Summary: Mrs X complains the Council has not dealt properly with her daughter’s education. The Council took too long to produce an EHCP and did not consider whether alternative education should be provided. Mrs X’s right of appeal was delayed and her daughter Y missed education. The Council has agreed to apologise, pay Mrs X £3,000 for Y’s loss of education and provide training and guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains that the Council has:
• taken too long to produce an Education Health and Care Plan (EHCP) for her daughter Y;
• failed to undertake necessary assessments;
• has not provided alternative education provision while Y has been unable to attend school between October 2022 and March 2023.
2. Mrs X says her daughter has missed out on SEN provision, has been without education provision for five months in a critical exam year and has suffered distress as a result of the social impact of the delays and non-provision.
3. Mrs X says she also had to pay for professional reports herself and was also caused distress.

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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. 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)
6. 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

7. I spoke to Mrs X about his complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. 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

Law, guidance and policies

Special Educational Needs

9. 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.

EHCP Timescales

10. 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:
• the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks.

Alternative Education

11. 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.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
12. 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)
13. 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).

What happened?

14. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
15. Mrs X asked the Council to complete an Education Health and Care Needs Assessment for Y in May 2022. The Council agreed to complete an EHCP.
16. In early November 2022, Mrs X complained about the delay to Y’s EHCP. She told the Council that Y had been out of school since October and why.
17. The Council agreed to consult on an educational placement for Y which was Mrs X’s parental preference. The placement agreed it could meet Y’s needs.
18. The Council issued a final EHCP for Y in March 2023, naming the school which she had previously attended and which said it could not meet her needs. Mrs X has appealed to SEND Tribunal.

Analysis

19. The Council ‘s complaint response says the process started in May 2022. I will therefore take this as the date the needs assessment was requested.
20. The Council issued an EHCP on 9 March 2023. The time elapsed between the request for assessment and the final EHCP being issued was therefore approximately 44 weeks, significantly exceeding the 20 week limit outlined in paragraph 10 above. This is fault by the Council. Y’s EHCP and her ability to appeal to Tribunal was delayed by 24 weeks. I am unable to investigate this further at this time. This is because I cannot assess any injustice caused as a result until the Tribunal has considered her appeal. Mrs X may make a further complaint to the Ombudsman about this at a later date.
21. The Council says, “Following the decision to carry out an EHC Needs Assessment... , advice was requested from a range of professionals. Advice was due back to the Council by 31st August 2022, however due to significant pressures across health services and also within the Educational Psychology Service, advice was not received until the following dates:
• Occupational Therapy (OT) advice - 05/01/23
• Educational Psychology (EP) advice - 10/12/22
• Community Paediatrician advice - 10/12/22
• Speech and Language Therapy (SLT) advice - 16/11/22

The Council and health partners acknowledge that the level of service in providing professional advice has not been acceptable.”

22. There is no evidence the Council sought to make alternative arrangements to obtain the necessary information to enable it to fulfil the timescales it was required to issue the EHCP within, despite this being requested by Mrs X in her complaint. This is fault by the Council.
23. Mrs X says she paid for a diagnosis report for Y prior to the ECHNA being requested. This report was not commissioned due to the delays by the Council completing Y’s EHCP. This is not fault by the Council.
24. The Council says that after it was notified that Y was not attending school in November, “The duty to provide education remained with the school until such time that the Council was able to make a decision as to whether Y required an EHC Plan in order to meet needs.”
25. There is no evidence the Council considered whether there was a need to provide s19 alternative education. The Council should have done this. This is fault by the Council. Y has remained without education provision for five months between November and March. As outlined in paragraph 13, the Ombudsman is unable to consider any period of time after this due to Mrs X’s appeal to SEND Tribunal.

Action by the Council

26. The Council has apologised to Mrs X for the delay in issuing the final EHCP.
27. The Council has identified necessary service improvements as a result of Mrs X’s complaint, to address these delays, including;
• Weekly reporting on advice to health partners and EP Service;
• Week 14 data now run weekly to provide a draft agenda for the Multi-Agency Statutory Assessment Panel (MASAP) - advice chased by the EHCP Coordinator and timeliness now embedded into performance management;
• Additional resource to fund an external organisation to provide OT advice;
• Additional resource to fund an external organisation to provide EP advice, resulting in good quality and timely assessments being carried out and advice submitted within the 6-week timeframe;
• Additional resource identified for SLT advice and provision, managed by Bromley Healthcare; and
• Clinicians as an active member of the weekly Needs Assessment Panel, providing triage of health advice, in particular, from Community Paediatricians. Prior to this change, advice was being requested from a Community Paediatrician for every CYP, however with effective triage it is acknowledged that this is not always necessary.
28. I have considered the Ombudsman’s Guidance on Remedies, which says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the child’s SEN, any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period, whether additional provision now can remedy some or all of the loss and whether the period affected was a significant one in a child’s school career.
29. Where a child without SEN received part-time education in supportive home circumstances, the remedy payment will usually be at the lower end of the range. Where a child with moderate learning difficulties received no education at all, the remedy payment will usually be at the higher end of the range.”

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Agreed action

30. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the additional fault I have found;
• Pay Mrs X £3,000 in respect of Y’s lost education provision for five months between November 2022 and March 2023 at a rate of £600 per month;
• Provide training to all staff regarding the Council’s responsibilities relating to section 19 alternative education provision;
• Provide guidance to staff relating to the EHCP process and their responsibilities to adhere to timescales set out in SENCOP.

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Final decision

31. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman