The Ombudsman's final decision
Summary: Mrs X complains the Council has not dealt properly with her daughter’s education. The Council did not consider whether her daughter needed alternative education provision properly. Y lost some educational opportunity. The Council has agreed to apologise and pay Mrs X £4,500.
The complaint
The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt properly with her daughter Y’s educational and special educational needs because: It has not followed the proper process when issuing Y with an Education Health and Care Plan (EHCP); and It has not made alternative educational provision for Y up to August 2021.
Mrs X says Y has been left with no education since moving to secondary school, her SEN provision has been delayed and she has had to give up her job
The Ombudsman’s role and powers
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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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).
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.
How I considered this complaint
I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Mrs X’s complaint was made in August 2021. I have not considered events prior to October 2020 because Mrs X could have complained earlier.
What I found
Special Educational Needs 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 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; following the completion of an EHC needs assessment, if the local authority decides that an EHC plan is not necessary, it must give notification and the reasons for its decision, as soon as practicable and at the latest within 16 weeks of the initial request; Following a Tribunal order to issue an EHCP, a Council shall issue a draft EHCP in five weeks and a final EHCP within 11 weeks. (SEND Regulations 2014 Reg 44 (2)(c)) Alternative Education 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).
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) What happened?
This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
Mrs X requested an EHCP assessment for her daughter Y in October 2020. The Council made a decision not to assess Y and informed her in writing in November 2020. Mrs X requested mediation. In January 2021, before this could take place, the Council agreed to complete an assessment.
The Council requested professional advice. In March 2021, it decided not to issue an EHCP for Y and informed Mrs X in writing.
At the end of March, Mrs X appealed to Tribunal about the Council’s decision. A place at a specialist education setting was provided for six weeks between April and June.
At the end of May 2021, the Council decided not to contest Mrs X’s appeal. The Tribunal issued an order in early June for the Council to provide an EHCP for Y. The Council issued two draft EHCP’s and then a final EHCP to Mrs X.
Mrs X was unhappy with the draft EHCP and complained to the Council in August 2021 about the EHCP and that no alternative education had been provided for Y. The Council did not uphold her complaint.
Analysis EHCP process The Council’s initial decision in November 2020 not to assess Y for an EHCP was made within six weeks. This is within the time limit set in the Code.
The Council’s letter to Mrs X informing her of that decision not to assess was sent after seven weeks and three days. This is not within the time limit set in the Code.
After deciding to assess Y, the Council took a total of 16 weeks and four days to decide and write to Mrs X about its decision to not issue an EHCP for Y. This is not within the time limit set in the Code.
When the Tribunal issued the order to produce an EHCP for Y, the Council produced a draft EHCP within five weeks, and issued a final EHCP within 11 weeks. This is within the timescales set out in the SEND Regulations 2014.
The Council exceeded the statutory timescales for informing Mrs X about its decisions not to assess Y for an EHCP, and after assessment, not to issue an EHCP. This is fault by the Council. Mrs X and Y did not suffer significant injustice because the total delay was only four days.
Alternative education The Council accepts that it was aware of difficulties regarding Y attending school from early October 2020.
Y’s attendance data shows a significant decline in attendance from 60% to 30% over the year from October 2020 onwards. Emails from the Council show that it requested and was provided with this information in the middle of May 2021.
Evidence shows the Council considered information in relation to Y’s EHCP assessment and Tribunal appeal about her SEN provision: In November 2020 the Council considered whether to complete an EHCP assessment. It considered that her school had not had an opportunity to respond to Y’s difficulties in a graduated way and noted Y was on a reduced timetable at her school.
In November 2020 Mrs X told the Council Y had only been attending school for one hour a day and wasn’t receiving an appropriate education. The Council responded that Y’s school needed to put support in place at first.
A pre mediation meeting in January confirmed Y’s reduced school attendance.
The Council considered professional reports in March 2021 when it made its decision not to issue Y with an EHCP.
In March, the Council asked Y’s school for a report on reasonable adjustments to enable Y to re-join and access the curriculum. The Council says Y’s school provided a response in May for the Council’s tribunal response.
A six week placement at the specialist setting took place between April and June 2021.
The Council responded to Mrs X’s complaint about education provision noting that Y had not been without a school placement, she had attended school, she had attended a specialist education setting and had received support to transition back to her mainstream school.
It is clear the Council were not fully aware of Y’s attendance record until May 2021 when Y’s school provided this information for the Council’s Tribunal response. Earlier access to this information could have affected the Council’s consideration of whether Y’s school placement was suitable.
There is no evidence the Council asked Y’s school what action it was taking to address Y’s difficulties until March 2021. There was a five month delay in requesting this information.
There is no evidence the Council followed up its request for information from March when it did not receive a response, until early May. Without it, the Council was unable to properly assess whether it needed to provide alternative education provision.
The Council’s consideration of the information available to it appears to be primarily related to Y’s EHCP process and not in relation to whether it was necessary to provide alternative education provision.
On the balance of probabilities, the Council did not properly consider whether Y required alternative education provision between October 2020 and August 2021. This is fault by the Council.
Mrs X and Y remain uncertain whether the Council would have provided alternative education provision. There were delays in obtaining information. Y attended some educational provision but this clearly fell far short of a full curriculum. Y has later required more substantial intervention. On the balance of probabilities this could have been mitigated with earlier intervention.
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.
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.”
Agreed action
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; Pay Mrs X £4,500 in respect of the lost educational opportunity as a result of the delay in considering Y’s educational provision, which reflects a mid to higher rate for ten months between October 2020 and August 2021.
Final decision
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