Summary: Miss X complained there was delay in providing her daughter, Y, with an Education Health and Care Plan (EHC Plan). She also complained there was a failure to provide Y with an education following her permanent exclusion. There was also a failure to provide agreed equine therapy and the provision set out in her EHC Plan. We found there was delay in issuing the EHC Plan and there was a lack of education and provision. This set back her daughter’s education and caused distress. We recommended an apology and payment to recognise the impact.

The complaint

1. Miss X complains that the Council:

1. Failed to issue her daughter’s Education Health and Care Plan (EHC Plan) in the statutory timescale required;
2. Failed to ensure her daughter received the provision set out in her EHC Plan prior to a permanent exclusion from school;
3. Failed to provide alternative education for her daughter following a permanent exclusion from school;
4. Failed to provide Equine Therapy, having earlier agreeing to fund this;
5. Delayed the conduct of her appeal against the school named in Y’s EHC Plan.
6. Breached her daughter’s data by sending information about her daughter to a third party.

2. Miss X complained the lack of provision set her daughter’s education back and it was distressing for her. The Council also raised Y’s expectations around equine therapy and it was upsetting when it was not provided. The issues as a whole had an impact on Miss X as she also has health issues.

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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. 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)
5. 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)
6. 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

7. We are investigating points a) to d) of the complaint but not points e) and f). This is because the conduct of appeal proceedings falls outside of our jurisdiction, and Miss X has approached the Information Commissioner’s office concerning the data breach.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Timescales & process; Education Health and Care Plan Need Assessments

10. 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/young person within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child/young person’s parent 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).

Education Health and Care Plan (EHC Plan) Provision

11. The Council has a duty to make sure the child or young person receives the special educational provision set out in Section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Education Act 1996 Section 19 duty

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. This duty applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. 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
15. 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

Education Health and Care Plan (EHC Plan) timescales

16. Miss X asked the Council to carry out an EHC needs assessment on 10 February 2023. The Council agreed to do an assessment on 24 April, and agreed it should issue an EHC Plan on 24 May. A draft EHC Plan was issued on 16 June. A final EHC Plan was issued on 25 October 2023.
17. Y’s EHC Plan included the following provision:
1. A weekly, 1:1, 30 minute session to focus on recognising and communicating emotions and the triggers for them for 6-8 weeks. This should be followed by a regular weekly 1:1 session with a trusted adult to continue to focus on her emotions. It states these sessions could be via a therapeutic approach such as equine therapy.
2. Weekly 1:1 sessions of 30-60 minutes to focus on social skills and developing friendships.
3. Weekly sessions of 30-60 minutes during the Autumn term to build, maintain and repair relationships with key school staff.
4. Y should have an identified place to go to when she is feeling dysregulated, and staff should prepare her ahead of changes as far as possible.
5. Y should receive additional support from one of at least two key adults during learning times. They should check in regularly (every three to five minutes). In a mainstream environment this would equate to 1:1 support.
6. Various other changes needed to be made to Y’s learning environment and to support her with transitions to new classes, allow movement breaks and to make adjustments for her or support her.
18. The EHC Plan named a mainstream primary school for Y (School A).

EHC Plan Provision

19. Y should have received the provision set out in the EHC Plan from October 2023 when the plan was issued. Miss X told us, from the outset, Y did not receive the support the plan set out.
20. Miss X says there was a dispute between the school and the Council about funding that began before the plan was finalised. She said the school had questioned the proposed funding given the needs set out in the plan.
21. We asked the Council to tell us when it first became aware that Y was not receiving the EHC Plan support she was entitled to. Initially, the Council told us it had no record of communication from Miss X or her SENDIASS representative about a lack of provision until it was raised in a meeting on 7 March 2024. This meeting was held because Y was, by then, a child at risk of exclusion.
22. Miss X and her SENDIASS representative provided clear evidence that the Council’s response to our enquiries was not accurate. They provided evidence that the Council was made aware of the lack of provision in at least November 2023, soon after the EHC Plan was issued.
23. In written contacts with the Council, on 17 and 22 November, SENDIASS raised concern that Y had already received two fixed term exclusions since the final EHC Plan was issued. These were the result of behavioural issues during learning times. They made the point that Y’s 1:1 support was not in place. They argued, if it had been in place, the exclusions may have been avoided. They also noted the funding dispute and asked why funding had not been in place for the provision to start from October 2023 as the law required. They noted equine therapy was a named provision for 6-8 weeks and funding was also required for this, including the transport to enable her to attend.
24. SENDIASS told us that there were discussions with the school (which the council were aware of) about funding the 1:1 support. When Miss X appealed the content of the EHC Plan in December 2023, there were also many references to the fixed term exclusions that had occurred because of the lack of support. The school also costed the required provision and sent a breakdown of this to the Council in January 2024.
25. The notes of the meeting in March 2024 stated that Y exhibited demand avoidance and Y ‘needed and liked regular attention from adults’ and she had received a high level of interventions. However, the notes stated the school were ‘struggling to find’ a 1:1 support for her.
26. When we put Miss X and SENDIASS’s evidence to the Council it accepted it had failed to disclose key information when providing its response to us. It stated some of the information was on its files but not shared with us. Other records of contacts were on a separate system and the content of those may not have been documented on the Council’s case records as it should have been. The Council agreed that it had been contacted by SENDIASS in November 2023 about the lack of provision.
27. The Council told us it had agreed more funding for the provision in October 2023 but it could not be sure it had communicated this to Miss X or School A at that time and the gap in communication may have impacted the school’s ability to arrange Y’s 1:1.
28. School A permanently excluded Y on in Spring 2024. It stated this was for repeated incidents of intimidating physical and verbal abuse towards staff and pupils and engaging in unsafe activities.
29. Miss X says, before Y was permanently excluded, the Council told the school they could not exclude her until they showed they had put all provision in place. This resulted in the school giving her 2 days of 1-1 adult support shortly before exclusion.
30. The Council told us it had commissioned a pupil referral unit to provide education to start from the sixth day after her exclusion. However, it was unable to provide alternative provision and the Council had been unable to source this. It accepted that it had failed to meet its statutory obligations to provide alternative education as a result.  
31. In June 2024 the Council conceded an appeal that Miss X raised about Y’s EHC Plan. It issued a new EHC Plan on 14 June 2024.

Equine Therapy

32. In emails to Miss X in June 2024, the Council stated it had agreed funding for eight sessions of equine therapy totalling £600. This was to meet point a) of the EHC plan provision I set out in paragraph 17 above. In an email to Miss X conceding her appeal and agreeing to an independent school placement, the Council stated that funding for equine therapy had now been agreed for 12 months until July 2025. Although Miss X was told this would be provided, it was not.
33. To exacerbate the lack of this therapy, Miss X was later contacted by the provider stating the Council had actually booked a session for Y to attend which she had not come to. The provider had queried her non-attendance with the Council and charged for the session. Miss X had not been made aware of the booking.

Was there fault by the Council

EHC Plan Delay

34. The law sets out the timescales within which a child should be assessed for an EHC Plan and how long it should take to issue a plan if a council agrees to do so.
35. The Council decided it should proceed with an assessment on 24 April, which was later than the six weeks required by the law. The Council issued a draft EHC Plan on 15 May, but there was then a significant delay, until October 2023, in issuing the final plan.
36. The law says that the process of issuing an EHC Plan should take no more than 20 weeks. The overall time take to issue Y’s plan was just under 37 weeks. This was fault by the Council.

Education

37. Miss X told us Y did not receive the 1:1 support set out in the EHC Plan from the outset in October 2023. As a consequence, the other provision was also not met. Based on the evidence we have seen, Y did not receive the support that she was entitled to from October 2023. This was a breach of the Council’s statutory duty to ensure that Y received the additional provision she needed. This was further fault by the Council.
38. We asked the Council to comment on the apparent lack of equine therapy after this had been agreed. It told us it had agreed this funding to support Y while she was in mainstream school. It stated equine therapy was not specified in Y’s EHC Plan and once the independent placement had been agreed, the new placement could provide the support set out in Section F of the EHC plan without the requirement for equine therapy.
39. Y’s EHC plan does not state that equine therapy must be provided. Rather, it specifies it as one way to meet part of the provision. However, there is clear evidence that the Council had agreed to fund and provide equine therapy to meet the relevant part of Y’s EHC plan support. It went as far as booking a session but did not communicate this with Miss X so Y could not have attended. It is evident that this was not only an agreement it made when Y was in mainstream school as the Council has suggested in its response to us. I say this because an email sent to Miss X at the point it agreed the Independent School placement also confirmed it would fund equine therapy. It appears the Council has since changed its position on this without explanation. The Council had raised Y’s expectations that this would be provided. While the provision could be met in other ways, the Council had clearly agreed to meet it with equine therapy and the failure to provide this to Y, having agreed to, and without an appropriate explanation was also fault by the Council.

Education following exclusion

40. The Council has a duty to ensure provision is made for pupils who are permanently excluded from school. This must start from the 6th day of their exclusion. There was further fault, in that the Council did not provide any education for Y at all from March 2024 when she was permanently excluded.
41. Poor communication and delays are the main themes behind the issues that we have identified in this complaint. The Council failed to communicate its decision on funding at the outset, it failed to communicate its decisions and booking of equine therapy for Y and there were significant omissions in the information it originally provided to us for this investigation. These were in part, it seems, because its records were not properly kept up to date. The Council told us that it would raise with Operational Managers the importance of sharing all relevant information with the LGSCO when responding to our enquiries and it would remind the relevant team of the importance of saving information properly to the Council’s records. We are aware that the Council is working to an action plan to address its performance and improve the quality of its processes regarding alternative provision for children.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the child’s special educational needs; any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and whether additional provision can now remedy some or all of the loss.
43. The Council failed to provide Y’s EHC Plan support for two and a half terms between October 2023 and June 2024 when it issued a new EHC Plan. Y has special educational needs. Although I cannot conclude that Y was excluded solely due to the lack of provision, it is likely that the lack of support contributed to issues Y had at school, and therefore her fixed term and permanent exclusions. I have therefore recommended the Council pays Miss X, for Y £2000 per term to recognise the impact of the lack of provision. This is a total of £5,000. This remedy also takes account of the failure to provide alternative provision between Spring 2024 when Y was excluded and June 2024 (when a new EHC Plan was issued providing a new school).
44. In addition, the Council should make a payment to Y of £300 to recognise the distress caused by the failure to provide equine therapy that it had agreed to. It should also pay Miss X £500 to recognise the distress caused by the delay in issuing the EHC Plan, the prolonged period without suitable provision and the Council’s poor communication.

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Action

45. Within four weeks of my final decision:
46. The Council should apologise to Miss X and Y for the failings we have identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
47. To recognise the lack of Education, Health and Care Plan support and a lack of alternative education, the Council should make a payment to Miss X, for Y, of £5000.
48. To recognise the distress caused by the failure to provide equine therapy after agreeing to do so, the Council should pay Y £300.
49. To recognise the distress caused to Miss X by the delay in issuing the Education Health and Care Plan, the prolonged period without suitable provision and the Council’s poor communication it should pay her £500.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed to take the action above to remedy the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman