Summary: There was fault by the Council. There was delay in carrying out an Education, Health and Care plan needs assessment. A child, Y, who could not attend primary school for 18 months had almost no education during this time. Y now has a place at a new school and is accessing some therapeutic educational provision. A payment recognises the service failure and distress caused to Mrs X.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains there has been delay in issuing an Education, Health and Care plan.
2. Mrs X also complains the Council has not offered alternative educational provision after her child has been out of school for over 15 days. Mrs X explains that her child has missed education and that it has impacted the rest of the family.

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What I have and have not investigated

3. 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 in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. So, I cannot investigate events after the Council issued the Education, Health and Care plan on 17 April 2023. This is because Mrs X has appealed to the SEND tribunal.

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The Ombudsman’s role and powers

7. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. The Ombudsman’s view, based on case law, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we decide service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
10. 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)
11. 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

12. I read the papers put in by Mrs X and discussed the complaint with her.
13. I considered the Council’s comments about the complaint and any supporting documents it provided.
14. Mrs X and the organisation 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

15. 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

EHC plan

16. Y is now at year 3 at primary school. In October 2021, when Y was in year 1, they stopped attending school.
17. On 13 June 2022 there was a request for an EHC needs assessment. The Council decided to proceed with the assessment on 21 July and to write a draft plan on 16 September. These were within the timescales required.
18. The Council issued the draft EHC plan on 28 October 2022. After further information, it issued a second draft plan on 21 January 2023 and a third draft plan on 28 March. The Council issued the final EHC plan on 17 April 2023.
19. The Council should have completed the EHC plan within 20 weeks. It took the Council 44 weeks to issue the EHC plan. There was delay and this is fault.
20. The Council has explained that Ms X asked on several occasions for extra time to comment and the Council agreed to delay finalising the EHC plan to secure agreement and satisfaction from Ms X. While I accept the Council had good intentions when allowing the extra time, as it did create 3 drafts of the EHC plan, this did delay Mrs X’s ability to appeal to the SEND tribunal.
21. Mrs X has appealed to the SEND tribunal about the provision in section F of the EHC plan, but not the setting in Section I.

Alternative provision

22. 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.
23. 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)
24. Mrs X says Y stopped attending school in October 2021. There is evidence that school sent work home and proposed a reintegration plan for the first two weeks in December.
25. Notes of a meeting with Educational Psychologist on 14 December record that Y was not engaging with the work sent home and was finding it difficult to get out of bed. A reintegration plan was proposed, with 10 minutes of school a day in January 2022, reviewed at the beginning of February.
26. The reviews in February and March 2022 noted that Y had attended school once for 10 minutes.
27. In June 2022 there was a multi-agency meeting. It recorded that in the summer 2022 term, Y had received visits from the outreach team and attended a ‘handful’ of sessions at a pupil tuition team base. The notes record that ‘professionals were describing a child not ready to engage in education in its formal sense’. Therapeutic work at an animal sanctuary was proposed as Y ‘was not mentally or emotionally able to access school or 1-1 work’. Y attended a ‘handful’ of sessions at an animal sanctuary in September 2022 before disengaging.
28. In response to my enquiries the Council said ‘from October 2022 the main input from the local authority was in relation to the EHC assessment and securing appropriate provision to be included in the plan.
29. Notes of a meeting in February 2023 record that Y had been offered a place at a primary school with a resourced provision for children with autism. The notes say that ‘4 or 5 referrals have been made to the medical needs tuition service (MNTS). At that last review they recommended two different services, neither of which were available. If the medical needs tuition service refuse again, does another online tuition service exist’. The report says ‘EOTAS (Education Than At School) is not for children who are medically unfit, it is for when there is no provision in the city that can meet need. Y is currently not well enough to attend a school’. The report notes that Mrs X said ‘Y needs to be educated at home right now. There is no way that Y will access a school setting at present’.
30. In an email dated 8 March 2023 the Council notes ‘the draft EHC plan needs a bespoke provision with a therapeutic approach and that Y is too unwell to attend school’. The email mentions a personal budget for Mrs X to take Y to activities, which she could gradually introduce, one at a time.
31. Notes of a telephone call on 5 April 2023 say ‘the Council was not intending to grant a personal budget, it would be for the named school hold the budget as they have said they could meet need. Mrs X’s concerns about how the funding would work if the school held the budget are noted’. Mrs X says that this is not her recollection of the conversation. She says that she was told she was not entitled to request a personal budget.
32. In response to Mrs X’s official complaint, the Council said:

‘I have reviewed the education offers which have been made throughout this time. It is evident that a range of options have been put in place, and that these have been adapted and responsive to Y’s needs and your requests. It is disappointing that these have been unsuccessful in engaging Y in her learning. You rightly highlight that support from the Medical Needs Teaching Service (MNTS) has been requested, however as Y is not currently engaged with CAMHS (Child and Adolescent Mental Health Services), this provision was not deemed to be appropriate. I can also confirm that this decision was reconsidered a number of times, and it was recognised the MNTS offer is not dissimilar to the offer of provision which was already in place which Y had not engaged with. As a result, it decided the MNTS offer would not be appropriate.

I am satisfied, having reviewed the education offers alongside the reviews and decisions taken by professionals engaged in your child’s case from the Local Authority and the school, that appropriate educational offers have been made. These have been reviewed and adapted in light of the needs and challenges you have raised about Y’s ability to engage, alongside the views of those professionals involved.

That said, at this point in time, it is clear that Y is not currently attending any of the provision offered to her, despite every effort to respond to her needs and adjust the offer. The Local Authority must therefore consider again what would be an appropriate offer to have in place for Y. It is my view the statutory assessment of need provided through the EHCP process is the most suitable way of deciding what educational provision is a suitable offer and making an interim or alternative assessment of need at this stage would be unreasonable’.

Injustice and remedy

33. Both the Council and Mrs X want Y to be in education. There has been delay in the EHC needs assessment, but some extra time has been spent trying to ensure the plan is suitable. There is also evidence the Council has tried to find suitable education for Y but it has been difficult due to how unwell they have been.
34. It is also clear that Y has had no education from December 2021 to April 2023 and the EHC plan took too long. This is fault from service failure.
35. Our remedies guidance says that ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure is based on the impact on the child and takes account of factors such as:

• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision, full time or part time, without some or all the specified support made during the period.
• Whether additional provision can now remedy some or all the loss.
• Whether the period concerned was a significant one for the child or young person’s school career.
• Lost or delayed right of appeal to tribunal.’

36. When considering a remedy for the injustice from the Council’s service failure, I have considered that Y is in primary school and the current provision in her EHC plan is therapeutic, rather than formal tuition. Y has significant needs and was without education for about 18 months. I can see that Mrs X tried to get medical needs tuition. The Council has made the point that Y was so unwell, it is unlikely she would have engaged with any tuition for much of that time.
37. To remedy the injustice to Mrs X, I propose a payment of £500 towards her distress at the situation, especially the delay in the EHC plan. I also propose a £1000 payment for the loss of education to Y. This is below the level normally recommended in our guidance, mainly because there is evidence that Y would have struggled to engage with more than one or two sessions per week of therapeutic education.

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Agreed action

38. The Council should pay Mrs X £1500 within one month of the date of the decision.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation of the complaint. There was fault by the Council and the injustice caused is remedied by a payment to Mrs X.

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Investigator's decision on behalf of the Ombudsman