The Investigation

The complaint

1. Miss X complained about the length of time taken to complete an Education Health and Care (EHC) needs assessment and issue an EHC Plan for her daughter.

2. Miss X also complained the Council has refused to provide an Education Other Than At School (EOTAS) package for her daughter and is wrongly trying to force her into a school setting. She says her daughter has been unable to access education in a school setting for several years and has not received a suitable education.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended).

6. The law also 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)

7. 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 report.

8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

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

Education, Health and Care Plans

10. A child with special educational needs may have an 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 or Council can do this.

11. 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); and

• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Alternative provision

12. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013).

14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

15. 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? Ensuring children out of school get a good education’, updated in August 2023). 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 in coming to decisions;

• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;

• 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.

Elective Home Education

16. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include using tutors or parental support groups. Elective home education (EHE) is distinct from education provided by a council otherwise than at school. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

17. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.

18. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is unlikely to satisfy the test. Where parents do not provide sufficient evidence, councils can serve a school attendance order, naming a school which the child should attend.

19. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with special educational needs who are EHE. The Code of Practice states that councils should fund the special educational needs of home-educated children where it is appropriate to do so.

What we have and have not investigated

20. We have exercised discretion to consider events since March 2022 when the Council received a further request for an EHC needs assessment. However, we do not consider it appropriate to investigate events prior to March 2022. It was open to Miss X to complain at an earlier stage.

21. We have not considered events after September 2023 when the Council issued the final EHC Plan and Miss X had the right to appeal to the SEND Tribunal.

How we considered this complaint

22. We produced this report after examining relevant documents.

23. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

24. Miss X’s daughter, Y has moved school several times and had periods out of school. Y moved up to a mainstream secondary school, School 1, in September 2021 but Miss X says Y could not cope with the transition and she removed her from school. Y was unable to manage the school environment or rules. Miss X was also concerned about the potential risk Y posed to others. She says she did not choose to home school Y but felt this was the only option.

25. In November 2021 Y received a diagnosis of Autism Spectrum Disorder (ASD). She also had a Speech and Language Therapy (SALT) assessment which highlighted communication and interaction difficulties.

26. In March 2022 Miss X agreed to request an EHC needs assessment for Y. The Council had rejected an earlier request for a needs assessment in 2021 on the basis Y was due to start the new school placement in September 2021. An officer from the EHE team made the new application. As part of this application they said that EHE was not meeting Y’s needs.

27. Although the Council did not consider EHE was meeting Y’s needs, there is no evidence it suggested she return to School 1. Miss X says the special educational needs coordinator (SENCO) for School 1 has said from the outset that the school was not the right setting for Y. Nor is there any evidence the Council identified other suitable school placements available to Y.

28. The Council agreed to carry out an EHC needs assessment in May 2022. To comply with the statutory timeframe the Council should have issued the final EHC Plan in early August 2022. An EHE advisor chased family services for an update on 4 August 2022. They reiterated EHE was not meeting Y’s needs and they were keen for a placement for Y.

29. The Council issued a draft EHC Plan on 11 August 2022 and invited Miss X to make any comments and confirm where she would like Y to be educated. There is no record of Miss X’s response.

30. In November 2022 an EHE officer asked Miss X to confirm whether she was seeking a specialist placement for Y or had decided to continue with home education. The officer advised Miss X that if she intended to continue with EHE, the Council would need updated information about what she was putting in place and how she was working towards the outcomes in Y’s EHC Plan.

31. Miss X told the EHE officer that family services were dealing with the EHC Plan and she hoped to get an EOTAS package. As Miss X did not provide details of the home education she was providing the Council decided to pursue a School Attendance Order. The EHE officer chased family services for confirmation of the school to be named in Y’s plan.

32. Miss X contacted the Council several times in early 2023 chasing an update on Y’s EHC Plan and requesting an EOTAS package. When Miss X chased the Council again in early May 2023 she complained she had not heard from family services since February 2023. The Council told Miss X the EHE officer had left the Council and the family services officer had been on unplanned leave for a while. It would contact the officers’ managers to obtain an update.

33. As Miss X did not receive a response, she chased the Council again in June 2023 and made a formal complaint. She said the Council had placed her daughter at five schools but they had all failed so the only option was to home school. Miss X complained she had not heard anything since February 2023 and the last proper dealings had been in September 2022. Miss X asked the Council to provide an EOTAS package with an online tutor and a personal budget to pay for the provision in Y’s EHC Plan.

34. In its response the Council apologised for the length of time the EHC Plan process had taken. It said an EHC needs assessment was undertaken to determine what, if any, special educational needs a child or young person has and what provision needs to be put in place to meet those needs. It should not be undertaken with the aim of securing a particular school placement or EOTAS.

35. The Council noted the information in the assessment indicated Y would have difficulty in a mainstream environment and it had therefore approached a number of schools, including specialist schools. It would update Miss X when it had their responses.

36. In addition the Council said the level of difficulty Y has with relationships with others and the level of provision in the plan for this meant it could not be provided just by online learning. It said this was also the reason elective home education would not meet Y’s needs. The Council said it would investigate alternative provision, leading to a school placement. And that it would look to finalise the EHC Plan as soon as possible and certainly by the end of the school term.

37. Miss X was not happy with the Council’s response and asked for her complaint to be considered further. She questioned why the Council was so determined to make Y go back to school and whether the Council had told the schools Y could be violent. Miss X maintained an EOTAS package and personal budget was the best option. The Council acknowledged Miss X’s dissatisfaction but advised it had finished considering her complaint and this was its final position.

38. Miss X chased the Council for an update again in July 2023. She remained unhappy the Council wanted to get Y back into school rather than provide an EOTAS package and noted the Council had not provided a list of possible schools.

39. The Council confirmed in August 2023 it had reallocated Y’s case and an officer would contact Miss X to move matters forward. The new officer advised Miss X they were still looking for a suitable placement for Y and had consulted three schools. Two had yet to respond, and the third had confirmed they could meet Y’s needs but did not have any spaces. The officer confirmed the Council was aware of Miss X’s concerns that Y may hurt herself or others if pressurised to attend school. They said there would need to be a carefully and sensitively planned transition period so as not to overwhelm her. The officer intended to contact tutoring agencies with a view to having provision in place for September 2023.

40. In addition the officer asked Miss X to confirm whether she was happy with the draft EHC Plan or would like to make amendments before the final plan was issued. Miss X requested amendments to the draft EHC Plan. Miss X also reiterated that Y did not want to attend school.

41. The Council explained the package of tutoring and alternative provision it was putting in place would be similar to the EOTAS package Miss X had requested. It proposed the goal would be to support Y into a new school rather than for her to continue with an EOTAS package long term.

42. The Council consulted a tuition service who confirmed they could begin tutoring Y. The Council’s records note Miss X was adamant she wanted EHE and the family services coordinator was unsure whether Miss X would engage with the tutoring and EOTAS package.

43. The Council issued a final EHC Plan on 27 September 2023. The plan does not name a school but specifies the setting as a special school. The Council advised Miss X it had not made many of the amendments she had requested but had taken on board her views. The Council confirmed it would be putting together a package of tuition and additional activities, similar to an EOTAS package, starting with a few hours a week and building up over time. Miss X has since appealed to the SEND Tribunal.

44. Miss X chased the Council for an update on 25 October 2023 as she had not heard from the Council or the tuition service. The tuition service contacted Miss X in early November 2023 and has since told the Council that Miss X will only agree to online tuition, not face to face tuition.

45. In response to our enquiries the Council says the delays in the EHC Plan process were due to the officer’s absence and a change in systems within the Council. It says it has now found a tutor who is ready to start working with Y and they will be looking for other social interaction programmes for Y to engage in.

46. The Council has confirmed it has not provided Y with any alternative education provision since March 2022 as it was consulting with school placements. It also says it was told Miss X was electively home educating Y. However, the Council has confirmed that although its records mention EHE, it has no record of Miss X requesting to EHE her daughter. The Council notes that as Miss X works full time it appears Y is not really EHE.

Conclusions

47. Our investigation focuses on events between March 2022 and September 2023 when the Council issued a final EHC Plan. There is no dispute that Y did not attend a school setting during this period. The Council has also confirmed it has not provided any alternative education provision.

48. There are references in the Council’s records to Y being EHE since Miss X withdrew her from school in September 2021, but we are not persuaded this was the case. The Council has confirmed Miss X had not made any requests to home educate Y. The Council’s EHE team appears to have had some involvement with the family as they made the request for an EHC needs assessment. But the Council has not provided any evidence of the nature or extent of the EHE team’s involvement.

49. Miss X is clear in her correspondence with, and complaints to, the Council that she did not choose to educate Y at home. Rather, she felt this was the only option available given the failings at the schools Y was on roll at. It is clear Miss X did not want Y to return to a school setting but wanted an EOTAS package.

50. It is also clear from the documentation that the Council was aware EHE was not/would not meet Y's needs. The request for an EHC needs assessment made it clear that EHE was not meeting Y’s needs, and this view was reiterated at several points during the process. The Council has also noted that as Miss X works full time Y would not really be EHE.

51. In addition, the documentation shows the Council intended to serve a School Attendance Order as it was not satisfied Y was receiving a suitable education. It was only prevented from doing this as it had not identified a suitable school setting to name in the order.

52. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is reasonably practicable for the child to access. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

53. We recognise Miss X chose to remove Y from School 1, and that it may be argued that had she not done so a suitable education would have been available to her. However, we do not consider that to be the case in this instance. School 1 is a mainstream school and there is no evidence the Council has suggested it was or would have continued to be a suitable placement for Y. Since moving to School 1 Y received a diagnosis of ASD and had a SALT assessment. The Council did not consult School 1 as part of the EHC Plan process, indeed its consultations were all with specialist rather than mainstream schools. We are not persuaded, on the balance of probabilities, that but for Miss X’s decision to withdraw Y from School 1 a suitable education would have been available to her.

54. The Council says it did not provide alternative provision as it was consulting with schools for a placement. According to the Council’s records it consulted schools when it issued the draft plan in August 2022 but then took no further action until May 2023. Although one of the schools responded, it was unable to offer Y an immediate place and the Council has still not identified a suitable school.

55. In the circumstances we are satisfied the Council was aware in March 2022 that Y was not receiving a suitable education. We consider the Council should have provided Y with alternative education provision between March 2022 and September 2023. The failure to do so is fault.

56. The Council’s failure to complete the EHC Plan process in accordance with the statutory timeframes is also fault. The whole process from the request for an EHC needs assessment to when the final plan is issued should take no more than 20 weeks. In this case, the Council took 18 months. Delays of this nature are both concerning and clearly unacceptable.

57. We take the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.

58. Having identified fault, we must consider whether this has caused Y and Miss X an injustice. The Council’s failure to provide alternative provision means Y lost out on a suitable education and essential support for a year and a half. That is a significant injustice.

59. The delays in assessing Y’s needs and in issuing an EHC Plan have caused Miss X distress and anxiety and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND Tribunal.

60. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

61. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 to £2,400 a term to acknowledge the impact of that loss. In determining an appropriate level we will take account of factors such as:

• the severity of the child’s SEN as set out in the EHC Plan;

• any educational provision that was made during the period;

• whether additional provision now can remedy some or all of that loss; and

• whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.

Given Y’s age, the stage of her education and the education and support she missed, we consider a payment of £2,000 a term for the four terms she missed would be appropriate.

62. We have also considered whether to make service improvement recommendations and have decided in this instance it is not necessary. We note that in 2021 the Council commissioned an independent review of the systems and processes, and the resources base of its SEND services. The review made nine recommendations, including:

• complete a training needs analysis to identify gaps in knowledge and skills; develop appropriate training to ensure that all practitioners and managers are fully conversant with process, procedure and SEND legislation and Person Centred Planning and that practice was consistent across the county; and

• critically analyse current operational practice against the SEND Code of Practice and primary legislation (Children and Families Act 2014) to ensure the integrity of the local authority’s compliance with statutory duties.

63. The Council implemented an action plan in September 2021 and reviewed its performance against the plan in November 2022. This review identified the Council had delivered two whole-service training sessions in late 2021 and early 2022 on Decision-making panels for SEND; and Understanding the Children and Families Act 2014 and the SEND Code of Practice. In addition a new training programme was being rolled out across the service from Autumn 2022.

64. We have also made several recommendations to the Council on similar issues in recent years. In February 2023 we issued a public report finding fault with the Council’s failure to provide alternative education for a child who was out of school for six months. We recommended the Council review its policies and procedures to ensure it considered making a referral to the tuition service or arranged alternative provision for children of compulsory school age who are out of school. We also recommended the Council carry out in person training for all managers and staff members responsible for arranging alternative provision.

65. More recently Ofsted and the Care Quality Commission (CQC) jointly inspected the Council’s SEND services and published a report in January 2024. This report identifies “widespread and/or systemic failings” in the service. The Council has to submit a priority action plan to Ofsted and CQC setting out how they will address the priority actions and areas for improvement. This includes taking urgent action to improve the timeliness and quality of the EHC Plan process.

66. We are publishing this report to highlight the impact the Council’s failings have on individual young people and their families, and the importance of the Council implementing the recommended actions to ensure it complies with its statutory duties and continues to improve its services.

Recommendations

67. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

68. To remedy the injustice caused, we recommend within three months of the date of this report the Council:

• apologise to Miss X and Y for the delays in the EHC process and in issuing a final EHC Plan. And for the failure to provide alternative educational provision between March 2022 and September 2023;

• pay £8,000 to the family to acknowledge the impact of the loss of education on Y between March 2022 and September 2023; and

• pay £300 to Miss X to recognise the distress and anxiety she experienced and the time and trouble she was put to as a result of the Council’s failings.

69. As the Council’s SEN service is subject to external scrutiny and intervention and a further improvement plan is to be developed following a recent Ofsted inspection, we have not made further service improvement recommendations. Our future investigations will provide important evidence of whether the further changes the Council makes improve special educational needs and/or disabilities services for local people.

70. The Council has accepted our recommendations to remedy the complaint.

Decision

71. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Miss X and Y. The Council should take the action identified in paragraph 68 to remedy that injustice.

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