The Ombudsman's final decision
Summary: Mrs X complains the Council has not dealt with her daughter Miss Y's education properly. The Council is at fault because it did not make alternative education provision, did not consider Miss Y’s special educational needs properly and did not follow its complaints procedure. Mrs X suffered distress and Miss Y missed educational provision and special educational needs provision. The Council should apologise and pay Mrs X £500 for distress and £1200 in respect of missed provision.
The complaint
The complainant, whom I shall refer to as Mrs X, complains that the Council has not dealt with her daughter Miss Y’s education provision properly because: It did not provide suitable education when she was out of school between September 2019 and July 2020; It has not produced her EHCP (Education, Health and Care Plan) correctly; and It has not handled her complaint properly by refusing to consider it all at stage two of the complaints process.
Mrs X says she and her daughter have suffered a loss of education provision, distress, loss of earnings and logistical problems due to the impact on their family.
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) 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) 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 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 spoken to Mrs X about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaint and its response to my enquiries.
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
Duty to provide education The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability, and aptitude, including any special needs.
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 tribunal can do this.
The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014) If a local authority decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for a EHC needs assessment. (SEN Code of Practice para 9.41) Where a Tribunal makes an order requiring a Council to make an EHCP it shall send a copy of the finalised EHCP to the child’s parent or young person under Regulation 14, within 11 weeks of the order being made. (s44(2)(c) SEND Regulations 2014) Impact of the COVID-19 pandemic This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to COVID-19’.
The Coronavirus Act 2020 allowed the Secretary of State to temporarily modify existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
Risk assessments On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable. The Government issued an open letter on 24 March asking councils and education providers to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHCP, should stay at home or go into school.
The Government issued guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ on 19 April 2020 with advice about how to carry out the assessments, including the following.
The risk assessment should determine whether the pupil will be able to have their needs met at home, and be safer there than attending an educational setting.
Local authorities and education settings should decide together who is best placed to undertake the risk assessment.
The risk assessment should take account of the views of the parents or carers and the child or young person. It will need to balance a number of factors such as the potential health risks to the child of going into school, the risk of not receiving parts of the support in the EHCP in the usual way, and the ability of the parents to ensure they can meet the child’s health and care needs at home for a long period.
Risk assessments should be ‘proportionate’ and will need to be reviewed as circumstances change.
When the Government issued this guidance local authorities still had a duty to ensure the provision in an EHCP was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents have chosen to keep the child at home and have agreed temporarily that the child would not be getting access to the education at the school.
Providing the support in an EHCP In the open letter issued on 24 March 2020 the Department for Education also advised it would be introducing temporary emergency legislation modifying councils’ duties in relation to EHCPs. It said the overall aim was to “balance the needs of this vulnerable group to receive the support they needed with managing the demands on councils and health bodies to respond to the pandemic”.
On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHCPs and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHCP to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
The Government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ on 30 April 2020.
This said: “the notice does not absolve local authorities …of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHCP what they can reasonably provide in the circumstances during the notice period”.
The guidance notes it may be difficult to provide all elements of support in an EHCP, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
In deciding what provision can and cannot be made the council has to consider: specific local circumstances and workforce capacity.
the needs and specific circumstances of the child or young person.
the views of the child, young person and their parents about what may be appropriate.
If it is not possible to arrange or secure full provision detailed in an EHCP, factors to be considered include the availability of those who should deliver what is needed and whether anything can be done differently to deliver provision.
The guidance provides examples of the types of alternative arrangements that may be made including moving to a part-time timetable, change in placement to another school; reduced class sizes; specialist teachers providing advice and support to parents; widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
The council should keep a record of the provision it decides it must secure or arrange. It should then: confirm to the parents or young person what it has decided to do and explain why the provision differs from what is set out in the EHCP.
keep decisions under review, with an early review if necessary if the child or young person’s needs change.
What happened Miss Y is seven years old and has a diagnosis of Autism Spectrum Disorder and sensory sensitivities. She is currently attending School D.
The Council allocated a place for Miss Y at School A from September 2019, through the normal allocations process. Mrs X decided to exercise her right to not send Miss Y to school until the term after she was 5 years old to give more time to get her EHCP in place and agree a suitable setting.
Mrs X requested an EHCP assessment for Miss Y in January 2019. The Council decided not to issue an EHCP in May 2019. Mrs X then appealed this decision in June. The appeal hearing was held in December 2019 and the Tribunal decided the Council should provide an EHCP for Miss Y.
The Council produced a draft EHCP for Miss Y in the middle of January 2020 and consulted with educational placements, including School A and School B. School A replied saying it could not meet Miss Y’s needs. School B advised it could meet Miss Y’s needs. Mrs X expressed a preference for School C, an independent school. The Council issued a draft EHCP naming School B and Miss Y’s final EHCP naming School B was issued in April.
Mrs X asked the Council to change the named school to School D, which she thought could better meet Miss Y’s needs. The Council consulted with School D and agreed to name School D in Miss Y’s EHCP. The final EHCP naming School D was issued in the middle of June 2020.
Analysis - EHCP process The Council took 17 weeks to inform Mrs X that it would not issue an EHCP. The Council did not comply with the time limit set out in the Code. There was a delay of 6 days.
The Council took 14 weeks to issue Miss Y’s final EHCP after the decision of the Tribunal. The Council did not comply with the time limit set out in the Regulations. There was a delay of three weeks.
The Council delayed issuing Miss Y’s EHCP by a total of four weeks. This is fault by the Council. Miss Y received her EHCP later than she should have done.
Analysis - Between September 2019 and December 2019 Miss Y’s 5th birthday was in October 2019. The Council says Miss Y became of compulsory school age in January 2020, therefore it did not have a duty to provide suitable education until then. I agree with the Council. This is not fault by the Council.
Analysis - Between January 2020 and 20th March 2020 Miss Y was allocated a school place at School A in 2019. Mrs X says Miss Y was unable to attend School A because she suffered problems there in September 2019. The Council expected Miss Y to attend School A from January 2020. It treated her absence as an attendance matter, advising the school to follow its attendance policy.
Information from the Council confirms that a few days later, School B told the Council it was unable to meet Miss Y’s special educational needs in January 2020.
The Council was aware that Mrs X was not sending Miss Y to School B. In March 2020 it considered whether it should make alternative provision for Miss Y’s education. It concluded that Miss Y not attending School B remained an attendance issue.
The Council did not consider whether Miss Y could receive a suitable education at School B after it had been advised it could not meet her needs. The Council should then have offered alternative education for Miss Y from February 2020. This is fault by the Council. Allowing a short period for the Council to put provision in place, Miss Y was not provided with suitable alternative education provision between 10 February and 20 March 2020.
Analysis - Between 20 March 2020 and 1st May 2020 Miss Y had a final EHCP from 6th April. I have seen a COVID-19 SEND risk assessment that was completed for Miss Y. The risk assessment was completed immediately after Miss Y’s final EHCP had been issued in April.
The risk assessment states that access to provision at school had been offered but declined by Mrs X. The risk assessment says, “Parents feel it would not be appropriate for [Miss Y] to do an induction in this way and school have not yet been able to advertise for a TA to support [her].”
The risk assessment stated, “Not known to social care.” However, the Council had made a referral to social services the day before, regarding Miss Y, stating it was, “referring a child/young person who has Level 4 needs and requires a social worker assessment and intervention.”
The risk assessment did not take account of the referral to children’s social care and there is no evidence the Council reviewed the risk assessment after it was initially produced, to take into account any changes in circumstances. This is fault by the Council. Mrs X and Miss Y cannot be sure Miss Y received the Special Educational Needs (SEN) provision she needed.
Analysis - After 1st May 2020 The Council says it made reasonable endeavours to provide Miss Y’s SEN provision because she received, “access to online learning resources, including those which we understand were specifically for young people with SEND.” The Council’s response provided no further detail about these resources to show how they met Miss Y’s individual needs.
The Council has not provided evidence to show it made a record of the provision it decided it must secure or arrange for Miss Y or that it communicated and explained this decision to Miss Y or her parents, which were the steps required by guidance, as outlined in paragraph 28. It did not explain why this provision differed from that required by the EHCP. The Council should have attempted this.
On the balance of probabilities, the Council did not make reasonable endeavours in respect of Miss Y’s SEN provision. This is fault by the Council. Mrs X and Miss Y remain uncertain whether the Council should have made more provision available.
Analysis – Complaints handling The Council did not consider Mrs X’s complaint at stage two of its complaint process because it said that consideration of financial compensation was not part of its complaints process.
The Council’s website sets out its complaints procedure. There is no reference to the Council being unable to consider complaints at stage two because the complaint involved financial loss. This is fault by the Council. Mrs X was denied the opportunity to have her complaint reviewed. Any outstanding injustice has been addressed as part of this complaint to the Ombudsman.
Injustice Miss Y missed education and SEN provision over a total of 5 and a half months.
Mrs X suffered distress, depression and anxiety. I have seen medical evidence showing Mrs X received medication and therapy.
It is clear that some of Mrs X’s problems were in part due to circumstances relating to her son, her family support and her own health, none of which were caused by the Council. However, whilst not the direct fault of the Council, these circumstances combined to exacerbate Mrs X’s vulnerability at that time.
Mrs X says she suffered loss of earnings as a result of the Council’s fault. This relates to a period of time before the fault identified in this decision, and consequently I do not consider this to have been caused as a result of the fault I have found.
Agreed action
To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision: Apologise to Mrs X and Miss Y; Pay Mrs X a total of £500 for avoidable distress.
Pay Mrs X a total of £1200, for Miss Y’s missed education/SEN provision. This is based on a total missed provision over five and a half months, as below.
£400 a month of lost education provision for the five weeks between February and March 2020, a total of £500. This is because Miss Y received no provision during that time. The Council were made aware that Miss Y was not receiving an appropriate education and that School B could not meet her needs; and £300 of missed SEN provision for the four weeks delay in issuing Miss Y’s final EHCP.
£100 a month of missed SEN provision for the 4 months between April and July 2020. This is because the Council did not complete or review a COVID-19 SEND risk assessment properly or make reasonable endeavours in respect of Miss Y’s SEN provision.
Final decision
I have found there was fault by the Council which caused injustice to Mrs X and Miss Y. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman