Summary: Mrs X complained the Council failed to provide suitable education for her child for two years. Mrs X also complained the Council delayed for two years in issuing an Education and Health Care Plan for her child. We found fault with the Council failing to provide suitable education, at varying amounts, for Mrs X’s child for 5 terms. We also found fault for delays in producing the Education and Health Care Plan for 9 months. The Council agreed to apologise to Mrs X and pay her £500 for the avoidable distress experienced because of the Council’s complaint handling and uncertainty caused by the delays in production of the EHC Plan. The Council also agreed to pay Mrs X £7,025 for her child’s lost educational provision.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child, who I shall call Y, for two years.
2. Mrs X also complained the Council delayed for two years in issuing an Education and Health Care Plan for Y.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We 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. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. I have not investigated the Council’s actions before November 2021. This is because the Ombudsman cannot investigate complaints about matters more than 12 months back from the date a person brings a complaint to us, unless there is good reason to otherwise.
10. In Mrs X’s complaint, any ongoing injustice stems from the Council’s actions since November 2021, when the school made a new Education and Health Care Needs Assessment application to the Council. We can exercise our discretion to investigate the complaint from this date, despite this being beyond 12 months. Any matter before this date is a separate complaint for which we should not exercise our discretion to investigate.
11. Mrs X could also have appealed the Council’s decision not to complete an Education and Health Care Needs Assessment in August 2021 to the tribunal, which puts this matter outside the jurisdiction of the Ombudsman.

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How I considered this complaint

12. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Both Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

Rules and regulations

14. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
15. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
16. The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
17. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC Plan meets the needs of the child.
18. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
19. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

20. On 19 November 2021, Y’s school submitted an EHC Needs Assessment application for Y.
21. The Council agreed to complete an EHC Needs Assessment for Y on 15 January 2022.
22. The Council issued a draft EHC Plan for Y on 20 April 2022 before issuing a changed draft EHC Plan on 9 June 2022.
23. Following consultations with various schools for Y’s Section I placement in the EHC Plan, the Council produced Y’s final EHC Plan on 13 December 2022.
24. The Council uploaded Y’s final EHC Plan to its system for Mrs X and the school to access on 12 January 2023. Y’s Final EHC Plan named an Special Educational Need (SEN) school as Y’s educational placement. The Final EHC Plan detailed that Y’s school would provide most of Y’s provision detailed in Section F of the EHC Plan.
25. Y started a transition plan to enter education at the educational placement named in Y’s EHC Plan in February 2023. From September 2023, Y has been attending his named educational placement with the EHC Plan provision in place.
26. Following a complaint by Mrs X, the Council produced its Stage 2 complaint response on 4 September 2023. Within the Council’s Stage 2 complaint response it offered Mrs X £250 for the “stress and uncertainty” its delays outside the statutory timescale caused her.

Analysis

27. A council has 20 weeks to issue a Final EHC Plan following a person applying for an EHC Needs Assessment.
28. Since Y’s school submitted the EHC Needs Assessment application on 19 November 2021, the Council had until 14 April 2022 to produce the final EHC Plan for Y. The Council failed to issue the final EHC Plan until 12 January 2023. This meant the Council delayed outside the statutory timescales for nine months. This delay was fault.
29. The Council’s delay outside the statutory timescales caused an avoidable nine-month delay in the Council confirming what extra educational provision Y needed. I have addressed this impact on Y within paragraphs 61 to 69.
30. While the Council produced Y’s final EHC Plan on 12 January 2023, Y did not start to attend the educational placement named in the final EHC Plan until September 2023. Since most of Y’s Section F EHC Plan provision was to be provided in Y’s educational setting, this meant Y went an extra two terms without most of this support in place. This was fault.
31. While this fault was mitigated by the transition plan put in place, Y was still not receiving the full provision he was entitled to as detailed in his EHC Plan. I have again addressed this impact on Y within paragraphs 61 to 69.
32. It is also notable the Council’s delays have caused Mrs X distress and uncertainty. The Council has already accepted this through offering a symbolic £250 payment. Such a payment is in line with the Ombudsman’s guidance on remedies and I will uphold the Council’s suggested award.

Y’s education

Rules and regulations

33. 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))
34. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
35. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
36. The education provided by a council must be full-time unless a 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)
37. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
38. 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 (with the exception of 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;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
39. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
40. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
41. 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.
42. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

43. Y was in year 6 in the academic year 2019/2020. Following difficulties in Y’s primary school in the academic year of 2019/2020, Y’s secondary school put in place a transition programme over the summer of 2020.
44. Y’s transition programme broke down and the secondary school agreed with Mrs X for Y to attend school in September 2020 for 1 hour each day as a reduced timetable. The secondary school planned to increase Y’s hours of attendance, but Y struggled to cope.
45. On 20 October 2021, the secondary school reduced Y’s timetable to 1 hour each day Monday to Thursday and confirmed with Mrs X it would review this on 17 December 2021.
46. On 5 November 2021, a mediation meeting took place between the Council, Mrs X and the school about Y’s difficulties in school. The Council agreed for the school to submit a new EHC Needs Assessment application because of Y’s difficulties with attendance. The Council’s SEN officer who attended the meeting made the Council aware of the forthcoming EHC application.
47. The secondary school submitted Y’s EHC Needs Assessment application on 19 November 2021. The application form included details of Y’s reduced attendance including stating:
• The school was struggling to meet Y’s needs.
• Y was attending on a reduced timetable of 4 hours each week but the reduced timetable was “not working well” because it had been unable to increase Y’s time in school.
• Y was “trying his best” but had difficulties with attendance because of his anxieties and the “overwhelming” classroom environment.
48. The Council was also provided with the relevant input and documentation from the professionals working with Y. This included the letter confirming the school would review Y’s reduced timetable on 17 December 2021.
49. In January 2022, Y’s school amended Y’s provision to include 4 hours in school each week and 2 hours of “Think Like a Pony” provision. This provision remained in place until 20 February 2023.
50. On 27 February 2023, Y started to receive a new reduced timetable arranged by his new educational setting. This timetable included tutoring sessions alongside the pre-existing Think Like a Pony Sessions. After the east break, this provision increased to include a full day at The Ark.
51. Y started to attend his full educational placement from September 2023.

Analysis

52. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from September 2021 until 5 November 2021. I have included a summary of the school's actions in the “what happened” section above for reference of Y’s situation when the Council became involved.
53. It is of note Y’s school kept the Council appraised of Y’s attendance issues from September 2021 until 5 November 2021. While the Council was involved in email chains, it was not an active participant. Instead, it was kept aware of the school’s attempts to provide suitable education provision for Y. It was only on 5 November 2021, when the school raised its concerns about the need for further council involvement, the responsibility shifted from Y’s school to the Council.
54. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
55. Y was not completely absent from school. But, Y was also not able to receive a full-time education at his secondary school. Y’s secondary school also made it clear in the EHC Needs Assessment application that it did not consider it could meet Y’s needs and it could not provide a suitable education for Y.
56. When the Council became aware of Y’s situation in November 2021 it decided the reduced timetable Y was receiving was suitable for Y’s needs. This was a decision the Council was entitled to make after considering the full input from the EHC Needs Assessment application and the professional opinion included within this application. I cannot find fault with the Council for making this decision.
57. While the Council was entitled to make this decision in November 2021, it had a responsibility to keep Y’s reduced timetable under review, with the view to increasing it where Y’s capacity allowed. The Council also had a responsibility to adopt a strategic and planned approach to reintegrating Y into full-time education.
58. The Council was aware on 19 November 2021 that Y’s school planned to review Y’s reduced timetable on 17 December 2021. I would expect to have seen the Council liaising with the school about this reduced timetable review at the latest of the start of the new term in January 2022. The Council failed to review Y’s reduced timetable.
59. The Council has failed to keep Y’s reduced timetable under review and failed to form a strategic and planned approach to reintegrate Y into full-time education. The Council also failed to consider Y’s individual circumstances to decide if the education he was receiving was suitable from January 2022 until 27 February 2023. This was fault.
60. A council should ensure that any education provided to a child is accessible and suitable for an individual child’s needs. The Council has failed to consider whether Y’s education was suitable or whether Y needed extra support outside the school environment. This was fault. This lack of education was for three and a half terms.
61. In addition to this fault, the Council was at fault for failing to put any educational provision detailed in Y’s EHC Plan from 14 April 2022 until 27 February 2023. This is the time period outside the statutory timescale in which the Council should have produced Y’s EHC Plan until Y started his new reduced timetable. I cannot find the Council at fault for the lack of EHC Plan provision before the deadline for production of the final EHC Plan.
62. From 27 February 2023, the Council has shown it has worked with Y’s new school to adapt Y’s provision and keep this matter under review. The Council has formed a strategic plan to reintegrate Y into education through a change to his timetable from 27 February 2023 until April 2023 and then an increase to his workload until the end of term. This strategic and planned approach has resulted in Y attending his new educational placement in September 2023.
63. The Council took suitable steps from 27 February 2023 until September 2023 to consider the steps needed to provide Y with a suitable education. In line with the Ombudsman’s guidance, the Council considered Y’s individual circumstances and consulted with relevant professionals, as part of his EHC Plan. The Council then worked with Y’s school to adopt a strategic and planned approach resulting in the reintegration of Y into full-time education. I do not find fault with the Council from 27 February 2023 for level of education provided to Y.
64. While I do not find fault for the level of education provided, the Council failed to provide the educational provision and support detailed in Section F of Y’s EHC Plan from 27 February 2023 until September 2023. This meant Y went a further term and a half without the correct provision he was entitled to.
65. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
66. For the first term of missed provision, from January 2022 to April 2022, Y received 6 hours of education each week rather than a full education.
67. For the next two and a half terms, from April 2022 until February 2023, Y received the same provision but the impact of this was compounded by the lack of EHC Plan provision.
68. From February 2023 until September 2023, the Council ensured Y was receiving a suitable education for his needs to help him reintegrate into school. But, the Council failed to ensure Y received the Section F provision in his EHC Plan.
69. Given this missed education, lack of educational support and the potential impact this had on Y, the Council should pay Mrs X £7,025 for the lost education. This is made up of £1,300 for the January 2022 to April 2022 term, £1,750 per term from April 2022 to February 2023 and £900 per term for February 2023 to September 2023.

Complaint handling

What happened

70. On 27 June 2023, Mrs X made a formal complaint to the Council. Mrs X said the Council had not provided suitable education for Y for two years and has not provided the support and provision detailed in Y’s EHC Plan.
71. The Council acknowledged Mrs X’s complaint and promised a complaint response by 11 July 2023.
72. Mrs X chased the Council for a response on 11 July 2023, 27 July 2023 and 11 August 2023.
73. The Council issued its Stage 1 complaint response on 16 August 2023. The Council said:
• It apologised for delays in issuing the complaint response.
• Y’s secondary school put in place a reduced timetable to try to help Y build up to receiving more education.
• Y’s secondary school put in an application for an EHC Plan in November 2021 and it finalised the EHC Plan in January 2023 naming specialist provision from 20 February 2023.
• It apologised for the delays in issuing the final EHC Plan.
• It is confident Y’s current school will provide Y with a gradual increase to his day at school to ensure successful progress and reintegration.
• It would offer £250 for the time and trouble it had put Mrs X to.
74. Mrs X sought an escalation of her complaint to Stage 2 on 31 August 2023.
75. The Council issued its Stage 2 complaint response on 4 September 2023. The Council reiterated its apologises for the handling of Mrs X’s complaint and for delays in completing the EHC Plan process. The Council offered Mrs X £250 as a symbolic payment for its complaint handling alongside £250 for the delays in issuing the final EHC Plan. The Council said it acknowledged Y had not previously received suitable education but now considered the education on offer was suitable for Y’s needs.

Analysis

76. The Council failed to meet its complaint timescales in issuing the Stage 1 complaint response for Mrs X’s complaint. As a result, Mrs X needed to chase the Council for a response on three separate occasions. This was fault and caused Mrs X frustration and distress.
77. The Council has offered Mrs X £250 to reflect this frustration and stress. The Council has also offered to uphold this award in response to the Ombudsman’s enquiries. This symbolic payment is higher than that which the Ombudsman would normally recommend for this level of poor complaint handling. However, since the Council has offered this award and advised it would uphold it, it is suitable for this to be reflected in the Ombudsman’s recommendations.

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Agreed Action

78. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and Y for the delays in its complaint handling, delays in its handling of Y’s EHC Needs Assessment and failure to provide suitable education provision for Y.
• Provide a symbolic payment to Mrs X totalling £500 for the avoidable distress, frustration and uncertainty caused to Mrs X by the Council’s poor complaint handling and delays in Y’s EHC Needs Assessment.
• Provide a payment of £7,025 for Y’s missed educational provision from November 2021 until September 2023. Mrs X may use this payment as she sees fit for Y’s missed educational provision.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman