Summary: Ms X complained the Council delayed in producing an EHC Plan for her child. Ms X also complained the Council left her child without education since May 2021. We found fault with the Council for delays in producing her child’s Final EHC Plan and failing to provide suitable education for her child for four school terms. The Council agreed to apologise to Ms X and pay her £500 for the frustration and inconvenience caused by its delays. The Council also agreed to pay Ms X £6,600 for her child’s missed education.

The complaint

1. Ms X complained the Council delayed in producing an EHC Plan for her child.
2. Ms X also complained the Council left her child without education since May 2021.

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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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
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 a council’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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What I have and have not investigated

9. I have investigated Ms X’s complaints about the delays in production of the EHC Plan and lack of education for her child.
10. I have noted investigated Ms X’s complaints about the content of the EHC Plan. This is because Ms X has an appeal right to the SEND Tribunal about the content of the EHC Plan. Since the tribunal is the relevant body to consider a complaint about this matter, the Ombudsman cannot consider this part of the complaint.

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How I considered this complaint

11. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Both Ms X and the Council had opportunity to provide comment on my draft decision before I made my final decision.

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What I found

EHC Plans

13. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
14. The Council must respond to all requests for an EHCP. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.
15. Where there are exceptional circumstances it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
16. The Council can only issue an EHCP after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
17. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHCP meets the needs of the child.
18. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHCP. These are appealable to the Special Educational Needs and Disability Tribunal (SEND). SEND is a tribunal that considers special educational needs.
19. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.
20. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Alternative Provision of education for children

21. 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))
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
23. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
24. The education provided by a council must be full-time unless a 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)
25. 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)
26. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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 or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
27. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
28. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
29. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
30. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

31. Mrs X’s child, who I shall call Y, was enrolled at a mainstream primary school, which I shall call The School, in the Council area.
32. In November 2020, Y started to attend a specialist setting for children at risk of exclusion from their educational setting. The School also completed an EHC Needs assessment application form for Y. The Council did not receive this application for Y.
33. On 4 May 2021, Ms X contacted the Council about Y’s EHC Needs assessment application. The Council advised Ms X it had not received an application and directed her back to The School.
34. The School submitted an EHC Needs assessment application form to the Council on 6 May 2021. On 10 May 2021, the Council told The School it could not advance with the EHC Needs assessment because the application contained out-of-date information.
35. The School submitted a new EHC Needs assessment application form to the Council on 14 May 2021. This form confirmed that Y was about to be reintegrated from the specialist setting to The School from 17 May 2021.
36. On 4 June 2021, the Council told The School it could not advance with the EHC Needs assessment for Y because of missing information. The Council detailed what information it needed from The School.
37. Ms X contacted the Council on 8 June 2021 to express dissatisfaction with The School. Ms X said Y had begun reintegration to The School from the specialist setting. The Council provided Ms X with a copy of the EHC Needs assessment application form so she could submit her own views towards the EHC Assessment.
38. Ms X did not submit the EHC Needs assessment application form but did apply for other school placements for Y. Y was placed on waiting lists for these schools settings subject to a place becoming available.
39. On 2 November 2021, The School submitted an EHC Needs assessment application to the Council. This application did not contain up-to-date information about Y’s attendance at The School.
40. The Council acknowledged the application on 16 November 2021 and said it would assess the application within six weeks of receipt.
41. The Council confirmed it had accepted the application on 21 December 2021 and said it would continue with assessing Y for an EHC Plan. Part of this assessment involved use of an Educational Psychologist.
42. On 27 January 2022, an Educational Psychologist working for the Council spoke with the Council’s admissions and appeals team to advise Y had not been attending school. The Educational Psychologist reiterated these concerns on 23 February 2022. The Council’s response advised it would look to provide a specialist setting as part of the EHC Plan process.
43. On 29 April 2022, the Council sent its Draft EHC Plan to Ms X and other relevant bodies for comment. Ms X’s chosen school for Y responded to advise it could not meet Y’s needs.
44. Ms X contacted the Council on 4 June 2022 to advise Y had been out of school for about a year.
45. Y became of age to start attending secondary school in September 2022. Y did not attend a secondary school.
46. In September 2022, the Council responded to Ms X’s complaint to advise it would investigate why it had not completed Y’s EHC Plan yet.
47. Ms X chased the Council in January 2023 for an update on Y’s EHC Plan.
48. On 8 February 2022, Ms X raised a formal complaint with the Council. Ms X said:
• Y was not receiving an education as they had been out of school since May 2021.
• The Council issued a Draft EHC Plan in April 2022 but had not made this final.
• The School put untrue information in the EHC Plan which was defamatory about her child.
• She had complained to The School but does not get answers from them.
49. On 7 March 2023, the Council sent a second Draft EHC Plan to Ms X.
50. The Council provided its Stage 1 complaint response to Ms X on 8 March 2023. The Council said:
• It recognised Ms X’s concerns about some content of the Draft EHC Plan and would look to amend this.
• It had sent over an amended Draft EHC Plan to Ms X for comment. Once it received comments it could make this EHC Plan final.
51. Ms X sought consideration of her complaint at Stage 2 on the same date. Ms X reiterated her concerns about Y’s missed education and the time taken to complete the EHC Plan process.
52. On 11 May 2023, the Council provided its Stage 2 complaint response. The Council said:
• It upheld Ms X’s complaint about delays in production of the EHC Plan.
• It had now hired more staff to address the issues impacting the delays in producing EHC Plans.
• Given the delays and failure in its communication, it would pay Ms X £250 as a goodwill award.
• It was concerned about how much education Y had missed.
• The School was responsible for providing an education to Y while Y was enrolled at it and Ms X had a parental responsibility to ensure Y attended.
• It accepted fault for failing to support Y to attend secondary school from September 2022 and offered £3,150 to reflect the missed education from September 2022 to May 2023.
53. The Council produced Y’s final EHC Plan on 12 May 2023 detailed a transition to a specialist school setting in June 2023.
54. Ms X and the Council liaised further before Ms X declined the Council’s offer and brought her complaint to the attention of the Local Government and Social Care Ombudsman (the Ombudsman).

Analysis

55. We cannot consider the role of the School as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.

EHC Plan delays

56. The School completed an EHC Needs assessment form in December 2020. While The School completed this form the Council only received the form in May 2021. I cannot investigate the actions of The School or explain why it did not submit this form until May 2021. I cannot assign any fault to the Council for not acting before May 2021.
57. The School submitted two separate EHC Needs assessment applications in May 2021. The Council considered both applications and declined to advance to an assessment. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment. As such, I cannot find fault with the Council’s decision not to advance with an assessment at this time. Should Ms X have been unhappy with this decision she was entitled to appeal this to the tribunal.
58. When The School submitted the third EHC Needs assessment application on 2 November 2021, the Council accepted this application for consideration. The Council went on to accept the application for assessment of Y for an EHC Plan. While the Council agreed to assess Y for an EHC Plan, it failed to produce the Final EHC Plan until 12 May 2023.
59. The Council should have produced Y’s Final EHC Plan within 20 weeks of 2 November 2021, this would have been 25 March 2022. The Council delayed in producing the Final EHC Plan for a further 14 months. This delay was fault.
60. Within the Council’s complaint response to Ms X it has accepted this fault. To address this fault the Council committed to expanding and retraining its staff, recruiting for vacant positions, improving its processes around casework and decision making and committed to completing an internal review of its current EHC Plan assessment process. The Council has already taken suitable steps to put in place service improvements and I do not consider the Council needs to take further action to address this.
61. The Council first offered Ms X £250 to reflect the distress, uncertainty and confusion caused by its delays and lack of communication. On review, the Council has offered £500 to the Ms X in response to the Ombudsman’s contact. This £500 is in line with the Ombudsman’s guidance on remedies and I am satisfied this reflects the Council’s fault and injustice caused.

Y’s missed education

62. The Council has a duty to ensure a child is receiving suitable education.
63. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before the Council became responsible.
64. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence.
65. Y’s stopped attending school in May 2021. While Y stopped attending school in May 2021, the first evidence the Council was aware of Y’s absence was on 27 January 2022.
66. Before January 2022, the Council was aware that Y was attending a specialist educational setting with a reintegration plan in place for Y to return to The School in May 2021. The notes of Ms X’s contact with the Council in June 2021 support the reintegration plan was underway even if Ms X had reservations about The School.
67. Neither The School nor Ms X contacted the Council from September 2021 to 27 January 2022 to advise Y was not attending school. The EHC Needs assessment application submitted by The School also did not contain any new information about Y’s absence from school. It was only when the Council’s Educational Psychologist completed an assessment of Y the Council discovered Y had not been attending school and flagged this to the Council’s admissions and attendance team.
68. Since the Council was unaware of Y’s absence before 27 January 2022, I cannot find fault for it failing to provide education to Y before this point.
69. When the Educational Psychologist flagged Y’s absence to the admissions and attendance team on 27 January 2022, Y had already been absent from school for more than 15 days. The Council was responsible for providing Y’s education from 4 February 2022.
70. Y received no educational provision from 4 February 2022 until transition to their specialist setting in June 2023. This meant the Council was at fault for failing to provide education to Y for a combined total of four full terms.
71. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision, if any, put in place, a child’s individual needs and whether they are in a key academic year. This award is also mitigated by long term impact, such as an impact on GCSE examinations and prospects and whether a school place was available to a child.
72. Given Y’s particular circumstances, I consider a mid-range award of £1,650 per term is suitable for Y’s missed education. This is because Y received no education and experienced a transition from primary to secondary school during their absence. However, given that Y is some way off taking their GCSE examinations, there is opportunity for Y to catch up on the missed education minimising the long term impact. Additionally, while Ms X was dissatisfied with The School, there was a school place available for Y at The School. Nothing in Y’s EHC Plan suggests that Y was incapable of attending school meaning Y could have attended school, even if sporadically, to get some form of education.
73. In total, the Council should pay Ms X £6,600 to reflect Y’s missed education. Ms X may then use this to fund whatever educational provision she sees fit for Y to make up for the education they missed.

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Agreed action

74. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and £500 to Ms X for the inconvenience, frustration and distress caused through delays in completion of the EHC Plan review process, putting in place alternative provision and poor communication.
• Pay Ms X £6,600 to address the Council’s failure to provide any education for Y for four school terms. Ms X may use this as she sees fit for Y’s educational needs.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. There was fault by the Council and as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman