The Ombudsman's final decision
Summary: We uphold complaints about a delay in the Education Health and Care needs assessment and plan for Z and for the lack of support to address her attendance. We have recommended a remedy for the injustice and to improve services in future.
The complaint
Ms X, a representative, complained on behalf of Ms Y that the Council delayed completing an Education Health and Care (EHC) needs assessment for Ms Y’s daughter Z. This led to a delay in issuing the final EHC Plan. Ms X also complained Y could not access her school setting and so missed education.
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) Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
What I have and have not investigated I have investigated the period May 2022 to July 2023. I have not investigated the appeal period which starts from the date of the final Plan (July 2023) and ends in February 2024 because of restrictions imposed on us by the court in the Millburn case (see paragraphs seven to nine.)
Ms Y appealed to the SEND Tribunal. Her appeal was against the placement. Ms Y asked the Tribunal to name two placements in Section I: School A and the hospital school. It follows the reason for Z’s non-attendance at an educational placement is linked to or a consequence of Ms Y’s disagreement about the suitability of the placement named by the Council. It means we cannot investigate a lack of special educational provision or alternative provision for the appeal period. Z’s case is one of those where there is past injustice which cannot remedy, like the Field case described in paragraph 10.
How I considered this complaint
I considered the complaint to the LGSCO, the Council’s response to the complaint and documents in the next section. I discussed the complaint with Ms X The parties 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 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
The process for carrying out EHC assessments and producing EHC Plans is in law and guidance: 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 a Council decides to assess a child’s EHC needs they must gather information from relevant professionals, who must respond within six weeks; If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment and provide their preferred placements; and If the council goes on to issue an EHC Plan, 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.
Councils must “make arrangements for the provision of suitable education at 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 such arrangements are made for them.” (Education Act 1996, section 19(1)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says: if specific medical evidence, such as that provided by a medical consultant, 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”.
We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 . We made six recommendations. Councils should: consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions; choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision: work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary: put the chosen action into practice without delay to ensure the child is back in education as soon as possible; Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
What happened
Background
The Council had a poor Ofsted inspection report in September 2021. As a result, it had to set out actions to address 10 areas of improvement identified by Ofsted. The Council’s SEND Transformation Board has been overseeing actions taken as a result of Ofsted’s intervention. The SEND Transformation Board reported in March 2023 that only 38% of EHC Plans were completed within the 20-week timeframe. This was due to a 40% increase in demand and a doubling in the number of plans compared with the previous year. The report attributed delays to a shortage of EPs and the Council had spot purchased agency workers, supported schools to commission private reports and contracted with an employment agency to provide over 300 advices. However, this increase in EP capacity was still not meeting demand. As a result, the Council intended to introduce Assistant EPs to the core teams as part of an action plan in 2023.
Z’s case Ms Y requested an EHC needs assessment for Z on 16 May 2022 when Z was in Year 6. She said Z’s primary school had identified her as having SEN and she had been receiving intensive support. The letter went on to say Z’s attendance was less then 50%.
Z’s primary school advised the Council in their report for the EHC needs assessment that her attendance in Year 6 was 60%.
Z’s school placement was a mainstream secondary school from September 222. However, she hardly attended due to anxiety.
The EP completed their report on 19 January 2023. This noted Z told the EP in interview that she had only attended secondary school for two sessions so far. Z said she was very anxious. The report said: Z had many traits associated with autism She had SEN in the areas of cognition and learning and social, emotional and mental health.
In April 2023, the Council issued a draft EHC Plan. Ms Y asked the Council for changes and asked the Council to consult with the hospital school for a placement in Section I of the plan (she wanted a ‘dual placement’ School A and the hospital school). The Council issued Z’s final EHC Plan in July 2023. It named School A as Y’s placement. Ms Y appealed.
Ms X complained to the Council in September on behalf of Ms Y and Z. She complained about a failure to complete the EHC needs assessment and plan on time and a failure to deliver education to Z who was unable to attend school for health reasons.
The Council’s response in November upheld the complaint it apologised for: the delay in finalising Z’s EHC Plan the lack of robust oversight of provision for Z while she was unable to attend school during the EHC needs assessment process.
The Council offered a payment of £2300.
Ms X told us Z started attending the hospital school in November 2023. She complained to the LGSCO in December 2023.
The parties used the working document process to agree changes to the EHC Plan. The SEND Tribunal issued an order in February 2024. The parties ended the appeal by consent with the Council agreeing to name School A and the hospital school in Section I of the EHC Plan.
Findings
The Council should have issued Z’s final EHC Plan by 3 October 2022 to meet the statutory 20-week timeframe. There was a delay of nine months which was fault. It caused avoidable frustration, uncertainty and a delay in appeal rights.
The EP’s report should have been available within six weeks of the decision to carry out an EHC needs assessment, so by August 2022. It was not available until January 2023. A delay of five months.
Once the SEND Team had the EP report, it should have issued a draft EHC Plan incorporating the EP advice and recommendations for parental comments and a final Plan within 6-8 weeks. There was a further avoidable delay between March and July which was additional fault causing a loss of special educational provision.
The Council accepts there was no oversight of Z’s case while she was not attending school during the EHC needs assessment and plan process. This was fault. Also, if the Council had issued the EHC Plan on time, it may have helped Z reintegrate into education. The Council was aware from May 2022 that Y’s attendance was poor from Year 5 and continuing into Year 6 because: the letter requesting an EHC assessment said so.
the primary school’s education advice gave 60% attendance for Year six.
the EP noted in their January 2023 advice that Z had told him she had only attended School A twice since starting there in September 2022.
There were therefore three missed opportunities for the Council to investigate further and to take action to improve Y’s attendance through support of the attendance service and/or other measures. This was a failure to act in line with the duty in Section 19 of the Education Act 1996 and was fault. It was also not in line with our expectations for councils as set out in our focus report (see paragraph 19.) Had the Council acted as we would expect, Y would have either had support to improve her attendance at School A (for example, a reintegration plan or an adjusted part-time timetable) or appropriate AP. Either way, on balance she would have been receiving some form of education, probably part time on account of her anxiety. The evidence indicates she did not have any significant support and so remained out of education.
Agreed action
As I have explained in paragraphs 11 and 12, we have no power to investigate or remedy injustice to Ms Y or Z from July 2023 when the Council issued the final EHC Plan. So the proposed remedy is to reflect Ms Y and Z’s injustice between May 2022 and July 2023.
Within one month of the final decision, the Council will: Apologise in line with our published guidance.
Remind officers in the SEND team who are responsible for considering parental requests for EHC needs assessments to identify information in requests which may trigger the need for involvement of attendance support/inclusion and to make referrals for attendance support or to the team dealing with alternative provision.
Make a payment of £500 (in line with our guidance on delay securing EP advice which recommends £100 a month).
Make an additional payment of £3300 for lost educational provision to reflect the failure to take any action to support Y to return to school with appropriate support in place or to provide alternative education for the last half term in 2022 and for the school year September 2022 to July 2023. This payment is made up of: £300 for the last half term of 2022 and reflects available evidence that Y’s school attendance during this period was 60%.
£3000 (£1000 a term) to reflect Y’s loss of education and special educational provision for Year 7. This is in the mid-range of our Guidance on Remedies for loss of provision.
The figures I have recommended in 36(d) take into account the primary school’s attendance figures for Year six (60%). On a balance of probability, if the Council had acted without fault, Y would have been able to benefit from part-time education in Year seven (whether through AP or a reintegration plan) I have not made any recommendations for the Council to address the delay in EP reports/delay in completing the EHC needs assessment and plan process. This is because the Council’s SEND Transformation Board has already committed in a report dated March 2023 to take action to reduce waiting times for EP advice and EHC needs assessments. This action includes recruiting Assistant EPs.
The Council should provide us with evidence it has complied with the actions in paragraph 36.
Final decision
We uphold complaints about a delay in the Education Health and Care needs assessment and plan for Z and for the lack of support to address her attendance. We have recommended a remedy for the injustice and for the Council to take action to minimise the risk of recurrence in other cases.
I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman