Leicestershire County Council (23 004 123)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: Mrs X complained the Council caused delays in its Education, Health and Care Needs Assessment, failed to agree a necessary EOTAS provision budget and failed to provide provision under section 19. I have found fault with the Council’s actions. There were significant delays in the assessment, a failure to review provision while C was out of school and fault in how it decided the EOTAS budget. The Council will apologise, act to remedy the loss of education and delayed appeal rights and review its policy to prevent the reoccurrence of fault.

The complaint

  1. Mrs X complained the Council:
    • Delayed her daughter, C’s, Education, Health and Care needs assessment. This includes not quickly arranging a speech and language assessment, not arranging an occupational therapist assessment and delaying considering and agreeing Education Otherwise Than At School (EOTAS) provision.
    • Failed to agree to fund activities suggested by Mrs X for EOTAS provision.
    • Failed to provide provision to C when she could not attend school.
    • Delayed investigating Mrs X’s complaint.
  2. Mrs X says the Council’s delay has left C without the educational support and the provision she needed. She says staying at an unsuitable school caused C health issues. Further she notes she paid for assessments to ensure they were undertaken as required by the tribunal.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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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How I considered this complaint

  1. I have considered:
    • The information provided by Mrs X and discussed the complaint with her;
    • The Council’s comments on the complaint and the supporting information it provided; and
    • Relevant law and guidance.
  2. Mrs X and the organisation 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

Law and guidance

  1. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
  1. 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 the following: 
  • Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
  • If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
  • 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. 
  • If the council goes on to issue an EHC Plan, 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);  
  1. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
  2. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan.
  3. 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 (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
  4. 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. 
  5. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, 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.
  6. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
  7. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Key events

  1. C has autism, anxiety, and obsessive-compulsive disorder. She began struggling with school in 2020. In September 2021 C began secondary school.

Education, Health and Care Needs Assessment

  1. Mrs X asked for an Education Health and Care Needs Assessment in August 2021. The Council declined her request. Mrs X lodged a tribunal appeal against the decision in late October 2021. The tribunal decided in early February 2022 that an assessment should be carried out.
  2. In late February 2022 the Council asked for SALT and OT advice from the NHS. It responded in early April explaining that assessments had not been carried out. The Council agreed to get SALT and OT assessments in mid-May. In mid-June it sought a SALT assessment.
  3. Mrs X says she chased the Council for an update on five occasions from late April until early June. She also raised a complaint about the delay in early May. She decided to get a SALT and OT assessment privately for C in June 2022 after not receiving a response. She supplied this to the Council in mid-August.
  4. In early October 2022 Mrs X contacted the Council with her response to the draft EHC plan. She explained that she had made some additions and would like these additions to be sent as part of the consultation process. She also asked for the Council to consider EOTAS provision if a suitable school could not be identified. The Council declined to make the changes Mrs X sought. The Council used the draft version of the EHC plan to make consultations.
  5. In early November the Council explained to Mrs X that it would need to consult with mainstream schools and then specialist settings before agreeing to hold a meeting to discuss EOTAS.
  6. In late November 2022 the Council decided to consult with four specialist settings. The Council also decided to consider an EOTAS package for C. It sent out consultations in early December.
  7. In mid-December the Council explained it would need to arrange an EOTAS meeting to consider this option further. When Mrs X chased in early January 2023 the Council explained that it had the consultation responses and no suitable schools had been identified. It noted it still needed to arrange a date for the EOTAS meeting and sort out the necessary paperwork. Mrs X chased again in mid-January and it told her the paperwork was still outstanding, and it had not set a date.
  8. In late January the Council held an EOTAS meeting. It agreed to provide EOTAS for C subject to the review of costs. It issued the final EHC plan in early March 2023.

School attendance

  1. C began struggling shortly after starting secondary school and the school put in place a part time timetable for C in mid-October 2021. This meant that she would be in school for 18 hours a week only. The school removed difficult lessons that involve noise from her timetable. It told the Council at the same time.
  2. The school reviewed the part-time timetable in late November as C continued to struggle to cope. It decided to further reduce the hours C was in school for to four hours a week. Again, it told the Council of this change.
  3. The Council began reviewing C’s provision in December 2021. It noted that she was only receiving English. The Council asked further information from Mrs X and school about her ability to cope in school.
  4. In early January the Council spoke with Mrs X, C and the school about C’s attendance. The meeting ended early because of the distress it was causing for C. Following the meeting the Council felt that her health conditions meant that she could not cope with further provision. It therefore proposed placing C on a flexi-time table. The Council told the school and Mrs X of its plan to close C’s case with the inclusion team on this basis.
  5. C stopped attending school altogether in late January 2022.
  6. In late December 2022 the Council made an internal request to the inclusion team to arrange tuition because C was no longer flexi-schooling. When the Council contacted Mrs X in late January about this, she explained that C hadn’t coped due to her health. The Council offered home tuition or an online schooling. Mrs X explained that C struggled with any kind of face-to-face work. She told the Council she was paying for a Maths and English program that C was engaging with. The Council took no further action.

EOTAS budget

  1. The Council held an EOTAS meeting in late January 2023. Following the meeting it declined to include horse riding and the farm school in the EOTAS provision. The Council’s decision notes on the horse-riding request just record the word ‘no’. For the farm school, it noted this would be agreed up to the end of summer term for two hours a week.
  2. The Council provided its decision to Mrs X by phone in early February 2024. No note of the conversation was recorded.
  3. Mrs X raised concerns about the Council’s decision not to approve horse riding or the farm school. She explained they were C’s only activities out of her home. The Council reviewed its decision in mid-February. It explained there was a need for C to have access to animals and activities that supported C feeling regulated outside of the home. However, achieving these goals was not specifically linked to horse riding by the experts and therefore it would not approve this as part of the EOTAS budget.
  4. In late February the Council decided it would include the farm school provision in the budget as it met the needs professionals had identified for C. Mrs X emailed the Council to explain there were currently no spaces available. She asked if an alternative out of home activity could be considered. The Council suggested arranging a place temporarily at an alternative farm school.
  5. The Council agreed the costing of the EOTAS provision in mid-March and issued a final EHC plan for C.

The complaint

  1. Mrs X raised her complaint to the Council in early May about the delay, the Council responded in early June 2022. She raised a further complaint in March 2023. She complained the Council had delayed the EHCNA process - including not arranging SALT and OT reports, failed to provide support while C was out of school and about the EOTAS budget.
  2. The Council responded to this complaint in early August. It upheld her complaints about a delay in the EHCNA process and its delay in commissioning SALT and OT assessments and the poor communication with her. It did not uphold her complaints about the lack of support or about the EOTAS budget. It concluded the letter offering to pay her £400 for the delay and to reimburse the cost of the OT report. It advised her to contact the Ombudsman if she remained unhappy.
  3. Mrs X returned to the Council to raise concerns with its response. She also explained that she was unhappy with the time it had taken the Council to respond, and who had provided the response. She asked the Council to escalate the complaint to Stage 2 of its complaint’s procedure.
  4. The Council explained that it would be only providing one response to her complaint due to the delay already involved and because she had already contacted the ombudsman. It accepted the head of service had drafted the response when they were part of the complaint. However, it explained someone with a senior position in the Council had reviewed the response and approved it.

Findings

Education, Health and Care Needs Assessment

  1. Following the Tribunal’s decision in early February 2022 the Council had 14 weeks to issue a final plan. The plan should have been issued by late May to meet this deadline. The Council did not issue the final plan until March 2023. This is nine months after the deadline and represents a significant delay. This is fault.
  2. There were significant delays in the Council seeking advice from professionals. Reports were not requested until mid-June 2022 which was four months after the tribunal decision. The Council issued a draft decision in late September 2022, but it did not send out all its consultations until early December 2022. These actions have contributed to the overall delay and frustration Mrs X has experienced in trying to get her daughter the support she needed.
  3. I note the delay has further been exacerbated by the limited communication between the Council and Mrs X to explain the steps being taken and the reasons for the delay.
  4. The delay has resulted in C being without the support the EHC plan determined was necessary to help her engage in schooling. It has also delayed any appeal rights for Mrs X. This is an injustice.

School attendance

  1. C was placed on a part-time timetable in mid-October and the Council was told. At this point the Council should have considered its duties under section 19, as it had been informed the absence was authorised. The Council carried out its review in December 2021.
  2. There is a delay in the Council carrying out a review following notice that its section 19 duty had arisen. This is fault. Following the review, the Council concluded it would not be in C’s best interest to provide full time education. Therefore, this has not impacted C as the conclusion means she has not missed out on receiving education during this time.
  3. Following the Council’s review, it suggested flexi-schooling – a combination of time in school and elective home education. I have not seen any evidence of discussions with Mrs X to explain what the proposal meant in terms of elective home education and the support she would receive. Nor, if it was intended as section 19 provision, have I seen the Council carrying out any reviews of the part time schooling until December 2022. This is not in line with the guidance for the continuous review of part-time provision. This is fault.
  4. When the Council reviewed its duties in late January 2023 it found that C had been unable to cope, and that Mrs X had arranged C to do an English and Maths program. The lack of recorded discussions mean I cannot be satisfied that Mrs X agreed to bear the costs of provision instead of choosing any alternative provision choices available in January 2022.
  5. As a result of the Council’s actions Mrs X has had to take steps to ensure that C receives the education she is entitled to and capable of undertaking. This has caused her unnecessary stress and inconvenience.

EOTAS budget

  1. Mrs X has questioned the Council’s decision when it approved C’s EOTAS funding because it did not agree any activities which would encourage C to leave the house and socialise.
  2. The EOTAS budget should represent the amount of money needed to secure the provision outlined in the EHC plan. The Council’s email to Mrs X shows it accepted C’s objectives meant she has the need for socialisation and working with animals. We therefore expect the Council to have considered whether the activities sought met these needs when deciding whether to approve the budget.
  3. I cannot see either in its notes or its explanation to Mrs X how it considered why horse-riding therapy did not meet these needs or how another activity was meeting these needs. Due to the lack of evidence, I am not satisfied the Council has correctly assessed how the activity requested did not meet the objectives outlined in the EHC plan for C and this is fault.
  4. The Council did approve two hours per week at the farm school when it reviewed the EOTAS request. It noted this would help C with the aims set out in her EHC plan for cognition and learning and communication and interaction. The Council did consider C’s needs and whether the activity would meet these when it reviewed the decision and therefore there is no fault in the decision making.
  5. I appreciate Mrs X’s frustration that this wasn’t agreed initially, and I understand that this would have contributed slightly to the overall delay Mrs X and C experienced. It is also unfortunate the farm school did not have space for C. However, that does not mean the Council did not properly consider the request to include farm schooling in the EOTAS budget.

Complaints correspondence

  1. The Council has acknowledged that it delayed responding to Mrs X’s complaint. I appreciate this would have added to her frustration given the complaint included concerns about delays and poor communication.
  2. I appreciate that Mrs X would have liked to have been able to escalate her complaint with the Council to stage two. I am satisfied that the Council addressed her new concerns about not escalating the complaint and who responded to the complaint. I consider the explanation given to be reasonable and Mrs X has not received an injustice by the Council only providing one complaint response.

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Agreed action

  1. Within one month of the final decision the Council will:
    • Apologise to Mrs X for the frustration and distress caused by the delay in the assessment and its poor communication. As well as its failure to provide section 19 support, its failures in its decision-making process and delay in responding to the complaints.
    • Pay Mrs X £250 for the distress caused and the delay of her appeal rights.
    • Pay Mrs X for the cost of the OT report on receipt of evidence of the amount paid.
    • Pay Mrs X, for the benefit of C, £2,700 for the loss of educational provision.
  2. Within two months of the final decision the Council will:
    • Review its systems and practices relating to how it deals with personal budget requests. The Council should refer to the Ombudsman’s focus report ‘Parent power: learning from complaints about personal budgets’
  3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. I have found fault leading to a personal injustice. The Council will take action to address the personal injustice caused and to prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman

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