The Ombudsman's final decision
Summary: Ms Y complains about the Council’s failure to make suitable educational provision available for her daughter, W. Some parts of the complaint are outside of our jurisdiction. We find the Council is at fault for not making the necessary provision available in late 2019 and early 2020. The Council also failed to arrange and fund a speech and language assessment which the Council agreed was necessary to help inform the provision in W’s Education Health and Care Plan. The Council will reimburse the cost of the assessment, apologise for the failure to make provision available and make a total payment to Ms Y of £1,075.
The complaint
Ms Y complains the Council failed to properly manage her daughter’s (W) Special Educational Needs (SEN) and failed to make suitable alternative provision available when it was aware that W could not attend mainstream school.
Ms Y says that fault by the Council has caused irreversible damage to W’s self-esteem and her academic prospects. Ms Y also says the fault caused avoidable distress for the entire family, including W’s parents and sibling.
The Ombudsman’s role and powers
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) 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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) 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)
How I considered this complaint
During my investigation I discussed the complaint with Ms Y and considered any information she provided.
I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance, cited where necessary in this statement.
Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
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.
What I found
Legal and administrative background Special Educational Needs Children with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
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 EHCPs. The guidance is based on the ‘Children and Families Act’ 2014 and the SEN Regulations 2014.
When drawing up an EHCP, councils must seek advice from those specified in the regulations. This includes “advice and information from any other person the local authority thinks is appropriate” and “… from any person the child’s parent or young person reasonably requests that the local authority seeks advice from”.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
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 EHCP 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).
Provision of suitable education Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
The guidance also says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should: consider the individual circumstances of each case and be aware that councils may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions; decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education; keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases; adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
What happened In 2019 W was ten years old and attending a mainstream primary school outside of the Council’s area. W has a diagnosis of Autistic Spectrum Disorder (ASD) and Dyslexia. In July 2019 Ms Y applied to the Council for an EHCP but the Council declined to assess W. In the autumn term of 2019 W’s attendance at school was 24%. The school implemented several measures, such as a flexible part-time timetable and personalised sessions, but these were not successful.
Ms Y had a meeting with the school who advised her to apply to the Council for an EHCP assessment. The school also reports that it contacted the Council in September 2019 seeking support for W, but the Council did not help.
W was assessed by a privately funded Psychologist on 6 November 2019. The assessment concluded that it was “entirely detrimental” for W to continue attending her current mainstream school. Ms Y shared the assessment with the school and an Education Welfare Officer (EWO) on 8 November 2019.
Ms Y contacted the Council’s ‘early help’ service in January 2020 when W’s school attendance continued to decline. The school also made a referral for ‘out of school support’. The Council says this is the first time it became aware that W had low attendance. On 16 January the Council emailed Ms Y seeking medical evidence to support her claim that W was unfit to attend school. It said W’s school had requested an EHCP assessment, but the referral lacked crucial information and the Council could not assess.
Ms Y told the Council that W had been diagnosed with ‘Generalised Anxiety Disorder’ and phobia. Ms Y explained that she could not provide the information requested because W was still on the Children and Adolescent Mental Health Service (CAMHS) waiting list. Ms Y instead forwarded the psychologist’s report which concluded that W could not attend her current school.
The Council referred W for alternative education provision on 20 January 2020. Between January and March 2020, W had an ‘Alternative Provision Plan’ and received one hour of tuition each week via face-to-face sessions to help her re-engage with school.
These sessions ended on 3 March 2020 when the EWO told Ms Y that, in their professional view, it was not possible to reintegrate W back into school. Ms Y says the EWO agreed to explore other options, but later that month the government announced a national lockdown due to the COVID-19 pandemic.
For the remainder of the 2020 academic year, W remained on roll at primary school and would have had access to some online learning like her peers.
In July 2020 the Council issued W’s final EHCP naming a mainstream secondary school which W attended from September 2020. After just a couple of weeks, Ms Y says that W could not cope. She stayed at home, spending most of her time in bed with extreme anxiety. The school agreed an emergency review of the EHCP was needed due to W’s refusal to attend school.
In the meantime, the Council involved the Education Welfare Service (EWS) to put strategies in place to support W’s attendance. This is because the Council maintained its view that W’s needs could be met within the named school.
The Council conducted an interim EHCP review in November 2020 and considered Ms Y’s preference for a specialist school. The Council consulted with the school on 30 November 2020. The school confirmed in January 2021 it was full, but that W could have a place from September 2021. An Occupational Therapist (OT) also assessed W in November and concluded that W struggled significantly with the demands of mainstream school.
On 29 March 2021 the Council wrote to Ms Y confirming the outcome of its November 2020 review. The Council said it would not change W’s EHCP and that her current provision at the mainstream secondary school will be maintained. The letter contained information about Ms Y’s right of appeal to the SEND Tribunal.
On 15 April 2021 Ms Y received the outcome of an assessment undertaken by a privately funded Educational Psychologist. This confirmed that W was likely to ‘struggle’ in mainstream school and would benefit from attending a setting where staff have a greater understanding of anxiety disorders.
Ms Y submitted an appeal to the SEND tribunal on 21 April 2021 which was scheduled for 2 September 2021. In the meantime, the Council reconsidered Ms Y’s request for an amendment to W’s plan. The Council’s panel reached the same conclusion as before and decided not to amend.
Ms Y privately funded a Speech and Language Therapy (SALT) assessment for W in May 2021. This highlighted several “complex difficulties” and made a range of recommendations for W’s development.
In July 2021 the Council received a summary from W’s psychologist. The Council reconsidered its position and on 12 July 2021 decided to amend W’s EHCP and name the specialist school from September 2021. The Council issued a copy of the amended final EHCP to Ms Y on 12 August 2021.
Although W now receives the provision which Ms Y felt that she was entitled to from 2019, she remains concerned about the lack of education which W received in the interim period, and the resulting long-term effects. Ms Y complained to the LGSCO for an impartial investigation of the Council’s actions and in particular its duty to provide education for W.
Was there fault in the Council’s actions causing injustice to Ms Y and W?
Period one: missed provision between November 2019 & July 2020 Although this period dates back more than 12 months, we have exercised discretion to investigate matters from 2019 because the concerns relating to W’s education were continuous and ongoing between 2019 and 2021. However, we will not investigate the Council’s initial refusal to assess W because Ms Y had the right to appeal the refusal to the SEND Tribunal. It was reasonable for Ms Y to have used her appeal rights.
We can consider Ms Y’s complaint about the Council’s failure to make suitable provision available for W from November 2019 until July 2020 when the Council issued W’s final EHCP, and Ms Y had a right to appeal. However, when looking at this period, we need to be mindful that the country was in a national lockdown and from 20 March 2020 all schools were closed, except for children of ‘key workers’.
If a child was already in receipt of alternative provision at the point of school closure, we would expect this to continue as previously arranged. At the time of the national school closure, W was not receiving any alternative provision because the Council had already ceased the one-hour weekly sessions on the basis that they were not successful.
Therefore, in W’s case, the key months within period one are: November 2019 to 20 March 2020. During this time W was entitled to receive an education suitable for her needs. The Council says it was “exploring” alternative provision options from January 2020. I have seen no evidence of this.
The Council’s EWO received notification in November 2019 from W’s psychologist that, in their professional opinion, it was detrimental for W to continue attending mainstream school. There is no evidence of any work undertaken by the Council between November 2019 and January 2020 to source provision for W. Between January and March 2020 W received just one hour of provision each week. This is significantly less than the full-time equivalent and there is no evidence to show how the Council decided that this was in W’s best interests. This is fault which caused injustice to W.
In the absence of any assessments undertaken by the Council in early 2020 regarding the level of provision deemed suitable for W, I have based my remedy on full-time education which should have been made available 15 school days after the Council was notified of W’s inability to attend school. In the absence of any information to suggest otherwise, this should be the starting point.
In line with the LGSCO’s Guidance on Remedies, the Council has agreed to pay £200 for each of the school months during which W did not receive provision deemed suitable for her needs (December to March 2020). The Council will also pay £200 to Ms Y for the time and trouble she endured during this period.
Period two: school attendance between September 2020 & September 2021 During this period W had a place available at a mainstream secondary school, as named on the EHCP issued in July 2020. W attended for just a very short time until, according to Ms Y, her anxiety was too severe for her to attend further. Ms Y considers the Council had a duty to make alternative arrangements during this period and within 15 school days of W’s refusal to attend.
The LGSCO’s guidance says, if a school placement breaks down and the child is out of school, we can look at the period from then until any right of appeal arises. This is because, if the child has an existing EHCP the Council must provide that. If not, then Councils must arrange suitable full-time education (or as much education as the child’s health condition will allow) for children of compulsory school age who because of illness, exclusion or ‘otherwise’ may not receive suitable education unless arrangements are made for them.
However, if the child’s absence is directly related to their SEN, for example anxiety about attending school, we consider it is too closely linked to matters which could be appealed. Therefore, I will not provide a remedy for any provision W missed between September 2020 and September 2021. As Ms Y received a final EHCP in July 2020 she had the right to appeal the named placement within eight weeks of the plan being issued. As it became clear very quickly that the mainstream placement was not suitable for W, I consider it was reasonable for Ms Y to have challenged this via her right of appeal.
Although I have not provided a remedy for this period of missed provision, I have considered the Council’s delay in completing the emergency review requested in November 2020 and what impact, if any, this had on W’s education. This is because the LGSCO has jurisdiction to consider the effects of any delay before the appeal right arises, which in this case was March 2021 when the Council issued its decision to maintain the plan.
There is fault by the Council because it took 16 weeks to complete W’s review against the statutory timescale of eight weeks. We can consider whether the Council ‘frustrated’ Ms Y’s appeal rights and whether W is owed any remedy for the effects of that delay. In this case, we have seen evidence which shows the specialist school eventually named on W’s EHCP did not have places available until September 2021. Therefore, even if the Council had undertaken the review within statutory timescales, and Ms Y had the opportunity to appeal sooner, it is unlikely the outcome would have been different. With that said, I consider the delay caused Ms Y some avoidable time and trouble which the Council will apologise for and make a payment of £150.
Reimbursement for privately funded assessment Ms Y complains that she has not received a reimbursement from the Council for the SALT assessment which she funded in May 2021. In response to our enquiries, the Council said, “We have not been asked to reimburse [Ms Y] and I'm not clear why we would do so as she commissioned these reports herself - they were not a requirement of the EHCP and formed no part in the local authority's decision to commission a place at [specialist school] for Sep 2022. We are unclear why these reports were commissioned” The LGSCO does not question the professional judgement of the Council’s decisions and it is not for us to decide who the Council should consult as part of the EHC assessment. Furthermore, we would not suggest that councils should reimburse privately funded assessments in all cases. We would only do so if there was evidence of a failure to adhere to the regulations which caused an injustice.
Regulation 6 of the Special Educational Needs and Disability Regulations (2014) says that councils must seek “advice and information from any other person the local authority thinks is appropriate” and “… from any person the child’s parent or young person reasonably requests that the local authority seeks advice from”.
Email exchanges between Ms Y and the Council in March 2021 show a clear agreement from the Council that SALT input was required as part of W’s assessment. After agreeing this was necessary, the Council referred Ms Y back to W’s prospective school. The Council did not arrange or fund the subsequent SALT assessment despite agreeing that it was necessary. This is fault.
Consequently, Ms Y suffered injustice because she privately funded the necessary assessment which is referred to in Section K of W’s July 2021 EHCP. Amongst other provisions, the plan says that “[W] requires weekly individual 30 minute sessions in blocks of 6 sessions per term with a specialist Speech and Language Therapist specifically targeting understanding of inference, speech of language processing, auditory processing and narrative language skills”.
The Council will reimburse the cost upon receipt of expense from Ms Y.
Agreed action
Within four weeks of my final decision, the Council will: Pay £725 to Ms Y to use for W’s educational benefit in acknowledgment of the missed provision between December 2019 and March 2020.
Reimburse the cost of the privately funded May 2021 SALT assessment upon receipt of expenditure from Ms Y; and Apologise and pay £350 to Ms Y for the frustration, time and trouble she and her family experienced when trying to arrange the necessary provision for W.
Final decision
I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman