Summary: Miss B complained the Council failed to properly consider her needs. She says it failed to provide appropriate full-time education for a long period of time and failed to manage the process towards developing her Education, Health and Care Plan, including finding a suitable placement. She says this caused her time and trouble and she missed provision as a result. There is evidence of fault and the Council has been asked to make payments and consider its complaints handling.

The complaint

1. The complainant, whom I shall call Miss B complains that the Council:

a) failed to intervene although it knew she was not receiving full time education from December 2017 and was then out of school from May 2018;

b) failed to write a clear letter in December 2017 to explain its reasons why it would not assess her for an Education, Health and Care Plan (EHCP);

c) failed to carry out a full needs assessment for that EHCP and, in particular, failed to arrange assessments from speech and language therapy and occupational therapy in a timely way so they could be amalgamated into the first final EHCP; and,

d) delayed identifying suitable educational provision for her until June 2019 when she had already been out of school for over a year.

2. Miss B also criticised the Council for failing to meet deadlines.

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What I have investigated

3. I have investigated points a), c) and d) of Miss B’s complaint. I explain why I have not investigated point b) at the end of this statement.

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The Ombudsman’s role and powers

4. 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) In this case, I am considering complaints from December 2017.
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. If we are satisfied with a council’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 considered the information from Miss B and made enquiries of the Council and assessed its response. I also accessed relevant law and guidance. I sent Miss B’s representative and the Council a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Background

13. Miss B has High Functioning Autism with depression and anxiety. Miss B joined School X in November 2015 and an EHCP was requested in November 2017. Miss B found it difficult to cope at School X. I am looking at this complaint from December 2017 when Miss B was struggling to attend. Miss B was of compulsory school age until June 2018.

That the Council failed to intervene although it knew Miss B was not receiving full time education from December 2017 and was then out of school from May 2018

14. From December 2017 the Education Inclusion Partnership Team was involved with Miss B’s case. The Council knew that Miss B was not attending school full time. It did not bring truancy action or seek to provide full time education elsewhere. From January 2018, Miss B was accessing provision for 1 hour three times a week at a learning centre. She also had work sent home from school but was not necessarily completing it.
15. The Educational Psychology report of March 2018 suggested Miss B did not want to do any more time in the Learning Centre or receive more work to complete at home. She did not want to return to the school. It said she needed “clear and small steps” to enable her to return to education. The Council could have offered a short stay school for Miss B to attend if returning to School X was not viable but this would not have been in Miss B’s best interests either. I am not finding the Council at fault for failing to provide full time education. I have no evidence that Miss B was able to, or wanted, full time education at school, to do more work at the learning centre or receive further work from school to complete at home, which I consider were options open to her at the time. Miss B says she felt ‘forced’ to leave the school in May because staff wanted her to return to the main site, which she felt she could not do. This is a school matter. I cannot look at the actions of schools.
16. After June, Miss B was no longer of compulsory school age. The law says that for pupils aged sixteen to eighteen, Councils have ‘a power’ rather than ‘a duty’ to arrange education provision. The Council was aware of Miss B’s special educational needs and was taking responsibility in that it was assessing them. There was no duty on the Council to provide education even though, also by law, young people are expected to continue in some kind of education or training until they are eighteen. There is a duty on the Council to ensure young people receive the provision in their EHCPs, which might mean providing full time education, although Miss B did not have an EHCP until January 2019. I cannot criticise the Council for a lack of education at this time.

That the Council failed to carry out a full needs assessment for that EHCP and, in particular, failed to arrange assessments from speech and language therapy and occupational therapy in a timely way so they could be amalgamated into the first final EHCP

17. The Council agreed to carry out an EHCP needs assessment for Miss B on 29 January 2018. Miss B says the Council failed to carry out a full assessment and, in particular, failed to arrange assessments from speech and language therapy and occupational therapy in a timely way so the findings could be amalgamated into the first final EHCP. The Council says it asked for information from Educational Psychology, Child and Adolescent Mental Health Services (CAMHS), the community paediatrician, School X, social care and the specialist support service at the outset. It accepts it did not approach speech and language or occupational therapy until much later and that this was an ‘omission’. It was not the case, as the Council wrote in its first complaints response to Miss B, that “responses were not received in time to be included in the plan dated January 2019” given they had only just been asked for. This is fault and the Council should apologise for the distress this caused.
18. The Council has accepted fault in not requesting the professional advice earlier, and then not chasing its receipt, I consider it should provide a remedy for the time and trouble this caused to Miss B and her representative. Further, because of its failure to request the professional advice, Miss B’s representative felt she had no choice but to engage professionals to write these reports. The Council should reimburse her for these as she would not have had to pay for them had the Council not acted with fault.

That the Council delayed identifying suitable educational provision for her until June 2019 when she had already been out of school for over a year and failed to meet deadlines.

19. Miss B’s final EHCP was issued outside statutory deadlines. There was a consent order from SEND on 8 October 2018 and the draft EHCP was issued within five weeks on 14 November 2018. The final EHCP should then have been issued in eleven weeks on 3 January 2019. It was not issued until 22 January 2019 (nineteen days late), which is fault.
20. The EHCP was issued without naming a placement. We cannot say what placement is appropriate for a child so we cannot look at this matter. Miss B says the Council failed to consult placements in a timely way so failed to identify suitable educational provision for her until June 2019.
21. Miss B wanted an independent special placement. The Children and Family Act (2014) says there is no ‘right’ to request the Council to consult with an independent school of parental choice. Independent Parental Special Education Advice (IPSEA) says: “when a parent or young person asks for an independent setting…the onus is on them to prove that none of the schools the Council is offering (even if they are also independent) can meet the child or young person’s needs, or that the cost of the placement will not constitute unreasonable public expenditure”. This is a matter often only resolved by SEND.
22. As the Council did not name a specific placement in the EHCP, the only remedy was for Miss B to go to SEND so a placement could be named. Councils can name types of schools in EHCPs; this is not evidence of fault.
23. Miss B referred the matter to SEND on 5 February 2019. The final EHCP was issued within the statutory timescales and she is now attending the placement of choice. As this outcome could foreseeably have been achieved nineteen days earlier the Council should make a payment of £100 for missed education, and provision in her EHCP, over that time.
24. Miss B also complained about the Council’s complaints handling. The Council treated her complaint as a corporate complaint, which was correct. It responded to her formally on 6 August 2019. It could not consider tribunal matters. The Council did not give a further response until it held a meeting on 23 December 2019. It should not have taken five months for this further response. The delay is fault and this caused Miss B time and trouble as she could not come to the Ombudsman until she had exhausted the Council’s own processes.

Agreed action

25. For the Council to apologise to Miss B and Miss B’s representative for the fault identified in this Statement within two months of the date of my decision.
26. For the Council to make a payment of £300 to Miss B as an acknowledgement for considerable time and trouble throughout the matters complained of. It should make the payment within two months of the date of my decision.
27. For the Council to make a payment of £100 for missed education and other provision due to sending the first issued EHCP late. It should make this payment within two months of the date of my decision.
28. For the Council to reimburse Miss B’s representative for the two professional reports she paid for on receipt of appropriate evidence. This action should be completed in three months.
29. For the Council to consider how it addresses complaints to ensure they are dealt with as quickly as possible and to tell me what action it will take in the future, within three months of the date of my decision.

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Final decision

30. Fault leading to injustice and actions have been agreed to remedy this .

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Parts of the complaint that I did not investigate

31. Point b) is appealable to the SEND tribunal and the Ombudsman has no jurisdiction to consider this.
32. The Ombudsman cannot consider periods of time where appeal rights to the tribunal were granted and/or where SEND was the appropriate place to address complaints.

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Investigator's decision on behalf of the Ombudsman