The Ombudsman's final decision
Summary: Mrs X complains about the Council’s handling of her child’s Education, Health and Care Plan (EHCP). The Council took too long to issue the final EHCP in this case. This caused Mrs X injustice as it delayed her appeal rights and she was put to avoidable time and trouble chasing meaningful progress from the Council. The Council has agreed to apologise and make a payment to Mrs X. It will also offer an appropriate remedy to Mrs X’s child for delayed special educational needs provision when the outcome of the Tribunal hearing is known.
The complaint
Mrs X complains about the Council’s handling of her child’s, Child Y, Education, Health and Care Plan (EHCP). Mrs X complains the Council took too long to issue the final EHCP. She is also unhappy the Council has not provided appropriate support or Special Education Needs provision to Child Y while they were absent from school. Mrs X also complains about the Council’s failure to include all the professional reports and recommendations in the EHCP and for failing to provide her with support or timely information following her appeal to the Special Education Needs Tribunal.
What I have investigated I have investigated Mrs X’s complaints about the Council’s delay in issuing a final EHCP and not providing appropriate support and education while Child Y was absent from school.
I have explained at the end of this statement why I cannot investigate Mrs X’s concerns about the content of the EHCP and the Council’s conduct in respect of Mrs X’s appeal to the Tribunal.
The Ombudsman’s role and powers
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) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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 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
I have spoken to Mrs X and considered the information she provided in support of her complaint.
I have considered the information the Council has provided in response to my enquiries.
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.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant guidance Special Educational Needs A child 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 SEND 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 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; 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; 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); and councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
Those consulted have a maximum of six weeks to provide the advice.
The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47) Appeal rights 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. 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 submitted 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).
Alternative provision 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education 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)
Background
Child Y has special educational needs. In March 2021, Child Y received a diagnosis of Autistic Spectrum Disorder (ASD) with Attention Deficit Hyperactivity Disorder (ADHD) traits. Child Y has difficulties with communication, sensory processing/modulation and a restrictive diet.
On 23 March 2021, Mrs X made a request to the Council for an EHC assessment. The Council accepted Mrs X’s request and confirmed it would assess Child Y for an EHCP on 6 May 2021. Mrs X provided copies of professional reports she had obtained privately to the Council to help inform its assessment of Child Y.
Throughout the rest of 2021, Mrs X contacted the Council regularly to chase up its progress with Child Y’s EHCP. At the end of November 2021, this culminated in Mrs X making a stage one complaint to the Council about its handling and delay. Mrs X explained that Child Y was absent from school due to a lack of support to meet their needs. It is unclear from the records the Council has shared with me when it responded to Mrs X’s stage one complaint or what that response said.
The Council issued a draft EHCP for Child Y to Mrs X for comments on 15 December 2021. Mrs X was unhappy with the content on the draft EHCP and that the Council had not consulted the school she wanted Child Y to attend and she felt the Council had not included all the recommendations from professionals consulted.
Mrs X submitted a stage two complaint to the Council at the end of December 2021. In it she complained about the lack of progress by the Council and feeling ignored when she had requested specific support for Child Y. Mrs X also raised her concerns about the Council’s handling with her local Member of Parliament (MP). Mrs X also lodged an appeal with the SEND Tribunal despite not having yet received the final EHCP from the Council and approached us for help. We asked the Council to respond to Mrs X’s stage two complaint.
The Council issued the final EHCP to Mrs X on 5 January 2022. It also responded to Mrs X’s stage two complaint on 18 January 2022. The Council apologised for the delay in completing Child Y’s EHCP and consulting Mrs X’s preferred school. The Council said it hoped the ongoing transition for Child Y to move from their current to Mrs X’s preferred school placement would help them settle and ensure their needs were met. The Council also confirmed that any appeal Mrs X made to the SEND Tribunal would still be in time.
Mrs X brought her concerns back to us as she remained dissatisfied with the Council’s handling.
Was there fault causing injustice?
To comply with the 20-week statutory timescale, the Council should have issued the final EHCP on 10 August 2021. The Council took an additional 21 weeks and 1 day to issue its final EHCP in this case.
This delay was fault. In response to Mrs X’s complaints about the delay, the Council has offered her an apology. This in my view is not sufficient to remedy the injustice caused. Mrs X has spent a considerable amount of time repeatedly contacting the Council to progress its assessment of Child Y. She has had to approach her MP for help. The Council’s delay has caused significant frustration and inconvenience to Mrs X. It has also significantly delayed Mrs X’s appeal rights to the SEND Tribunal. I have recommended the Council makes an enhanced remedy to Mrs X in recognition of the injustice caused by its delay.
I have explained to Mrs X that I cannot consider any further delay there may be in the Council’s subsequent handling and response to her Tribunal appeal for the reasons set out in paragraphs 19, 31 and 32 of this statement.
In addition, it is not possible to consider what injustice may have been caused to Child Y by a lack of SEN provision. This is because the SEND Tribunal has yet to determine the outcome of Mrs X’s appeal. I understand the Tribunal hearing is scheduled for the end of September 2022. I have however included a recommendation for the Council to consider an appropriate remedy for the injustice caused by delay in implementing appropriate provision for Child Y. Mrs X will have the option to refer this matter back to us if she is dissatisfied with the Council’s remedy offer.
Mrs X has also complained about a lack of alternative education provision for Child Y while they were absent from school from the end of November 2021 to February 2022.
In response to our enquiries, the Council has provided attendance records from 1 September 2021 to 14 July 2022 for Child Y while at their previous and current schools. These records show Child Y was absent from school due to illness for two weeks from the end of November 2021 to mid-December 2021, when the Christmas school holidays started. During the last two weeks of January 2022, the attendance records show a period where Child Y was completing the transition from their previous to current school.
Other than one week in January 2022, Child Y’s attendance at school does not appear to drop below 90 percent from the end of February 2022, when they have fully transitioned to their new school, which is Mrs X’s preferred placement.
Based this evidence, there was no fault in respect of Mrs X’s complaint the Council failed to put alternative education provision in place for Child Y.
The Council’s response that it was not alerted to Child Y’s absence however is inaccurate as this formed part of Mrs X’s stage one complaint to the Council at the end of November 2021. As I have not received a copy of the Council’s stage one complaint response to Mrs X, it is not possible to say if this issue was addressed.
However, given Mrs X’s continued dissatisfaction about this issue, I am inclined to believe the Council did not respond to this specific element of Mrs X’s stage one complaint. This was fault which no doubt caused Mrs X further frustration, which I consider it should remedy.
Agreed action
Within one month of my final decision, the Council agrees to: apologise to Mrs X for the injustice caused by the faults identified in this decision statement; pay £400 to Mrs X for the time, trouble and uncertainty caused by the Council’s delay; Within six weeks of the SEND Tribunal appeal outcome, the Council has agreed to offer Mrs X an appropriate remedy for the benefit of Child Y’s education to reflect the injustice caused by its delay in issuing the final EHCP and any missed SEN provision. The Council’s offer will be in line with our Guidance on Remedies.
The Council should provide us with evidence to show the above recommendations have been completed.
Final decision
I have completed my investigation and uphold Mrs X’s complaint. Mrs X and Child Y were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.
Parts of the complaint that I did not investigate As explained in paragraph 19 above, the courts have said that we cannot investigate matters that are either appealable or ‘inextricably linked’ to matters under appeal. This means that we cannot investigate Mrs X’s complaints about the Council’s handling of professional reports and recommendations and how these are conveyed in Child Y’s final EHCP.
Mrs X also complains about the Council’s delay in compiling and submitting an evidence bundle to the Tribunal. The way the Council conducts itself within the Tribunal process is a matter for the Tribunal and not something we can investigate. The Tribunal can make case management directions, has powers to deal with non-compliance and can make costs orders.
Investigator's decision on behalf of the Ombudsman