Summary: The complainant (Mrs X) said the Council failed when carrying out her daughter’s (Y) Education Health and Care needs assessment and in not supporting her when she was out of school. We found fault with the Council’s delays in deciding whether to issue an Education Health and Care Plan for Y and in issuing Y’s final plan. The Council’s fault caused injustice to Y and Mrs X. We also found fault with the Council’s record keeping. We did not find fault within the actions of the Council’s Education Welfare officer and for not providing education to Y when she was out of school. The Council agreed to apologise to Y and Mrs X, make the payment to recognise their distress and issue Y’s final Education Health and Care Plan. The Council has already put in place some service improvements.

The complaint

1. Mrs X complains about the Council’s:
1. Failings during an Education Health and Care (EHC) needs assessment and specifically:
1. Not involving parents in the assessment;
2. Using incorrect information taken out of context;
3. Carrying out inadequate assessment of Y’s needs;
4. Not obtaining necessary advice.
2. Failure to arrange education for Y when she was out of school.
3. Taking action against Y‘s parents for Y’s non-attendance.
4. Failure to authorise child’s school absences.
5. Failure to address the school’s discrimination against the child.
2. Mrs X says the Council’s failings affected Y’s physical and mental health and meant Y lost much education since June 2023. They caused distress to Y and her parents. The parents felt under pressure to provide Y with work and equipment, including a laptop, books and subscriptions.

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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 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)
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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
8. 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)
9. 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

10. I have not investigated whether it was legitimate not to authorise Y’s school absence and whether Y was a subject of disability discrimination when attending her school. Both these issues are about what happened in Y’s school and as pointed out in paragraph five of this decision we cannot look at it.

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How I considered this complaint

11. I considered the information Mrs X provided.
12. I made enquiries with the Council and considered the information it provided.
13. I reviewed non-statutory Department for Education guidance “Working together to improve school attendance” published in May 2022 and referred to our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” issued in July 2022.
14. Mrs 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

Legislative and administrative framework

EHC needs assessment

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.

• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

16. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
17. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Attendance

18. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
19. The legislations states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
20. 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.
21. Section 437(3) of the Act relates to whether the council considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (Elective Home Education, Departmental guidance for local authorities, April 2019, paragraph 6.14) 

Alternative provision

22. 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))
23. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by 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”.
24. 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])
25. 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? published July 2022. 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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.

What happened

Background

26. Y has complex physical and mental health needs. She struggled to attend her secondary school (the School) from the beginning of her placement there in September 2022. After contracting COVID in June 2022, in October 2022 she was diagnosed with long COVID.
27. In November 2022 the Council received a request for Y’s EHC needs assessment. The Council refused to carry out this assessment a month later.

EHC Plan process

28. At the beginning of July 2023 Y’s parents sent a new request for an EHC needs assessment for Y. As part of its decision-making process the Council contacted the School to get relevant information about Y two weeks before the School closed for the summer holidays.
29. In her comments to my amended draft decision Mrs X told me she had not contributed to the EHC needs assessment form prepared by the School in July 2023 because of the breakdown in the relationship between the School and the parents. In September 2023 Y’s parents sent to the Council their own assessment form which included Y’s updated information for Section A. Mrs X told me the Council had failed to send it when seeking professional advice.
30. In mid-September the Council decided it would carry out the assessment. It sought advice from: the School, Community Paediatric Service, Occupational therapy (OT) service, a dietitian, the Children and Adolescent Mental Health Service (CAMHS), Physiotherapy service, the Mental Health and Emotional Wellbeing Service supporting children, young people and their families (CHUMS), Early Help and social care, an Educational Psychologist (EP), the Eating Disorder team and Wheelchair service. When asking for advice the Council attached the EHC needs assessment form from December 2022. In the afternoon of the same day the Council sent the assessment form from July 2023.
31. The Community Paediatric Service told the Council Y was on the waiting list for an appointment. Appointments were allocated in accordance with clinical priority.
32. At the end of November 2023 a meeting took place to discuss Y’s assessment. CHUMS could not provide its advice as it had to postpone Y’s first appointment. Y could not engage with them because of her anxiety.
33. An EP completed her statutory advice for Y at the end of October 2023. Mrs X was concerned about the report as it referred to some outdated information and the EP did not consider all the professional advice available for Y. Two amendments followed – the first at the beginning of January 2024 and the second a week later.
34. At the beginning of December Y attended an appointment with a Consultant Paediatrician, who prepared her advice. This advice was included among the documents considered as part of Y’s EHC needs assessment. Mrs X explained this was a routine appointment and the letter that followed was not intended to contribute to Y’s EHC Plan.
35. In the second week of January 2024 the Council refused to issue an EHC Plan for Y. The Council told Mrs X the School could meet Y’s special educational needs within its special needs budget.
36. A mediation meeting took place at the beginning of March 2024. Following this meeting the Council asked a designated clinical officer, CHUMS and CAMHS for updated information about Y’s needs. The designated clinical officer would collate any health information available for Y.
37. Following the mediation meeting and after receiving extra information the Council agreed to issue an EHC Plan for Y in the third week of March 2024.
38. The Council issued Y’s draft EHC Plan at the beginning of July 2024. Mrs X was not happy with its content as there were some reports missing from Section K and their content was not reflected in the document. There were some outdated reports included in the list of the documents. Family’s aspiration and wishes for Y were copied from the request for an EHC needs assessment from December 2022, rather than from September 2023. Once Mrs X raised the issue of the outdated family’s aspirations and wishes for Y, the Council agreed to amend Section A of Y’s EHC Plan.

Attendance

39. In mid-June 2023 a team around family meeting took place. The attendees discussed Y’s school attendance which was below 50%. Part-time timetable did not seem to be working for Y. Mrs X raised Y’s difficulties with transport. Mrs X reported Y had been struggling at school and at home and her health continued to deteriorate. Remote access to school learning and the possibility of home tutoring was discussed.
40. In October 2023 the School referred Y to an Education Welfare Officer (EWO).
41. A week later EWO contacted Mrs X, proposing a team around family meeting combined with pre-court meeting to explore the best ways to support Y to access education. Mrs X told EWO she was trying to arrange education for Y through the hospital outreach education service. In the meantime Y’s parents had been supporting her learning at home.
42. At the end of October EWO asked Mrs X to provide him with a medical professional opinion in writing that Y was not well enough to attend the School. Mrs X replied that Y’s full medical history had already been provided to the School in July 2023. This included Y’s General Practitioner’s (GP) note stating that Y could not cope in school due to her anxiety. Y was waiting for a CHUMS appointment to get her mental health fully assessed.
43. Mrs X sent EWO a medical note confirming Y had long COVID and anxiety. This note was issued in June 2023 at the time when Y was not attending the School but the School was authorising her absence.
44. In the second week of November 2023 a team around family meeting combined with a pre-court meeting for Y took place. Mrs X brought another medical note for Y, which EWO still did not consider enough. Mrs X was not happy with the School’s engagement to support Y’s education.
45. Following the meeting EWO referred Y to the children with disabilities team. In the referral EWO stated the medical letters he received did not support Y’s referral to the hospital outreach education services. Y did not meet threshold for the children with disabilities services.
46. EWO presented Y’s non-attendance case to the Council’s legal intervention panel and took part in the coproduction meeting. He communicated with CHUMS.
47. At the beginning of December 2023 Y’s Physiotherapist asked the hospital outreach education service whether her report would be sufficient to support their involvement. There were delays with obtaining advice from the community paediatricians, consulted during the EHC needs assessment.
48. Following the Council’s refusal to issue an EHC Plan for Y, the School agreed to contact the school nurse and put in place a Health Care plan for Y.
49. During a team around family meeting in January Mrs X was adamant Y was too unwell to attend the School and any education had to be delivered at home. She confirmed Y had been attending online sessions with CHUMS.
50. EWO asked the School to contact the hospital outreach education services to arrange education for Y.
51. At the team around family meetings in March and April 2024 further updates on Y’s health were discussed. EWO explained to Mrs X that the hospital outreach education services asked for the evidence from CAMHS and a paediatrician, rather than Y’s Physiotherapist and CHUMS.
52. After another legal intervention panel at the end of May 2024 the Council decided to start the process leading to prosecution for Y not attending the School.
53. Following Y’s assessment by CAMHS and the multi-agency meeting, in June 2024 EWO decided to close its involvement with Y. This was because Y would be supported through her EHC Plan and CAMHS would refer her to the hospital outreach education service.
54. At the beginning of July the Council offered Y ten hours of home tutoring. The tutoring could be either face to face at home or online.

Analysis

EHC Plan process

55. I cannot consider whether the Council correctly applied professional advice when drafting Sections B and F of Y’s EHC Plan and whether it adequately assessed Y’s needs. These matters can be challenged through an appeal to the SEND Tribunal, once the EHC Plan is finalised. It would be reasonable for Mrs X to appeal as only the SEND Tribunal can decide whether the Council should amend the EHC Plan and to what extent.
56. I did not find the Council failed to involve Y’s parents in Y’s EHC needs assessment. I have seen the evidence the Council communicated with Mrs X during the assessment and asked for her and Y’s views. Although in the first draft of Y’s EHC Plan the Council used outdated information for Section A, there is no evidence the Council refused to include more recent information once asked by Mrs X.
57. I would not criticise the Council for not including the second assessment form from September 2023 when asking for professional advice. The Council had earlier received the assessment form from the School and this form would normally be sent to the professionals. There is no evidence the Council was deliberately undermining Y’s and her parents’ participation in the EHC needs assessment process.
58. I did not find the Council failed in its duties to obtain professional advice during Y’s EHC needs assessment for the following reasons:
• The Council consulted all professionals requested by Mrs X, unless it had already received advice for Y;
• Some services did not provide advice requested by the Council. This was outside the Council’s control so we would not see it as the Council’s failing.
59. The Council failed to comply with the statutory timescales for the EHC Plan process. The Council should have decided whether it would issue Y’s EHC Plan within 16 weeks from the date it had received a request for Y’s EHC needs assessment. This should have happened by the end of October 2023. The Council refused to issue Y’s EHC Plan in the second week of January 2024, so two and a half months later.
60. In its comments to my draft decision the Council told me a part of the delay was caused by the School’s lack of response in July 2023 and the subsequent summer holidays. The exception to the duty to adhere to the statutory timescales for the Council’s decision not to issue an EHC Plan applies only when a council asks for advice from the child’s school within one week before this school closes for the continued period of not less than four weeks. As the Council asked the School for information two weeks before the School closing for the summer, this exception does not apply.
61. The Council’s decision not to issue an EHC Plan for Y can be appealed to the SEND Tribunal, therefore I cannot criticise the Council for taking it. After mediation and receiving extra evidence, the Council agreed to issue Y’s EHC Plan in the third week of March 2024. It should have issued Y’s final EHC Plan within four weeks. This has not happened. The delay is nearly four months and is ongoing.
62. The overall delay of six and a half months is fault. Although the Council explained some of the reasons for this delay were outside its control, the statutory timescales set up in the SEND Regulations apply to councils. Councils are responsible for complying with them. The Council’s fault caused Y and Mrs X injustice by creating uncertainty about the Council’s position first on whether Y needed an EHC Plan and from April 2024 on the specific arrangements to support Y with her education. In Y’s circumstances, where she has not been attending the School and there was a dispute between Mrs X and the Council on the accessibility of her school placement, it was particularly important to get clarity on any support arrangements Y might need. This fault also delayed Mrs X’s appeal rights.
63. In its comments to my draft decision the Council explained the delays in issuing Y’s EHC Plan were caused by a period of staff sickness and staff turnover. These difficulties have now been addressed and the Council has increased capacity in the SEND team.
64. I also found fault with the Council’s record keeping. As a result the EP when preparing Y’s statutory advice and Y’s case officer when drafting an EHC Plan used outdated information and did not consider all professional advice. This caused Mrs X distress and meant she had to spend much time correcting errors and re-sending documents.
65. The Council confirmed that it had now reviewed the way in which the information is filed and stored as part of the EHC needs assessment process. New folders have been set up within the Council’s electronic filing system which enables parents’ supporting evidence to be separated out from the evidence received from schools and other professionals. Staff training has been developed to ensure that all members of the SEND team understand the filing system. This is commendable as shows the Council’s willingness to learn from its mistakes and improve its services.

Attendance and alternative provision

66. I did not find the Council failed in the way it approached its duties about Y’s school attendance. The School referred Y to the Council because of her non-attendance. EWO completed the following actions:
• reviewed the documents;
• regularly communicated with Mrs X and provided advice;
• told Mrs X Y’s medical evidence is not enough to accept she could not attend the School;
• attended multi-agency meetings;
• referred Y to the children with disabilities team;
• liaised with the professionals involved in supporting Y;
67. We cannot criticise EWO for not accepting that medical evidence available for Y was not enough to justify Mrs X’s claim Y could not attend the School, even on a part-time timetable. This decision was in the Council’s discretion. Councils decide whether a child’s health needs prevent them from attending school and what weight to give to medical evidence. As pointed out in paragraph four of this decision we look at how the Council made its decision rather than at the decision itself.
68. I found by completing the actions listed in paragraph 66 of this decision the Council followed the right process when challenging Y’s school non-attendance. Holding a pre-court meeting is part of the process which the Council can take when it considers the child should attend the school.
69. Until the second week of June 2024 the Council did not accept Y could not attend the School and continued legal process against Y’s parents triggered by Y’s non-attendance. As explained in paragraph 25 after consulting professionals involved with the child and reviewing the evidence the Council decides whether to require attendance at school or provide the child with suitable alternative provision.
70. The Council decided Y could attend the School, therefore it did not consider alternative provision for Y. In June 2024 the Council received new medical evidence from CAMHS based on which it changed its position. Once the Council had accepted Y could not attend the School, it started making arrangements for home tutoring for her. I did not find fault in the Council’s actions.

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Agreed action

71. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. When apologising the Council should follow our “Guidance on Remedies”;
• pay Mrs X £750 to recognise the distress caused to Y and Mrs X by the Council’s delays within Y’s EHC Plan process and by its inadequate record keeping.

The Council will provide the evidence that this has happened.

72. To remedy the injustice caused by the Council’s delays we recommend the Council within two weeks of the final decision will send Mrs X Y’s final EHC Plan. The Council will provide us with a copy of this document.

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Final decision

73. I uphold part of this complaint. I found fault with the Council’s delays within EHC Plan process and the Council’s record keeping. The Council’s fault caused significant injustice to Y and Mrs X. For the reasons explained in the Analysis section I do not uphold the rest of Mrs X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman