The Ombudsman's final decision
Summary: The complainant alleged that the Council failed to manage her daughter’s Education, Health and Care Plan properly. We find some fault causing injustice. The Council has agreed to the recommended ways to remedy this. Therefore, we have completed our investigation, and are closing the complaint.
The complaint
The complainant, who I refer to as Mrs X, complained that the Council failed to manage her daughter’s (Child C’s) Education, Health and Care (EHC) Plan properly.
My summary of the complaint is that the Council: failed to provide Child C with appropriate alternative education (including providing what was required under her EHC Plan) as from October 2021 when the Council was aware that she was not attending her secondary school (School B); failed to ensure School B arranged an emergency review of Child C’s EHC Plan promptly as requested by the complainant in October 2021; failed to amend Child C’s EHC Plan without delay after it was agreed to do so in April 2022; failed to take account of the information provided by the complainant’s private assessment report; failed to consider properly whether School B could meet Child C’s special educational needs (SEN).
Mrs X says that the Council’s alleged failures have caused avoidable distress, frustration and time and trouble and Child C has missed out on education.
What I have investigated I have looked at the period of October 2021 to July 2022 when the Council issued a final amended EHC Plan. Matters, which I cannot investigate, are set out in the last paragraph of this statement.
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 Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
However, we can look at the consequences of any delay by a council in issuing the final EHC Plan and the consequences of any fault prior to the time the appeal right was triggered.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)) 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 have made enquiries of the Council, shared its response with Mrs X and considered her written response. I issued a draft decision statement to the Council and to Mrs X and have taken into account their further comments before reaching my final decision.
The Council investigated Mrs X’s complaint under its two-stage complaints procedure. I have considered the findings made by the Council.
What I found
Legal and administrative arrangements The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the January 2015 Code of Practice (the Code) provide guidance to councils about how to do this.
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. Section F sets out the special educational needs provision and Section I names the suitable placement.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.
Annual reviews Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”.
The Code (9.186) says that there may be occasions when a reassessment becomes necessary, particularly when the child or young person’s needs have changed. The Code says (9.187) that councils must agree a reassessment if the parent, or the school or the local clinical commissioning group (CCG-now called Integrated Care Board) request this unless there was a reassessment six months ago.
The council can also refuse a reassessment if it considers it is unnecessary. Councils must tell parents/carers its decision within fifteen days of the request. Councils must tell parents/carers of the right of appeal to the SEND Tribunal.
If the decision is to reassess, councils must issue a final amended EHC Plan within fourteen weeks of that decision. Professionals should provide their advice within six weeks of the request.
Children out of school because of medical needs Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
The Council’s policy on the provision of alternative education The Council is currently reviewing its policy. Its current policy states that the Council will commission alternative provision where a pupil has been permanently excluded, cannot attend for health reasons, or is not registered at a school and there are no available school places. The Council will either ask a school to provide alternative provision or it will commission this directly.
The Council’s policy says that schools have a ‘navigator’ who deals with pupils’ absences and considers whether enforcement action to ensure attendance should be taken.
Events of this complaint The Council issued a final EHC Plan in July 2020. An annual review took place in July 2021 prior to Child C’s transfer to secondary school, School B.
Child C was diagnosed with an autistic spectrum condition (ASC), difficulty in spelling, reading and writing, high levels of anxiety, preoccupied with worries and poor sleep patterns. Child C also has various sensory difficulties; she often struggles to complete everyday tasks and requires constant encouragement and reassurance. Section F of Child C’s EHC Plan set out the specific provision which the school should provide. Child C also required an assigned key adult.
Child C started at School B in September 2021, but the complainant says that she could not cope at school, was becoming very anxious and refused to attend two weeks after she had started.
The Council’s special educational needs (SEN)’s case officer became aware on 1 October 2021 that Child C was not attending School B. The case officer arranged a meeting with the parents and School B. It was agreed at this meeting that Child C would have a reduced timetable. It seems that Child C received some limited education after this at School B. Mrs X asked for an Educational Psychologist’s (EP’s) assessment. But the Council considered it best for Child C to be in school more before this happened.
In early December, the Council learned that Child C was again not attending school. Mrs X sent a statutory sick note for Child C’s absence and explained that her daughter would not attend school until her needs had been assessed and the learning provision changed. In January 2022, the Council asked School B to arrange an early annual review of Child C’s EHC Plan.
In the Council’s complaint response of April 2022 to Mrs X, it stated that alternative education provision was required from January 2022. The Council asked School B to provide this even though it was aware that Child C was unwilling to attend School B. The Council provided School B with higher needs funding from September 2021 to May 2022.
Mrs X continued to be concerned that Child C’s needs had not been fully recognised and she thought School B was not able to meet her needs. Mrs X commissioned her own diagnostic report which confirmed Child C’s dyslexia and other difficulties. The report recommended a specialist placement.
In early February 2022, Mrs X made a complaint about School B’s lack of appropriate education and support for Child C in accordance with the provision set out in section F of her EHC Plan. The Council chased School B to arrange the early annual review. School B told the SEN case officer that it was making the provision required whereas Mrs X maintained that this was not the case. The Council says that Child C had been taught in a small class of five pupils with a teacher and a Learning Support Assistant.
In March 2022, School B told the Council that it had offered one hour provision, after school, to Child C and Mrs X to attend with also some bespoke worksheets to complete at home. But the Council says that Mrs X was unwilling to take up this offer. Mrs X says that Child C refused to go to School B.
In early April 2022, the early review took place. School B sent the necessary paperwork to the Council at the end of April, not within the two weeks required. Once received, the SEN case officer requested alternative educational provision, consisting of fifteen hours per week face to face tuition and ten hours mentoring. At the end of May, this provision was available, but Child C could not initially attend because Mrs X had Covid-19 and did not consider online tuition would be helpful to her daughter. Tuition started after the May half-term and has consisted of fifteen hours tuition and ten hours mentoring, partly paid for from Child C’s higher needs funding.
In May the Council decided that a further EP report was not required because the report commissioned by Mrs X was on Child C’s case file and provided sufficient information. The Council’s EP considered that there would be nothing further she could add. Mrs X says that her concern was that the Council did not then take into proper account the private report, selecting information which supported the Council’s view that Child C’s needs could be met in mainstream school.
The Council issued a draft amended EHC Plan at the end of May 2021. Mrs X requested a specialist placement at a particular school and amendments to the draft. The Council consulted four schools but not Mrs X’s preferred school. In mid-June, the Council’s SEN Panel decided that it remained appropriate for Child C to remain in a mainstream school but agreed to consult smaller mainstream schools. The Council issued a further amended draft EHC Plan and there were discussions between the SEN case officer and Mrs X about Child C’s future school placement.
Mrs X says that the SEN Panel relied on Child C’s old EHC Plan and failed to consider the recommendations and information contained in the private report, which she had commissioned.
On 14 July 2022, the Council issued the final amended EHC Plan, naming School B as Child C’s school placement. Mrs X has appealed the final EHC Plan. She says that School B has told her that it cannot meet Child C’s needs.
Findings: Complaint (a): failure to provide alternative provision from October 2021 to July 2022 When the Council became aware in early October 2021 that Child C was not attending school, it liaised with School B to try to resolve this situation and agreed that Child C should be on a reduced timetable. That was an appropriate response. But, by the end of the winter term, it seems the Council was aware that School B’s efforts to engage Child C were not successful and it agreed alternative education was appropriate. The Council asked School B to arrange this.
However, the Council was aware that Child C was refusing to attend School B. My view is that the Council’s duty to provide alternative provision under section 19 was triggered in January 2022 and that it was not appropriate to arrange for this to be provided by School B, given Child C was refusing to attend. So, I consider the Council has been at fault and that Child C has missed out on appropriate alternative education for three school months (January to March 2022) and one school month in May 2022.
Complaint (b): failed to ensure School B arranged an early annual review The Ombudsman cannot investigate School B’s actions. But the Council has overall responsibility for ensuring a child’s needs are reviewed and the provision required to meet those needs is available. The Council asked School B to arrange an early review in early January, but this did not take place until early April. The Council says that it was hard to find a date when all the necessary professionals could attend. In the meantime, Child C remained without education.
I recognise that it can be difficult to find a date for such meetings when all key professionals can attend. But there was a three-month delay before this early review took place and it seems that the Council might have suggested a virtual meeting if this meant an earlier date could be set. Holding an early review was important because, without this, there could be no amendments to Child C’s EHC Plan or consideration of a change to the school placement.
My view is that the delay in arranging the early review amounts to fault, and this has meant that amendments to the EHC Plan have also been delayed.
Complaint (c): failed to amend the EHC Plan without delay after it was agreed to do so in April 2022 The guidance says that amendments to an EHC Plan should be made without delay once it is agreed that these are necessary. In this case, the Council took ten weeks to issue a final amended EHC Plan once it was agreed this was required. Some of this time was to accommodate the amendments suggested by Mrs X. Overall, my view is that the time taken to issue the final amended EHC Plan was not excessive and therefore I do not find fault.
Complaint (d): failed to take account of the information from Mrs X’s private assessment I cannot comment on the weight the SEN Panel gave to the information held on Child C provided by Mrs X or why it recommended mainstream remained appropriate. In any event, this will ultimately be for the Tribunal to decide.
However, I note that Mrs X paid for a private report in the absence of the Council agreeing to her request for a further EP assessment. But, because Child C was not attending school, I consider the Council should have sought a further assessment from the EP in January 2022, when it was decided that alternative provision was required. Therefore, my view is that the Council should have arranged a further assessment sooner and failure to do so amounts to fault.
Complaint (e): failed to consider whether School B could meet Child C’s needs The Council considers School B is suitable because it offers Child C a small classroom setting (up to eight pupils), with a teacher and Learning Support Assistant. I cannot comment on this because it will be for the Tribunal to decide the suitability of School B for Child C. Mrs X tells me that School B has recently said that it cannot meet Child C’s needs.
Agreed action
Because of the findings of fault, I consider that Child C has missed out on four school months of education, which was also in keeping with the provision required set out in her previous EHC Plan. Mrs X has also paid for a private assessment and has been caused avoidable frustration and time and trouble. Moreover, because of the delay in ensuring an early review took place promptly, Mrs X’s right to appeal, and a Tribunal decision, have also been delayed.
The Ombudsman’s guidance on remedies makes the following points: where there has been a loss of education, we normally recommend between £200 to £600 per school month; for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault; there must be a clear and direct link between the fault identified and the injustice to be remedied; distress can include uncertainty about how the outcome might have been different; where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.
In this case, the Council has agreed to take the following action within one month of the date of the final statement: apologise and make a symbolic payment of £500 to Mrs X to recognize her avoidable distress, time and trouble, her uncertainty that the outcome might have been different, and the Tribunal has been delayed, but for the faults; pay the costs of the private report which Mrs X commissioned, dependent on her providing proof of expenditure; pay Mrs X £2,400 for Child C’s missed education (four months) which should be used for Child C’s educational benefit; the Council is currently reviewing its policy regarding pupils out of school. I do not know enough about this review to make any firm suggestions. But in this case, it seems to me that the Council relied too heavily on School B to provide alternative education even though it was aware Child C was refusing to attend. It is legitimate to ask schools to make alternative education, but it may be SEN case officers would benefit from clearer guidelines when this is not a feasible option; and the Council may wish to consider if there are ways it can ensure schools arrange early reviews promptly and consider whether virtual annual reviews might prevent delay.
Final decision
I have found fault causing an injustice. The Council has agreed to the recommended actions to remedy this. I have therefore completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate I have not investigated School B’s actions because these are not within the Ombudsman’s jurisdiction.
I have not commented on the suitability of School B to meet Child C’s SEN needs because this is a matter for the Tribunal.
Investigator's decision on behalf of the Ombudsman