Summary: Ms B complains the Council delayed issuing an EHCP for her child and failed to provide provision when they were out of school. Ms B says this meant Child B was without education for an extended amount of time. The Ombudsman intends to find fault with the Council for delaying Ms B’s request for an EHCP assessment, and for failing to provide Child B with suitable access to education and provision. The Ombudsman also intends to find fault with the Council for its record keeping. The Ombudsman recommends financial remedies and service improvements.

The complaint

1. Ms B complains that the Council applied an unlawful policy to her child’s application for medical needs tuition in February 2020. This delayed the Council obtaining suitable provision.
2. Ms B complains the Council failed to secure a suitable setting for her child when they were out of education. This meant they did not receive the support and education they should have received in their GCSE year.
3. Ms B also complains about the Council’s handling of her complaint, delay caused by the Council and an offer of unsuitable remedies which do not reflect the length of time her child was out of education.

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The Ombudsman’s role and powers

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. 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)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. 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

8. I considered Ms B’s complaint and information she provided. I also considered information from the Council. I invited Ms B and the Council to comment on my draft decision and considered the comments I received.
9. 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

Legislation and guidance

Education, health and care plans

10. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how councils, schools and others should carry out their duties.
11. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
12. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
13. The Code says councils must review EHCPs at least annually. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
14. Councils must give notice to all those invited and seek advice and information from all parties. Following the meeting, councils must share a report with all parties within two weeks setting out any recommendations and amendments.
15. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
16. The Code explains a council should name the parents’ preferred school in the EHCP. The exception to this is if it would not be an efficient use of resources or would be prohibitive to the efficient education of others.
17. Where the young person is due to transition from primary to secondary education, the council should review the EHCP and issue a final amended plan by 15 February, before the transition in September. The amended plan will either specify a type of secondary education or name the educational setting.
18. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Children out of school

19. Section 19 of the Education Act 1996 says councils must make suitable full-time provision for children of school-age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability, and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
20. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.
21. The Ombudsman’s focus report, referred to in paragraph 12, made recommendations to councils about provision for children out of school. This included keeping all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

CAMHS

22. Child and Adolescent Mental Health Services (CAMHS) is a health service for children, and their families, who need support for mental health issues. CAMHS also carries out assessments for conditions such as autism.

Principles of Good Administrative Practice

23. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from Councils.
24. This document recommends councils explains and responds to any delays proactively. It also recommends councils deal with people helpfully, promptly, and sensitively, taking account of their personal circumstances.

What happened

25. Child Y has several diagnoses of additional needs, which include anxiety, selective mutism and sensory issues. In October 2019 Child Y struggled to attend full time education because of their needs.
26. Ms B told the Council of Child Y’s absence from education in February 2020 and asked for Child Y to be assessed for an EHCP.
27. Ms B approached the Council to ask for medical needs tuition for Child Y. he Council at first told Ms B to apply for this through the Child and Adolescent mental health service (CAMHS).
28. Ms B complained to the Council about its communication about this. The Council upheld Ms B’s complaint and agreed it should not have asked Ms B to apply for through CAMHS.
29. In March 2020 it refused to issue Child Y for an EHCP.
30. Ms B challenged the Council’s decision not to issue an EHCP at tribunal in June 2020. The Council agreed to issue Child Y for an EHCP in July 2020. By this point, Child Y had been out of full-time education for almost a full academic year.
31. The Council completed Child Y’s EHCP in August 2020. The Council offered the provision set out in the EHCP, however Ms B felt that Child Y would not be able to engage with the provision.
32. Ms B complained to the Council about the process of applying for the EHCP, the length of time to provide the EHCP, the provision in the EHCP and that the delay caused by the Council had caused Child Y to miss out on a significant part of their education.
33. The Council responded to Ms B’s complaint. It said:

• The Council applied an incorrect policy in February 2020, in asking the parent to pursue a referral through CAMHS for medical needs tuition. This created a delay in the provision of full time education (upheld).
• Due to the Council not keeping accurate records on file, exercising due diligence and failing to communicate effectively across departments, an incorrect decision was made in Sept 2020 when Panel decided not to issue an EHCP for Child Y (partly upheld).
• Child Y finally started at an educational placement on 18th November 2020. By this time they had not been well enough to step foot over the threshold of any school in over a year and had missed almost the entirety of his GCSE curriculum (upheld).
• In August 2020 the Council should not have named the school in Section 1 of Child Y’s EHCP as the consultation document stated that the setting could not meet their need (partly upheld).
• As a direct result of the Council’s delays in securing a suitable location for him, Child Y was deprived of the opportunity to fulfill their full potential in line with their peers (upheld).

34. The Council offered Ms B £300 for time and trouble, £1130 to reimburse the costs of the education she provided, £500 to benefit Child Y’s education. It also later offered £200 for distress.
35. Ms B remained unhappy with the Council’s response and bought her complaint to the Ombudsman.

Analysis

Council’s initial response to EHCP request

36. When Ms B first asked for Child B to be assessed for an EHCP in February 2020. She also asked the Council to provide medical needs tuition for Child Y. The Council told her to apply to CAMHS for medical needs tuition. This was incorrect information and was not in line with the Council’s policy.
37. In its complaint response, the Council accepted that it had not applied the correct policy to the request for medical needs tuition.
38. Ms B requested the Council assess Child Y for an EHCP in February 2020. It is reasonable to say the Council should have started the process in February 2020. Failing to do caused a month of delay as the next decision to deny an EHCP was made in March 2020.
39. The Council then refused to grant an EHCP, and Ms B challenged this decision. The Ombudsman cannot consider parts of the complaint that were appealable to tribunal, so for this reason I have excluded this part of the complaint.

Out of education and EHCP provision

40. The Council has a duty to provide education to children who are out of an educational placement. Ms B informed the Council that Child B was out of school in February 2020. Child B started back in education in November 2020 after an EHCP was issued. This meant that Child B was out of education and the Council was aware of this for ten months.
41. In its complaint response, the Council said it could not agree a payment for Child Y being out of school, as they had found that Child Y had access to educational support during the period they could not attend school. The Council offered a further £200 for distress caused.
42. The Council also noted that schools were closed between March and June 2020 due to Covid-19. Specialist provisions were open for children with EHCP, however Child Y was not granted an EHCP until June 2020. This meant Child Y was without suitable access to education, where the Council had a duty to provide it, between February 2020 and March 2020.
43. Ms B challenged the Council’s decision not to issue an EHCP in at tribunal in June 2020. The Council accepted it needed to provide Child Y an EHCP in July 2020 and finalised it in August 2020. The provision in the EHCP was available from November 2020.
44. The time between the EHCP being ordered and the Council providing the EHCP was the summer holidays. Therefore, Child Y did not miss any provision in this time. However, Child Y did have access to the provision until November 2020. It is unclear what access they had to education between September 2020 and November. Without clear evidence from the Council about what support Child Y had, I cannot say they had access to the provision in their EHCP. I therefore find fault with the Council for failing to provide suitable provision in this time.
45. This meant there was a further delay of two months from the Council agreeing to an EHCP and Child Y having access to suitable provision. This is in addition to the time between February 2020 and March 2020 where the Council knew Child Y was without full time education.
46. It is my view Child Y was out of education between February 2020 and March 2020, was without the agreed EHCP provision between September 2020 and November 2020. This was fault by the Council causing Child Y injustice.

Complaint handling

47. Ms B also complained about the Council’s handling of her complaint. Ms B first complained to the Council in July 2021. The Council’s policy says it should respond within 10 working days. The Council responded to her complaint in 11 working days.
48. Ms B asked the Council escalate her complaint to stage two in August 2021. The Council’s complaints procedure says it should provide a stage 2 response within 15 working days. The Council responded to the stage two complaint within 19 working days.
49. Although the Council did not adhere to the timescales in its complaints procedure, I do not consider the delay to have caused Ms B injustice as the delays were minor.

Poor record keeping

50. During my investigation I reviewed documents from the Council that recorded the actions and continuing outcomes being sought by the Council. In these documents, the Council have misgendered and misnamed Child Y on multiple occasions. This is fault by the Council and is poor practice for accurate record keeping. It would also have caused distress to Child Y. Therefore, I am recommending a remedy.

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Agreed action

51. Within 4 weeks of my final decision the Council has agreed to

• Write to Ms B and Child Y and apologise for the fault identified.
• Pay Child B £600 for the time they were without suitable provision between September 2020 and November 2020.
• Pay Child B £200 for the delay caused by the Council between February 2020 and March 2020 which meant they were out of education and the request for the EHCP was delayed.
• Pay Child B £200 for the distress caused by the Council’s poor record keeping
• Pay Ms B £300 for the time and trouble caused to her by pursuing the complaint

52. Within 12 weeks of the final decision, the Council has agreed to

• Review its process for people to request medical needs tuition, and ensure staff are aware not to request this to be done through CAMHS or other services.
• Provide training and guidance to staff about the importance of correctly recording personal details in case notes and records. The Council should also review whether further training is required for staff to understand the importance of not misgendering or misnaming people.

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Final decision

53. I have now completed my investigation. I find fault with the Council for delaying taking action on Ms B’s request for an EHCP assessment, and for not providing suitable education to Child Y. I also intend to find fault with the Council for its recording keeping.

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Parts of the complaint that I did not investigate

54. Part of Ms B’s complaint is about the Council’s initial decision not to issue and EHCP, and the educational placement named in the EHCP. The Ombudsman has not investigated these parts of the complaint because the Ombudsman cannot consider matters which are inextricably to matters considered at tribunal. Ms B had appeal rights to the SEN tribunal.
55. 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.
56. The Ombudsman cannot therefore consider the remedies proposed by the Council regarding these parts of Ms B’s complaint.

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Investigator's decision on behalf of the Ombudsman