Summary: Mrs X complained about the Council’s failure to provide support for her daughter’s special educational needs. We found the Council was at fault for the delay in issuing an Education, Health and Care Plan following a Tribunal order. It also failed to provide alternative education for two terms. To remedy the injustice caused by these faults, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains about the Council’s failure:
1. to produce an Education, Health and Care Plan within the statutory timeframe; and
2. to provide her daughter, Child Y, with a suitable education since she was unable to attend school due to her anxiety and her special educational needs since March 2020.
2. Mrs X also complains about poor communication throughout the process.
3. Mrs X says she had to educate her daughter at home. This was not her choice. This has had caused Mrs X and her family significant distress and has had a negative impact on their health and wellbeing. Child Y has also been denied a proper education and support for her special educational needs.
4. She has also incurred considerable expense by having to pay for experts reports. Mrs X says the Council should reimburse her.

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What I have and have not investigated

5. I cannot investigate the Council’s decision not to carry out an Education, Health and Care (EHC) needs assessment. This is because this issue has already been determined by the Tribunal (The First-tier Tribunal (Special Educational Needs and Disability).
6. Where a parent has appealed to the Tribunal, we cannot investigate council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for any injustice during that period. This includes any loss of education. For this reason, I am unable to investigate what happened between May 2021 and December 2021, although I have referenced these where appropriate for contextual reasons.
7. Mrs X also complains about the Council’s failure to provide Child Y with an education since March 2020. Paragraph 10 (below) applies and her complaint about what happened between March 2020 and May 2021 is late. I have decided not to exercise my discretion to investigate this earlier period because the case records show the Council was not aware that Child Y was out of school until March 2021. Therefore, it is highly unlikely I would find the Council to have acted with fault when it was unaware (and there was no reason it should have been aware) that Child Y was not at school.
8. For these reasons, I have investigated the Council’s actions from December 2021 to when Child Y returned to full time education in September 2022.

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The Ombudsman’s role and powers

9. 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)
10. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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)
12. The First-tier Tribunal (Special Educational Needs and Disability) (“the Tribunal”) considers appeals against council decisions regarding special educational needs.
13. 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)
14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

15. I considered the information provided by Mrs X regarding her complaint.
16. I made enquiries of the Council and considered its response.
17. I also considered the relevant legislation and statutory guidance as set out below.
18. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs and Education Health and Care Plans

19. A child or young person has special educational needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings.
20. Some children or young people may require an Education, Health and Care (EHC) needs assessment for the local authority to decide whether it is necessary to make provision in accordance with an Education Health and Care Plan (EHCP).
21. The purpose of an EHCP is to make special educational provision to meet the child or young person’s SEN. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
22. The Children and Families Act 2014, the Special Educational Needs Code of Practice 2015 (‘the Code of Practice’) and the Special Educational Needs and Disabilities Regulations 2014 provide detailed guidance to councils about how they should manage the process of:

• assessing children and young people for an EHCP;
• how to decide whether to issue an EHCP;
• the content of the plan, and
• how to implement, monitor or cease a plan.

EHC needs assessments

23. If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks of receiving the request. If a council decides not to conduct an EHC needs assessment, it must tell the parent about their right to appeal to the Tribunal.
24. A council has two weeks to notify a parent it will complete an EHC needs assessment, when ordered by the Tribunal to do so.

Children out of school

25. 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.
26. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.

What happened

27. This chronology includes key events in this case and does not cover everything that happened.
28. Child Y had a diagnosis of autism. She also has several other SEN and physical diagnoses. In March 2020 she stopped attending school due to the national lockdown. She did not return and was educated at home. This is often referred to as “elective home education”. Mrs X says this was not by choice, but because the school did not meet her needs. She says Child Y’s anxiety was so great she was unable to attend any school at this time.
29. In March 2021, Mrs X requested a EHC needs assessment. She wanted Child Y to attend a special, rather than mainstream school. The Council refused and Mrs X appealed this decision to the Tribunal. Her appeal was successful in December 2021. The Council issued a final EHCP in May 2022. This was amended in August 2022, naming School B at Section I.
30. Child Y started attending School B, a special school, in September 2022.

Mrs X’s complaint to the Council

31. Mrs X first complained to the Council in March 2022. She was concerned the Council was taking too long to issue the EHCP and this would in turn impact on consulting with suitable special schools. Timeliness was particularly important because Child Y was due to start her secondary education in September 2022.
32. She has already explained (in February 2022), that in her opinion, there was no need to commission additional reports because she had already supplied both educational psychology (ET) and occupational therapy (OT) reports for the purpose of her appeal to the Tribunal. Mrs X had paid for these reports herself at considerable expense. She was also frustrated by the Council’s lack of communication. She was told the EHCP would be issued before the deadline of 16 March 2022, but this did not happen.
33. In response, the Council:

• upheld her complaint about the delay in the EHCP process;
• explained, in some detail, the context behind this delay. This included the national shortage of educational psychologists and the impact of the pandemic. It said it was taking action to improve its service delivery including the commissioning of services from the private sector.
• confirmed it had arranged occupational and equine therapy for Child Y. It had made an offer of home tuition, but this was rejected by Mrs X.

34. Dissatisfied with this response, Mrs X brought her complaint to the Ombudsman.

Analysis

Delay and communication

35. Mrs X’s appeal rights to the Tribunal were triggered on the date the Council advised her it would not carry out an EHC needs assessment in May 2021. For the reasons I have explained above, this means I cannot look at the Council’s actions from that date until the appeal in December 2021, including any loss of education.
36. The Council has already accepted it took too long to issue the final ECHP. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. This delay was fault. It has already apologised, explained the context for this and set out the action it was taking to increase the educational psychology resources in its area.
37. This delay extended the overall EHCP timeframe by seven weeks. I consider this to be significant because Child Y’s move to secondary education was imminent. I do not consider the Council’s apology adequately remedies the distress and uncertainty to Mrs X and Child Y.
38. I have also found fault with the Council’s communication with Mrs X and her advocate during this time. The records show several letters and phone calls went unanswered and this will have added to Mrs X’s frustration at an already difficult time.
39. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred, although this is not always possible.
40. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified.
41. I have made recommendations below to remedy the distress and frustration caused by this delay and poor communication.

Child Y’s education

42. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
43. Child Y was out of school between March 2020 and September 2022. I must decide whether this was because of fault by the Council.
44. The Council’s position is that Child Y was electively home educated, and so its legal duties to provide and alternative education did not arise. Mrs X says this was not her choice, but she was unable to get Child Y into school because of her chronic anxiety.
45. I have reviewed the available evidence and concluded Child Y was electively home educated up to December 2021 and the Council’s duties under section 19 of the Education Act 1996 were not triggered. I say this because:
1. the Council was not aware of Child Y’s circumstances until March 2021, when Mrs X applied for an EHC needs assessment. In this request, Mrs X described Child Y as being “home schooled”.
2. Child Y’s previous school did not inform the Council that she was no longer attending until June 2021. At this point the Council’s home education service made contact with Mrs X. There was no delay in doing so.
3. Mrs X had a meeting with the Council’s Elective Home Education service in June 2021. The notes from this meeting state that Mrs X made the decision to remove Child Y from school to home educate her after the lockdown ended. Mrs X described the educational support she was providing that she described as “child led”. There is no reference within these notes to Mrs X wanting the Council to assist with the arrangements she had already put in place or for the Council to provide an alternative. The focus at that time was for Child Y to have the benefit of an EHCP ready for the start of her secondary education.
4. Mrs X did not request home tuition. The records show she had previously employed one of Child Y’s former teachers but after some initial progress, Child Y found it difficult to engage.
46. I appreciate Mrs X draws the distinction between her making a positive choice to home educate (that she says she did not do) and her being forced to do so. However, I cannot say, based the evidence that this was as a result of Council fault that I have been able to investigate.
47. Based on the evidence, it is my view that the most significant issue (and arguably the cause of most distress to Mrs X) during this time period was the Council’s initial refusal to assess and delay caused by this. But as this part of the complaint falls outside the Ombudsman’s jurisdiction, I am unable to make a finding about these areas of injustice to her. This also means I cannot consider her claim for reimbursement of costs she incurred (for ET and OT reports) during the Tribunal process.
48. However, the situation changed once the Tribunal ordered the Council to carry out a EHC needs assessment. Mrs X says she called the Council in December 2021 to ask what support was available to her while the assessment was carried out. She was told there was nothing. The Council has not provided any case records about such a conversation, but I have no reason to disbelieve what Mrs X has told me. She has provided a detailed account of every contact she had with the Council, and this is sufficient to satisfy me this conversation took place.
49. Mrs X also emailed the Council’s home education service in early February 2022 to say Child Y had completely disengaged and has not received any home education. She also reminded the Council she had never chosen to home educate Child Y.
50. Mrs X has explained she was unaware of what help may be available and did not know she should have specified “alternative provision”. But her she repeatedly told the Council she was not electively home educating Child Y, rather she was doing so because there was no alternative. It was only when her advocate specifically asked for this in April 2022, was some equine and OT therapy arranged in April 2022. Mrs X, understandably, did not even know this type of support even existed.
51. The Ombudsman does not expect parents to have to have an in-depth knowledge of the SEN system and what support may be available. The Council should have explained there was support available when she first asked in December 2021, instead she was left feeling like she had no choice but to carry on with what she had been doing up to that point.
52. I am satisfied that the Council failed to suitable education for the entirety of the spring term 2022. This is fault. While some part time provision was made available for the summer term 2022, this was not the equivalent to a full-time education and is therefore fault.
53. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2400 per term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
54. Given Child Y’s age, the stage of her education, and the education and SEN support she missed, I consider a payment of £2000 would be appropriate for the spring term of 2022 when no support was offered. This should be reduced to £900 for the summer term, to reflect the fact some part-time alternative provision was put in place.

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Agreed action

55. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X.
2. Pay Mrs X £300 in recognition of the distress and frustration caused by the Council’s delay and poor communication.
3. Pay Mrs X £2900 to recognise its failure to provide Child Y with a suitable education, including support for her SEN between December 2021 and July 2022.
56. I have not made any service improvement recommendations to the Council because it has set out, in some detail, the action it has taken to address the resource issues highlighted by this case.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice to Mrs X. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman