Summary: Dr Y complained about the Council’s handling of S’s Education, Health and Care needs assessment between January 2023 and October 2023. The Council is at fault for delays in adequately assessing its section 19 duties and failing to ensure S received all the provision set out in his plan from October 2023. This caused Dr Y avoidable uncertainty and frustration as well as loss of provision for S. The Council has agreed to apologise to Dr Y, make a payment to recognise the injustice and act to prevent recurrence.

The complaint

1. Dr Y complains about the Council’s handling of her son, S’s Education, Health and Care (EHC) needs assessment between January 2023 and October 2023. Specifically, Dr Y says the Council failed to:
• consult with all the required specialists;
• arrange the Occupational Therapy (OT) provision from section F of the Plan promptly; and
• communicate with her effectively about the assessment process and explain the steps to her.
2. Dr Y says that this led to S missing crucial OT support he needed. It also meant that Dr Y commissioned private specialist assessments at her own cost.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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.
7. 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).
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
9. 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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How I considered this complaint

10. I considered evidence provided by Dr Y and the Council as well as relevant law, policy and guidance.
11. Dr Y and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making a final decision.

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What I found

12. A child or young person with special educational needs (SEN) 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. 
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an 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.
15. 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)  
16. 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.
17. 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)
18. 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
19. 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.

20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled

What happened

21. I have summarised below some key events leading to Dr Y’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
22. In January 2023 Dr Y asked the Council to complete an EHC needs assessment for S. In March 2023 the Council decided not to complete the assessment and Dr Y appealed this decision to the SEND Tribunal.
23. S then stopped attending school in late March 2023.
24. By late May 2023 S’s school asked the Council to provide medical tuition for S. In June 2023 S’s needs were assessed and tuition started by the end of the month.
25. In July 2023 the Council decided not to oppose Dr Y’s appeal. The Council informed the Tribunal and Dr Y it would now complete an EHC needs assessment for S.
26. In August 2023 Dr Y commissioned and paid for a private OT assessment. In the same month S was assessed by an Educational Psychologist (EP).
27. The Council issued S’s final EHC Plan in early October 2023. This Plan said that S should receive 6-12 one-hour OT sessions per year. Dr Y appealed the content of the Plan to the Tribunal. Around this time, S started to access additional science tuition.
28. In early 2024 the Council agreed to provide S with a package of Education Other Than At School (EOTAS) and a Personal Budget.
29. Dr Y complained to the Council in late May 2024. Dr Y said:
• the case worker did not follow correct procedure once the Council conceded to completing an EHC needs assessment before the Tribunal;
• the Council refused her reasonable request for consulting with an OT and SALT;
• the Council failed to include preparing for adulthood in S’s EHC Plan;
• the Council kept inaccurate records of reports that informed EHC needs assessment;
• the Council wrote the draft plan without a collaborative meeting with Dr Y as per her request;
• the Council left section I of the final EHC Plan blank;
• medical tuition S received was not suitable as subjects were missing; and
• the Council did not assign funds to S’s final EHC Plan so Dr Y had to fund tutors herself, and this put her in a difficult financial situation.
30. In June 2024 the Tribunal issued its decision. The order document said that the Council agreed to provide EOTAS for S and a personal budget.
31. The Council then responded to Dr Y’s complaint, saying:
• S was not open to the OT or SALT services, which is why these were not part of his EHC needs assessment;
• Dr Y decided to commission a private assessment rather than get a referral from a GP, and the Council did not consider it was reasonable for it to reimburse her this cost;
• It did not have a way to commission a SALT assessment; however S’s GP made such a referral. This resulted in a SALT decision not to progress to an assessment and the service considered S’s needs were part of his autism diagnosis and did not require the specialism of a SALT;
• Preparation for adulthood is included in the EP assessment for all children from Year 9 onwards and is not a separate assessment.
32. Dr Y was unhappy with the Council’s response and asked it to reconsider this.
33. The Council responded further to Dr Y’s complaint in September 2024. It said that:
• it was not required to hold a coproduction meeting with Dr Y before issuing S’s EHC Plan;
• it has a panel of various professionals that decides about EHC needs assessments, and this is in line with the law;
• it would only commission an OT assessment if the child was already referred in or opened to NHS OT services;
• it had already explained to her why it would not reimburse her the cost of the private OT assessment;
• Dr Y was responsible for the additional costs of consulting a legal representative;
• it already explained why it would not reimburse Dr Y for the costs of a private SALT assessment;
• it accepted S missed eight OT sessions in 2023 and offered to pay £100 in recognition of this;
• it accepted that S missed out on some education between June and September 2023 and offered to pay £500 in recognition of this;
• it was sorry Dr Y felt communication was not always clear, but its records show that the case officer explained to her that if she implemented any tuition without prior agreement with the Council it would be at her own cost.
34. Dr Y was not happy with the Council’s response, and she asked the Ombudsman to investigate.

Analysis

Specialist consultations

35. Dr Y complained the Council failed to request OT and SALT assessments to inform S’s EHC Plan.
36. The records show that S’s GP referred him for a SALT assessment. However following the initial assessment, the NHS SALT service decided not to carry out a full assessment of S’s needs and it considered his needs were related to his autism diagnosis rather than language skills and the expertise of a SALT was not required.
37. While Dr Y disagreed and commissioned a private SALT assessment, I do not consider the Council was at fault for following the advice from the NHS SALT. Because of this I have not recommended the Council should repay the cost of the private report.
38. The Council’s records show it explained to Dr Y that S was not known to the OT service and the Council did not consider OT assessment to be necessary. It told Dr Y that S’s school or his GP could refer S for an assessment if it considered it would be necessary. I do not consider the Council was at fault and I have not recommended the Council should repay the cost of the private report.

OT provision

39. The Council accepted it was at fault for not securing OT provision for S promptly. The Council identified that S missed out on eight months of provision and it offered to pay Dr Y £100 in recognition of this.
40. I have not investigated the reasons for the delay any further, but I have considered the suitability of the remedy offered to Dr Y.
41. We have published guidance to explain how we determine remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Dr Y, we may recommend the Council makes a symbolic payment.
42. When we recommend a remedy, we only take account of avoidable injustice that is the result of fault by the Council. It is difficult to say exactly what effect the missed OT provision had on S, but as he missed eight out of a maximum 12 sessions, it would likely be significant.
43. Because of this I consider the Council should pay Dr Y £500 to recognise the significant uncertainty about the impact of the missed OT sessions.

Section 19 duties

44. Dr Y said that medical tuition that S received between June 2023 and September 2023 was not suitable for his needs. This is because he was not tutored in English, and other subjects such as history, Spanish and Music which he wanted to take at GSCE.
45. The Council told Dr Y its SEN department was not responsible for securing education for S before his final EHC Plan was issued. It may not be a responsibility of the SEN department however the Council must consider and assess its section 19 duties when it knows a child may need support in accessing full-time education.
46. The Council said that between June 2023 and September 2023 S was accessing medical tuition which was suitable to his needs because he was assessed before securing tutors. However, the Council’s final response accepted that S missed out on education because the Council was delayed in finding an English tutor, and the provision did not include subjects that S said he wanted to take at GSCE. This suggests the assessment the Council carried out before securing tutors was not adequate, and this is fault. To fulfil its section 19 duty the Council should have considered S’s ability and aptitude before deciding what tuition it would implement. If medical tuition only covers certain subjects, and those did not meet S’s needs the Council could and should have organised additional tuition outside of its standard medical tuition service.
47. In recognition of the injustice this caused to S the Council offered to pay £500. I consider this is a suitable remedy for the partial loss of provision between June 2023 and September 2023.

Communication standards

48. The Council said it had no records of the communications with Dr Y being confusing and it considered it was explaining things clearly to Dr Y.
49. Dr Y said she felt isolated during the EHC needs assessment process and she wished the Council provided her with more information.
50. I have seen no evidence of fault in the Council’s communications with Dr Y. The EHC needs assessment process can be complicated and prolonged, but on this occasion, we do not consider this was as a result of the Council’s fault.

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Action

51. Within one month of the date of the final decision statement, the Council should:
• apologise to Dr Y for its failure to provide S with the OT sessions from his EHC Plan and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Dr Y £500 to remedy the injustice the loss of eight sessions of OT caused S;
• pay Dr Y £500 to remedy the injustice caused by the loss of educational provision between June 2023 and September 2023 for S;
• issue a reminder to staff about the importance of appropriate assessment of educational needs for an individual child when deciding if the Council needs to act under its section 19 duties to provide alternative education where a child is out of school.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman