The Ombudsman's final decision
Summary: Mr D complained the Council failed to provide his son with alternative provision when he could not attend school. He also says the Council delayed issuing his son’s final Education, Health and Care Plan and then it delayed providing the provision in the Plan. We find the Council was at fault for its delays in issuing Mr D’s son’s Education, Health and Care Plan. It also delayed providing the provision in the Plan. The Council has agreed to our recommendations to address the injustice caused by fault.
The complaint
Mr D complained the Council failed to provide his son, E, with alternative provision when he could not attend school. He also says the Council delayed issuing E’s final Education, Health and Care Plan and then it delayed providing the provision in the Plan. Finally, he says the Council’s communication with him was poor.
Mr D says the matter has caused distress and upset to the entire family. He adds E did not receive the education he was legally entitled to.
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 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) 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.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
Mr D 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
Education, Health and Care (EHC) needs assessments A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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: Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
If the council decides not to issue an EHC Plan after an EHC needs assessment, it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
Timescales after a SEND Tribunal’s decision Where an appeal is successful and the SEND Tribunal orders the council to write an EHC Plan, the council must: Issue a draft EHC Plan within 5 weeks of the order, and Send a copy of the finalised EHC Plan within 11 weeks of the order.
(Regulation 44 of the Special Educational Needs and Disability Regulations 2014) Alternative provision Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
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 courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) What happened This chronology includes an overview of key events in this case and does not detail everything that happened.
E has special educational needs. Mr D asked the Council to complete an EHC needs assessment for E. The Council completed the assessment but decided not to issue an EHC Plan. Mr D appealed the Council’s decision to the SEND Tribunal.
Mr D emailed the Council in September 2022 and said E had not attended school for the past four days. He said E was suffering from heightened anxiety and panic attacks. He sent a further email to the Council and the school the following week. He said he was waiting for a letter from E’s GP.
The Council referred E’s absence to its education safeguarding service. It assigned a safeguarding doctor to E’s case. The doctor assessed E at the beginning of November.
The Council contacted the doctor the following week. The doctor said E needed some support for his anxiety. The Council agreed to arrange a meeting with all professionals involved in E’s case.
Professionals, including staff from E’s school, the doctor, and officers from the Council attended a meeting in mid-November. All professionals agreed E needed to be in school. The school said it could meet E’s needs and he was progressing well.
Mr D and a Council officer attended an attendance improvement meeting at E’s school at the end of November. A follow up reintegration meeting took place in early December. The school created an attendance improvement plan and reintegration timetable for E. E started attending school for one hour a day.
The judge ordered the Council to issue an EHC Plan for E in December.
The Council arranged a review of the attendance improvement plan in mid-January. The school proposed increasing E’s attendance and suggested he should gradually return to full time hours after six weeks. Mr D emailed the Council after the review and said the new timetable had increased E’s anxiety. He sent a further email and said E was no longer attending school.
Mr D sent the Council and E’s school an email with medical evidence to support E’s absence. The Council reviewed the evidence internally and noted it was not recent evidence. It said the most recent evidence stated E needed to return to school.
The Council emailed Mr D in February and said it would refer E’s absence at school to its legal team. The legal team would decide whether the Council should take prosecution against Mr D for not sending E to school.
The Council attended a meeting with other professionals in late February and early March. The Educational Psychologist (EP) attended and said it was important the school supported E with his anxiety. They said they would work with the school to support E’s reintegration. They also said they would work with the family to see what other help they could provide. The Council agreed to pause the prosecution action. It said it would review the matter in April.
The Council issued E’s draft EHC Plan in mid-March. It also sent consultations to schools.
The EP emailed the Council. They said Mr D’s wife had agreed to some educational intervention work with E as a last attempt to get him back to school.
Mr D’s solicitor sent Mr D’s response to the draft EHC Plan in April. The solicitor also provided a further medical report for the Council to consider.
The Council provided Mr D’s solicitor with an update in mid-May. It said it was having further discussions with a school it had consulted with.
The Council attended two further meetings to review E’s case in June. It noted it postponed the meeting in April so the EP could complete their intervention work. The school said E had not returned. The EP said they would visit E to clarify what support he wanted at school. They visited E at the end of June.
Mr D’s wife chased the Council for updates about E’s EHC Plan in June and July. The Council emailed Mr D in July and confirmed it had reallocated his case to a new officer.
Mr D complained to the Council in July. He said it failed to provide E with alternative provision. He also said its communication with him was poor and it had failed to issue E’s final EHC Plan within legal timescales.
The Council issued E’s final EHC Plan at the beginning of September. It named E’s school as the placement to deliver the provision in the Plan. The Plan said E needed a gradual reintegration into school and there should be should a consideration of E accessing alternative provision during the reintegration process.
The Council responded to Mr D’s complaint at the end of September. It accepted it delayed finalising E’s EHC Plan. It also said it delayed communicating with him during this time. It apologised for its faults. Finally, it said it did not have any evidence to suggest E was medically unwell to attend school. It said it provided advice to support E’s engagement in school.
Mr D referred his complaint to stage two of the Council’s complaints procedure. He said it failed to provide the provision in E’s EHC Plan. He also said E could not attend school because of his unmet needs.
E started receiving the provision in his EHC Plan in mid-October.
The Council issued its final response to Mr D’s complaint in November. It said it complied with government guidance regarding alternative provision before E had an EHC Plan. It accepted once it issued E’s EHC Plan, it had delayed providing the provision in the Plan.
Analysis Mr D refers to matters from September 2022, but he did not refer his complaint to us until December 2023. Events before December 2022 would usually be caught by the restriction in paragraph four of this statement. Mr D says he was trying to manage his children’s needs and support his wife at a difficult time. I consider this is a good reason why Mr D did not refer his complaint to us sooner, and therefore I have exercised discretion to investigate matters from September 2022 onwards.
The Council was aware E was struggling to attend school because of his anxiety. It repeatedly liaised with the professionals involved in E’s case and reviewed the available evidence. The professionals at the meetings agreed E could attend school with support. It is for a council to decide whether a child’s health needs prevent them from attending school, what weight to place medical evidence and whether a child has provision that is available and accessible to them. The Council was satisfied the school could meet E’s needs with support and a reintegration package. That was a decision it was entitled to take, even if Mr D strongly disagrees with it. Therefore, I do not uphold Mr D’s complaint about the Council’s failure to provide E with alternative provision.
The Council accepted it failed to issue E’s final EHC Plan in time. I agree with this finding. The Council had five weeks from the date of the SEND Tribunal’s order to issue E’s draft EHC Plan. The Council missed this deadline by two months. The Council had 11 weeks from the order to finalise E’s EHC Plan. It missed this deadline by seven months. When the Council responded to my enquiries it said it considered further reports from Mr D. It also said the change in case officer caused a delay. While I note the Council’s comments, the timescales to issue an EHC Plan is set out in law and must be complied with. The Council’s faults caused Mr D frustration and upset over E’s education. It also caused E a significant injustice. If it had acted without fault, it is more likely than not E would have received the provision in his EHC Plan sooner. This included access to emotional support intervention, therapeutic support, weekly 1:1 intervention with a trusted adult and alternative provision as part of the reintegration package.
As soon as the Council issued E’s EHC Plan, it had a legal duty to provide the provision in it. The Council did not start providing this provision until mid-October. This delay is fault, which caused Mr D frustration and meant E missed provision which he was legally entitled to.
The Council was at fault for its communication with Mr D during the process of finalising E's EHC Plan. There is little evidence of regular updates to Mr D and an explanation of what it was doing to move the process forward. This caused Mr D further frustration.
We have recently asked the Council in other similar cases to provide us with an action plan listing the steps it is taking to address the delays in issuing EHC Plans. We have also asked the Council to produce an action plan to ensure it secures the special educational needs provision in a child’s EHC Plan. Therefore, I have not made any further service improvement recommendations in this case.
Agreed action
To address the injustice caused by fault, by 12 July 2024 the Council has agreed to: Apologise to Mr D for the injustice caused by the faults identified.
Pay Mr D £300 for his frustration and upset.
Pay Mr D £2,200 for E’s lost provision from February to October 2023. We would suggest Mr D uses this payment for E’s educational benefit.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council, which caused Mr D and E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman