Summary: The Council was not at fault for its delivery of Ms B’s daughter’s special educational needs support, or for its handling of
Ms B’s complaints. However, it was at fault for delays to its assessments of Ms B’s daughter’s needs. It has agreed to apologise to Ms B, make a small, symbolic payment to recognise her daughter’s injustice, and set out ways in which it will improve its service.

The complaint

1. The complainant, whom I refer to as Ms B, complains about how the Council provided special educational needs (SEN) support to her daughter, C.
2. Ms B says:
1. The Council took 18 months (from March 2021) to assess C’s needs and decide what SEN support to provide.
2. The Council then failed to deliver the right SEN provision.
3. The Council delayed responding to Ms B’s complaints and did not fully address the issues she raised.
3. Ms B says the Council’s failings have led to C having poor educational outcomes. She also says she and C have suffered 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’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. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated matters up to September 2023, which is when I started my investigation (and when C started her new school).
9. Any dissatisfaction Ms B has with events after September 2023 should be approached as a new complaint.
10. Ms B also raises concerns about ongoing (or planned) court proceedings. It is unlikely that this is something the Ombudsman could consider, as we cannot investigate complaints about court action.

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How I considered this complaint

11. I considered:
• Information from Ms B and the Council.
• Relevant regulations and statutory guidance documents.
12. Ms B 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

Complaint A: The Council’s assessment of C’s SEN

The Council’s responsibilities

13. A child with SEN may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them.
14. Statutory guidance, ‘Special educational needs and disability (SEND) code of practice: 0 to 25 years’ (the ‘SEND code’) sets out the process for carrying out assessments and producing EHC plans.
15. The code says that, if a council receives a request for an EHC needs assessment, it must decide whether to agree to the assessment (and must send its decision to the child’s parent) within six weeks.
16. If the SEND Tribunal orders a council to do an EHC needs assessment, the council must tell the child’s parent that it will do the assessment within two weeks of the order being made. (SEND Regulations 2014, Regulation 44, paragraph 2b)
17. If, following the assessment, the council decides it is necessary to issue an EHC plan, it must issue the final plan within 14 weeks of the date of the Tribunal’s order. (SEND Regulations 2014, Regulation 44, paragraph 2b)

The Ombudsman’s remedies guidance

18. We do not punish councils in the way a court might. This means we do not award ‘damages’ or ‘compensation’.
19. Instead, we can ask a council to make a symbolic payment to ‘recognise’ the distress someone suffered because of what it did wrong.
20. If fault has resulted in a loss of education, we usually recommend a remedy payment of £900 to £2,400 per term to recognise the impact of that loss.
21. Financial remedies for missed SEN support are likely to be lower than those for lost education.

What happened

22. In March 2021, C’s school asked the Council to do an EHC assessment of C’s needs. In early May, the Council decided not to assess her.
23. The Council told Ms B its decision around three weeks later. She appealed to the SEND Tribunal.
24. The Tribunal heard Ms B’s appeal in late January 2022. Two days later, it issued its decision, and ordered the Council to assess C.
25. Almost two months later, the Council wrote to Ms B and said it would assess C. Then after another three months – in June – it agreed to issue an EHC plan. It sent Ms B a copy of the draft plan and asked her for comments within 15 days.
26. In early July, Ms B told the Council that she needed more time to respond and wanted to wait until C was back in school.
27. In September 2022 the Council issued C’s final EHC plan.
28. The Council accepts that the EHC plan was not issued as quickly as it could have been. It tells me it will offer an apology to Ms B and a symbolic remedy of £300.
29. The Council also says it has experienced a significant rise in EHC needs assessment requests which, in some cases, has led to delays. It says it has initiated an external review of its assessment processes to identify opportunities for change. It says the findings of the review will inform service improvements.

My findings

30. There was no delay to the Council’s refusal to assess C’s needs in 2021. There was a two-week delay before it told Ms B its decision; however, this delay was not significant enough to justify a finding of fault.
31. The period after this – up to January 2022 – was outside the Council’s control because the matter was awaiting consideration by the SEND Tribunal.
32. After the Tribunal order, the Council took just over six weeks to confirm to Ms B that it would be assessing C. This was a delay of more than four weeks.
33. The Council also took almost 35 weeks to finalise C’s EHC plan. This was a delay of almost 19 weeks, or around three months of school in which C should have had an EHC plan but did not have one. This was fault by the Council.
34. The delay meant there was a corresponding delay to C’s SEN support. This is because the Council broadly understood C’s needs three months before issuing the final plan (as this was when it issued the draft plan). There is no evidence that her needs changed in that three-month period.
35. The delay is at least partly explained by Ms B asking for more time to respond to the draft plan. This did not change the Council’s timeliness duty, which was to issue the plan in early May 2022. But the fact that some of the delay was at
    Ms B’s request is not irrelevant when considering how much injustice C suffered.
36. The provision in C’s EHC plan was mostly related to how information was delivered to her in a school setting, and how staff were to provide small adjustments to her school day to support her self-esteem and educational progress. The likely short-term benefit of this provision over a three-month period is difficult to measure, particularly as school staff may well have been doing some of these things anyway.
37. Our remedies guidance says that, when the benefit of lost educational provision can no longer be recovered – as is likely the case here – we will usually recommend a financial remedy to recognise the loss. However, this rate will usually be lower for missed SEN support than lost education.
38. With this in mind – along with Ms B’s request to delay the EHC plan, which provides further mitigation – I consider the Council’s offer of £300 to be within an acceptable range of remedies for C’s injustice.
39. The Council also appears to have taken steps to consider how its service can operate better in future. Any efforts to improve its service are a matter for the Council to decide, not the Ombudsman. Time will tell whether they are effective.
40. Consequently, I will not make additional recommendations. The Council should now write to Ms B to offer her the apology and the payment directly.

Complaint B: The Council’s delivery of C’s SEN support

The Council’s responsibilities

41. EHC plans are set out in sections, including section F: the SEN provision needed by the child.
42. Councils have a duty to make sure children receive the SEN provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
43. Councils must also arrange suitable education for children who are out of school because of exclusion, illness or other reasons. (Education Act 1996, section 19). We refer to this as ‘section 19’ or ‘alternative education’ provision.
44. A council must provide alternative education 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)
45. The alternative education provided by a council must be full-time unless it decides full-time education would not be in the best interests of the child’s physical or mental health. (Education Act 1996, sections 3A and 3AA)
46. It is a matter of judgment for a council to decide whether a child’s health needs prevent them from attending school, and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
47. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. (SEND code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
48. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

What happened

49. In mid-November 2022, having made a complaint to C’s school about the SEN support she was receiving, Ms B decided to withdraw C from school until the complaint was resolved. She continued to raise concerns about how the school had been delivering SEN support to C.
50. It appears the school place remained available to C. But Ms B did not send her in. She said C was suffering with “sickness caused by the school”. But the only medical evidence was a GP letter about a rash which did not mention a long-term absence from school.
51. In January 2023, Ms B asked for an emergency review of C’s EHC plan. Her primary motive was to secure C a place at a different school.
52. This review was held in early February. C’s school noted that her place remained available to her. It also said that, during the time she attended (prior to November 2022), she made “strong overall progress in line with expectations”. The review record included details provided about the SEN support in place when C attended school, and how this met the aims of her EHC plan.
53. After this, the Council decided to amend C’s EHC plan. It sent Ms B details of schools with places available.
54. In March, C’s school sent the Council a detailed list of the SEN support which was in place for C if she attended. The Council noted that a place at school was available for C which met her needs, and it was Ms B’s decision to withdraw her.
55. However, the Council also noted that there had been a breakdown in Ms B’s relationship with the school. It requested that the school put tuition in place for C as an interim measure until an alternative could be found.
56. Around three weeks later, home tuition was in place, for six hours per week. The school did not increase the hours at any point because it felt, having consulted with the tuition company, that this was all C could manage.
57. The Council, after a lengthy consultation process (which appears to have involved a significant consideration of Ms B’s preferences), issued C’s amended EHC plan in June. The plan named a new school from September.

My findings

58. There is no doubt Ms B was very unhappy with C’s school, and it is not unreasonable to conclude – as the Council eventually did – that the relationship between them had broken down.
59. However, this was not the same as concluding that C could not, or should not, go to school.
60. The Council explored how C’s school was delivering her SEN support and was satisfied with the school’s summary of the support it was delivering. The school believed it could meet her needs, and claimed she was achieving in line with the aims of her EHC plan while she attended. And there is no medical evidence suggesting she could not attend for any length of time.
61. This, then, appears to be a difference of opinion between Ms B and the Council about the suitability of C’s school.
62. It is not my role to decide which school a child should go to, or whether it is reasonable to expect them to attend. That is a matter of judgment for the Council. With this in mind, and in the absence of any obvious evidence to the contrary, I have found no fault with the Council’s decision that C had suitable education available to her for the period she was out of school.
63. For the same reason, I have also found no fault with the lack of SEN support delivered to C during that period.
64. Nonetheless, I have considered whether the Council could have found C a new school quicker, and whether this could have reduced the length of time Ms B was keeping her at home without SEN support.
65. Given that the process of amending and EHC plan should take a maximum of 12 weeks, there was a delay in this case. The amended plan, naming the new school, should have been issued at the end of April 2023. It was not issued for another two months. This was fault by the Council.

66. However, I note that:
• Much of the delay appears to have been because of an extended consultation process with other schools – a process which the Council conducted while trying to act in line with Ms B’s wishes.
• The final plan only named a new school from the start of the following term. An EHC plan issued without delay may have led to an earlier school move for C; equally, it may not have done. I cannot say with any confidence that the delay in finalising the plan caused a corresponding delay to C’s school move.
• As I have said above, C’s existing school place – and the SEN support which came with it – remained available to her throughout the delay period.
• C’s school provided home tuition throughout the delay period, at a level which appears (from the information provided by the school) to have been commensurate with her ability to engage with it.
67. Consequently, I do not consider the two-month delay to have caused C a significant injustice. I will not recommend that any action be taken.

Complaint C: The Council’s handling of Ms B’s complaint

68. The Council accepts that there was a short delay to its response to one of Ms B’s complaints. It has already apologised to Ms B. This needs no further comment. And there were no other significant delays in the Council’s complaint-handling.
69. Although one of the stage 1 responses from the Council did not address all of
    Ms B’s complaint, the stage 2 response did so. This means there are no obvious ways in which the Council failed to address the complaint.
70. For these reasons, I have found no fault in the Council’s handling of Ms B’s complaint.

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Agreed actions

71. Within a month, the Council has agreed to:
• Apologise to Ms B for the delay to C’s EHC plan in 2022.
• Make a payment of £300 to Ms B, on behalf of C, for the corresponding delay to C’s SEN support.
72. Within two months, the Council has agreed to share with the Ombudsman:
• The findings of the external review into its EHC assessment processes.
• An action plan which, in light of the review’s findings, sets out what the Council will do to improve its service.
73. The Council will provide us with evidence it has done these things.

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Final decision

74. The Council was at fault for delays to C’s EHC assessments, but not for its delivery of her SEN support.

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Investigator's decision on behalf of the Ombudsman