Summary: Mr X complained the Council delayed finalising an Education Health and Care Plan (“EHCP”) for his son, Y, and failed to arrange alternative provision while Y was out of school, resulting in missed education, costs and distress. We found the Council at fault. We recommended it provide an apology, reimburse Mr X’s costs; pay £800 for missed education, pas £450 for time trouble and distress, arrange provision for Y going forward and act to prevent recurrence.

The complaint

1. Mr X complains the Council:
• delayed completing the Education Health and Care plan (“EHCP”) for his son, Y, from July 2021 to January 2022;
• failed to arrange alternative provision while Y has been out of school from October 2021;
• communicated poorly.
2. Mr X says Y has missed preparation for GCSEs and social interaction. The family has suffered stress and uncertainty. He and his wife have had to reduce or change their working patterns to support Y and they have incurred costs on provision.

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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. 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.
5. 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

6. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
7. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHCP process

8. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
9. If the council decides to assess the child it will gather information and then decide if the child needs an EHCP.
10. Where councils request information, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request.
11. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
12. The council must consult with any relevant school before naming it in the EHCP.
13. The council should amend the draft plan and issue the final EHCP as quickly as possible.
14. The whole process, from the date a parent asks for an assessment to the date the council issues a final plan, should not take longer than 20 weeks
15. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Information to parents

16. The SEND Code of Practice is statutory guidance that councils must follow unless they have a good reason not to. This outlines the following.
17. Councils should have early discussions with parents or the young person about what the EHC needs assessment process and development of an EHC plan will involve, and the range of options that will be available, such as different types of educational institution and options for Personal Budgets and how these may differ depending on the type of educational institution for which the parents or young person express a preference.
18. Councils must provide all parents, children and young people with impartial information, advice and support in relation to SEN to enable them to take part effectively in the assessment and planning process. This will include the EHC needs assessment process, EHC plans and Personal Budgets (including the take-up and ongoing management of direct payments). This should include information on key working and independent supporters as appropriate.

Right to education

19. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
20. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
21. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives 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. The report made six recommendations based on examples of good practice seen. It said councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

EHCP process

22. Y attended a mainstream secondary school, School A.
23. On 19 July 2021 Mr X asked the Council to assess Y.
24. The Council agreed on 8 August.
25. The Council expected advice from professionals by 29 September but did not receive this until 2 November.
26. The Council agreed Y needed an EHCP on or about 1 December 2021. It issued a draft for parent comments on 16 December 2021 which they returned on 20 December 2021.
27. The Council issued a final EHCP on 6 January 2022. This outlined teaching strategies and provided for a weekly social skills group. It named School A.

Education

28. Y attended school intermittently but stopped attending altogether from October 2021.
29. In December the Council told Mr X it would meet to discuss supporting Y back into school. They arranged a meeting in early January.
30. On 6 January the Council acknowledged Mr X had arranged 1.5hrs tuition per week for Y himself. It agreed to refer Y to its own provider. On the same date the Council contacted a provider. It said Y was out of school and queried if he was suitable for referral to its service.
31. In February the Council updated Mr X the plan was to arrange alternative provision while working to reintegrate Y into school when he felt able.
32. In March the Council sent a referral form seeking a bespoke education package for Y, as the previous officer did not complete this.
33. The Council held an annual review on 25 May. The paperwork says:
• Y receives 1.5 hours 1:1 online tuition per week funded by his parents. The provider is flexible in provision as Y’s fatigue fluctuates. Y’s parents had received advice that the lessons could now increase.
• Y’s parents explained a previous case officer was looking into alternative provision but they had received no further communication from them so they sourced and funded tuition themselves.
• The Council would consider whether to reimburse their costs and whether to fund the tuition going forward.
• A new short term target for Y was to access at least 5 x 30 minutes of learning in core subjects per week.
34. On or around 27 June in response to contact from Mr X’s councillor, the Council said because Y was on a school roll, the school should be arranging the alternative provision.
35. In July Mr X contacted the Council as there was still no provision in place.
36. On 22 August the Council agreed to fund the tuition arranged by Mr X for 7 weeks from September 2022 to 20 October, with a review after October half term. It refused to reimburse his costs to date as it said School A should have funded this.
37. In October Mr X chased the Council as he had not heard further regarding provision.
38. When I spoke to Mr X on 17 October he said the Council had still not arranged or funded further provision.

Complaint process

39. In December Mr X complained to the Council of difficulty contacting officers and delay in it arranging provision for Y.
40. In its January response the Council accepted a shortfall in its communications and apologised. It said this would improve going forward. It also accepted some delay in provision, apologised and said it would follow this up.
41. On 27 June Mr X complained again. He said the Council had not explained its delays and he had not received an update following the May annual review meeting.
42. The Council provided a final response on 15 August. In summary:
• There was a delay receiving information from professionals during the EHCP assessment process. It apologised for not meeting the statutory timescale to complete the EHCP.
• As Y remained on roll at school it expected School A to provide education.
• It contacted an alternative provision provider in January. However, on 19 January it decided the online school was an appropriate provision in the interim and advised a discussion with School A to support the implementation of this. It apologised it did not update him on this.
• It understands Mr X was unhappy with its offer of alternative provision because Y could not access a regular timetable of tuition and so arranged his own provision. However, the Council had not agreed to fund this. It was funding provision at the school and would ask School A how it had made use of this.
• It noted there was a communication plan in place.
• He could contact the Ombudsman.
43. Mr X then complained to the Ombudsman.
44. In response to enquiries the Council said:
• It knew Y was not attending school towards the end of 2021.
• It worked with his school initially to support him and he remained on roll.
• As Y remained on roll it was the school’s responsibility to arrange alternative provision.
• In January 2022 it noted Mr X was funding 1.5hrs tuition for Y and agreed to check if its own provider could provide this.
• It then decided the online school would be suitable in the interim and intended to discuss the implementation of this. However, it did not inform Mr X of this until August 2022.
• It recognised a review of the process and team briefing was needed in relation to cases moving to a different quadrant in the service. It would action this.

Findings

45. The Council has not provided any evidence to show it gave Mr X information about the EHCP process as it should have done. This is fault. Mr X suffered avoidable uncertainty as a result. This is injustice.
46. The Council delayed completing the EHCP process by five weeks. The Council did not meet the statutory timescale and this amounts to fault. I acknowledge this delay was due to the Council awaiting information from professionals. However, there is no evidence the Council chased responses or considered seeking advice from other professionals who could meet the statutory timescale. Mr X suffered distress and uncertainty awaiting the final EHCP. This is injustice.
47. I am satisfied on balance the Council knew Y was out of school from October 2021 and that he was not accessing any education. The Council therefore had a duty under s19 of the Education Act 1996 to make arrangements. However, the Council did not arrange alternative provision itself or take any action to ensure the school had otherwise arranged provision. There is also no evidence to show the Council offered its alternative provision service to Mr X and that this was refused. I find the Council at fault.
48. Y missed education from October to December 2021. This is injustice. From December 2021 to September 2022 Mr X funded education at his own cost. This is injustice. Y missed out on social skills from October 2021 to 20 October 2022. This is injustice. And there is no evidence to show the Council has funded or arranged any provision from 20 October 2022. This is ongoing injustice.
49. In assessing a suitable remedy for missed education, I am mindful the evidence shows Y could not access full time education. I therefore consider there would have been an impact on his GCSEs in any event. In terms of the impact on Y’s parents, I am mindful they would have needed to make arrangements to support Y even if the Council arranged provision from the outset.
50. In considering service improvement recommendations for the Council, I note the Ombudsman has upheld a number of SEN complaints against the Council in recent months. In particular, I note we recommended it train staff on their s19 duties in April 2022 on case 21013381. It is therefore concerning this remains an issue.
51. On review of the documents provided, I find the Council was poor in its communications with Mr X. It did not provide regular updates on provision for Y and it delayed proving its stage 2 response. Mr X was put to avoidable time and trouble chasing the Council as a result. This is injustice.

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Agreed action

52. To remedy the injustice identified above the Council should carry out the following actions:
53. Within one month:
• Provide Mr X with an apology;
• Reimburse Mr X the amount he has spent on tuition from December 2021 to September 2022;
• Pay Mr X £800 in recognition of Y’s missed education and SEN provision from October 2021 up to 20 October 2022;
• Pay Mr X £300 for distress and uncertainty;
• Pay Mr X £150 for time and trouble;
• Take action to ensure Y receives suitable education in school or arrange and fund alternative provision for Y going forward;
• Consider a further remedy to Mr X for any injustice suffered from 20 October 2022 to the date of this decision, taking into account the Ombudsman’s Guidance on Remedies. Notify Mr X of its decision and reasons.
54. Within three months:
• Provide training or guidance to staff responsible for the EHCP process to ensure they are meeting their duty to provide information to parents about the process;
• Put in place a process to ensure the Council has oversight of requests for information from professionals to support an EHCP and to ensure the Council considers taking action if there is any delay in response;
• Provide training to staff responsible for children’s education on the Council’s responsibilities under s19 of the Education Act 1996, with reference to this decision and the Ombudsman’s Focus Report ‘Out of school….out of mind?’, available on our website.
55. The Council should provide us with evidence it has complied with the above actions.
56. The Council has accepted these recommendations.

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Final decision

57. I find the Council at fault because it delayed finalising Y’s EHCP and failed to arrange alternative provision while Y was out of school. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman