Summary: There was fault by the Council which failed to act in line with the legal timescales in issuing Y’s Education, Health and Care Plan, delayed consulting with school placements and failed to secure educational provision on Y’s Plan or arrange alternative provision. The Council will apologise, make Mr and Mrs X a payment of £500 to reflect their avoidable distress and make Y a payment of £7200 to reflect the loss of a year of education.

The complaint

1. Mrs X complained the Council:
1. Did not provide any support or education for her son Y between April 2022 and July 2023
2. Did not keep to the timescales in guidance for completing Y’s Education, Health and Care (EHC) Plan
3. Delayed sending them draft and final EHC Plans
4. Delayed or failed to consult with their preferred school placements
5. Did not update them often enough about the progress of Y’s case.
2. She said this caused avoidable distress and Y missed out on a year of education.

Back to top

The Ombudsman’s role and powers

3. 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)
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 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

Back to top

What I have and have not investigated

8. Ms X complained to us in September 2023. Matters before September 2022 are late, but I have investigated them because there is evidence Mrs X was seeking to resolve matters with the Council and evidence of delay by the Council in securing provision on Y’s final EHC Plan.

Back to top

How I considered this complaint

9. I considered the complaint, the Council’s response and documents described in this statement. I discussed the complaint with Mrs X.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Special Educational Needs (SEN)

11. A child or young person 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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

12. 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 following: 

• 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. 
• If the council goes on to issue an EHC Plan, 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

13. Councils must secure special educational provision in an EHC Plan (Children and Families Act 2014, section 42)

Alternative Provision (AP)

14. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision. 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)

Elective Home Education (EHE)

15. Parents have a right to educate their children at home (Education Act 1996, section 7). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

Background

16. Y has special educational needs. He joined School A in January 2020. Records indicate he struggled to cope. School A reported incidents of Y being aggressive to staff and children. Y was referred to a nurture group in a different centre in November 2020 and he attended there four days a week and one day a week at School A. Y returned to School A full-time in around March 2021 to finish Year One.

2021

17. School A requested an EHC needs assessment on 9 November 2021. The Council decided to carry one out. The Council has not provided me with a decision letter, but an internal note by the Council’s funding panel on 1 December said it had already made a decision to assess Y.

2022

18. The Council decided to issue an EHC Plan on 26 January 2022.
19. The Council issued Mrs X a letter saying it was enclosing Y’s draft EHC Plan on 2 March 2022. The Council has not provided me with a copy of the draft EHC Plan. It says it has not retained a copy on its system. Mrs X says she never received a copy.
20. The Council issued Mrs X a letter saying it was enclosing Y’s final EHC Plan on 4 April 2022. The letter said:
• The Council had named a type of school in Section I
• It would consult with schools once Mrs X had provided her school placement preferences and she would get a further right of appeal
21. The Council has not provided me with a copy of the final EHC Plan of April 2022. It says it has not retained a copy on its system. Mrs X told me there was a two- month delay in her receiving the final plan.
22. The Council’s EHE Team emailed Mrs X on 13 September saying it had received notification from Y’s school that she wanted to home educate Y. The email asked Mrs X to complete a home education plan and said an inclusion officer would be in touch within two weeks to offer a home visit. The Council has not provided me with a copy of the completed home education plan.
23. An inclusion officer sent an internal email to the Council’s EHC team on 23 September saying she had spoken to Mrs X and the home education plan was due on 11 October. The email went on to say the EHC team would be responsible for chasing up the home education plan if Mrs X did not send it in and the case would be closed to the inclusion team. The inclusion officer noted she had spoken with Mrs X and Mrs X had said she was applying for a particular special school and had done so through the normal admissions process. The inclusion officer said she had told Mrs X this needed to be passed on the EHC team.
24. Nothing else happened on Y’s case in 2022.

2023

25. On 18 January, the Council consulted with School A. The headteacher of School A and a caseworker from the EHC team spoke the following day. The note of the discussion said:

“School report that this child was at her school but for the last 6 months has been home educated due to being in danger of PEX (permanent exclusion). He has previously been PEX from 2 other schools. She is concerned that a mainstream provision was being looked at, at all and felt the plan did not reflect the extent of his difficulties. She has spoken to parents who said they knew that School A was not the right setting for him and they would not want it named. I advised her to complete the response form as she saw fit and return asap.”

26. The headteacher of School A declined to offer Y a place a couple of days after the discussion in the last paragraph. Her letter said:

“Despite 1:1 support throughout the school day and following advice from all professionals and an EHCP in place, Y struggled in a mainstream classroom. At times 2:1 support was needed and interventions to keep Y and other children safe. ……..the Headteacher decided to permanently exclude. This decision was not taken lightly, however the safety of other children and their education was suffering, the mental health of staff was a concern and Y was displaying these behaviours because he could not cope. Parents chose to withdraw Freddie to home education while they awaited a Special School place.”

27. Records from the funding panel meeting of 21 January said there had only been a consultation with School A.
28. On 27 January, the Council consulted with two placements, including Mrs X’s preference.
29. On 22 February, Mr X chased the EHC team for an update on progress. The caseworker replied the next day saying one of the placements wanted to meet Y and would be in touch with him.
30. On 28 April, the caseworker emailed Mr and Mrs X saying one of the schools (School B) consulted had offered Y a place for September.
31. On 19 May, the Council wrote to Mrs X saying School B had offered Y a place for September and enclosing a copy of Y’s amended EHC Plan naming School B from September 2023.
32. Mrs X complained to the Council. Its responses said:
• It had no capacity to check documents were received
• It was sorry there was no response to their emails. There would be a staff training day to improve communication
• Mr and Mrs X told the Council they were going to home educate Y. The EHC team assumed they no longer wanted the Council to commission education and so Y’s case was added to the caseload of the review team
• At the start of October, Mr X told the Council home education as only a temporary measure. There was some confusion as Mr and Mrs X did then engage with the EHE team
• One school had offered a place for September 2023
• The internal records say Y’s status changed from EHE to ‘without a school place’ on 8 February 2023. That date should be October 2022. There was no evidence the Council offered alternative provision from that date.
33. The Council provided evidence of training in communication skills that it delivered to relevant officers as a result of Mrs X’s complaint.

Findings

The Council did not update them often enough about the progress of Y’s case

34. The Council accepted in its complaint response that its communication was inadequate. This is fault. It caused avoidable distress.

The Council did not provide any support or education for Y between April 2022 and July 2023

35. The evidence shows Y was excluded from School A in July 2022. I have relied on the letter from the Headteacher (see paragraph 26). So, the Council had a duty under Section 19 of the Education Act 1996 to arrange AP. It also had a duty under Section 42 of the Children and Families Act 2014 to secure the provision on the final Plan of April 2022 (which didn’t name a placement in any event). Absent a school placement or AP, the Council failed in its duty. This was fault.
36. Mr and Mrs X said they would home educate Y in September 2022, but changed their minds shortly thereafter. The Council did not confirm a home education plan for Y and then when made aware the parents had changed their minds shortly after, did not provide any alternative provision or secure special educational provision.
37. As a result, Y received no education at all between September 2022 and July 2023.

The Council did not keep to the timescales in guidance for completing the EHC Plan and delayed sending draft and final Plans.

38. Y’s EHC Plan was due within 20 weeks of the request for an EHC needs assessment so by 29 March 2022. The Council’s records indicate there was a final Plan dated 4 April. However, it has not provided me with a copy and Mr and Mrs X claim they did not get a copy for two months. On a balance of probability, there was a two-month delay in Mr and Mrs X receiving the final Plan (relying on their evidence). This delay caused a delay in appeal rights. I note Mr and Mrs X did not appeal so the injustice is limited to frustration and inconvenience.
39. The Council has not kept any copies of the draft plan of March 2022 or the final plan of April 2022. The reason is due to a change in its system. This is fault. We expect councils to retain key documents. Mrs X says she never received the draft Plan. On a balance of probability and due to the lack of a copy being made available to me, I conclude the Council did not issue a draft Plan. This was not in line with the SEND Code of Practice as I have set out in paragraph 12 and was fault causing avoidable confusion, distress and a lack of a chance to comment on the draft Plan and to put forward their choice of placements for Y.

Delay or failure to consult with their preferred school placements

40. The Council has no evidence of any consultations till January 2023. This was eight months after issuing a final EHC Plan in April 2022 which had no named placement. The delay was fault causing avoidable distress, confusion and uncertainty and a loss of a chance to secure a placement for Y sooner.

Back to top

Agreed action

41. Within one month of my final decision, the Council will:
• Apologise again for the avoidable distress and inconvenience caused and make Mr and Mrs X a payment of £500 to reflect this. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Y a payment of £7200 to reflect the loss of three terms of special educational provision/alternative provision he should have received.
42. Within three months, the Council will review its procedures to ensure that cases do not get lost between the home education/inclusion and EHC teams. It should provide us with a copy of the updated procedures.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. There was fault by the Council which failed to act in line with the legal timescales in issuing Y’s Education, Health and Care Plan, delayed consulting with school placements and failed to secure educational provision on Y’s Plan or arrange alternative provision. The Council will apologise, make Mr and Mrs X a payment of £500 to reflect their avoidable distress and make Y a payment of £7200 to reflect the loss of a year of education.
45. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman