Summary: There was a seven-month delay issuing Y’s final Education, Health and Care Plan and a failure to review Y’s alternative provision between May 2022 and March 2023 to include provision for his social and emotional needs which caused a loss of special educational provision and alternative provision. Communication with Ms X and complaint handling was poor. The fault caused Ms X avoidable frustration, time and trouble, distress and a delay in appeal rights. The Council will apologise and make payments.

The complaint

1. Ms X complained the Council:
1. Took too long to complete the Education Health and Care (EHC) needs assessment and plan process;
2. Failed to respond to her requests for Speech and Language Therapy (SLT) advice;
3. Failed to respond to her concerns about an incomplete Educational Psychology (EP) advice;
4. Failed to incorporate her comments on the draft EHC plan;
5. Inappropriately pursued attendance proceedings;
6. Failed to consult with her preferred choice of placements and consulted with the current school during the draft EHC plan stage;
7. Failed to respond to 10 of 12 of her complaints and took too long to respond;
8. Failed to increase Alternative Provision tutoring from 4.5 hours when requested;
9. Made presumptions she would be sending her child back to the same school when he could not attend; and
10. Stopped funding tutoring when this was not in line with guidance.
2. Ms X said this caused avoidable distress, a loss of educational provision for her child Y, avoidable time and trouble complaining. She also has a financial loss because she paid for advocacy support, legal costs and a private SLT assessment.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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)
7. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. The courts have established that if someone has appealed to the SEND 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. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

12. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this or recommend a remedy for costs as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

13. 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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What I have and have not investigated

14. I have investigated complaints (a) to (h). I have not investigated complaints (i) and (j) because they concern the suitability of Y’s school placement to meet his SEN. Y’s final EHC Plan was issued at the end of March 2023. The reason for Y’s non-attendance at school from March 2023 when AP stopped was a consequence of the dispute about the placement and SEP which had a right of appeal in March 2023. Ms X has since appealed to the SEND Tribunal (against a final amended EHC Plan issued in July 2023.) At the time of writing this statement, the case has not yet concluded.
15. Usually, we investigate complaints about matters which happened within a year of the complaint to us unless we consider there is a good reason for the delay. Ms X complained to us in September 2023, so events before September 2022 are late complaints. However, I have investigated complaints (a) to (h) from March 2022 to September 2023. There is evidence Ms X was seeking to resolve her complaints through the Council’s complaint procedure and the Council took a year to respond. Seeking to resolve the complaint with the Council is a good reason for Ms X to have delayed complaining to us.

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How I considered this complaint

16. I considered the complaint to us and the Council’s responses to the complaint.
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law

Education, Health and Care Plans

18. A child with special educational needs may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. Before issuing an EHC Plan, a council carries out an EHC needs assessment.
19. The EHC Plan is set out in sections including B (the child’s SEN), F (special educational provision (SEP) required to meet SEN) and I (placement). We cannot direct changes to the sections about the child’s needs, education, or name a different educational establishment. Only a tribunal or council can do this.
20. 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);
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan;
• Those consulted have a maximum of six weeks to provide the advice; and
• The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

21. During an EHC needs assessment, a council must seek advice and information from any person the child’s parent reasonably requests. (Special Educational Needs and Disability (SEND) Regulations 2014, Regulation 6(1)(h))
22. The law says:
• A parent has the right to request a particular school/placement is named on an EHC Plan (Children and Families Act 2014, section 38(2)(b)).
• Where a parent has requested a particular school, the council must consult with that school (section 39(2))
• If the school the parent has requested is unsuitable for the child or the child’s attendance would be in inefficient use of resources, then the council should ensure the final EHC Plan names an appropriate school, or type of school, having consulted with the school first. (section 39(5) and (6))
23. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).

Alternative Provision or Alternative Education

24. 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 (AP).
25. The education must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
26. Guidance says:
• If specific medical evidence, for example from a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
• Children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.
27. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
28. 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. 

29. 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.

School Attendance

30. Parents must ensure their children of compulsory school age, receive a suitable full-time education. (Education Act 1996, section 7.) Failure to meet this duty is an offence. (Education Act 1996, section 444(1)).
31. A council may take action against parents where it is not satisfied their child is receiving suitable education and it considers the child should be attending school. It is a defence to a prosecution that the child’s absence is due to illness. (Education Act 1996, sections 437 to 447)
32. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

What happened

2022

33. Y’s GP wrote a letter at the beginning of March saying Y was struggling with anxiety around school and social situations and the mention of school made him anxious. The letter said Ms X wanted a different placement for Y. The headteacher of Y’s school also referred Y’s case to the Council’s EWO requesting the Council take action against Ms X for Y’s unauthorised persistent absence.
34. The Council told me it was considering legal action against Ms X for Y’s poor school attendance, however it decided instead to support school to re-engage Y given his reported levels of anxiety.
35. On 22 March, Ms X requested an EHC needs assessment for Y. The Council decided to carry one out on 7 April.
36. At the start of April, the Council’s decision panel for inclusion services considered Y’s case. The panel decided to fund three one and a half hour sessions a week of individual tuition for Y. This was intended to take place in school and then Y was to be reintegrated on a reduced timetable at the end of the term. The arrangements ended up being tuition at home because of Y’s anxiety around attending school.
37. On 22 April, an internal case note said there was a referral for SLT advice to support Y’s EHC needs assessment. There is no record of Y being referred to the Council’s EP service. I assume the case officer made the referral at the same time as the SLT referral.
38. On 8 June, the EP issued their advice.
39. On 9 June, an internal note said the request for SLT advice was closed. Although there was no SLT report available.
40. At the end of June, the decision panel for inclusion services reviewed Y’s AP and said they needed further medical evidence. The note said Ms X was raising concerns about tuition not meeting Y’s social or emotional needs. The decision panel decided to extend funding for tuition to December 2022. There is no record of the Council asking for further medical evidence.
41. Ms X commissioned a private SLT report. She sent the SEND case officer a copy on 4 July. The report recommended various strategies to support Y and provision.
42. On 14 July the Council decided to issue an EHC plan and wrote to Ms X to confirm this.
43. Ms X complained to the Council on 19 August about the delay in issuing the EHC plan. She said the Council was not replying to her query about reports and assessments it was including in the Plan. The Council responded on 17 October. It accepted its communication was poor and said some of the delay was due to staff shortages. It said it would issue Y’s draft EHC Plan by 21 October.
44. The Council issued a letter and Y’s draft EHC Plan on 24 October. It consulted with Y’s current school about a placement at the same time. The school said it could offer Y a place from April 2023 and would arrange a phased return.
45. The Council’s decision panel for inclusion services reviewed Y’s AP in October. The panel noted Ms X had said AP (individual tuition at home) was not meeting Y’s social and emotional needs. The panel extended AP to the end of March 2023.
46. Ms X was unhappy with the Council’s first response to her complaint and asked to escalate it to stage 2 on 24 October. The Council didn’t respond.
47. On 4 November, Ms X sent the Council her representations on the draft EHC Plan. She requested some amendments to Sections B and F. She wanted mentoring for an hour a week to be included in Section F and said she had asked for SLT advice and OT advice and, because the Council had not sought this advice, the draft Plan failed to reflect Y’s SEN or the provision he required. Ms X said she could not ask for her preferred placement at the moment and asked for a type of school (special school) to be named in Section I and she would then identify a placement.
48. The Council then issued an undated proposed amended EHC Plan. This appears to have been in response to Ms X’s representations on the draft Plan referred to in the last paragraph. This version of the Plan included some provision in Section F that was more specific and quantified and included recommendations from Ms X’s commissioned SLT report and an OT report. Ms X said she never saw this version of the plan.

2023

49. The Council continued funding Y’s AP tuition in the home.
50. The decision panel for inclusion services reviewed Y’s case in March 2023. The records said Ms X was refusing to send Y to school because she considered it was not suitable. The decision was to end funding for AP at the end of March and for the school to make a referral to the EWO who may consider prosecution.
51. On 27 March, there was a meeting with professionals and Ms Y. The minutes said:
• The Council expected Y to return to school. School could meet his needs and AP was supposed to be short term to aid recovery;
• Tuition was ending at the end of March;
• Ms X said she disagreed and Y would not be returning to school after Easter;
• The EWO may become involved if Y did not return; and
• Ms X said the draft Plan did not reflect Y’s needs and she did not know she could request a placement and could not think about this until the Plan was finalised and this would allow her to look at other settings. Ms X said she hadn’t heard anything from the SEND service since sending her comments on a plan in October 2022.
52. On 27 March, the Council issued a final EHC Plan naming Y’s existing school in Section I. Section K only listed the EP and school advices and Section F contained the provision in the original draft Plan (rather than the ‘proposed amended EHC Plan referred to in paragraph 48).
53. The Council told me it stopped funding Y’s 4.5 hours a week of tuition in March 2023 as it had named the school on Section I of the Plan. The Council’s position is the school meets Y’s needs. It said it asked school to set up a phased return for Y.
54. On 30 March, the GP sent a letter saying Y was struggling with anxiety around school and social situations and until this was treated, he would struggle to attend school.
55. In April, the Council’s decision panel agreed for the OT and SLT reports to be included in Section F.
56. The headteacher of Y’s school referred the case to the Council’s EWO service at the start of May to consider prosecution for poor attendance in the last two weeks of April. The school and EWO exchanged emails and the EWO said the GP’s letter did not say Y was unfit to attend and so this did not need to be coded as illness on Y’s attendance record.
57. At the start of June, the parties met to discuss Y’s non-attendance. After the meeting, the school emailed Ms X, copying the EWO and offering for Y to attend forest school with his year group on a Friday, as a way of reintroducing him into school. School also confirmed it was funding some AP (5 hours).
58. On 16 June, Ms X’s SEND advocate asked the Council to escalate the complaint she had made last year. The Council replied saying Ms X’s stage 2 request had been marked as complete by mistake. On 10 July, Ms X said she was still waiting for an EHC plan and Y had not been able to go to school and the Council had only been providing four and a half hours a week of tuition.
59. The records indicate the Council issued non-attendance proceedings but then contacted the court to withdraw them in July.
60. On 28 July, the Council issued a final amended EHC plan naming Y’s existing school as the placement in Section I.
61. Following an exchange of legal letters in August and September 2023, the Council said it had withdrawn non-attendance proceedings and apologised for the distress to Ms X. The Council’s letter went on to say the Council agreed five hours a week of one-to-one tuition and would liaise with school to arrange a reintegration plan. It noted Y was already attending an alternative education provider (providing outdoor education/forest school) funded by the school. In September, the Council agreed 8 hours a week of tuition and two days a week at the alternative education provider.
62. Ms X appealed to the SEND Tribunal in August/September and requested changes to Section I as she did not consider a mainstream school met Y’s needs.
63. On 26 September, the Council replied to Ms X’s complaint. It apologised and said:
• There was a delay in issuing the final EHC plan;
• There were staffing issues;
• If she disagreed with the content of the final Plan, she needed to appeal; and
• The SEND team met to discuss and review her complaint and “address all areas of improvement in service delivery.”
64. Ms X complained to us in September 2023.

Findings

The Council took too long to complete the Education Health and Care (EHC) needs assessment and plan process

65. The decision to carry out an EHC needs assessment was made within six weeks of Ms X’s request and without fault. It is unclear when the Council referred Y to the EP service for an assessment, however it is reasonable to assume the SEND case officer made the referral at the same time as referring Y to the SLT team in April 2022. The EP’s advice was available within six weeks of the request and this is within the required statutory timeframe.
66. However, there were significant delays completing the plan process once the EP’s advice was available in June 2022. Y’s final Plan should have been issued within 20 weeks of Ms X’s request for an assessment on 22 March, so by 9 August 2022. It was not issued until 27 March 2023. This delay of seven and a half months is fault. The draft Plan should have also been issued by 10 July 2022 to allow Ms X 15 days for comments. It wasn’t issued till 24 October. This delay of three and a half months is also fault. It caused avoidable distress, a delay in appeal rights and a delay in securing Y’s SEP.

The Council failed to respond to her requests for Speech and Language Therapy (SLT) advice

67. Councils should consider specialist advice in response to a reasonable request from a parent. The records show the SEND case officer referred Y to the SLT for advice in April 2022, indicating the Council had agreed to Ms X’s request. The request was then ‘closed’ the day after receiving the EP’s advice. I am unclear whether this was an accident or deliberate act. Either way this was fault. If the Council considered Ms X’s request was no longer a reasonable one, it should have advised her of the reasons for the change in its view. This was poor communication and was fault causing avoidable distress.
68. There is a separate injustice which is an alleged inadequacy of the provision in the final EHC Plan which has rights of appeal. As this can reasonably raised as part of Ms X’s appeal, it is not a matter the LGSCO can remedy because of the legal cases I have described in paragraphs 7 to 12.

The Council failed to respond to her concerns about an incomplete Educational Psychology (EP) advice

69. The Council’s communication with Ms X about this was poor which was fault causing avoidable distress. There is no evidence the SEND team engaged with her concerns about this issue which is raised several times in the Council’s records.
70. However, the alleged inadequacies in the EP’s advice can reasonably be raised as part of Ms X’s upcoming appeal to the SEND Tribunal so any injustice arising from the incomplete EP advice is not a matter the LGSCO can remedy because of the legal cases I have described in paragraphs 7 to 12.

The Council failed to incorporate her comments on the draft EHC plan

71. The Council appears to have included some of Ms X’s comments on the draft EHC Plan of 24 October 2022 in an undated “proposed amended plan”. Ms X did not receive a copy of this document because the Council has not disclosed a covering letter to her. And the final Plan issued in March 2023 does not include any of the amended content in the undated proposed amended plan. On a balance of probability, the proposed amended plan was an internal document that was not shared with Ms X. The Council did not ensure Ms X’s comments on the draft Plan were included or considered before issuing the final Plan and this was fault, causing avoidable distress and confusion. The content of the final Plan is part of Ms X’s appeal to the SEND Tribunal.

The Council inappropriately pursued attendance proceedings

72. The law says parents must ensure their children attend school and parents can be prosecuted if not. So it is open to councils to take legal action against a parent in some cases. The law also requires councils to consider providing AP for children who are too unwell to attend school. Caselaw says it is for a council to decide what weight to give medical evidence when considering absence on the grounds of ill-health. The Council reviewed Y’s case and decided he was able to attend school based on the available medical evidence from the GP in March 2023 which did not say Y was medically unfit to attend school. It is not the LGSCO’s role to question this.
73. The Council withdrew proceedings following an exchange of legal letters. This was a decision the Council was entitled to take. There is no fault in the Council’s actions.

The Council failed to consider/consult with her preferred choice of placements and consulted with the current school during the draft EHC plan stage

74. The available records indicate Ms X said in her comments on the draft Plan in November 2022 that she was not in a position to name her preferred placement and instead asked the Council to name a type of placement on the final Plan. The Council had no parental preference to consult with, so I do not uphold this complaint. The Council wasn’t at fault in consulting with Y’s school. It needed to name a placement on the final Plan and before doing so, is required to consult with proposed placements.

The Council failed to increase Alternative Provision tutoring from 4.5 hours when requested

75. The Council secured four and a half hours of individual tuition for Y in Maths and English between May 2022 and March 2923. Ms X said on several occasions that tutoring was not meeting Y’s social and emotional needs.
76. Between May 2022 and March 2023, there is no evidence the Council reviewed the number of hours, subjects being delivered or consulted with health professionals to see if Y could cope with additional hours and/or provision to meet his social and emotional needs. This was not in line with national guidance which says provision should be equivalent to that provided in schools unless there is evidence the child cannot cope with it. This was fault. As a result, Y missed out on opportunities to socialise and receive education provision with his peers.

The Council failed to respond to 10 of 12 of her complaints and took too long to respond

77. I uphold this complaint. The Council’s complaint handling fell far short of the standards we expect. The Council failed to respond to Ms X’s stage 2 request in 2022 and closed the complaint. This was fault. The stage 2 response lacked detail and did not offer an adequate remedy. This caused avoidable frustration, time and trouble and distress. It also caused some costs because Ms X employed an advocate to support her to pursue her complaint.

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Agreed action

78. Within one month of my final decision, the Council will issue:
1. An apology in line with our published guidance;
2. A payment of £500 to Ms X to reflect the avoidable frustration, time and trouble and delay in appeal rights;
3. A payment of £200 to Ms X for advocacy support. This is a contribution towards the reasonable costs of engaging an advocate to support Ms X at stage two of the Council’s complaint procedure because the Council failed to respond to her complaint.
4. A payment of £2000 to reflect the loss of AP caused by the failure to review Y’s tuition hours to see if his health would allow him to receive more and commission provision to meet social and emotional needs between May 2022 and March 2023. On a balance of probability, Y would have been able to cope with additional AP. I am satisfied had the Council acted without fault, then AP would have been increased.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. There was a seven-month delay issuing Y’s final Education, Health and Care Plan and a failure to review Y’s alternative provision between May 2022 and March 2023 to include provision for his social and emotional needs which caused a loss of special educational provision and alternative provision. Communication with Ms X and complaint handling was poor. The fault this caused Ms X avoidable frustration, time and trouble, distress and a delay in appeal rights. The Council will apologise and make payments.
81. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman