Summary: There was delay in consulting a range of alternative schools, in holding an emergency review of an Education, Health and Care (EHC) plan and in providing a new right of appeal when a child was not able to attend school over an extended period. While the child’s health needs make it difficult to assess what impact the delay had, the uncertainty as to whether Y would have been able to return to school sooner, but for the fault, is itself an injustice. The Council will make a payment to acknowledge the injustice caused and make service improvements.

The complaint

1. Ms X complains on behalf of her son, whom I shall refer to as Y, that the Council:
• Failed to provide appropriate support when Y was unable to attend school due to anxiety (education and social care)
• Failed to obtain advice to inform school choice and delayed in consulting new school placements.
• Failed to hold an emergency review when the school placement broke down in October 2020
• Only provided five hours per week education otherwise than at school (EOTAS).
2. Ms X says as a result of the alleged fault:
• Assessments to identify needs accurately have only been done recently when they should have been obtained during an Education, Health and Care Needs Assessment (EHCNA) in 2020, and then they were only done at the direction of the Tribunal
• Her child missed out on education and was socially isolated
• It is only after a recent ten week mental health intervention that her child is ready to return to a school placement, this support should have been offered in 2019/2020.
• The alleged fault has put extra stress on the family over an extended period.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) We also cannot consider loss of provision that is a consequence of an appeal, for example where the appeal is about the suitability of a school placement which results in a loss of education during the appeal period. We can investigate where we can separate the complaint from the appeal, for example where a child was too unwell to attend any placement during the appeal period.
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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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What I have investigated

9. I have investigated the period from September 2020, when Y was due to start secondary school and following the issue of an EHC plan in Summer 2020. While Ms X’s complaint details events dating back to 2018, Ms X did not make a formal complaint to the Council until mid-2021. I consider if Ms X was unhappy with the provision made at primary school, she could have raised this at the time.
10. I have not investigated matters where there was a right of appeal we would expect to be used, or where an appeal about the same matters was brought.

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How I considered this complaint

11. I have considered information provided by Ms X and the Council including:
• Complaint documents
• EHC documents
• Alternative provision documents
• Correspondence with schools
• Tribunal documents.
12. I have spoken to Ms X by telephone.
13. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and Disability code of practice: 0 to 25 years (‘The Code’)
• Education Act 1996.
14. 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.
15. Ms 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

Relevant law and guidance

16. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.

17. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

18. 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).

19. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
21. Those consulted have a maximum of six weeks to provide the advice.
22. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
23. Families can request that any special educational provision in an EHC plan is delivered by way of a personal budget (including via direct payments) when a Council has issued a draft plan or during a review of the plan.
24. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176
25. 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.

Key events

26. In 2018 during his last year at primary school, Y stop attending and was referred to the Council’s medical tuition service. PA says this was supposed be short-term, but the Council says it can be long term where reintegration fails.
27. Ms X applied for a statutory assessment for an EHC plan in 2019, but this was refused. Ms X would have had a right of appeal against the refusal, which we would have expected her to use.
28. Y moved to secondary school in September 2019, but never attended a full lesson due to high levels of anxiety. Medical tuition at home resumed, five hours per week.
29. The school requested a statutory assessment for an EHC plan. This was agreed once Ms X also consented. The EHC needs assessment began in March 2020, with a draft plan issued in June and a final plan in July. Due to COVID-19 statutory timeframes for assessments were disapplied between May and September 2020.
30. The Council has provided me with evidence of the advice it sought as part of the assessment. It has provided a letter it sent to Ms X stating it was seeking advice from physiotherapy, occupational therapy (OT), Child and Adolescent Mental Health Services (CAMHS) and speech therapy as well as other mandatory advice. The Council says Ms X did not request specific advice or any new assessments at that time.
31. The following advice was obtained:
• Educational psychology (Dec 2019 and May 2020)
• Education setting (January 2020)
• Clinical Psychology (June 2019)
• Speech therapy (May 2019).
32. It is possible to use existing advice for an EHC needs assessment provided the parents, council and professional who provided the advice agrees it is sufficient for the purposes of an EHC assessment. It also would not have been possible for new assessments to take place due to the national lockdown in place in Spring / Summer 2020.
33. It appears social care failed to provide advice at that time.
34. The Council consulted schools in June 2020, but only ‘resource provision’ at mainstream schools. Some replied stating they could not meet Y’s needs, including Y’s current school.
35. The Council did not consult other types of school. In the final EHC plan it named the current school. Councils can overrule decisions by schools they cannot meet need. Ms X had a right of appeal against the decision to name the mainstream school and the content of the final EHC plan (description of needs and provision) but did not use it.
36. In August 2020 Ms X requested a personal budget to purchase a laptop and towards other educational expenses. The Council said this request would be considered at the next review.
37. Medical tuition of five hours per week continued.
38. In October 2020 the Council and School discussed holding an interim review meeting. The Council chased up outstanding consultations from schools. One said it could meet need but was currently full. There were no other positive responses. It appears the SEN caseworker then left and there was a gap until February 2021 before the review was arranged or further schools consulted.
39. In March 2021 the school told the Council if a representative from the Council did not attend the review meeting Ms X would be making a formal complaint. Ms X considered the Council had let the matter drift, with Y now in his third year of tutoring. The School said it had been clear it could not meet need, that this was not a resource issue; Y could not manage a mainstream school environment.
40. At the review meeting the Council decided to consult more schools, but with one exception it just consulted the same schools as it had the previous year. It did not consult any special schools. Unsurprisingly the schools again gave negative responses. The Council’s decision following the review was not to amend the EHC plan.
41. In April 2021 a youth worker was offered. The Council said the family declined this support; but Ms X says the worker changed almost immediately so Y lost confidence and refused to engage with the service. However, there are emails from Ms X in April asking the intervention to be put on hold as it coincided with attempts to try tuition outside the home and to increase tuition hours.
42. In May 2021 Ms X submitted a formal complaint about delay.
43. In June 2021 Ms X appealed to the SEND Tribunal against the decision not to amend the Plan. Ms X also appealed the health and care sections of the plan as part of an ‘extended appeal’. The hearing was listed for December 2021.
44. Some tuition was attempted away from the home, but this was not successful. There is evidence that many sessions of tuition were cancelled by Ms X over Summer 2021 due to Y’s anxiety or other family circumstances.
45. In August 2021 Ms X asked the Council to consult some special schools. The Council also agreed to consider providing Education Otherwise than at School (EOTAS) on an ongoing basis. The Council offered online tuition and activities via two community organisations. Ms X did not consider these suitable for Y.
46. EOTAS was agreed by the Council’s panel in November 2021.
47. A social care assessment took place in November 2021. This resulted in a referral to a keyworker and signposting to other resources as social care considered Y’s needs could be met from universal services. Y was on the waiting list for an assessment with CAMHS.
48. When the matter came before the SEN Tribunal it refused to approve the EOTAS arrangements as it was not satisfied Y’s needs could not be met in any school (because no special schools had been consulted) or that the EOTAS package was robust. The Tribunal adjourned the hearing for the Council to obtain more evidence, including from CAMHS, occupational therapy and social care.
49. In early 2022 the Council consulted more schools.
50. In May 2022 the Tribunal completed the hearing and approved an EOTAS package of five hours per week on the basis this was all Y could manage until he had undergone therapeutic intervention.
51. The Tribunal made recommendations about health and care provision including that Y be awarded three hours direct payments per week for personal assistant support. The Council accepted this recommendation and included it in the final plan.

Council’s complaint response

52. The Council’s response to the complaint said:
• It had provided only five hours tuition from 2019 because this was all Y could manage. When attempts were made to increase hours, this was unsuccessful.
• There had been a gap in consulting schools due to staffing.
• The five hours support in place from medical tuition was appropriate.
• It had tried to source a suitable school but been unsuccessful. The Council acknowledged ‘more should have been done to secure a full-time suitable placement’. The Council said new management, increased staffing and changes to processes should prevent a recurrence of this fault.
• The Council apologised for the stress caused.

Analysis

53. I cannot consider the first refusal of an EHC assessment in 2019, this is too long ago. Ms X had a right of appeal against this decision we would have expected her to use.
54. Ms X complains Y has only received five hours of tuition over a period of three years. Ms X says this is because appropriate assessments were not sought at the time of the EHC needs assessment, but only at the direction of the SEND Tribunal.
55. I find with the exception of social care, the Council did seek and obtain advice during the EHCNA from all mandatory categories under SEND Regulation 6(1). There was a delay in CAMHS carrying out an assessment of Y and offering intervention, but that was not due to fault by the Council. The Council provided a final EHC plan promptly, especially given the pandemic ‘lockdown’ at the time. It would not have been possible for new assessments to have been carried out in Spring / Summer 2020. I therefore do not criticise the Council issued a final EHC plan based on the evidence that was available at the time. Ms X had a right of appeal against the contents of the plan, for example if she considered needs and provision were not adequately described, or against the placement named (the current mainstream school). We would expect Ms X to have used her right of appeal if she was not satisfied with the plan.
56. The failure of social care to provide advice or carry out an assessment at the time of the EHC needs assessment was fault. An assessment could have been carried out remotely. Y had not been in school for a long period, was socially isolated and was clearly a child in need. However, given Social Care’s later assessment that Y’s needs could be met by Universal Services it is probable it would have reached the same decision had it assessed Y in 2020 as it did in 2021. I therefore consider Ms X would always have needed to appeal to get the social care support increased. Ms X could have used the appeal right provided to her in 2020 or made an earlier complaint.
57. The Council knew by Summer 2020, if not before, that all resource provisions were unable to offer a place. It has acknowledged it should have started consulting special schools at that stage. It did not start to consult special schools until early 2022, and then only because the Tribunal directed it to. The Tribunal was extremely critical of the Council’s failure to consult specialist schools earlier.
58. However, the matter of what type of school was suitable was part of Ms X’s appeal. As Ms X asked the Tribunal to consider this, the Ombudsman cannot also do so.
59. There was a delay between October 2020 and February 2021 when Y’s SEN caseworker left and it appears no action was taken. This delayed a review by several months and delayed Ms X obtaining a new right of appeal.
60. The Tribunal identified in 2022 that Y could not manage more than five hours education or return to a school setting without therapeutic work being undertaken by CAMHS and a gradual transition. The provision from CAMHS was put in Section G (Health) of the EHC plan. It was therefore for Health Services not the Council to deliver this.
61. Y was unable, for health reasons, to attend any school between Autumn 2020 and 2022. The Council had a legal obligation to provide s.19 education throughout this period. I can look at the whole period, including when the appeal was proceeding, as Y’s absence was not connected to the matters at issue in the appeal. Y would have been absent in any event pending health intervention. The Council did provide medical tuition throughout the period 2019 to 2022. The issue for the Ombudsman is therefore whether the provision was suitable, given only five hours per week tuition was provided.
62. I cannot say there was a failure to provide s.19 education, because on the evidence available Y was not able to manage more than five hours and this position was endorsed by the Tribunal Judge. It is not for the Ombudsman to question decisions reached by Judges. There is also evidence Y struggled to access even the tuition that was in place at times.
63. The Council was not at fault in declining a personal budget and deferring this to the next review. The window for making a personal budget request was at draft plan stage or when the plan was reviewed. It was not fault for the Council to advise it would not consider this until the next review when Ms X did not submit her request at the appropriate time.
64. In summary there was fault by the Council:
• In failing to obtain social care advice or carry out an assessment in 2020
• In failing to consult a range of schools from mid-2020 until January 2022
• In failing to hold an emergency review in October 2020 or move matters forward.
65. I cannot say with any certainty the outcome for Y would have been different had the delay and fault not occurred. I suspect Ms X would always have needed to appeal to get the provision she wanted, and she did have earlier opportunities to appeal which she did not use. The Council has acknowledged a significant delay in consulting schools and agreed a new placement should have been found much earlier. It offered an apology but no financial remedy for this fault.
66. I cannot say social care provision would have been in place sooner had the assessment taken place sooner. This provision was only provided because of a Tribunal recommendation. We expect complainants to mitigate their loss and to use rights of appeal provided if they are dissatisfied with the provision. Ms X could have appealed or raised a complaint in 2020.

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Agreed action

67. The Council has provided an apology for the delay. I consider that, in line with our Guidance on Remedies, a financial payment to acknowledge the impact of the fault is merited. Within four weeks of my final decision the Council will pay:
• Y £500 for the delay in consulting schools over many months, the delayed review and appeal right, and the uncertainty whether Y would have been able to return to school sooner if the fault had not occurred.
• Ms X £500 for her distress due to the fault and uncertainty caused, the delayed right of appeal in 2021 and her time and trouble in bringing the complaint.
68. The Council has already taken some action to resolve the staffing issues that led to a period of delay. Within eight weeks of my final decision, the Council will undertake the following service improvements:
• Remind social care staff of the requirement to provide advice for all EHC needs assessments, including considering whether a new social care assessment is required.
• Consider mechanisms for EOTAS, SEN, Health and Social Care staff to work together with families, for example by holding multi-agency meetings, where children are out of school for health reasons particularly where health intervention is required before the child can return to school.
69. The Council should provide us with evidence of what service improvements it has made.

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Final decision

70. I have completed my investigation. There was delay in consulting a range of alternative schools, in holding an emergency review of an EHC plan and in providing a new right of appeal when a child was not able to attend school over an extended period. While the child’s health needs make it difficult to assess what impact the delay had, the uncertainty as to whether Y would have been able to return to school sooner but for the fault is itself an injustice. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman