Summary: There was delay in completing an EHC needs assessment and a failure to ensure Ms X’s child was able to access suitable fulltime education on the same basis as their non-disabled peers. This caused distress and loss of education. There was also a failure to consider social care needs. The Council will apologise, make a symbolic payment and service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council:
• Refused an application for an Education, Health and Care (EHC) Needs Assessment requiring her to appeal to Tribunal;
• Delayed in completing an EHC Needs Assessment ordered by Tribunal;
• Failed to provide suitable fulltime education to her child;
• Turned down a request for a personal budget for private tuition once the EHC plan was issued;
• Failed to respond to emails or keep her informed.
2. Ms X says because of the alleged fault:
• Her child has missed out on education;
• Her child has been on an extended part-time timetable;
• Her employment and income has been affected as well as that of other family members;
• She has incurred private education expenses;
• The family has been put under enormous strain and there has been a very negative impact on the mental health of family members.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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.
9. 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

10. I have investigated the above complaint issues except the Council’s decision not to carry out an assessment in June 2022. Ms X had a right of appeal against this decision which she has used. As Ms X has used an alternative legal remedy the Ombudsman cannot investigate the same matter. (Local Government Act 1974, section 26(6)(a))
11. I have investigated the period up to the issue of a final EHC plan in July 2023.

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How I considered this complaint

12. I have considered information provided by Ms X and the Council including:
• Complaint documents
• Attendance records
• Appeal documents
• Special educational needs document including parent’s representations for the EHC needs assessment, request for direct payments and educational psychology report.

13. I have considered relevant law and guidance:
• The Education Act 1996
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs (Personal Budgets) Regulations 2014
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• Statutory guidance:
1. Children Missing Education
2. Alternative Education
3. School Attendance / Working Together to Improve School Attendance
4. Education for children with health needs who cannot attend school
5. Summary of responsibilities where a mental health issue is affecting attendance
• I have considered:
1. Ombudsman’s Focus Report: Out of School, Out of Sight.
2. Ombudsman’s Guidance on Remedies.

14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
15. 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 law and guidance

EHC plans

16. 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.

17. A parent can request the Council carry out an EHC Needs Assessment to consider if an EHC plan is needed. There is a right of appeal to the SEND Tribunal against a decision not to assess and against the content of a final Plan.

18. 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).

19. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs. Where a child/young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan. Social care advice is a mandatory part of the EHC Needs Assessment (SEND Regulation 6(1)(e)).
20. Where a Tribunal orders a Council to complete an EHC Needs Assessment:
• The Council must write to the family within two weeks of the order to notify it is making the assessment;
• Where following assessment the Council decides an EHC plan is required it must send the final plan to the family within fourteen weeks of the Tribunal order.

Social care

21. Section 17 of Children Act 1989 requires local authorities to safeguard and promote the welfare of child who are in need in their area. Disabled children automatically meet the definition of a child in need, but it also includes any child who is unlikely to achieve a reasonable standard of health or development without support from the local authority. A ‘child in need’ assessment carried out by Childrens’ Social Care will identify the needs of the child to ensure they and their families are given appropriate support.
22. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a Parent Carer Needs Assessment is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.

Equality duties

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
25. The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

26. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Children out of school

27. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
28. 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))
29. Statutory guidance ‘Alternative Provision’ 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”.
30. 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)
31. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.  Statutory guidance and our focus report, “Out of school…out of sight?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

32. Updated statutory guidance ‘Working together to improve attendance’ says ‘a part-time timetable should not be used to manage a pupil’s behaviour’.

33. In ‘Summary of responsibilities where a mental health issue is affecting attendance’ and ‘Working together to improve school attendance’, the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils “must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education”.

Key facts

34. Ms X’s child was put on a part-time timetable in Spring 2022 because of what the school later described to the Tribunal as ‘extreme’ behaviours and high support needs. Ms X’s child had two fixed term exclusions in late Spring and was then only permitted to attend one hour per day.
35. Ms X applied for an EHC Needs Assessment. The Council refused this in Summer 2022. Ms X successfully appealed this decision to the SEND Tribunal. The Tribunal ordered the Council to carry out the assessment in Autumn 2022.
36. The Council was provided with evidence by external professionals and the school detailing Ms X’s child’s special educational and support needs as part of the request for an EHC Needs Assessment and subsequent appeal. It failed to obtain social care advice. The Council told me its EHC plan team requested this in Autumn 2022, but social care failed to respond.
37. Following the EHC Needs Assessment the Council decided to issue an EHC plan. A final plan was issued five months late in Summer 2023. The Council said this delay was because of a shortage of educational psychologists (EP’s).
38. Ms X had to chase the Council and often did not receive replies. Ms X told us in April 2023 there had been no progress since the Tribunal order.
39. I asked the Council when it was first aware of the part-time timetable and in its reply to me it said the school uploaded the part-time timetable to the Council’s portal in September 2022.
40. Ms X told me:
• many of her emails were ignored and she was not kept informed of the reasons for delay in the EHC Needs Assessment;
• her child remained on a timetable of half days in late Summer 2023, by then they had been on a part-time timetable for sixteen months;
• their attendance in 2022/23 was below 53%;
• she had taken three months off work in Spring 2022 due to her child being at home instead of school, losing pay and other benefits;
• subsequently she worked from home around her child’s education, making up work during her free time, sometimes working fifteen hour days to avoid losing her job;
• her husband lost overtime;
• a relative dropped one day per week from their employment to help out;
• in addition to loss of academic instruction her child has missed out on social opportunities;
• from early Summer 2023 she paid £40 a week for an hour’s private tuition;
• the Council refused a request for a personal budget for ‘catch-up’ tuition made at draft plan stage.
41. Ms X complained to the Council directly and also asked her Member of Parliament (MP) to write to the Council on her behalf.
42. The Council told the MP in Summer 2023:
• It acknowledged Ms X’s child had been ‘homeschooled’ due to struggling to attend school.
• It had no legal obligation to provide alternative education without a medical professional saying the child was unfit to attend. Ms X’s child was on roll at a school and therefore the school remained responsible for Ms X’s child’s education.
• The EHC plan had taken longer than expected due to delay by the EP.
43. The Council has stated it has increased officer and EP capacity which should avoid the delays and poor communication Ms X experienced.

Analysis - Fault

Delay in EHC Needs Assessment

44. For reasons given above I cannot investigate the period of alleged delay in the Council agreeing to assess. Ms X successfully appealed the refusal decision to Tribunal and the Ombudsman has no jurisdiction to consider this matter.
45. There was a five month delay in issuing a final plan following the Tribunal order. This is fault and delayed the support being provided to the child and school.

Part-time timetable

46. The Council’s response to my enquiries refer to it being notified of the part-time timetable by the school in September 2022. I find the Council was aware much earlier than this. Ms X applied for an EHC Needs Assessment in Spring 2022. The Council had information about the fixed term exclusions and reduced timetable from Ms X, the school and other professionals at the time it refused the EHC Needs Assessment request in Summer 2022.
47. Part-time timetables are only appropriate in very exceptional circumstances, for example where a pupil’s health requires it. They cannot be used because the school does not have sufficient resources or to manage a child’s behaviour.
48. 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.” (s.19 Education Act 1996)
49. Ms X’s child fell within the ‘otherwise’ category. They were not ill or excluded.
50. I find the Council failed to “make arrangements” for Ms X’s child to receive suitable fulltime education. I consider it had enough information to have secured fulltime provision no later than early Summer 2022. Failure to do so was fault.
51. I find the Council gave incorrect advice to the MP that it had no responsibility to provide s.19 education because Ms X’s child was on roll at a school. The statutory guidance is clear this fact does not absolve the Council of its duty under s.19. It may expect a school to make alternative provision, but if a school fails to do so the Council must intervene. This was fault and shows a lack of understanding of the Council’s legal duties. It is also incorrect to say medical evidence is always required before a Council can provide alternative education. The statutory guidance is clear there may be cases where medical evidence is not available, and the Council still needs to decide whether to provide alternative education.
52. The issue of medical evidence was irrelevant to this case. Ms X's child was not absent because of illness but because the school could not meet their needs without additional resource and was not allowing the child to attend full-time.

Poor communication

53. There is evidence of poor communication and long periods when Ms X was not kept informed about reasons for delay. This was fault.

Personal budget

54. A parent request for a personal budget / education direct payment can be made at draft EHC plan stage or at annual review (SEND Personal Budget Regulation 4). If a council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

55. Documents available to me show Ms X did request a budget at draft plan stage, essentially for ongoing home tuition as catch-up provision. This was refused in Summer 2023 because EHC Plan funding was for within school and not for out of school sessions. I have not seen evidence Ms X was offered a right to request a review. This is fault.
56. However, the final EHC Plan shared with me does not include any provision for education out of school. Education direct payments can only be made for provision in an EHC Plan. If Ms X considered her child needed additional provision over and above that provided for in the EHC Plan, or that some of the provision needed to take place outside of a school, then Ms X had a right of appeal about the contents of the final EHC Plan which we would have expected her to use.

Equality Act

57. The Council’s equality duties were engaged. I find the Council failed to consider its duty to eliminate discrimination when Ms X’s child was unable to access education because of their disability. There is no evidence of communication between the Council and school about the reasons for absence or the part-time timetable, even though there was no evidence of any illness preventing attendance.

Social care

58. The Council failed to obtain social care advice as part of the EHC Needs Assessment. This was fault. It also failed to offer Ms X a Parent Carer Needs Assessment on the appearance of need. Ms X was entitled to have her wish to work considered.

Analysis - Injustice

59. There is some dispute about how much education Ms X’s child missed. Evidence from Ms X, the EP and the EHC Plan show that in Summer 2022 Ms X’s child was able to attend only one hour per day. Ms X’s child changed school in September 2022 and initially attended two hours per day (evidence from EP report). This was the gradually built up to 4.5 hours by the time of the EP’s visit in late Spring 2023. However, most of this time remained away from the classroom working with a teaching assistant.
60. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
61. I cannot say what the outcome of any social care assessment would have been or if services would have been provided to parent carers or Ms X’s child, but the failure to have their needs considered and the uncertainty whether services were missed out on is itself an injustice.
62. Ms X was put to additional time and trouble chasing the Council due to the delayed EHC Needs Assessment and the poor level of communication around this.

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Agreed action

Within four weeks of my final decision:

63. The Council will apologise to Ms X for the fault identified.
64. The Council will make a symbolic payment of £4300 to Ms X on behalf of her child for their distress and lost education between Summer 2022 and Summer 2023.
65. The Council will pay Ms X £1000 to acknowledge the impact on her, the distress and inconvenience, the impact on her work, and the loss of opportunity to have her needs as a working parent carer considered.

Within two months of my final decision:

66. The Council will ensure it has robust processes in place to ensure social care advice is always obtained as part of an EHC Needs Assessment and parent carer assessments are offered on ‘the appearance of need’, for example when a child is out of school for a prolonged period.
67. The Council will review its training and guidance for officers to ensure there is a good understanding of the law regarding s.19 education, including what to do when medical evidence is not relevant or not available, or when a child is on roll but receiving less than fulltime education.
68. The Council will provide us with evidence it has complied with the above actions.

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Final decision

69. I have completed my investigation. There was delay in completing an EHC needs assessment and a failure to ensure Ms X’s child was able to access suitable fulltime education on the same basis as their non-disabled peers. This caused distress and loss of education. There was also a failure to consider social care needs. I am satisfied the agreed actions set out above represent a suitable remedy. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman