Summary: We found fault with the Council for the delays in issuing Education Health and Care Plan (EHCP) for the complainant’s (Mrs X) son (Y), not providing suitable education for Y since he stopped attending school in January 2022 and failure to ensure his special educational provisions (SEP) were delivered till mid-December 2022. These faults caused Y and Mrs X injustice. The Council agreed to apologise, make payments for the delays, lack of education and distress and carry out some service improvements.

The complaint

1. Mrs X says the Council delayed issuing Y’s EHCP and failed to provide suitable education for him for many months. She says the Council also failed to deliver SEP identified in Y’s EHCP.
2. Mrs X says Y missed education and an opportunity for a place in a special school which was parental preference. Mrs X claims she experienced anxiety, had to stop working and struggled trying to provide some education to Y while looking after one-year old baby. This, she said, lead to her mental health breakdown in August 2022.

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What I have and have not investigated

3. Mrs X brought her complaint to us in December 2022. I have decided to extend investigating her complaint back to September 2021, when the Council received a request for Y’s EHC needs assessment. I consider it is important to investigate the whole EHCP process to explore Mrs X’s concerns about the Council’s failings.
4. If Mrs X was not happy about the way Y was educated before September 2021, she could have complained at the time.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. We cannot investigate complaints about what happens in academies, as they fall outside our jurisdiction. However, we can investigate the actions taken by councils to arrange special educational needs provision for children in academies.
8. 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)
9. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
10. 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)
11. 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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How I considered this complaint

12. I spoke with Mrs X and considered the information she provided.
13. I made enquiries with the Council and considered the information it provided.
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

Legal and administrative background

EHCP process

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:
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Appeal rights

16. 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.
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Full-time education

18. 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.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
20. 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)
21. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
22. Academies are independent of local councils. However, councils remain accountable for ensuring pupils who cannot attend school received suitable full-time education, regardless of the type of school they attend. Councils must work with schools and parents to identify children who need alternative education and to make suitable arrangements.

Delivery of special educational provisions

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

What happened

Background

25. Y is eight and has Autistic Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD).
26. In July 2021 Y was permanently excluded from his school (School 1).

September 2021 to August 2022

27. In the third week of September 2021 the Council received a request for an EHC needs assessment for Y. In the beginning of October the Council told Mrs X it decided to carry out Y’s EHC needs assessment.
28. In October and November Y attended an alternative provider (Provider 1). The placement lasted eight weeks. Mrs X wanted this to continue but the Council offered Y a place in a mainstream primary academy (School 2).
29. In the first week of December Y started attending School 2. Provider 1 supported Y’s transition to School 2. After the transition period, despite the individual support, Y would stay at school for one hour a day, after which School 2 would call Mrs X to pick him up.
30. Once the transition period was finished the Council offered Y some hours of support from a charity helping children with mental health and behaviour difficulties to re-engage with learning (Provider 2).
31. In the beginning of February 2022 a multi-professional meeting took place to discuss Y’s education. It was decided Y should learn at home with Provider 2 continuing to support him.
32. In February Mrs X complained about the delays with an EHCP and lack of education for Y.
33. During the review meeting in the second week of March the Council withdrew funding for Provider 2 and settled School 2 would take over the responsibility for providing work for Y. Mrs X needed to supervise Y and ensure he completed the work. Special Educational Needs Coordinator (SENCo) from School 2 would drop off work for Y weekly and do a welfare check.
34. In mid-June Mrs X complained to the Council about:
• Delays with issuing EHCP;
• Lack of a suitable school placement for Y since January 2022;
• Unsuitability of the arrangement for the parents to educate Y as they worked full time and had a baby to look after;
• Failure to tell Mrs X of the Council’s decision about an EHC needs assessment within six weeks from the request;
35. Mrs X explained she thought Y needed a specialist school. Before his permanent exclusion from School 1 he struggled with attendance and learning there. Mrs X expressed her preference for one of the two special schools for children with SEN similar to Y’s (School 3 and School 4).
36. The Council issued Y’s draft EHCP in the end of June. It also told Mrs X it was consulting with School 3.
37. In the beginning of July Mrs X asked for Personal Budget (PB) for Y, but she did not provide any details of this request.
38. When sending her comments to Y’s draft EHCP in the second week of July, Mrs X updated her preference for a school to be named in Section I. She asked for School 4 for him.
39. In its stage one response to Mrs X’s complaint the Council apologised for the delays with issuing EHCP for Y.

September 2022 to mid-December 2022

40. In the second week of September the Council issued Y’s final EHCP, naming School 2 in Section I.
41. Two weeks later the Council contacted School 2 asking it to arrange alternative provision for Y. The meeting followed at which the Council repeated this advice to School 2.
42. In the beginning of October Mrs X told the Council she lodged an appeal to the SEND Tribunal. Again she rose the issue of Y not receiving suitable education.
43. In the second week of November the Council contacted School 2 asking what provisions was in place for Y. After almost two weeks School 2 stated Y received support from the organisation providing sport activities and adult education (Provider 3). The Council explained this was not enough and Y should receive an equivalent of full-time education.
44. Throughout November the Council communicated with School 3, which wanted to meet Y to find out its suitability for him. Even though Mrs X refused to engage with School 3 as she did not consider it would be safe for Y to attend it, at the end of November School 3 confirmed it would be able to meet Y’s SEN and offer him a place from mid-December.
45. In its response to Mrs X’s appeal the Council refused to name School 4 for Y, claiming it could not offer him a place and was further from Y’s home address than School 3. The Council proposed to name School 3 in Y’s EHCP.

From mid-December 2022

46. In the beginning of January 2023 the Council again asked School 2 for the details of provision offered and accessed by Y as well as what would be required to enable Y’s attendance at School 2. After another communication with School 2, the Council sent it contact details for the tutoring agency (Tutoring Agency).
47. Throughout February the Council kept chasing School 2 to complete the paperwork for the Tutoring Agency. In the end it took over communication with the Tutoring Agency.

Analysis

EHCP process

48. The Council received a request to carry out EHC needs assessment for Y in the third week of September 2021. The EHC plan should have been completed within 20 weeks so in the beginning of February 2022.
49. The Council issued final EHCP for Y in the beginning of September 2022. The delay of seven months is fault and it caused injustice to Y and Mrs X:
• uncertainty about SEP which Y needed to access education;
• Mrs X could not hold the Council responsible for not ensuring delivery of SEP;
• uncertainty about a school placement which should be named for him as from January 2022 Y was not attending School 2;
• Mrs X’s appeal rights were delayed by seven months which caused her frustration and distress as she could not challenge the Council’s position on Y’s placement.

Full-time education

50. Following Y’s permanent exclusion in July 2021, the Council arranged for Provider 1 to educate him for eight weeks and then placed him in School 2. In December Y started attending School 2 but despite transitional arrangements and individual teaching could not stay there longer than one hour each day. The Council knew of these difficulties and arranged for Provider 2 to support Y. The support from Provider 2 continued till March, even after Y stopped attending School 2 in January 2022.
51. Once Y stopped attending School 2 the Council did not challenge Y’s non-attendance by serving Mrs X with a non-attendance notice by which it seemed to have accepted there were justifiable reasons for his absence from school. In such circumstances, as explained under paragraph 19 of this decision, the Council had a duty to arrange suitable education for Y which would be equivalent to full-time education, unless it had evidence it would not be in Y’s best interest. Individual hours of support from Provider 2 until March 2022 and support from School 2 by providing Mrs X with worksheets once a week which followed, cannot be considered as suitable education.
52. Even after Mrs X appealed in the beginning of October the Council must be held responsible for not providing full-time (or equivalent) education to Y. Although we do not criticise naming School 2 in Y’s EHCP as it would be for the SEND Tribunal to decide, Y’s need for a different school placement did not seem to be linked to the appeal for the following reasons:
• The Council did not start any non-attendance proceedings when Y stopped attending School 2 in January 2022 and continued discussing with School 2 the ways of providing alternative education to Y;
• When sending a final EHCP to Mrs X the Council explained it named School 2 to ensure School 2 could arrange alternative education. This suggested the Council did not dispute Mrs X’s position Y needed a specialist placement;
• In its response to Mrs X’s appeal the Council did not defend suitability of School 2 for Y, instead it proposed naming School 3 in Section I of Y’s EHCP.
53. In mid-December 2022 the Council offered Y a place in School 3. Mrs X did not consider the new placement suitable. Mrs X lodged her appeal in October, so the SEND Tribunal will decide suitability of any potential placements for Y. As explained under paragraph nine of this decision once the appeal is lodged we cannot investigate any matters linked to the appeal which are under the SEND Tribunal’s jurisdiction. Neither can we remedy lack of education after the date the appeal was engaged if it is linked to the disagreement about the school placement. The Council’s compliance with the section 19 duty depends on the SEND Tribunal’s decision on the suitability of School 3 for Y. Thus we cannot make any findings on the Council’s discharge of its duty to provide education to Y from mid-December 2022.
54. The Council’s failure to arrange suitable education for Y from January till mid-December 2022 is fault, which caused injustice to Y and Mrs X. Y missed many months of education. Mrs X could not continue working and struggled to combine supervising Y with looking after her baby. Her mental health was negatively impacted leading to the breakdown in August 2022.
55. It is concerning that from the end of March 2022 the Council seemed to have relied on School 2 to make educational arrangements for Y. This became obvious in the autumn, when the Council on many occasions told School 2 to arrange alternative provision for Y and explained Provider 3’s support was not enough. The law makes it the Council’s duty to arrange suitable alternative education for children not attending school. The Council should have been more proactive to ensure this happened for Y rather than to rely on School 2.
56. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022. This guidance encouraged local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. On page four of the report we identified taking responsibility for ensuring pupils receive suitable full-time education as one of the common issues and suggested the right approach.

Delivery of special educational provisions

57. From the date of issuing final EHCP the Council had a duty to ensure Y received SEP included in Section F of Y’s EHCP. Until mid-December 2022 this did not happen as Y received only some sporting activities from Provider 3 once a week, which would not allow delivery of all the provisions.
58. It is expected that School 3 would deliver SEP while providing education to Y. Therefore, for the reasons explained under paragraph 53 of this decision, from mid-December 2022 when the Council offered Y place in School 3, the Council cannot be held responsible for the failure to ensure delivery of SEP caused by the dispute between Mrs X and the Council about School 3’s suitability.
59. The Council’s failing to ensure delivery of all SEP for Y from the second week of September to mid-December is fault, which is inseparable from not providing him with education. Therefore there is no separate injustice caused by it.

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Agreed action

60. 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;
• pay Mrs X £500 a month to recognise the negative impact of the lack of suitable education. The total the Council should pay is £4,250 for the period of eleven and a half months from January 2022 till the mid-December 2022, excluding three months for summer holidays, half-terms and the Easter break;
• pay Mrs X £200 a month to recognise the negative impact of the delays with issuing Y’s final EHCP. The total the Council should pay is £1,400 for the period of seven months from February 2022 till September 2022;
• pay Mrs X £500 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

61. We also recommend the Council within three months of the final decision:
• Ensure all front-line SEN staff and their managers review our Focus Report “Out of school, out of sight?” of July 2022;
• Provide us with the details of how the Council monitors education of the children who are out of school.

The Council will provide the evidence that this has happened.

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Final decision

62. I uphold this complaint. I found fault with the Council for the delays in issuing EHCP for Y, not providing suitable education for Y since he stopped attending school till mid-December 2022 and failure to ensure his special educational provisions are delivered till mid-December 2022. The Council’s fault caused Y and Mrs X injustice. The Council has accepted my recommendations, I so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman