The Ombudsman's final decision
Summary: There was a delay in issuing Y’s final Education, Health and Care plan and a failure to arrange suitable alternative provision while he was unable to attend school due to ill-health. This caused Y a loss of education and social development and caused his mother, Ms X, avoidable distress, time and trouble and uncertainty.
The complaint
Ms X complained the Council: Delayed issuing her son Y’s final Education, Health and Care Plan (EHC plan) Failed to provide suitable alternative provision despite knowing he was not well enough to attend school Ms X said this caused Y a loss of suitable education and caused her avoidable distress and time and trouble.
What I have and have not investigated Ms X complained to us in September 2022. I have investigated Ms X’s complaint from September 2021. Events before are late complaints as I have explained in the following paragraph, and there is no good reason for me to investigate.
The Ombudsman’s role and powers
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.
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) 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 considered Ms X’s complaint to the Council and its responses, her complaint to us and documents described later in this statement. I discussed the complaint with Ms X.
Ms 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 law and guidance A child with special educational needs may have an 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. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
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. 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.
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 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).
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 education must be full-time unless the council determines full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says: If specific medical evidence, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
The duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.
Non-statutory guidance School Attendance: guidance for schools, August 2020 states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, Out of school…out of mind? says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
What happened Y has autism and a genetic condition. He transferred to year seven in a mainstream secondary school in September 2021 where he remains on roll at the time of this statement. Y attended secondary school for a week and a half at the start of the Autumn term of 2021. He stopped attending because of severe anxiety as he found the setting overwhelming. A report from a doctor said Y was not able to cope with his school due to anxiety.
The Council decided to carry out an EHC needs assessment.
An Educational Psychologist (EP) provided advice for Y’s EHC needs assessment in November 2021 and February 2022. The EP noted Y ‘is beginning to experience gaps in learning and curriculum knowledge due to his school non-attendance… also experiences difficulty engaging with home tuition. Due to this, Y is at risk of these gaps in his knowledge and understanding increasing which may further increase his anxiety…’ The advice also said Y had not attended school since September 2021 and noted he was receiving weekly Maths tuition.
The Council issued a draft EHC plan in June 2022. It noted Y was receiving tuition in Maths for one hour. The draft plan set out Y’s SEN and the SEN provision the Council considered he needed.
Ms X complained to the Council in June. Its first response, also in June, apologised for the delay in issuing Y’s final EHC plan and accepted it should have been issued by the first week of May. The response went on to say: The Council issued a draft EHC plan on 16 June and was consulting with schools, including with her preferred choices. It would contact her before 8 July to feedback on consultation responses.
It accepted Y’s transition to secondary school was ‘not as progressive as hoped’ It had just recruited extra staff to the SEND team and officers now met with settings each half term to discuss children with EHC plans and those under assessment. This should ensure continuous discussions with the school.
Ms X escalated her complaint to stage two of the Council’s complaints’ procedure in September 2022. She raised the same matters as before. She added there had been no contact from the case officer and chased her for an update in September. She said Y was receiving tuition for an hour a week only.
The Council replied in October saying: Y’s school was responsible for his education. The Council was aware the school had concerns it could not meet Y’s education needs and it would like to work with them to ensure it offered provision until another placement could be found The SEND team consulted with four schools in June. At her request, it consulted with eight more schools in September. One school had responded saying it was full. It would chase the other responses. There is a shortage of specialist placements A final EHC plan would be issued no later than 12 October to give her a right of appeal.
The Council issued Y’s final EHC plan in November 2022. Ms X told me Y has been offered a trial place at an independent special school.
Was there fault?
Delay in issuing her son Y’s final Education, Health and Care Plan (EHC plan) The Council has accepted a delay in issuing Y’s final EHC plan. The six-month delay was in breach of the timescales set out in the Code which is fault.
Failure to provide suitable education meantime despite knowing he was not attending school I am satisfied the Council was made aware Y was not attending school by the end of November 2021, which is when the first EP assessed him and provided a report for his EHC needs assessment. The Council said in its second response to the complaint that it would ‘work with’ the school to ensure Y was receiving education while the EHC plan was finalised. The Council also said Y’s education was the school’s responsibility. This is not an accurate description of the legal obligations on the Council. Section 19 of the Education Act requires the Council to arrange to provide a suitable education for children who cannot attend school for health reasons. While the Council can get the young person’s school to make those arrangements, it has responsibility for ensuring provision is suitable. The law and statutory guidance as I have set out in paragraphs 14 to 18 emphasises a child’s general entitlement to full-time education or equivalent, unless not in their best interests and notes a part-time timetable should be kept under review. The Council should have been working with the school since it became aware of Y’s non-attendance due to anxiety, in November 2021 and the failure to do so was not in line with Section 19 of the Education Act and guidance and is fault.
Our focus report reminds councils of the importance of sticking to the law and guidance. We expect them to keep all cases of part-time education on health grounds under review with a view to increasing hours if a child’s capacity to learning increases. There is no evidence the Council took any action to liaise with the school or review Y’s tuition and health to see if tuition was effective or if the one hour a week could increase. Generally provision should be full time unless there is evidence from a professional that the child could not cope with it. This did not apply in Y’s case.
Injustice The delay in issuing Y’s final EHC plan caused a delay in appeal rights to the SEND Tribunal, avoidable distress and time and trouble complaining and a loss of education provision.
The EP noted Y’s education progress was suffering in her report in February 2022, describing gaps in his learning and knowledge. Given he has continued to receive only an hour a week of tuition which has not been reviewed, these gaps are likely to have widened in the ten months since the EP’s report.
Agreed action
Within one month of my final decision the Council should: Apologise for the fault and injustice I have identified in this statement Make a payment of £250 to reflect Ms X’s avoidable time and trouble complaining and her avoidable distress Make a payment of £500 a month for each month from February to November 2022, minus school holidays (£3750 in total). This payment is to reflect the loss of provision for Y under Section 19 of the Education Act 1996. I have taken into account Y was getting one hour a week of home tuition.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was a delay in issuing Y’s final Education, Health and Care plan and a failure to arrange suitable education while he was unable to attend school due to ill-health. This caused Y a loss of provision and caused his mother avoidable distress and time and trouble.
I have completed the investigation
Investigator's decision on behalf of the Ombudsman