Summary: Mrs Z complained the Council delayed completing Education Health and Care Plans (“EHCPs”) for her children and failed to ensure they had suitable education and EHCP provision, causing distress. We found the Council at fault. We recommended it provides an apology, pays £100 for time and trouble, pays £1000 for distress, pays £3300 for missed provision and acts to prevent recurrence.

The complaint

1. Mrs Z complains the Council:
• Delayed issuing Education Health and Care Plans (“EHCPs”) for her children X and Y;
• Failed to ensure EHCP provision and suitable full time education for X and Y; and
• Was poor in its communications.
2. Mrs Z says she had to leave work to stay home and look after her children as they were out of school. She incurred costs supporting them at home and missed out on savings from free school meals. Further, she and her children have suffered distress and poor mental health.

Back to top

What I have and have not investigated

3. I have investigated the complaints above save that:
• I have not investigated any delay by the Council in issuing X’s EHCP. This is because any delay would have been apparent to Mrs Z more than 12 months prior to her contacting us and so the complaint is out of time. I consider there is no good reason to exercise discretion.
• I have not investigated any failure by the Council to ensure EHCP provision and education for X and Y prior to November 2021, as this period is out of time and I consider there is no good reason to exercise discretion.

Back to top

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. 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)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. 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.
9. 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)

Back to top

How I considered this complaint

10. I spoke to Mrs Z and I reviewed documents provided by Mrs Z and the Council.
11. I gave Mrs Z and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

EHCP assessment and reassessments

12. A council may reassess a child for an EHCP further to a parental request or if it thinks this is necessary.
13. Reassessments must follow the same process as for the first EHC needs assessment and drawing up of the EHCP, with the same timescales and rights of appeal for the child’s parent or the young person.
14. Once a council has decided to reassess a child’s needs they should gather information from professionals who must respond within six weeks.
15. The council must send a draft EHCP to the child’s parent and give them at least 15 days to comment and express a preference for a school.
16. The council must consult with any relevant school before naming it in the EHCP. The school should respond in 15 days.
17. The council should amend the draft plan and issue the final EHCP as quickly as possible.
18. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.
19. The overall maximum timescale for a reassessment is 14 weeks from the decision to reassess to the issuing of the final EHCP.
20. Where there are exceptional circumstances, it may not be reasonable to expect councils to comply with the time limits above. Specific exemptions include where appointments with people from whom the council has requested information are missed by the child. (This only applies to the duty on partners to comply with a request under the EHC needs assessment process within six weeks).

EHCP Reviews

21. Councils must review an EHCP at least every 12 months.
22. Within 2 weeks of the review meeting the school must provide a report setting out any recommended amendments to the EHCP.
23. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
24. If it needs to amend the plan, the council should start the process of amendment without delay.
25. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
26. When the parent suggest changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
27. Where the council does not agree the suggested changes it may still issue the final EHCP. In either case the council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
28. The council must issue the final EHCP within 8 weeks of issuing the amendment notice.

Right to education

29. 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.
30. 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.
31. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
32. 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.

Free school meals

33. Children in reception, year 1 and year 2 of primary receive free school meals.
34. Other children in full time education may qualify for free school meals if their parents receive certain benefits.

What happened

X

35. In December 2021 Mrs Z’s son, X, would have been in year 4 at primary school.
36. The Council issued an EHCP for X on 8 December 2021.
37. This named the setting as mainstream primary. It provided for:
• Support in school
• Weekly group social skill sessions
• Weekly 1:1 support sessions for social emotional and mental health needs
38. However, the EHCP said X was out of school and unable to return to school or access learning at home.
39. Correspondence provided by the Council shows Mrs Z held off appealing the EHCP as she expected the Council to identify and name a school shortly. At which point it would issue a further final EHCP naming that school and so providing a further right to appeal.
40. In response to enquiries the Council has provided a chronology of actions.
41. This shows the Council sent consultations to schools in December 2021, February 2022 and June 2022. Following the June consultations a school place was agreed in July, for X to start in September 2022.
42. The Council has also provided records regarding alternative provision for X. These show:
• Alternative provision started in October 2021 at one hour tuition per week. The school also provided weekly support sessions via a third party provider.
• From end November tuition increased to two hours per week.
• From February 2022 1.5 hours per week at a gaming centre was added.
• From end February X received 5 hours’ tuition and 3 hours at gaming centre weekly.
• From March weekly art therapy was added.
43. Mrs Z says X started a new school in September 2022 but the Council did not amend his EHCP to reflect this.
44. In response to enquiries the Council said it issued a draft EHCP in October 2022. It then held an annual review in January 2023 and sent a further draft EHCP on 9 March 2023. 

Y

45. In September 2021, Mrs Z’s daughter, Y, was in year 7 at secondary school.
46. Y has Autism and ADHD. Her last EHCP was issued in 2020. This provided for:
• 30 minutes weekly occupational therapy.
47. In November 2021 Mrs Z asked for an emergency review as Y was struggling at school.
48. On 23 November 2021 the emergency annual review meeting took place.
49. On 30 November the Council issued a notice to amend Y’s EHCP.
50. On 9 December the Council agreed Mrs Z’s request to reassess Y. On the same date it requested reports from professionals including an Educational Psychologist (“EP”), Occupational Therapist (“OT”) and Speech and Language Therapist (“SALT”).
51. On 20 December the Council chased these reports. It found it had not completed the required paperwork and so sent this on 21 December.
52. On 27 January the Council’s OT said it should use the school’s OT.
53. On 4 February the SALT said there was a delay due to Y having Covid last week and the next available slot at the school was 1 March.
54. On 21 February the SALT sent the Council their report.
55. On 31 March Mrs Z chased the Council about the assessments. She said the Council should not be asking the school to carry these out, it should be independent from the school and Y needed the assessments to take place at home.
56. On the same date the Council’s OT said it would assess Y after all, given Mrs Z wanted an independent assessment, however they were unavailable until May.
57. On 8 April the Council chased the EP’s report.
58. On 22 April the Council liaised with the school’s OT.
59. On 28 April the school OT said they would complete a report without Y’s input as she was unable to meet.
60. On 9 May the OT completed their report.
61. On 9 May the EP confirmed they would meet Y on 10 May. They explained the initial appointment was cancelled as Y had Covid. They next offered an appointment in April but Y was on holiday. It then took time to arrange a date with the school.
62. On 15 May the EP sent their report.
63. On 18 May the OT amended their report provided following input from Mrs Z.
64. On 25 May the SALT said they could not address queries raised on their report until they had sight of EP report. The Council then shared this.
65. The Council says professional reports were delayed until June 2022.
66. Y stopped attending school from 25 May 2022 due to poor mental health and the Council was made aware. It referred Y for alternative provision on 30 May.
67. On 8 June a further Emergency annual review took place. Records shows Y remained out of school.
68. At the end of July Y’s school gave six weeks’ notice to end her placement.
69. On 19 August the Council issued a notice to amend Y’s EHCP following the June annual review.
70. Emails exchanged in October and November show Y did not want to engage in the tuition offered.
71. On 14 November the Council issued a draft EHCP.
72. On 7 December Mrs Z complained to the Ombudsman.
73. Documents provided by the Council show Mrs Z was chasing progress on Y’s EHCP throughout the period.
74. In response to enquiries the Council provided a chronology of actions. The Council said it gave reasons for delays in its complaint responses. Delays were due to staffing changes and shortages which it has recognised across the service and is addressing. Delays to EP, SALT and OT advice were impacted due to Y contracting Covid, her reluctance to undertake these at home and the difficulty arranging assessments in school when Y’s pattern of attendance was erratic.
75. The Council provided records regarding alternative provision. These show:
• From end of May 2022 a provider made efforts to meet with Y and provide a service but Y refused to engage.
• In September 2022 a provider met with Y. Y then agreed to meet fortnightly.
• From February 2023 Y was given weekly assignments in Maths and English.
76. In response to enquiries Mrs Z said the Council had issued a final EHCP on 6 March 2023 and she provided a copy. The EHCP lists all the information collected for the assessment. I note this does not refer to any of the 2022 professional reports nor any 2021 reports.
77. The EHCP provides for:
• 30 minutes weekly Occupational Therapy
• 45 minutes fortnightly physio
• A package of Education Other than at School (“EOTAS”). (There are no details of what this may include).

Complaints process

78. On 5 October 2022 Mrs Z complained to the Council of:
• Delay issuing EHCPs for X and Y;
• Failure to ensure EHCP provision and suitable full time education for X and Y;
• Poor communication.
79. Regarding Y, Mrs Z said:
• Y was having some difficulties in school, so an emergency review was called on 23 November 2021.
• In December the Council agreed to reassess Y’s needs.
• It took until June to get the EP, salt and OT assessments completed. By this time Y’s mental health had deteriorated and she was no longer able to attend school.
• During this time the Council refused a request by the school for short term 1:1 support.
80. On 28 October the Council replied. It apologised for the delay and poor communication. It said it would issue draft EHCPs for X and Y shortly.
81. Mrs Z asked to go to stage 2.
82. On 31 October the Council replied further. It:
• Accepted delay issuing EHCPs for X and Y;
• Accepted it gave no explanation for the delay or outlined action to prevent recurrence;
• Said the service should respond further.
83. On 4 November the Council followed up. In summary it:
• Apologised for delays due to staff absence.
• Said it was working to resolve delays and reviewing its process to reallocate cases where needed.
• Gave a single point of contact.
• Said it would issue draft EHCPs for X and Y shortly.
84. Mrs Z then complained to the Ombudsman and we asked her to provide a final response from the Council.
85. Mrs Z chased this and the Council then referred Mrs Z to the Ombudsman on 7 December 2022.
86. When I spoke to Mrs Z in February 2023 she said X still did not have a caseworker and, Y was still out of education and had no final EHCP.
87. I asked Mrs Z why she did not complain about delay in X’s EHCP process earlier. She explained she did not think it was proper to escalate to the Ombudsman on that alone. But as he then continued to miss education and her daughter also experienced issues it became clear there were systemic issues with the Council that needed addressing.
88. In comments on a draft decision Mrs Z said:
• She organised art therapy for X herself.
• The Council was made aware during the November 2021 review that Y’s placement had broken down and she was not attending much, yet it did not take action to ensure provision. The Council also declined the school’s request for further 1:1 support.
• The first EP appointment offered could not take place as Y had Covid. The EP did not offer a second appointment until much later; they were not on holiday.
• The SALT said she would make changes to her report but did not.
• Y met with a provider twice in September but no suitable provision was offered. The provider suggested specialist tuition, but the Council did not follow this up.
• Y received weekly physio and OT at school for four years. These school therapy reports were submitted in the November 2021 review. If the Council had updated the EHCP in time it would have included this provision.
• Although the Council provided OT funding over the summer for both children this does not account for missed OT therapy for both children when they were not in school.
89. On further review of the documents provided by the Council I note:
• A summary report of the 23 November 201 annual review meeting outlines Y’s difficulties in school and how they may be addressed by the school and family. It does not say Y is out of school or unable to access education in school.

Findings

X

90. X’s EHCP did not name a school. Mrs Z had a right to appeal to the Tribunal to name a school or EOTAS, but she held off appealing as she reasonably expected the Council to find a school place. Given these circumstances I consider there is good reasons to exercise discretion to investigate.
91. In December 2021 X was out of school. The documents show the Council delayed consulting with schools and finding suitable a school place for X. This is fault. The Council should have found a place and X should have started school in early 2022 but he was out of school until September 2022. This is injustice. Mrs Z had to support X at home, resulting in increased costs, including on meals that otherwise would have been free at school. I also accept Mrs Z and X would have suffered distress over this period. This is injustice. However, I cannot say Mrs Z gave up work as a direct result of the Council’s fault as there were likely many factors involved in such a decision.
92. The Council provided some alternative provision for X but this was not full time and the Council has not evidenced full time education was not in X’s best interest. This is fault causing further injustice to X.
93. The Council has not evidenced it ensured X received weekly group social skills as provided for in his EHCP while out of school. This is fault causing X injustice.
94. X’s December 2021 EHCP did not provide for art therapy or OT. Therefore, the Council did not have to arrange or provide this while he was out of school.
95. The Council delayed updating X’s EHCP with the name of his new school in September 2022. This is fault. This has delayed Mrs Z’s right to appeal to date (approximately six months delay). This is injustice. I note the Council has since carried out an annual review and should be issuing a final EHCP in due course. If there is further delay Mrs Z may wish to raise a further complaint.

Y

96. The Council should have issued Y’s EHCP by 16 March 2022 following its agreement to reassess. However, this was not issued until 6 March 2023. This is fault. Mrs Z and Y have suffered distress and uncertainty. Mrs Z has also had a delayed right to appeal. This is injustice.
97. The Council has said delays were due to staffing changes and shortages which it is addressing. However, there also appears to have been a lack of monitoring or oversight during Y’s EHCP process. In particular with regard to chasing or following up reports from professionals.
98. Y has been out of school since June 2022. I have not seen evidence the Council was made aware Y was out of school or that she would not receive suitable education unless it took action prior to June 2022. Documents suggest prior to June Y’s school was working to address issues and ensure attendance. The Council did not have to provide funding for 1:1 support where this was not provided for in an EHCP.
99. On the evidence seen I am satisfied the Council offered alternative provision from June 2022 and Y refused. Although the Council then took time considering alternatives, as an offer was available, I cannot find fault casing injustice. It appears some alternative provision was then agreed and, while not full time, Y refused further support. Again, I cannot find fault by the Council. Delays in the EHCP process meant the Council did not put in place a package of EOTAS sooner. But, on the evidence seen, I cannot say what this package would include or whether Y would have engaged in this if offered sooner. I am therefore unable to say Y suffered any missed education from June 2022 to 6 March 2023. If there is any delay putting in place EOTAS following the final EHCP, Mrs Z may wish to raise a further complaint to the Council.
100. The Council has not evidenced it ensured Y received weekly OT as provided for in her EHCP from June 2022. This is fault causing Y injustice. I have considered a remedy up to the date of the final EHCP of 6 March 2023. If there is any delay arranging provision following this EHCP Mrs Z may wish to raise a further complaint to the Council.
101. The Council did not have to provide Y with physio unless or until her EHCP included this. However, Y’s EHCP did not include physio until recently. I therefore find no fault. I also cannot say Y would have got this provision sooner but for the Council’s delay. This is because I have not seen evidence to suggest the Council would have decided to provide physio at an earlier date. And I have not seen evidence the March 2023 EHCP relied upon information provided at the November 2021 review. Rather, the latest EHCP refers to therapy reports dating from 2019 and earlier.
102. Y has been at home over this period but, as it is not clear she would have been in school sooner, given the EOTAS package agreed, I cannot say Mrs Z has suffered further injustice due to Y being at home.
103. It is not within my remit to question professional judgements including the content of professional reports. Therefore, while I acknowledge Mrs Z is unhappy with the content of a SALT report I will not investigate this further.

Complaints process

104. The Council did not address Mrs Z’s complaints in full, provide appropriate remedies or signpost to the Ombudsman. This is fault. Mrs Z was put to avoidable time and trouble in the complaints process. This is injustice.
105. The Council has accepted its communications were poor. This is fault. This added to Mrs Z’s distress and uncertainty. This is injustice.
106. I note the Council agreed a single point of contact for Mrs Z. If there have been ongoing difficulties in communication with this person Mrs Z should raise a new complaint to the Council. This is because the Council should have chance to respond to new matters.
107. The Council does not have to assign a caseworker for X and Y. Therefore, while I recognise this would be helpful to Mrs Z, I do not find fault.

Back to top

Agreed action

108. To remedy the injustice above I recommend the Council carry out the following actions:
109. Within one month:
• Provide Mrs Z with an apology;
• Pay Mrs Z £100 for time and trouble;
• Pay Mrs Z £1000 for distress and uncertainty;
• Pay Mrs Z £2800 for missed education and SEN provision for X;
• Pay Mrs Z £500 for missed OT provision for Y.
110. Within three months:
• Produce an action plan to address delays in the EHCP process including timeframes for completion;
• Ensure there is oversight/monitoring in place during EHCP processes so that senior staff are promptly alerted to any delay.
111. The Council should provide us with evidence it has complied with the above actions.
112. The Council has accepted my recommendations.

Back to top

Final decision

113. I find the Council at fault for delays in the EHCP process and failing to provide education and SEN provision to X and Y. The Council has accepted my recommendations and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman