The Ombudsman's final decision
Summary: Ms X complained the Council failed to ensure her son, F, received education and provision in line with his Education, Health and Care (EHC) Plan between May 2019 and September 2020 after he was unable to attend his named school. The Council was at fault. Between January 2019 and September 2020, it delayed issuing F’s final EHC Plan, delayed finding a new school for F and failed to ensure he received education and provision in line with his EHC Plan. The Council has already paid Ms X a total of £5,200 to remedy the injustice caused between September and March 2020. It agreed to pay her a further payment totalling £1050 to recognise the injustice caused to F during the other periods.
The complaint
Ms X complained the Council failed to ensure her son, F, received provision in line with his Education, Health and Care (EHC) Plan between May 2019 and September 2020 after he could no longer attend school.
She further complained the Council delayed issuing F’s amended EHC Plan between 2018 and 2019, delayed consulting with alternative schools and failed to provide suitable CAMHS (Child and Adolescent Mental Health Service) to help him reintegrate back into school after he stopped attending in May 2019.
Ms X said the loss of provision impacted on his education and social development and caused him distress and uncertainty. It also caused her distress, uncertainty and time and trouble.
What I have investigated I have investigated Ms X’s complaints from May 2019 when F stopped attending school up to September 2020 when he started at a new school. This statement however refers to matters prior to May 2019 for context, injustice and remedy purposes.
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as CAMHS (Child and Adolescent Mental Health Service) which is part of the NHS. (Local Government Act 1974, sections 25 and 34A, as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. It also handles appeals against discrimination by schools or councils due to a child's disability. We refer to it as the SEND Tribunal in this decision statement.
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) 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
During the course of this investigation, we spoke to Ms X and considered information she provided.
I considered the Council’s response to our enquiry letters.
I considered our Guidance on Remedies.
After a successful challenge by Ms X, we reopened an earlier final decision we had made on this complaint, and we have come to a new draft decision. Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Education, Health and Care Plan (EHC) Plan Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.
Timescales for EHC need reassessments and preparation of the EHC Plan If a parent or school believes a child needs an updated EHC Plan, it can ask the Council to carry out a needs reassessment to gather new evidence to determine what special educational support the child now needs.
If the Council decides to issue an amended EHC Plan then it must issue the final plan within 14 weeks of the date it agreed to reassess.
Alternative provision law and guidance Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
The Coronavirus Act 2020 When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers. Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements.
The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHC Plan was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.
Our general view is that we are unlikely to criticise a Council for not arranging the full provision in an EHC Plan from 23 March to 1 May 2020, despite the fact they remained under a statutory duty to do so until 1 May.
What happened Ms X has a son, F who in 2018 was a teenager. He has special educational needs (SEN) including a diagnosis of autism and had an EHC Plan. In early 2018 Ms X and F moved into the Council’s area. The Council agreed to adopt and maintain F’s EHC Plan from the other council area . This EHC Plan showed F was entitled to weekly SALT and various support to help with his motor skills and social development. School 1 is an independent provider of alternative education which offers a mix of 1:1 sessions, home learning and community based learning. Records show however that it did not have SALT or OT provision.
Between September and October 2018 F attended an external tuition organisation. Records show Ms X was happy for F to remain here until after half term because School 1 had carried out building work which was not yet complete. The Council agreed in September 2018 to reassess F’s EHC needs with a view to issuing an updated EHC Plan.
F began attending School 1 during the autumn term in mid-November 2018. Records show the Council funded weekly Speech and Language Therapy (SALT) sessions from December 2018 using an external provider. In March 2019 the Council agreed to fund Occupational Therapy (OT) sessions at an external provider following an OT assessment. Invoice records show the Council started paying for these from mid-April 2019 onwards.
The Council issued F’s draft EHC Plan in March 2019. Ms X met with the Council to discuss the content of the plan and she suggested some amendments. The Council sent Ms X a further draft plan during April 2019.
In May 2019 an incident occurred at School 1 where F became distressed and a member of staff suffered a minor injury. The incident resulted in School 1 asking the police to attend. Following this School 1 decided it could no longer support F’s needs and said F would need to be taught at home with home tuition.
Records show the Council discussed the matter with School 1. Ms X was keen for F to remain at School 1. The Council agreed that F receive home tuition while it considered options for the summer term. School 1 suggested that CAMHS should support F before he could start reattending.
The Council met with Ms X in June 2019 to discuss the ongoing draft EHC Plan. Records show Ms X told the Council she wanted F to remain at School 1 and said he was doing well with his tutors at home. Ms X said F’s doctor had made a referral to CAMHS for F.
Records show F received weekly SALT lessons between January and May 2019. The Council also paid for sessions during June and July. F also received OT sessions between April and July 2019 and some private piano lessons twice a month between April and August 2019.
In July 2019 the Council checked with School 1 around whether F could return to it in the autumn term for the 2019/20 academic year. School 1 explained to the Council that Ms X was allocated a CAMHS therapist but had a requested an alternative one. CAMHS told the Council that as a result F was put back on the waiting list. School 1 told the Council that the risks with F had not changed and he would need to stay on home education.
In August 2019 Ms X asked the Council whether F could return to School 1. She said the Council should take steps to ensure he returned in September.
Ms X complained to School 1 that it had unofficially excluded him which School 1 denied. School 1 said it would meet with Ms X and the Council to try and put arrangements in place for the start of the academic year.
F remained at home at the start of academic year in September 2019. Ms X said F wanted to return to School 1. She said his home tutors were consistently late and not properly qualified to meet his needs. School 1 told the Council about Ms X’s complaint and said it could not meet F’s needs.
School 1 contacted Ms X during September 2019 to reiterate to her that it was unsuitable for F to attend. Ms X asked School 1 to issue a formal exclusion letter so she could ask the Council to put in place suitable alternative provision. Ms X asked the Council to issue F’s EHC Plan as soon as possible.
The Council issued F’s final EHC Plan in October 2019. The final plan named School 1 as F’s placement. The Council said the School was offering home tuition and some external sessions and noted Ms X had not requested an alternative placement. F’s final EHC Plan included 12 x SALT sessions each term, weekly OT sessions and 45 minute weekly piano lessons. The plan also outlined social opportunities and development which F would receive.
Ms X told the Council she had not received any details of the proposed alternative educational provision. Ms X said she wanted F to return to School 1 with 1:1 support. She said CAMHS were proposing to meet with F towards the end of October.
Between October and November 2019, the Council began consulting with alternative schools for F. The Council contacted CAMHS who explained Ms X disagreed that its therapist was appropriate for F. Records show Ms X consulted with her own private psychologist.
In November 2019 Ms X filed a case with the SEND tribunal that School 1 had unlawfully discriminated against F by failing to make reasonable adjustments and for failing to provide him with a suitable education.
In November 2019, School 2 contacted the Council as Ms X had made some enquiries with it about F. It said Ms X was seeking a part time placement which it did not offer. The Council said it would fund a full-time place for F at School 2 if it decided to offer him a place.
F remained at home between November 2019 and March 2020 with some tuition in place for English, Maths and Science. The Council agreed to carry out an interim annual review of F’s EHC Plan due to the impasse with School 1. Records show School 2 sent a conditional offer for F to start attending, subject to a home visit.
The Council responded to Ms X’s complaint and apologised for failing to find him a suitable school placement after he was unable to attend School 1. It offered Ms X a payment of £3,150 to acknowledge F’s loss of education and any distress that caused. It also offered an additional payment of £500 to recognise the distress caused to Ms X.
In late March 2020 the country went into a national lockdown due to COVID-19. F remained at home. Records show Ms X asked the Council to fund a tutor for five hours a day for F and that she wanted a personal budget from the Council to pay for it. The Council’s SEND panel suggested it could allocate a tutor for three hours a day. School 1 instead agreed to provide some tuition as part of F’s EHC Plan provision. Records show F received some online SALT sessions during May 2020 but Ms X said F found these difficult so they did not continue.
School 2 made a formal offer for F to start with it full time in September 2020. The Council held an annual review of his EHC Plan in June. Records show the Council agreed to provide a personal budget for 15 hours a week for home tuition between June and July 2020.
The Council issued F’s final amended EHC Plan in September 2020 naming School 2 which F began attending from that point.
Ms X remained unhappy and complained to us.
My findings
Delay issuing F’s amended EHC Plan between 2018 and 2019 The Council agreed to reassess F’s EHC Plan in September 2018. In line with statutory timescales of 14 weeks for a reassessment, it should have issued his final amended EHC Plan by the end of December 2018. The Council did not issue the final plan until October 2019 which is a significant delay.
On the balance, had the Council issued F’s final EHC Plan in line with statutory timescales F would have been entitled to all of the SALT, OT and piano lessons which was later included in the 2019 final plan from at least the beginning of January 2019 until May 2019 when the incident occurred. The Council failed to assess F and issue his final EHC Plan within statutory timescales which is fault. It caused Ms X and F frustration and uncertainty and delayed F’s entitlement to some of the OT and piano lesson provision which the final plan included.
F’s EHC Plan provision between May 2019 and September 2020 after he could no longer attend School 1 Following the incident in May 2019 School 1 decided it could no longer meet F’s needs and said he required educating at home. Once the Council became aware of this, it had a legal duty to put in place appropriate alternative education and SEN provision for F to meet the provision set out in his EHC Plan.
Ms X complained the Council failed to provide CAMHS support to reintegrate F back into School 1. Records show F’s GP made a CAMHS referral but Ms X declined to engage with the allocated CAMHS worker because she felt they were not suitably qualified. It is not for the Ombudsman to question or determine the qualifications or suitability of provision offered by CAMHS. In any case, CAMHS is not a body in our jurisdiction and therefore I have not investigated this point any further.
Ms X raised a case of disability discrimination against School 1 with the SEND tribunal about the lack of education offered to F for the remainder of the summer term between May and July 2019. The Tribunal found that the school had discriminated against F when it offered no on-site education for the remainder of the summer term 2019.The tribunal considered F’s lack of education at School 1 during this period and the circumstances around it. Therefore, I cannot consider F’s lack of school education or recommend a remedy for lost education during this period.
However, I can consider whether F missed out on his SEN provision set out in section F of his 2019 EHC Plan such as SALT, OT and piano lessons. As explained above, had the Council issued F’s final EHC Plan in line with statutory timescales then F would been entitled to SALT, OT and piano lessons as outlined in the 2019 final plan sooner.
Records show the Council funded SALT appropriately and OT was also funded and in place between April and July 2019, in line with his entitlement in the 2019 final plan. F was however entitled to weekly piano lessons. Although he received some lessons, records show he missed out on 9 lessons he was otherwise entitled to. That was fault.
F remained out of school from September 2019 to March 2020 before the COVID-19 pandemic began. School 1 had made it clear that it could not meet F’s needs. There was delay in the Council consulting with new educational placements for F and it failed to meet F’s educational needs and provision set out in section F of his EHC Plan during this period which was fault.
In March 2020 the country went into lockdown due to COVID-19. F remained at home without education or provision in line with this EHC Plan. Our view is generally not to criticise a Council where full provision was not provided during this period. However, from May 2020 the Council had a duty to use reasonable endeavours to secure or arrange provision for children with EHC Plans. This evidence showing that the Council made efforts to put tuition in place for F and he received some online OT and SALT. However, the Council has accepted fault for a delay in finding a new placement for F between September 2019 and March 2020. F was entitled to attend school during lockdown because he was a vulnerable child. It is unlikely F would have received full-time provision or in person piano lessons but the delay in finding a new school for him leaves uncertainty around whether F’s educational circumstances could have been different during COVID-19.
F started at School 2 in September 2020. If Ms X has any concerns about the Council’s actions from this point, then she would need to pursue a fresh complaint with the Council as it does not form part of this investigation.
Injustice I have found the Council at fault on various points between January 2019 and September 2020.
The delay in issuing F’s final EHC Plan in 2019 caused frustration and uncertainty to both Ms X and F. Although SALT was in place between January and May 2019 F missed out on OT entitlement between January and March 2019 and 9 piano lessons. This is provision he was entitled to, had the Council acted without fault and issued the EHC Plan on time. I have therefore recommended a payment below to acknowledge this injustice.
The Council accepted fault for failing to provide F with an education and support in line with his EHC Plan between May 2019 and March 2020 and it proposed a payment to remedy this. Since first complaining to us, the Council agreed to make an additional payment of £1050 (on top of the £3,150 already offered) to Ms X to acknowledge F’s loss of education between May 2019 and March 2020. The Council has already paid Ms X this amount of £4,200. This is the maximum payment in line with our guidance on remedies and is sufficient to recognise the adverse impact the fault had on F’s education, SEN provision and social development during this period.
Between March and July 2020 F remained at home, as most of the country did during the COVID-19 lockdown. As explained above, it is unlikely F would have received full provision during this period regardless of the circumstances. However, the delay in finding a new school placement caused F and Ms X uncertainty around whether circumstances could have been different had the Council acted sooner.
This matter caused both Ms X and F distress, frustration and uncertainty. It also caused Ms X time and trouble. The Council has already paid Ms X and F £500 each which is sufficient to recognise this injustice.
Agreed action
Within one month of the final decision the Council agreed to: pay Ms X £550 to acknowledge F’s loss of OT provision between January and March 2019. This equates to 11 weeks of lost provision which would have been in place had the Council issued F’s EHC Plan in line with statutory timescales in 2019.
pay Ms X £300 to acknowledge F’s loss of piano lessons between January and July 2019. This equates to a total of 13 lessons which would have been in place had the Council issued F’s EHC Plan in line with statutory timescales in 2019.
pay Ms X £200 to acknowledge the uncertainty caused to F between March and July 2020 because of the Council’s delay in finding F an alternative school placement for him after the one named in his EHC Plan decided it could not meet his needs.
Final decision
I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman