Summary: Ms X complained the Council delayed completing an Education, Health and Care needs assessment for her child and delayed putting in place educational provision after her child could not attend school. This meant her child missed education they should have received and has fallen behind their peers. We have found the Council at fault, however we are satisfied the Council has already offered Ms X an appropriate remedy for the injustice caused.

The complaint

1. Ms X complains the Council delayed completing an Education, Health and Care needs assessment for her child and delayed putting in place educational provision after her child could not attend school.
2. Ms X says her child has fallen behind with their education and not received the support they should have.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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)

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What I have and have not investigated

8. I have investigated whether the Council delayed completing an Education, Health and Care needs assessment of her child and whether it put in place suitable education from February 2023. I have set out below in paragraphs 34-38 what I have not investigation and the reasons for this.

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How I considered this complaint

9. As part of this investigation, I considered the information provided by Ms X and the Council. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
10. 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 found

Law and guidance

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
12. 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 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);
13. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
14. There is a right of appeal to the SEND Tribunal against 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.
15. 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.
16. 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)
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. The education provided by the council 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)
19. The law does not define full-time education but 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

20. Ms X’s child, Y, moved to School Z on a managed move in July 2022. School Z was a mainstream school. In late 2022 Y started to struggle at School Z.
21. In February 2023, Ms X asked the Council to carry out an EHC needs assessment for Y. Around this time Ms X said Y stopped attending school Z.
22. Between late February 2023 and September 2023, Ms was in discussions with School Z about reintegration support for Y and about options for alternative education. Y’s attendance records from School Z , from September 2022 to July 2023, showed from around March 2023, Y was rarely attending school. Many of the absences are recorded as Y refusing to come into school. From around May 2023, the attendance records showed Y was mainly at home working with an online learning tool.
23. In September 2023, the Council said it became aware Y was not attending School Z after attending a meeting. Y’s attendance records showed Y did not come back to School Z in the 2023/2024 school year. Correspondence also showed School Z told the Council in September 2023, it could no longer meet Y’s needs.
24. In early October 2023, the Council issued Y with a final EHC Plan. This included provision such as 1:1 and small group learning, Speech and Language Therapy and a phased return to school. The EHC Plan also named School Z as the educational placement.
25. In early December 2023, Ms X appealed the EHC Plan to the SEND Tribunal. Ms X appealed Sections B, F and I.
26. In mid-December 2023, Ms X made a formal complaint to the Council. Ms X complained Y had not had much education for the past year. Ms X said since receiving Y’s EHC Plan School Z had said it could not meet her needs. Ms X also complained she had asked the Council and School Z to provide home tutoring to Y but both said it was the responsibility of the other.
27. In early January 2024, the Council referred Y to an online alternative education provider. Shortly after this Y started to receive education from this provider which was made up of online learning.
28. In January 2024, the Council responded to Ms X’s complaint. The Council said it considered a mainstream setting such as School Z was suitable and Ms X had appealed this decision to the SEND Tribunal. The Council recognised there had been a delay in putting in place alternative provision for Y.
29. In February 2024, the online learning Y received ended at Ms X’s request. This was because of Y’s increasing anxiety caused by the behaviour of the other children online.
30. The Council held an emergency review of Y’s EHC Plan in February 2024. Following this the Council agreed to see if Y could receive alternative provision from another provider.
31. In early March 2024, the Council’s Governance Board Panel considered whether to change Y’s placement to specialist and whether a referral to a certain alternative provider was suitable. The Panel decided Y should receive a specialist school placement and referred her for provision with the alternative provider.
32. In early April 2024, the Council provided its final response to Ms X’s complaint. The Council said:
• It issued Y’s EHC Plan three months outside of the statutory timeframe. The Council apologised and offered Ms X £300 for the uncertainty caused by the delays.
• The SEND Team’s communication was unsatisfactory at times and apologised. The Council said it was taking steps to improve this going forward.
• Y did not have alternative education from September to December 2023 and offered Ms X £2,000 to recognise the loss of education to Y.
33. In response to my enquiries, the Council said Y was receiving provision from the alternative provider and the SEND Tribunal hearing was scheduled for November 2024.
34. The Council said it did not believe it had a duty to provide alternative education until September 2023 as Y had a school placement which was available. Also School Z was helping Y at home with an online tutor and support.

The Ombudsman’s jurisdiction

35. 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)
36. 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.
37. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or a 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.
38. In this case the Council issued Y’s final EHC Plan in October 2023. Ms X appealed the sections of the Plan which were about the special educational provision and the school placement. I cannot investigate Ms X’s complaints that the Council did not provide suitable education and provision for Y after October 2023. Ms X has engaged her appeal rights and the matters she is bringing to the SEND Tribunal (i.e. her disagreement with the education placement and provision listed in the EHC Plan) are linked Y’s non-attendance at school.
39. This investigation can only look at matters up to the Council issuing the final EHC Plan.

Analysis

Delays carrying out Y’s EHC needs assessment

40. The Council received a request to carry out an EHC needs assessment for Y in late February 2023. The Council should have issued Y’s final EHC Plan within 20 weeks of this, so by mid-July 2023. Failure to do so was fault.
41. The Council issued Y’s final EHC Plan in October 2023, so three months late. This has caused Ms X uncertainty as she did not know what provision Y was entitled to receive. In addition, the delays issuing the Plan delayed Ms X’s appeal rights.
42. The Council has recognised it delayed issuing Y’s final EHC Plan and offered Ms X £300 to recognise the uncertainty caused. The Council also apologised for the standard of communication Ms X received. I am satisfied this is a suitable remedy for the injustice caused and would be in line with what we would recommend.

Alternative provision for Y

43. Ms X said Y stopped attending School Z in February 2023. From Y’s attendance records it appears that Y’s attendance became less and less from March 2023 with more unauthorised absences.
44. From May 2023, the attendance records showed Y was working at home with online education in place which appeared to have been put in place by School Z. There is a record of Ms X telling the Council in mid-May 2023 that Y was not attending school.
45. The Council has said it did not believe it had a duty to provide Y with alternative education until September 2023, as Y had a school placement available and was getting work at home. In addition School Z did not tell the Council until September 2023 that it could no longer meet Y’s needs. I am satisfied on balance the Council was not at fault for failing to provide alternative education from February 2023 to July 2023. The Council explained its rationale for not doing so.
46. From September 2023, the Council has recognised it should have put in place alternative provision for Y and failure to do so was fault. This was after it attended a meeting and School Z told it Y was no longer coming into school. It also received correspondence from School Z to say the school could no longer meet Y’s needs. As a result, Y did not receive the provision they should have. The Council has recognised this and offered Ms X £2,000 to recognise the loss of education Y suffered between September and December 2023 (the Autumn school term). Our Guidance on Remedies recommends payments between £900 and £2,400 per term of lost education. The Council’s remedy is towards the top of our recommended payments scale and in line with what we would recommend.
47. Even if we were satisfied this was not a suitable remedy we still could not consider the period after mid-October 2023, when the Council issued Y’s EHC Plan. As explained above this is because Ms X had appeal rights to the SEND Tribunal.

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Final decision

48. I have completed my investigation and found there was fault by the Council and this caused injustice, however the Council has already offered Ms X a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman