Summary: Miss X complained about the Council’s handling of her son’s Education, Health and Care Plan assessment. We have found fault by the Council in failing to issue S’s plan within the statutory timescale and the failure in delivering alternative provision to him from September 2022 to December 2022. This fault has caused injustice. The Council agreed to remedy the injustice this caused by actioning our recommendations listed at the end of this decision.

The complaint

1. Miss X complains the Council failed to:
• request full occupational health (OT) and speech and language therapy (SALT) input to inform her son, S’s, 2022 Education, Health and Care (EHC) plan needs assessment;
• conclude the EHC plan assessment it agreed to in January 2022 within the statutory 20 weeks;
• provide S with alternative provision when he stopped attending school between September 2022 and July 2023 as well as provide him with the free school meals he was entitled to;
• secure the provision set out in section F of his EHC plan;
• consider and process her request for a personal budget in a timely manner; and
• address all her concerns and complete a satisfactory corporate complaint investigation.
2. Miss X said that as a result S missed out on education for almost six months, and she experienced avoidable distress. During this time S had no contact with his peers and missed out on the provision of free school meals. Miss X says she hired a specialist Special Educational Needs (SEN) consultant to help her speed the process along.
3. Furthermore, she says that because of the Council’s failure to request the OT and SALT input she had to commission these services privately which cost her almost £5,000 and left her struggling financially. The delay in considering her personal budget request made the financial pressure she was under worse.
4. Miss X would like the Council to apologise, reimburse the cost of the private OT and SALT assessments, remedy S for the education and specialist provision he lost and make changes to its procedure so no other family experiences what she has.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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.
10. 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.
11. 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

12. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
13. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care plans

14. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
15. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
16. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman considers that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
17. The Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement;
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay; and
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

19. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
20. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
21. We issued a focus report in July 2022, “Out of school, out of sight”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made seven recommendations including that councils:

• consider the individual circumstances of each case and be aware that the Council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) - and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare and take 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 education;
• 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; and
• where councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

22. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
23. 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.

Free school meals

24. Children are entitled to Free School Meals if they are in a government funded school and in reception class, year one, or year two. For children meeting these criteria, the Council is responsible for delivering the free school meals, and this normally happens within schools. (Section 512, Education Act 1996)
25. When the school has an Academy status its proprietor (usually the Academy Trust) is responsible for implementing a solution equivalent to the school’s free lunches obligations detailed in the paragraph above.
26. Some children can get free school meals from year 3 onwards. This happens if the child or the parent are receiving qualifying benefits. The Council is responsible for the delivery of the free school meals to those children if they are attending full-time education at a publicly maintained school.

Personal budget

27. The Special Educational Needs Code of Practice (code of practice) says a personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision.
28. Details of the proposed personal budget should be included in section J of the draft EHC plan. Local authorities must also provide written notice of the conditions for receipt of any direct payment for special educational provision and can do this alongside the draft EHC plan. The child's parent or the young person should confirm their decision and agreement of the budget. Where appropriate, this must include their agreement, in writing, of the conditions for receipt of the direct payment.

Council’s complaints procedure

29. The Council’s complaint procedure has two stages. The Council says it will respond to both stages in 20 working days. It also says that if it needs more time to respond it will let the complainant know.

What happened

30. This section sets out the key events in this case and is not intended to be a detailed chronology.
31. In late January 2022 the Council agreed to assess S’s needs to check if he needed an EHC plan. At the time S was attending a primary school with academy status and was in year five.
32. In late July 2022 the Council issued S’s draft EHC plan. Miss X told the Council S would not be able to attend his school in September 2022 because a medical professional told her the school could not meet his medical needs and keep him safe. Miss X provided a letter from a medical professional confirming this.
33. The Council told us that it was not responsible for ensuring S received education or provision from section F of his EHC plan until it had issued a final EHC plan, which was not in place at that time.
34. In August 2022 Miss X’s advocate asked the Council for additional time to comment on S’s draft EHC plan as they asked the educational psychologist (EP) for clarification of their advice.
35. In early September 2022 S’s school that he was on roll there and confirmed it could continue to meet his needs. This however changed when the Council consulted with the school again, with S’s second draft EHC plan. In early October 2022 the school told the Council it could no longer meet S’s needs.
36. In October 2022 Miss X told the Council what her preferred school for S was, and it was not the school that he was on roll with at the time.
37. In late November Miss X’s representative chased the Council to ask when it would issue S’s final EHC plan and told the Council that S was not accessing full time education.
38. The Council issued S’s final EHC plan in early December 2022. On the same day the Council told Miss X’s representative that it named S’s current school in his EHC plan and the school was now responsible for providing S’s education or any alternative provision.
39. Shortly after, the Council wrote to S’s current school and said that it was Miss X’s school of preference and the Council had to name it in the EHC plan. Furthermore, the Council told the school that it had to make reasonable adjustments for S, and it considered that the school could do it with the additional funding from the Council. Miss X disagreed with the school the Council named in the final EHC plan, and she appealed it to the SEND Tribunal.
40. In early March 2023 Miss X complained to the Council and said that S was unable to attend school because of his health and medical needs. Because of this he was missing an education, contact with peers and his entitlement to free school meals. She said that despite her asking the Council for alternative provision between September 2022 and January 2023, it did not provide it.
41. In May 2023 Miss X asked the Council to consider her complaint further. The Council sent its final complaint response in mid-July 2023 and said that:
• S was on roll with his school during this time, and the school had the funding to provide alternative provision to him;
• it was not responsible for providing the Special Education Needs provision from section F of S’s plan until December 2022 when it issued his final EHC plan;
• it was sorry for the delay in the assessment process, but this was because of the conversations about what the EHC plan should include;
• the Council did request a SALT input from the team Miss X gave it contact to. If she had concerns about the information, she would have to speak to the service directly about this;
• the Council did request OT input in late January 2022 and got the information in mid-February 2023. This was further supplemented by the private OT assessment Miss X sent in March 2023;
• the Council considered the EP assessment had enough information to allow it to write S’s EHC plan;
• Miss X appealed the contents of S’s EHC plan to SEND Tribunal and it would now consider her concerns;
• the Council sent her the new personal budget agreement in February 2023, and it was waiting for Miss X’s approval; and
• it did not offer financial remedies for missed free school meals if a child did not attend school. In cases where an eligible child was not attending school and receiving remote education the Council expected the school to continue supporting those pupils.
42. Miss X was unhappy with the Council’s response and in July she asked us to consider her complaint.

Analysis

EHC plan assessment

43. The Council should have issued S’s final EHC plan within 20 weeks of Miss X’s request to assess his needs in early December 2021, so by late April 2022. The Council did not issue it until early December 2022, a delay of approximately seven months. This failure to meet the statutory timescale is fault.
44. This caused Miss X and S uncertainty and distress about whether the plan would be in place for the start of the new academic year in September 2022, as it should have been. It was not issued until after the new term had started causing them a further worry.
45. We acknowledge that part of the delay was caused by the national shortage of Educational Psychologists and was not a result of the Council’s inaction.
46. The delay also meant S’s additional SEN provision was not in place for the start of the new term. This is fault.
47. This caused Miss X and S further distress and uncertainty about whether the school he was on roll with would be able to meet his needs and delayed the support he needed.
48. The delay has also frustrated Miss X’s right of appeal to the SEND Tribunal.
49. Additionally, the delay in the EHC plan assessment caused the delay in the Council agreeing and implementing a personal budget for S. This is fault. S’s final EHC plan incorrectly says that Miss X did not request a personal budget, this is also fault.
50. It caused Miss X distress and uncertainty about when she would receive money from the Council for the provision it agreed that S needed. It also caused her financial worry and she had to cover the costs in the meantime.
51. In early 2023 the Council sent Miss X a personal budget contract to sign but said that Miss X did not return the signed document. We cannot say the Council was at fault for not processing the payments of the personal budget when it required Miss X’s written consent to do that.
52. Miss X also complained that the Council did not request information from an OT or SALT. The Council confirmed that it requested information from both the OT and SALT and used this information to write S’s EHC plan. Because of this we do not consider the Council was at fault.
53. Evidence shows Miss X gave the Council a list of professionals involved in S’s care and in February 2022 the Council confirmed that it had consulted with all but one of the professionals on the list.
54. We understand that Miss X paid for private consultations, but we have not seen evidence to suggest this was because the Council did not request the information in preparation for the EHC plan, but rather because Miss X felt the information the Council had was incomplete.

SEN provision

55. The Council told Miss X that it was not responsible for securing the provision from S’s EHC plan until it issued the final plan in early December 2022. This is correct.
56. Sometimes we can consider if, as a result of the Council’s actions, children miss the SEN provision from their EHC plan. However, as Miss X appealed the contents of S’s EHC plan to the SEND Tribunal the law says we cannot do this in her case.

Alternative provision

57. The Council told Miss X and us that it was not responsible for S’s education before it issued his final EHC plan. It said that S’s school was responsible for implementing education and any alternative provision for S. This is not correct.
58. Although S was on roll with a school, once the Council was aware that he may be missing full-time education, for whatever reason, it should have checked if it needed to step in and secure alternative provision.
59. Miss X told the Council that S would not attend the school he was on roll with because it could not meet his needs. The Council did not step in at this point because S’s school said that it could meet his needs. However, this changed when in early October 2022, following the consultation from the Council his school said it could no longer meet his needs. We consider at this point the Council should have checked if it needed to take action to fulfil its duties to make sure S received a full-time education, but it did not. This is fault.
60. In December the Council directed the school to make reasonable adjustments for S and it acknowledged that to do this the school may need to hire staff. It shows the Council knew the school may not be able to meet S’s needs until it had made the reasonable adjustments, and this would take time. In the meantime, S could not access education. We found the Council failed to take action to provide alternative provision for S while the school was putting reasonable adjustments in place so that S could attend and access education. This is fault.
61. Additionally, we note the Council told S’s school it named it in S’s final EHC plan because it was Miss X’s preferred school for him. This is not true. Miss X told the Council in October what her preference was, and it was not S’s current school.
62. We consider the Council was responsible for providing S with alternative provision from September 2022 until December 2022 when Miss X appealed to the SEND Tribunal.
63. This is because Miss X told it that S could not attend the school he was on roll with based on advice from a medical professional. The Council failed to take this into account and wrongly told Miss X it was not responsible for S’s alternative provision until it issued his final EHC plan, which is not correct.
64. This caused Miss X and S avoidable distress and uncertainty about when he would be able to get education.
65. The law says that we cannot investigate what happened after Miss X appealed to the SEND Tribunal. The matters Miss X has appealed about are closely related to S’s special education needs. Because of this we cannot investigate the Council’s role in securing S’s alternative provision after December 2022.

Complaint handling

66. Miss X said the Council did not follow its own complaints procedure.
67. We found the Council issued its stage one response on time, but it was late by six days to send its stage two response to Miss X’s complaint. This is fault.
68. This has caused Miss X frustration and meant that she chased the Council for an answer, however we do not consider the delay in the Council’s caused Miss X significant injustice.

Free school meals

69. There are times when the Council is responsible for ensuring a child receives a free school meal. This is when a child attends a school maintained by the Council or is in reception class, year one, or year two.
70. In this case the Council did not have to provide free school meals to S as he was not:
• attending a Council maintained school; or
• in reception class, year one, or year two.
71. We do not consider the Council was at fault when it did not make alternative arrangements to ensure S would get free school meals because it was not responsible for ensuring that S received free school meals. This was the responsibility of the Trust that his school belonged to.
72. We are unsure if S was entitled to free school meals based on the additional criteria from paragraph 26, however as he was attending a school with the academy status the responsibility for delivery of any such meal would have fallen to the Trust that owns the school and not the Council.

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Agreed action

73. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council will:
• apologise to Miss X for its failure to issue S’s final EHC Plan on time and provide alternative provision from October 2022. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• pay Miss X £600 to recognise the distress caused by the delay in issuing the plan, the failure to deliver alternative provision, and her time and trouble bringing her complaint to us. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
• pay Miss X £750 to recognise the lack of alternative provision between September 2022 and December 2022 when S could not attend school because based on medical advice.
74. Within three months, at a senior level, the Council should:
• review its policies and procedures to ensure it is able to identify when EHC plan assessment cases have failed to meet the statutory twenty-week target and confirm what action it will take following identified delays, including any escalation timeframes and procedures. If the Council has already completed such a review in the last 12 months, it will share its action plan;
• undertake a detailed review of its working practices and policies so that it retains oversight and responsibility for its duties to children unable to attend school;
• provide training to all staff involved in EHC plan arrangements relating to the Code, specifically:
1. when a EHC plan should be finalised and issued; and
2. about the Council’s alternative provision duties under section 19.

If the Council has already implemented training in the last 12 months, it will share an overview of what training was delivered to whom and when.

• provide a report to a relevant overview and scrutiny committee about the timeliness of EHC plan assessment progress with the Council’s action plan, and what further steps need to be taken to ensure assessments are completed, final EHC plans issued within statutory timescales and alternative provision put in place when required by law. If the Council has already completed such a report in the last 12 months, it will share a copy of said report with us.
4. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. Subject to further comments by Miss X and the Council, I intend to complete my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions I have recommended above are an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman