she wanted for her daughter but after much delay which could have been avoided.

Analysis

53. As already stated, the Ombudsman cannot investigate the Council’s refusal to assess an individual or the refusal to issue or amend an EHCP. Neither can it criticise a Council for naming a PRU in the EHCP. Instead, there is a right of appeal to the tribunal. This therefore falls outside our investigation.
54. In the early stages, the Panel believed a mainstream school could meet Y’s needs and considered it reasonable for her to follow the small steps programme. I cannot question a decision made by the Panel. The Council put a plan in place for Y to support her back into mainstream education which it considered appropriate based on the evidence available at the time and the advice of professionals.
55. Ms X said Y did not receive any level of education when she attended school. She would sit in the corner of the support room with her mum and say she wanted to go home. Ms X said there was not always staff available to support Y. I understand Ms X’s frustration about the level of education Y was receiving at this time. The Council had put a plan in place and it was for the school to provide this. Failure to do so is a school management issue and outside of the Ombudsman’s jurisdiction.
56. The Ombudsman can consider the process and procedure to ensure Council decisions have been made according to legislation and guidance.

Requesting and acting upon professional advice

57. As part of the EHCP process, the Council must gather information from relevant professionals.
58. The Council requested and received advice from several professionals, including the school, CAMHS and an Educational Psychologist.
59. The Council received the first reports within the six weeks’ timescale. It is clear the Council considered the advice it received which informed the assessment and planning. This is what I would expect. The Council are not at fault.
60. The Council did not receive the diagnoses of autism and ADHD until later, 19 July and 15 September respectively. Once the Council received them, it considered the advice and incorporated it into the planning. After the Council received Y’s autism diagnosis in July, it rewrote the needs assessment document. It considered it could meet Y’s needs through the local offer.
61. When the Council received the full Healios report dated 15 September, which provided diagnoses of autism and ADHD and extra information about how these conditions impacted on Y, it updated the needs assessment again. This time, when the case was presented at Panel in October, it agreed an EHCP.
62. The diagnoses and information provided by Healios was pivotal in the Panel deciding Y needed an EHCP. The Council reacted to new evidence as it was received, which led to it making different decisions. This does not mean the original decision was wrong. The Council can only make informed decisions based on the information it had. As set out in the ‘what happened’ section above, the Council were continuously reviewing its decisions when new information was available. The Council should only make evidence-based decisions. I cannot therefore find the Council at fault. It was only when the full report from Healios was available it had enough evidence an EHCP was required.
63. It is unfortunate the Council did not have Healios' report sooner. However, I have not seen evidence of delay or lack of oversight on the Council's part.

Involvement of Ms X and Y in the process and communication

64. The Educational Psychologist sought Ms X and Ys views as part of their assessment and documented these within the report. Their views informed the needs assessment document and the EHCP.
65. The Council provided a chronology of correspondence with Ms X which documents several telephone calls, emails, and letters. The Council said there were other calls and emails which are not on the chronology. There was open communication between Ms X and the Council. I do not find the Council at fault.
66. From the evidence I have seen, the Council sought the views of Ms X and Y and provided many opportunities for them to express these. Y may not have provided much input directly, but her mother has advocated on her behalf. The Council has reflected this within the assessment reports. The Council are not at fault.
67. The Council does not have to provide exactly what parents and children request but should explain why it considers a suggested provision meets the assessed needs of the child. The Council explained the reasons behind its decisions within the needs assessment document, decision letter, and later the complaint responses. The Council did not provide the service Ms X wanted for Y when she asked for it initially, this does not mean the Council are at fault. Its decisions were reasoned, and evidence based.
68. Ms X and Y are happy with the final EHCP. It must follow that the Council communicated and worked with the family to find a suitable solution.

Timeliness and delay

69. The EHC process is directed by legislation which sets out timeframes.
70. The Council must make an initial decision within six weeks from the date of request for an assessment. Ms X asked for an assessment on 16 March and the Panel made its initial decision to refuse the EHCP on 5 April. This is within the six weeks’ timescale, the Council acted properly.
71. Mediation is to take place within 30 days of request. The first mediation session on 27 April 2022 took place within the timeframe. The Council is not at fault.
72. The Council must assess needs and develop an EHCP in a timely manner. The period from initial request for an assessment to issuing the final EHCP should be no longer than 20 weeks. Ms X asked for an assessment on 16 March 2022. If the Council complied with the 20-week timeframe, it would have issued the final EHCP by 3 August 2022. It did not. Instead, it issued the final plan on 21 December (20 weeks late) and an updated version on 17 January 2023 (an extra four weeks late). This is delay, this is fault.
73. In response to my enquiries, the Council accepts completing the EHCP was outside the timescales. It refers to the diagnoses and information received in the Healios report. It said it was in effect a ‘further overturned decision based on extra information which was not available within the timescale to update the assessment’. As discussed above, any ‘delay’ at this stage is not directly the Council’s fault. It could not decide an EHCP was required or draft an EHCP until it had the full report from Healios in September. Once it had the information, it used it to update the plan. I do not find the Council at fault for issuing the draft EHCP in October, once it had received the Healios report.
74. There was delay finalising the EHCP. From the first draft in October to the amended final EHCP in January is three months. In response to my enquiries, the Council accepts there was delay during this period and states it was working with professionals and the family to find a setting Y was happy with. The Council only received the updated Education Psychologist report on 1 December which helped inform the EHCP. It can also be seen from the ‘what happened’ section above the Council was consulting with schools and liaising with Ms X. It was being proactive to find appropriate solutions. The Ombudsman usually expects straight forward provision to be in place within no more than four weeks and complex provision to be available within no more than half a term. This case is a more complex matter, and the provision was provided within a half term. Whilst there was delay, this was due to finding a suitable school placement. I do not consider the delay was unreasonable in the circumstances.
75. Ms X considers the Council was wasting time consulting with schools which were not appropriate for Y. The Council consulted first with the schools Ms X nominated, this is what I would expect. It is unfortunate the school Y had visited and which had a place earlier in the year was no longer available once the EHCP had been drafted. The Council then consulted with several other schools, which were a mix of mainstream schools, mainstream schools with ARP and SEN provision as well as schools which were specialists in SEN provision. Whilst Ms X said it was inappropriate for Y to attend a mainstream school, I do not consider the Council was wasting time consulting, as they were simultaneously consulting with schools with specialist provision.

Working with the small steps plan and section 19 arrangements

76. In April, the Council was aware Y was attending school for three hours per day. It said this did not trigger section 19 arrangements as Y attended school as much as her mental health allowed. The Council acted appropriately.
77. By June, Y was attending school for around one hour per day, on the days she attended. The small steps plan was in place to gradually bring Y back into fulltime education. Panel considered the support could be provided by the school from delegated funding. The Council had a plan for Y which it considered suitable and therefore did not consider section 19 arrangements necessary. The Council acted appropriately in setting a plan for Y.
78. Ms X told the Council at the end of July that Y was not attending school or following the small steps plan outlined in the needs assessment document. The Council considered it put measures in place to address the reasonable concerns of both Ms X and Y. Professionals had informed the plans which Panel approved. There was a school place available for Y and it offered several interventions to assist her. It was reasonable for the Council to expect her to access this. If the plan worked, this would have been the solution. If the plan did not work, this would have been evidence the Council needed to provide alternative provision. The Council are not at fault for expecting Ms X and Y to try and work with the plan.
79. In conversation with me, Ms X said the school was not able to provide suitable education for Y. There were not always staff available to support and teach Y when she attended school, and she was not receiving a full curriculum. This is an internal management of school issue and outside the Ombudsman jurisdiction.
80. Once it become apparent Y’s attendance was decreasing significantly after Easter and then not attending school, the Council should have done more to address this. In response to my enquiries, it said it could have referred the family to the attendance and placement team who may have taken enforcement action. Instead, the Council worked with Ms X and Y to consider alternative solutions to support Y back into education. The Council should have done more when it became apparent these plans were not working.
81. An agreed final plan was not in place until half way through January which meant Y missed the autumn term of school and a delayed start in the new year. During this time, the Council was not proactive enough to find solutions or alternatives to make sure Y stayed in education. It should have done more. This is fault.

Summary of findings

82. The Council asked professionals for advice and incorporated this into its plans. It also sought the views of Ms X and Y and included these within its planning. This is what I would expect.
83. The Council was flexible with its planning and updated the reports as it received new information, especially information from Healios. It made decisions based on evidence and kept this under review. As the evidence changed, so did its decisions. This does not mean the original decisions were wrong, rather that they were based on the evidence available at the time.
84. The Council made an initial decision and progressed to mediation within the timeframe. It delayed issuing a final EHCP and did not complete this within the 20-week timeframe. This is fault. The Council accepts there was delay and explained this was due to receiving reports late and waiting for responses to enquiries from schools. I do not consider this unreasonable in the circumstances.
85. During this time, there was a school place open to Y with a support plan, drafted with the advice of professionals. It was reasonable for the Council to expect Y and Ms X to follow this. When the Council knew Y was not following the plan, it should have done more to follow this up. Its failure to do so is fault.
86. The Council has now issued a final EHCP which Ms X and Y are happy with. Y is happy in her new school and is ‘top of the class’.

Injustice

87. Ms X complained Y missed a full year of education and the Council was responsible for unsuitable provision and delays. As discussed above, I have not found this to be the case.
88. Y missed out on education towards the end of the summer term when the Council knew she was not attending school. She missed the full autumn term and had a delayed start in the new year. This is her injustice.
89. The Council issued a Final EHCP and named a school Ms X and Y are happy with. Any further injustice has been limited.

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Agreed action

90. Within four weeks of my final decision, the Council will pay Ms X, for the benefit of Y, £650, in recognition of Y’s missed education.
91. The Council should provide us with evidence it has complied with the above actions.

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Final decision

92. I have now completed my investigation. There was delay by the Council in issuing a final EHCP, but this was not unreasonable in the circumstances. The Council was at fault for not doing more to ensure Y received education provision when it was aware she was not attending school during the autumn term.

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Investigator's decision on behalf of the Ombudsman