Summary: Mrs B complained about the Council’s actions in respect of her son C’s special educational needs. We found the Council failed to provide him with a full-time education between September 2021 and February 2022. The Council has agreed to pay Mrs B £500 for the benefit of C’s education and £250 to Mrs B.

The complaint

1. Mrs B complained that Kent County Council (the Council) in respect of her son, C:

• failed to provide him with alternative education from September 2021 until 7 February 2022;
• failed to deal with issues raised in Mrs B’s complaint including a delay in the Education, Health and Care needs assessment process and poor communication from officers; and
• failed to properly resolve a social care complaint, correct errors in the assessment done in July 2022 or provide a suitable package of social care support.

2. This has caused distress and inconvenience to Mrs B and C has missed out on education and support.

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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 also consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
8. 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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What I have and have not investigated

9. Mrs B also complained about non-provision of education from February to July 2022, the actions of the Council during the appeal process and the provision of occupational therapy sessions during the appeal. I am not investigating these points because they are not within the Ombudsman’s jurisdiction due to the appeal process.

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How I considered this complaint

10. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Education, Health and Care plans

12. 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.
13. 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.
14. Statutory guidance ‘sets out the process for carrying out EHC assessments and producing EHC plans. 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 educational provision

15. 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.
16. 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”.
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)

Focus report

18. 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 sight? published July 2022
19. 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 (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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties and properly fulfilled.

What happened

21. Mrs B’s son C has some health conditions which affect his ability to attend and engage at school without extra support and adjustments. In September 2021 he found returning to school, after the COVID restrictions lifted, hard and struggled to attend consistently. He was often late and increasingly started to miss some whole days.

EHC assessment and plan

22. Mrs B requested an EHC needs assessment on 13 September 2021. Included in the information she provided to support the request, she noted that C’s attendance was down to just over 60% compared to 91% for the previous year. She has asked the school if it could send work home, but it had refused saying this was no longer possible and not in C’s best interests. The school confirmed that C was not on a reduced timetable but struggled to attend and was often late. The school said it had taken advice from the local inclusion forum team and noted that C worked best in small groups with 1:1 support and short periods of focus.
23. On 21 October 2021 the Council agreed to carry out an assessment. By this point C’s attendance was down to 50%. By the end of November/beginning of December 2021, he had stopped attending completely.
24. On 23 November 2021 Mrs B asked the Council about putting some alternative educational provision in place. The Council replied the following day saying:

“Whilst we are going through the assessment process, there is not really much I can do in terms of educational placement for [C]. If he is unhappy in school, you do of course have the right to consider other settings and even elective home education if this is something you would want to consider. I can signpost you to the right department if you do. Ideally, we would like to complete the assessment to see what the outcome is in terms of identified need and any provision recommended to meet such needs.”

25. The Council issued a draft EHC plan on 17 January 2022 and consulted with C’s current school along with one other setting. Initially C’s school said it could not meet his needs but following further information from the Council it changed its view and agreed it could meet C’s needs with the extra support detailed in the EHC plan. But the school said C had not attended school since 24 November 2021 despite being offered:
• a referral to a specialist placement for children struggling to attend mainstream provision;
• an integration plan;
• a phased return;
• involvement from the early help social care team; and
• support from the education welfare officer.
26. On 8 February 2022 the Council issued a final EHC plan naming C’s current school. Mrs B appealed against the plan, including the placement. This appeal was resolved in July 2022 and the Council issued an amended EHC plan naming a specialist placement in August 2022
27. The Council said at C’s annual review in June 2022 he was still attending school sometimes.

Social care

28. In January 2022 Mrs B had requested social care support for C from the Council. The Council refused and Mrs B complained. Following the complaint response the Council agreed in May 2022 to carry out a child and family assessment. It visited the family, spoke to Mr and Mrs B, C and his siblings. The Council completed the assessment on 21July 2022. It concluded that C did not meet the threshold for support from the disabled children team and Mrs B could access appropriate support for him from universal services.
29. Mrs B disputed the assessment and made a formal complaint about the time taken to complete the assessment and the quality and accuracy of the assessment.
30. The Council responded in September 2022 agreeing that the assessment had been delayed due to staff availability. It apologised for this delay. It stood by the conclusion of the assessment that C did not qualify for specialist services and recommended other sources of support including the early help team. It agreed to reissue an amended version of the assessment correcting factual inaccuracies which it did at the end of September 2022
31. Mrs B complained further. On 25 January 2023 the Council offered a new assessment by a senior practitioner with no previous involvement in C’s case. The Council said while it could not change the content of the previous assessment, it had recorded Mrs B’s dissenting views. It said Mrs B had not accepted this offer and it did not consider a financial remedy was appropriate.
32. Mrs B complained to us. The Council said in its response to us that it was the school’s responsibility to put alternative education in place as he remained on the school roll until July 2022.

Analysis

Alternative educational provision

33. The Council had a statutory duty to provide a full-time education to C. It was aware in September 2021 that C was struggling to attend school and his attendance was only 60%. It was also aware that his attendance continued to decrease until he was not attending at all by the end of November 2021. However, there is no evidence the Council took any action to ensure some alternative provision was put in place so that he received a full-time education. Neither is there evidence that the Council concluded C was able to attend school in spite of his health conditions.
34. The Council said to Mrs B in November 2021 and to us in July 2023 that it was not responsible for providing alternative education as C remained on the school roll. This view is wrong: it is the Council’s responsibility to ensure C was receiving a full-time education. It may delegate this responsibility to the school to arrange but the statutory duty lies with the Council, and it is responsible for ensuring full-time provision is in place. It did not do so in this case, even though it was aware C was not receiving a full-time education from September 2021. This was fault which meant C missed out on education and caused Mrs B distress and time and trouble in pursing the Council and the school.

EHC needs assessment/plan and communication

35. The Council decided to carry out an assessment within the required six week period. It issued the final EHC plan in just over 21 weeks, a small delay of a week which I do not consider caused Mrs B a significant injustice.
36. The Council has provided evidence it responded to Mrs B’s emails within a reasonable period, and I have not concluded there was fault in the way it communicated with her.

Social care

37. The Council accepted it delayed in carrying out the children and families assessment and apologised. I consider that is sufficient action to remedy the fault. I understand Mrs B considers the assessment is inaccurate and believes that C should receive a package of social care support.
38. The Council reached a decision after carrying out the assessment that C’s needs were not severe enough to meet the threshold for services from the disabled children team. The Council visited and spoke to all the family members as part of the assessment, considered C’s medical history and his difficulties accessing education. It explained that in its view C could access support from universal services and offered further support from the early help team. I have not identified fault in the way the decision was made.
39. The Council has acknowledged there were factual inaccuracies in the first assessment. It has corrected these and reissued the assessment. It has also kept a record of Mrs B’s dissenting views on the content of the assessment and offered Mrs B a further assessment from a senior practitioner not previously involved with C. I consider these steps were a reasonable response to Mrs B’s complaint.

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Agreed action

40. In recognition of the injustice to C and Mrs B from the failure to ensure C received a full-time education from September 2021 until 8 February 2022, I recommended within one month of the date of my final decision, that the Council:
• pays Mrs B for the benefit of C’s education £500 and
• pays Mrs B £250 for her distress and inconvenience.
41. In respect of service improvements, I note we have made recommendations since June 2022 in three complaints regarding improvements to the Council’s understanding and implementation of its section 19 duty to provide a full-time education even where a child is on a school roll. I note the most recent recommendation in June 2023 was as follows:

“At a senior level, the Council will undertake a review of the complaint. The review will focus on why the complainant's reasons for her son not attending were explored further to understand whether its section 19 duty applied. The purpose of the review is for the Council to identify and implement any measures which can prevent an injustice to other service users in the future.”

42. I hope this agreed action to be completed within three months, will prevent the problem recurring in future and improve the Council’s understanding of its statutory duty. I see no benefit in making any further recommendations at this stage.
43. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

44. I consider this is a proportionate way of putting right the injustice caused to Mrs B and Mr C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman