Summary: Mr and Mrs X complain about the Council’s handling of their child, Child Y’s Education, Health and Care Plan (EHCP) since they asked for an urgent review of this in July 2019. The Council was at fault for not providing appropriate alternative education to Child Y from October 2019 to July 2020. The Council unnecessarily delayed its review of Child Y’s EHCP which in turn delayed Mr and Mrs X’s appeal rights. The Council also took too long to respond to Mr and Mrs X’s complaints. The Council has agreed to apologise and make payments to Child Y and their parents. The Council will also review its systems for monitoring complaint response timeliness.

The complaint

1. Mr and Mrs X complain about the Council’s handling of their child, Child Y’s Education, Health and Care Plan (EHCP) since they asked for an urgent review of this in July 2019, when Child Y’s needs increased and they started struggling at school. Mr and Mrs X complain about:
1. the significant delay in the Council starting and then eventually refusing to review Child Y’s EHCP at the end of July 2020;
2. the Council failing to secure suitable alternative education provision when Child Y was signed off sick from school in October 2019 to September 2020;
3. the Special Education Needs (SEN) Team ignoring advice from professionals and colleagues within their Children Services Team who were responsible for Child Y’s Child in Need plan;
4. Child Y missing out on 12 months of SEN provision, including Occupational Therapy, Speech and Language Therapy and Education Psychology, which Mr and Mrs X have had to source and fund privately;
5. Mrs X losing earnings because she had to reduce her working hours to support Child Y’s education out of school and the legal costs Mr and Mrs X feel they have unnecessarily incurred in taking this matter to Tribunal; and,
6. significant delays in the Council’s response to their complaints about its service and handling.

Mr and Mrs X say their family has suffered significant distress, financial loss and frustration as a result of the Council’s handling.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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.
4. 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)
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. 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

7. I have spoken to Mr and Mrs X and considered the information they have provided in support of their complaints.
8. I have considered the information the Council has provided in response to my enquiries.
9. 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.
10. Mr and 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

Relevant guidance

Special Education Needs

11. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give councils information about their duties.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. If a council decides not to amend the EHCP or decides to cease to maintain it, they must notify the child’s parent of their right to appeal that decision and the time limits for doing so, of the requirement for them to consider mediation should they wish to appeal. (Section 20(11) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

Appeal rights

17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued or the council notifies that it intends to maintain or cease to maintain the existing EHCP.
18. 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 EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted 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).

Alternative provision

19. 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.
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. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
24. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Child in Need

25. The Children Act 1989 sets out the duties on councils to ensure children are kept safe and their welfare is promoted.
26. Section 17 says a child is in need if they are unlikely to achieve or maintain a reasonable standard of health or development without services provided by the council. Councils can provide services for the whole family or for any individual member of the family if it is provided to safeguard or promote the child’s welfare.
27. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Background

28. This timeline of key events does not cover everything that has happened.
29. Child Y has special educational needs. They have received support through an EHCP, first issued by the Council in 2017.
30. In May 2019, Mrs X contacted the school (School B) Child Y attended with their sibling. She highlighted her struggles with getting Child Y to school in the morning, their dysregulation and meltdowns at home following school and the impact this was having on Child Y and the rest of the family.
31. In mid-July 2019, Mrs X contacted the Council Caseworker that had worked on Child Y’s EHCP annual review in 2018 to ask for help with the concerns she had raised with School B earlier in the year. Mrs X asked to discuss a SEN school placement as she felt this might better meet their needs.
32. Mrs X chased the Council for a response to her email on two further occasions in July and September 2019. In late October 2019, Child Y was signed off sick from school due to extreme anxiety and dysregulation.
33. The Council met with Mr and Mrs X, School B and other professionals involved with Child’s Y SEN provision to review the existing EHCP on 22 October 2019. Child Y was signed off sick from school on 25 October 2019 as they had become too anxious to attend. Mr and Mrs X notified the Council of Child Y’s absence and asked for alternative provision while absent from school. Child Y’s school started to send some work home for them to complete with their parents while absent.
34. The Council provided a copy of the proposed amended EHCP to Mr and Mrs X in early January 2020. In late February 2020, Mr and Mrs X continued to ask the Council for alternative provision as Child Y remained signed off sick from school. They also asked the Council for mediation in respect of Child Y’s EHCP review so they could seek to secure the right SEN provision.
35. On 11 March 2020, the Council told Mr and Mrs X that it intended to issue the final amended EHCP for Child Y to give them appeal rights. Shortly before this, Mrs X made a referral to the Council’s Childrens Services Team for help with Child Y’s needs and the strain their presentation at home was having on the rest of the family.
36. A Social Worker from the Council’s Disabled Childrens Service completed assessments of the family in March and May 2020 and set out within a Child in Need plan how the Council might help support the family’s needs to prevent a breakdown.
37. In July 2020, the Council’s Education Psychologist recommended Child Y received 17.5 additional hours of help to get back into school. The Council explained it had consulted the specialist school Mr and Mrs X had requested and decided not to agree to place Child Y there because the costs of sending Child Y to this placement would not be an efficient use of its resources. The Council explained it would look at meeting Child Y’s needs through the additional provision recommended at their existing mainstream school placement. The Council’s letter also explained that the amended version of the EHCP was not in a fit state to be issued to Mr and Mrs X. As a result, the Council issued Mr and Mrs X with the formal notification that it would not be amending Child Y’s EHCP to give them appeal rights to the SEND Tribunal.
38. In September 2020, Mr and Mrs X initially intended to send Child Y back to their existing mainstream school and the Council started making plans to assist Child Y with their return. Mr and Mrs X then asked the Council to consider placing Child Y at another mainstream school, which their sibling now attended. The Council agreed to alter the named school placement on Child Y’s existing EHCP in line with Mr and Mrs X’s request. Child Y appears to have settled well at their new mainstream school since the start of term in September 2020.
39. The SEND Tribunal hearing was scheduled for May 2021. By this point, the Council and Child Y’s parents had largely reached agreement on the content of the amended EHCP. The Tribunal hearing took place to confirm this and issue a consent order to ensure the Council issued the final EHCP within the statutory timescale.

Analysis of Mr and Mrs X’s complaints

a) Significant delay in the Council starting and then eventually refusing to review Child Y’s EHCP at the end of July 2020

40. There is no dispute that Mrs X first alerted the Council about Child Y’s difficulties on 15 July 2019. Evidence provided by the Council shows it was also aware of Mrs X’s referral to Child and Adolescent Mental Health Services (CAHMS) in May 2019.
41. The Council’s response to Mr and Mrs X’s complaints accepts that it should have made a decision about whether it would review Child Y’s EHCP within four weeks of their request. This means the Council should have notified Mr and Mrs X of its decision by 12 August 2019. Failure to do so was fault causing injustice to Child Y and their parents. Further frustration was caused by the Council’s failure to respond to Mrs X’s chaser emails in July and September 2019.
42. While there is no way of now knowing if an earlier EHCP review might have prevented Child Y being signed off sick from school in late October 2019, the Council’s avoidable delay creates sufficient uncertainty to warrant recommending a remedy to Child Y and their parents.
43. There was further significant delay in the Council’s review of Child Y’s EHCP from 22 October 2019. The Council has explained to Mr and Mrs X in its complaint responses that it wanted to continue working with them on finalising an EHCP that would best meet Child Y’s needs.
44. While I appreciate the desire to keep working with Mr and Mrs X to reach an appropriate outcome for Child Y, there came a point where the Council should have heeded their requests for mediation and appeal rights to the SEND Tribunal. Correspondence shows Mr and Mrs X repeatedly asking the Council for their appeal rights in late February 2020. It therefore seems clear that Mr and Mrs X no longer felt their continued engagement with the Council was working.
45. The Council’s subsequent delay in issuing its formal notification not to amend Child Y’s EHCP to 17 July 2020 only served to prolong Mr and Mrs X’s frustration at the process. The Council’s delay in my view was unnecessary, avoidable and caused further injustice to Child Y and their parents, which the Council should now remedy.

b) Council’s failure to secure suitable alternative education provision when Child Y was signed off sick from school in October 2019 to September 2020

46. Child Y was signed off sick from school at the end of October 2019 half term until September 2020, when they started at their new mainstream school placement.
47. The Council should have made arrangements to secure alternative education provision for Child Y 15 days after they were signed off sick. This means the Council should have had some form of provision in place for Child Y from mid-November 2019 onwards.
48. The Council says Child Y’s school was initially sending some work home for them to go through with Mrs X. The Council has not however explained what steps or action it undertook to determine how much education Child Y could cope with and what would best meet their needs while absent from school. The Council has provided no evidence to show that the work the school sent home represented an appropriate amount of education based on Child Y’s needs and best interests. This is fault and not in accordance with statutory guidance.
49. While I commend the school for trying to increase engagement with Child Y from April 2020 onwards, it is again unclear how the Council determined how this would meet its statutory duty to provide alternative education provision.
50. As a result of the Council’s fault, Child Y received little to no appropriate alternative education provision for a sustained period from the end of October 2019 to early September 2020. This has caused significant injustice to Child Y and their parents, which I have sought to remedy with my recommendations below.

c) Special Education Needs (SEN) Team ignored advice from professionals and colleagues within their Children Services Team who were responsible for Child Y’s Child in Need plan

51. Based on the evidence I have seen, I am not persuaded the Council’s SEN team ignored or failed to engage with the Social Worker undertaking Child Y’s Child in Need assessments. There is evidence to show the SEN Caseworker attended a virtual Child in Need meeting and emails between them and the Social Worker about Child Y’s needs.
52. The Council’s Educational Psychologist was also approached for and provided input into Child Y’s Child in Need Plan, albeit they were not able to attend the virtual meeting. The SEN Team appears to have regularly sought this professional’s advice about how best to engage Child Y and encourage them back to school.
53. In December 2019, Mr and Mrs X obtained a further review of Child Y from the consultant paediatrician who had originally diagnosed their ASD. While there is evidence to show this report was shared with the Council, it is unclear how it was used in the Council’s review of the EHCP. This is concerning because this report detailed how Child Y could be helped to return to school.

d) Child Y missed out on 12 months of SEN provision, including Occupational Therapy (OT), Speech and Language Therapy (SALT) and Education Psychology, which Mr and Mrs X have had to source and fund privately;

54. Mr and Mrs X have provided the Council and me with a list of the items they say they have had to source and pay for to support Child Y while they have been absent from school.
55. The Council’s response to my enquiries points out that Child Y’s OT and SALT provision within their EHCP was to be delivered at their school placement rather than as separate provision. The amount of remedy payment I have recommended at the end of this statement reflects Child Y missing out on this SEN provision while absent from school.
56. Mr and Mrs X privately funded an OT assessment of Child Y in March 2020 to assist with the EHCP review. In response to my enquiries the Council has said that while it had also commissioned an OT review of Child Y, the private assessment took place before this. Following a review of the private OT report, the Council agreed to include their recommendations in Child Y revised EHCP. As a result, the Council has told me it is willing to offer Mr and Mrs X £500 to cover the costs they incurred in obtaining the assessment.
57. I welcome the Council’s offer and am satisfied this appropriately remedies this element of Mr and Mrs X’s complaint.
58. Mr and Mrs X also obtained a private Educational Psychologist’s assessment of Child Y in October 2020. As this was commissioned during their appeal to the SEND Tribunal and formed part of their application, we have no remit to recommend the Council reimburses this. I also note the Council’s in-house Educational Psychologist was extensively involved in providing guidance to the Council’s SEN Team about helping Child Y back into school from around April 2020 onwards.

e) Mrs X has lost earnings because she had to reduce her working hours to support Child Y’s education out of school and the legal costs Mr and Mrs X feel they have unnecessarily incurred in taking this matter to Tribunal

59. Mr and Mrs X complain that Mrs X lost out on earnings because of the Council’s fault. The evidence supports that Child Y was medically unfit to attend school and was unlikely to have managed the equivalent of fulltime alternative education provision while at home. Mrs X’s employment would have been affected even if there had been no fault by the Council or it had arranged suitable alternative education provision for Child Y during the period they were absent from school.
60. Mr and Mrs X decided to seek legal advice to assist with their appeal to the SEND Tribunal and incurred costs of £925, which they believe are a result of the Council’s mishandling.
61. We only exceptionally recommend reimbursement of such costs if they directly and necessarily flow from the fault identified. I do not consider it is appropriate to recommend the Council reimburses Mr and Mrs X’s legal costs. Mr and Mrs X raised their concerns about Child Y’s EHCP directly with the Council and it was working with them to try to resolve these issues. I am therefore not satisfied Mr and Mrs X’s legal costs were unavoidable. I am mindful Mr and Mrs X were concerned about the time taken by the Council to rectify the issues and why this might have led them to involve a legal advisor when lodging their appeal to the SEND Tribunal. However, there is no general expectation that parents instruct a legal adviser to pursue an appeal.

f) Significant delays in the Council’s response to Mr and Mrs X’s complaints about its service and handling.

62. The Council’s published complaint process consists of three stages with the following response timescales:

• stage one – 6 working days;
• stage two – 15 working days; and,
• stage three – 20 working days.

63. Mr and Mrs X made their stage one complaint to the Council on 2 February 2020 and provided further details on 4 February 2020. The Council responded on 11 March 2020. It took the Council 21 additional working days to provide its stage one response, which was fault.
64. Following this, Mr and Mrs X sent the Council further correspondence about their concerns from April to July 2020. The Council appears to have dealt with this contact as a further stage one complaint, to which it formally responded on 29 July 2020.
65. I cannot calculate the actual timescale for the Council’s response in this respect because this contact appears to fall outside the Council’s usual complaints process. That said, the Council does appear to have taken longer than it should to respond substantively to Mr and Mrs X’s concerns.
66. Mr and Mrs X made a stage two complaint to the Council on 13 November 2021. The Council responded on 26 November 2021, which was within the published timescale of 15 working days.
67. Mr and Mrs X escalated their complaint to stage three on 8 December 2021 and the Council did not respond substantively until 10 April 2022. This was fault because it took the Council 91 working days to respond when this should have taken 20 working days. Although I note the Council apologised for this delay in its response, I have no evidence to show it informed Mr and Mrs X that its response would be late during its complaint investigation. The uncertainty and frustration this delay caused Mr and Mrs X was not adequately remedied by the Council’s apologies, therefore I have recommended further action below which the Council should now take to address this.

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Agreed action

68. Within one month of my final decision, the Council agrees to:

• make a written apology to Mr and Mrs X, and Child Y, for the faults identified in this decision statement. The apology to Child Y should only be provided if Mr and Mrs X feel this is appropriate and in a format that best suits Child Y’s needs;
• pay £3,200 for the benefit of Child Y for the education provision they have missed from October 2019 to September 2020;
• pay £500 the Council offered to cover Mr and Mrs X’s costs in obtaining an Occupational Therapy report for Child Y which was used in place of the Council’s own professional report;
• pay £600 for the time, trouble, distress, uncertainty and mismanaged expectations Mr and Mrs X and their family experienced due to the Council’s delay in complaint handling, providing appeal rights and failure to secure appropriate alternative education provision for Child Y.

69. Within three months of my final decision, the Council agrees to:

• review its procedures to ensure it considers its section 19 duty as soon as a child is reported absent from school for 15 days and seeks professional opinion on the amount and type of alternative education the child can cope with while out of school, to best meet their needs; and,
• review its systems for monitoring complaints to ensure the Council better tracks their progress, the timeliness of responses and provides regular progress updates to complainants when responses are delayed.

70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation and uphold Mr and Mrs X’s complaints. The faults by the Council have caused Child Y, Mr and Mrs X injustice, which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman