Summary: The complainant (Mrs X) said the Council failed to provide her son (Y) with suitable education for many months. Mrs X raised various alleged failures during an Education Health and Care (EHC) needs assessment and issuing Y’s Education Health and Care plan (EHCP). Mrs X also said the Council failed in the process of conducting a social care assessment for Y. We found the Council at fault for its failure to provide suitable education to Y for many months and delays in issuing his EHCP. We did not find fault in other parts of Mrs X’s complaint. The Council agreed to apologise to Y and Mrs X, make symbolic payments to recognise education missed by Y and impact of the delays in issuing an EHCP and make some service improvements.

The complaint

1. Mrs X’s representative (Ms Z) says the Council:
• failed to provide Y with suitable education since October 2019;
• failed to carry out an EHC needs assessments and delayed issuing a final EHCP;
• issued an inadequate EHCP in February 2021;
• failed when carrying out a safeguarding assessment following a referral to the Children’s Advice and Duty Service (CADS).
2. Ms Z says the alleged Council’s failings negatively affected Y’s development and caused him to fall behind with his education.

What I have not investigated

3. I have not investigated anything that happened before October 2019 as this part Mrs X’s complaint is late. If there were any Council’s failings when Y was in his primary school, Mrs X could have challenged them at the time. I can see no good reasons to consider this part of Mrs X’s complaint now. I refer to paragraph eight of this decision.
4. We have no jurisdiction to investigate any matters which Mrs X appealed to the First Tier Tribunal (SEND Tribunal), such as Y’s special educational needs (SEN) included in Section B of his EHCP, special educational provisions to address his SEN included in Section F and Y’s school placement. These matters have been considered and resolved by SEND Tribunal. I refer to paragraph ten of this decision.
5. I have not investigated any concerns about a particular Social Worker, who carried out Y’s social care assessment. Our role is to look into the Council’s actions as a corporate body, rather than to investigate an individual. If Mrs X has concerns about the professionalism or conduct of an individual social worker, she can report her concerns to their professional body, Social Work England.
6. I have not investigated any events which happened after Y started attending the ASD special school in the end of April, following the Council naming it in Y’s EHCP. These events could not be seen as part of Mrs X’s original complaint to us and as such looking at them would be premature. I refer to paragraph 12 of this decision.

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The Ombudsman’s role and powers

7. 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)
8. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
11. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
12. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
13. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider this complaint.
14. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
15. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
16. 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)
17. 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.

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How I considered this complaint

18. I considered the information and documents Mrs X’s representative (Ms Z) provided. Ms Z replied to my additional queries.
19. I considered the information and documents provided by the Council.
20. I reviewed:
• our Focus Report ‘Out of school, out of sight? Ensuring children out of school get a good education’ published in July 2022 (Focus Report);
• Local Government Association ‘Changes to local authority powers and duties resulting from the Coronavirus Act 2020’;
• Statutory Guidance ‘Working together to safeguard children’, July 2018;
• The Council’s website information on Early Help.
21. Ms Z and the Council had an opportunity to comment on my draft decision. I considered any comments and extra evidence received before making a final decision.

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What I found

Legal and administrative framework

Provision of education under Section 19 of the Education Act 1996

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has settled that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. Academies are independent of local councils. However, councils remain accountable for ensuring pupils who cannot attend school received suitable education, regardless of the type of school they attend. Councils must work with schools and parents to identify children who need alternative education and to make suitable arrangements. (LGSCO Focus Report ‘Out of school, out of sight? Ensuring children out of school get a good education’ published in July 2022)

EHC needs assessment

27. A local authority must carry out an assessment of education, health and care needs when it considers that it may be necessary for special educational provisions (SEP) to be made for a child in accordance with the EHC plan:
• After a request made by the child’s parent or a representative of the child’s educational placement;
• When the possibility of the child having SEN is brought to the council’s attention.

(Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ paragraphs 9.3, 9.8, 9.9)

EHCP

28. 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:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

29. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC Plans and provision. This temporarily removed the time limits for completing EHC needs assessments and issuing final EHC Plans where it was impractical or “not reasonably practicable” to meet them for reasons connected with COVID-19. Instead, councils had to complete the process “as soon as reasonably practicable”. These changes applied from 1 May to 25 September 2020. Other requirements such as the need to seek advice from professionals and to give an opportunity to comment on draft EHC Plans were not changed.
30. The Government issued non-statutory guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This gave examples of how councils might need to adapt to new ways of working. For example it says where there is not enough recent information about a child readily available, professionals may be able to:
• carry out observations of the child if they are still in a setting where this can be done in line with guidance on reducing transmission of the virus; or
• gather information by telephone or by a virtual meeting.

Safeguarding and social care assessments

31. As part of the assessment councils must gather advice from relevant professionals. This includes social care advice and information. (Special Education Needs Regulations 2014 paragraph 6(1))
32. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

33. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Statutory Guidance ‘Working Together to Safeguard Children’) 

What happened

34. When explaining what happened I only refer to the events which are relevant to the areas I have investigated.
35. In the text of this decision I refer to Mrs X and her husband, who is Y’s stepfather, as Y’s parents.

Background

36. Y is now 14. When in his junior school Y had several medical appointments, including testing for a possible Autistic Spectrum Disorder (ASD). They explored causes for Y’s behaviour difficulties at school and home.
37. Although Y was not diagnosed with ASD at the time, the possibility of him having autism was not ruled out. A medical letter recorded Y’s poor concentration, demanding and controlling behaviour at home, emotional dysregulation and sleep problems.
38. At the time of transition from his junior school to secondary Y reached the reading age of seven.
39. In September 2019 he started Year Seven in a secondary academy (School 1).
40. After the first two weeks Y started struggling with attending School 1. Mrs X contacted the Early Help Team raising concerns about Y’s behaviour and learning needs. The meeting took place during which a support plan for Y was discussed, following which the Early Help referral was closed.

November 2019 to the end of July 2020

41. From mid-November 2019 Y stopped attending School 1.
42. School 1 arranged a meeting with Y’s parents to discuss his non-attendance, following which Mrs X received a letter with the advice on the possibility of the legal action to enforce pupils’ attendance.
43. At the end of November and in the beginning of December parental legal representative (Ms Z) contacted the school several times saying:
• parents did not receive the letter which School 1 claimed it had sent to them;
• Mrs X was seeking a diagnosis of Y’s condition as she believed he had ASD, Attention Deficit Hyperactivity Disorder (ADHD) and Pathological Demand Avoidance (PDA);
• a medical appointment with Children and Adolescent Mental Health Services (CAMHS) was booked for Y for the middle of December, which Mrs X hoped to clarify underlying causes for Y’s difficulties.
• Y’s refusal to attend School 1 was the result of his disability. Ms Z objected to School 1 mentioning possibility of the legal action to be taken against Y’s parents.
44. School 1 agreed not to proceed with the Fast Track meeting while waiting for the result of the CAMHS appointment. It sent Ms Z details of the educational support offered to Y and suggested a meeting to discuss the action plan.
45. In the letter issued in mid-January 2020 CAMHS decided Y had no moderate or severe mental health problems and discharged him. It suggested involving an Educational Psychologist’s (EP) and considering an EHCP.
46. School 1 referred Y to the EP service and arranged a meeting with Y’s parents. At the meeting it was agreed Y would come to school later in the week to allow the EP observation. It did not happen because of Y’s anxiety and his concerns about safety.
47. In March the EP visited Y in his house and issued a record of the EP involvement in which she recommended:
• application for an EHCP;
• alternative programme of work for Y – clear daily timetable at home including outdoor activities, organised activities and clubs;
• exploring alternative school placements;
• self-referral to the Early Help Team;
• referral to the Neurodevelopmental Disorder Team as some of Y’s traits are consistent with autism.
48. From 23 March 2020 School 1 was closed because of the COVID-19 pandemic.
49. In the end of July Ms Z contacted the Council raising the issue of a long-term lack of education for Y and mentioning the Council’s duties under the guidance on meeting educational needs of children who cannot attend school because of medical needs.

August 2020 to January 2021

50. In mid-August the Council responded to Ms Z’s communication and said:
• it would contact Y’s parents to find out if they asked for an EHC needs assessment as getting information and evidence from the parents is a vital part of the process;
• responsibility for meeting Y’s SEN rested with School 1;
• in September the Council would explore with School 1 reasons for Y’s non-attendance as there did not seem to be any medical evidence Y was too unwell to attend the school.
51. At the end of August Ms Z told the Council she was supporting Y’s parents in completing the forms needed to ask for an EHC needs assessment. She also stated Y did not receive any interim education.
52. In the beginning of September School 1 communicated with the Council’s Attendance Team. The Attendance Team and the Inclusion Team confirmed they had no awareness of Y’s non-attendance.
53. In September both School 1 and the Council offered meetings to Y’s parents to discuss Y’s well-being, Y’s EHCP referral and any support which could be offered from School 1. Ms Z declined the offer of meetings as parents did not believe Y could attend School 1 and wanted to wait for an EHCP.
54. In its correspondence with Ms Z in September School 1 offered to refer Y for a medical needs assessment. It explained it had only recently received the EP record of involvement prepared in March 2020.
55. In the beginning of October 2020 School 1 reminded Ms Z they were still waiting for the parental permission to refer Y for a medical needs assessment. As suggested in the EP involvement record of March 2020 School 1 contacted the Neurodevelopmental service about Y. After further chasing up Ms Z replied in the beginning of November declining the offer of the medical needs assessment referral as, she said, Y had a disability rather than health needs. She also raised the issue of Y not having a password to access online learning sent by School 1.
56. At the end of September Y’s parents filed their request for Y’s EHC needs assessment. The Council took the following steps:
• in mid-October agreed to carry out an EHC needs assessment for Y;
• in mid-January 2021 decided to issue an EHCP for Y, after receiving an EP statutory advice three days earlier;
• five days later sent a draft EHCP to Y’s parents for their comments;
• in the beginning of February issued a final EHCP.
57. Y’s parents asked for him to be placed in a 38-week residential special school. The Council named School 1 in Section I of Y’s EHCP.

February 2021 to April 2022

58. In the second week of February, on the advice from the Inclusion Team, School 1 contacted Mrs X to arrange a home visit. If this would not be possible, School 1 would refer Y to CADS.
59. Ms Z responded the meeting would not be a viable option as School 1 had no interaction with Y since February 2020.
60. In mid-February the Council started consulting with special schools. It still considered social, emotional and mental health (SEMH) as a primary area of Y’s needs but was also aware of Y’s planned ASD assessment. Some schools could not be consulted with as they would only admit pupils who had ASD diagnosis. As there was lack of clarity on Y’s cognitive levels the Council sought an assessment from a Specialist Learning Support Teacher.
61. At the end of February School 1 contacted Ms Z to start working on a tuition plan for Y. Following consultation with the Council, in the second week of March School 1 shared the plan for Y’s education, which the parents did not accept.
62. A few days later Ms Z complained on behalf of Mrs X about the lack of education and support from the Council.
63. At the end of February and in the early March the Early Help worker visited Y’s family. Before the first, unannounced, visit the Early Help worker tried to contact Y’s stepfather to explain their role and reasons for involvement. This, however, proved unsuccessful but the visit went ahead anyway.
64. After the visit at the end of February Ms Z complained about the Early Help worker and in particular complete disregard of Y’s needs stemming from his ASD traits. The Social Care Team responded by providing Ms Z with the details of the areas of focus for Social Care and explained the parental request for a residential placement made this assessment necessary.
65. Following the Early Help involvement a member of the Children with Disabilities Team visited the family and later completed a full social care assessment. The main purpose of the assessment was to settle the Council’s position on parental request for a residential placement for Y.
66. In the end of March Ms Z, on behalf of Mrs X, appealed Sections B, F and I of Y’s EHCP. She also asked for Special Educational Needs (SEND) Tribunal recommendations for Y’s social care needs and provisions.
67. In mid-April with parental agreement the Council decided to wait with Y’s cognitive abilities assessment until the outcomes of the Autism Diagnostic Observation Schedule, recently completed for Y, became available.
68. In the second part of April the Council’s Section 19 Team liaised with School 1 to explore any possibilities of improving the educational offer for Y. School 1 explained following the virtual meeting with Mrs X and Ms Z it would carry out some online learning sessions for Y. School 1 agreed to be flexible about timings to Y’s sleep patterns. After one try it became clear Y could not engage with this form of education.
69. Subsequently at the meeting between Section 19 Team and the Senior Safeguarding Advisor the need for medical evidence was discussed.
70. At the end of April Ms Z complained about the children’s services and specifically lack of transparency between various teams, the Inclusions Team and School 1.
71. Unhappy with the Council’s response to her complaint, Ms Z asked for it to be escalated to stage two and said:
• referral to CADS was damaging to the family;
• social workers failed to request Y’s medical notes;
• difference between a safeguarding assessment and a social care needs assessment should have been clarified for the parents;
• Y’s EHCP was inadequate as the Council failed to carry out Y’s social care assessment before issuing it;
72. In the third week of May the Council decided it did not identify any safeguarding concerns for Y as his primary needs related to education.
73. In May Y was diagnosed with ASD.
74. At the end of May School 1 told the Council Y recently tried to access some online tuition offered by School 1 but it did not seem to be working for him.
75. From February until May the Council undertook nine school consultations with special schools. One of the schools (School 2) offered the family a virtual visit which took place in the third week of July.
76. In the second part of June the Council provided its final response to Ms Z’s complaints. It said:
• it carried out Y’s social care assessment in response to Mrs X seeking a residential placement for Y;
• responsibility for remote learning during any period of school closure during COVID-19 rested with schools;
• the Council provided advice and guidance to School 1 for them to take steps to help Y to return to school. School 1 made reasonable adjustments and offers of provision to be delivered at home;
• the Council considered ASD as Y’s primary SEN and it updated its records following Y’s diagnosis in May. The EHCP would be updated as part of the appeal process;
• all parts of the complaint about the content of EHCP and Y’s placement would be considered by the SEND Tribunal;
77. At the end of June Ms Z told the Council remote learning offered by School 1 was not suitable for Y as he could not access it.
78. In mid-July the Council carried out a social care assessment for Y, which resulted in finding him a child in need as defined by section 17 of the Children Act 1989. Lack of education was the main area of need which should be monitored as part of the process.
79. In mid-September the Council found out Y did not attend a face-to-face meeting offered by School 2 as Y’s parents did not want to give him false hopes.
80. Throughout September and October the Council carried out further school consultations for Y and reconsulted with some of the ones which it had contacted before.
81. Y’s cognitive assessment took place in October.
82. In mid-November SEND Tribunal issued an order, naming an ASD special school as a type of provision needed by Y. Following the Tribunal order the Council issued a final post-Tribunal EHCP in the beginning of December. Throughout the appeal the Council and Ms Z liaised and managed to resolve all other issues, including social care.
83. At the same time the Council held discussions with Mrs X about face-to-face tutoring. It was agreed it needed to be introduced very gradually starting with two afternoons.
84. In the third week of January 2022 the Council carried out an Annual Review of Y’s EHCP.
85. From the end of February Y until the Easter break Y received home tutoring of up to six hours weekly.
86. Following the SEND Tribunal order and issuing an amended EHCP for Y, the Council continued with school consultations. At the end of February one of the schools with ASD expertise (School 3) sent a positive response, offering Y some visits in March. The formal offer from the Council followed, which Mrs X accepted.
87. In the beginning of March the Council issued an amended EHCP, naming School 3 for Y from the end of April 2022.
88. Y started attending School 3 at the end of April.

Analysis

Provision of education under Section 19 of the Education Act 1996

89. Y was out of school education from mid-November 2019, when he stopped attending School 1. The Council was aware of Y’s non-attendance from the beginning of March 2020, when an EP working for the Council carried out Y’s assessment and prepared her advice. The EP record of involvement clarified that Y was unable to manage the demands of a mainstream secondary school. The evidence suggests the SEND Team of the Council did not receive this document until the early autumn of 2020. Any failings in the internal communication of the Council do not, however, change the Council’s duties in performing its functions.

Mid-November 2019 to early March 2020

90. As explained under paragraph nine of this decision School 1’s actions or any possible failings to act are outside our jurisdiction, so we cannot look at the period from mid-November 2019 until early March 2020.

Early March 2020 to early February 2021

91. The Council was aware of Y’s non-attendance at school from beginning of March 2020. In its response to Ms Z’s correspondence, in the mid-August 2020 the Council suggested all responsibility for providing education to Y rested with School 1. Section 19, however, clearly makes councils responsible for arranging education for pupils who are out of school because of illness or for other reasons if they would not receive suitable education without such arrangements. This also applies to pupils who are on roll at schools.
92. From the beginning of March 2020 the Council’s duty under Section 19 started. There is evidence of some online education, either through sending materials by School 1 or online lessons, offered to Y at different points of 2020 and 2021. This, however, cannot be considered sufficient to discharge the Council’s duty of providing suitable education. This is for the following reasons:
• at no point Y engaged in remote learning, which would suggest unsuitability of this form of education, especially in view of the nature of his difficulties;
• in March 2020 the EP who carried out Y’s assessment suggested an alternative programme of work for Y which would include outdoor activities and clubs. There is no evidence the Council or School 1 offered anything in line with this recommendation;
• although not diagnosed with ASD until May 2021, throughout his education various professionals, including the EP, mentioned autistic traits which might have affected Y’s ability to engage with remote learning. The Council should have considered this issue in view of Y’s and his parents’ lack of engagement with remote education. In its comments to my draft decision the Council disputed this finding as it suggested there was much evidence of Y’s interest in computer games and other internet activities. This, in my view, does not mean he could engage with online learning. There was evidence of Y trying to access online learning and disengaging after a few minutes.
93. From the correspondence I have seen it seems the Council made arranging alternative education for Y dependant on his medical needs assessment. When listing reasons why pupils might be out of school and qualify for alternative education provision Section 19 specifies exclusion, illness or other reasons.
94. Looking at Y’s history of education and his family life as well as the outcomes of the social care assessments for Y, nothing suggests Mrs X would voluntarily withhold Y from school and wish for him not to engage with education. On the contrary, despite various difficulties in his junior school as well as at the beginning of his secondary placement Mrs X seemed to have made every effort to encourage his attendance. This view is supported by:
• Y’s attendance in the junior school, despite evidence of his difficulties;
• Mrs X’s referral to the Early Help Team at the end of September 2019 to explore the ways of supporting Y at School 1;
• Mrs X’s continuing commitment to supporting Y in his physical and emotional needs, as recorded by the social workers.
95. Although our Focus Report was published after the events complained about, it is still relevant to refer to its content. The Focus Report aimed at clarifying what can be expected from the Council in relation to the alternative provision for children based on the legislation which has been in place at least since 2014. The Focus Report summarises once a council becomes aware of a child’s non-attendance it should:
• consider the individual circumstances of the case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
96. This being said, I have taken account of the national lockdowns from 23 March 2020 until 23 June 2020; from 5 November until 2 December; and from 6 January until March 2021, as well as the Council being placed under Tier Four restrictions in December 2020. On balance, the Council’s ability to provide alternative educational provision would have been limited during these periods, due to the social distancing measures in place. However, I have balanced this against the fact that at no stage until the late November 2021 did the Council explore alternative methods of providing education to Y in line with the EP recommendations or even checked whether Y could access the online materials offered by School 1. It failed to follow the test specified in our Focus Report. This is fault.

From early February 2021 to mid-November 2021

97. As explained under paragraph 11 we do not have jurisdiction to consider whether the Council failed in its Section 19 duty for Y from the date of issuing Y’s EHCP. As Y’s placement was contested during Mrs X’s appeal, making determination on whether the Council should have arranged alternative education for Y would be too closely linked to the appeal matters.

From mid-November 2021

98. After the SEND Tribunal issued its decision the Council agreed to provide home tuition for Y. It was accepted that Y needed a very gradual start of this provision. All the evidence indicates the Council liaised with Mrs X throughout December and January and started tuition after the time we accept as necessary to arrange this provision. I did not find any fault in this period.
99. From February half-term in 2022 until the Easter break in April 2022 Y received home tutoring, which was aimed also at addressing his SEN. Although only up to six hours weekly, the evidence suggests this was all Y could access at the time. By providing this education at the extent that Y could cope with the Council discharged its duty to provide suitable education. From the end of April Y started attending a special ASD school named in his EHCP.

Injustice

100. Failure to provide suitable education for Y from early March to 23 March 2020 and from 23 June to the end of October 2020, is fault. This fault caused Y and Mrs X injustice:
• For Y – lost education, detrimental effect on his academic and social development, worsening of his anxiety, social isolation.
• For Mrs X – distress about the lack of education for Y, strain of being the only person supporting Y.
101. We cannot say these faults meant that Y lost out on education during the periods of national lockdown, as provision was severely limited for almost all children during these times. Remote learning, which Y did not engage with, was the most common way to educate children who were not attending schools. However, the Council’s failings caused uncertainty about what provision or support Y might have missed receiving, even when COVID-19 restrictions were in place. The uncertainty of what might have been provided to Y if not for the Council’s failings is the injustice to Y and Mrs X.
102. I recognise significant difficulties the Council faced when considering provision of Y’s alternative education such as:
• lack of clarity of Y’s SEN particularly the issue of his autistic traits with no diagnosis of ASD until May 2021 versus social, emotional and mental health difficulties;
• confusion about Y’s cognitive levels as the cognitive assessment only took place in October 2021.
103. I can also appreciate the Council’s efforts both when trying to find a suitable school placement for Y and to support Y in the interim. Even without the Council’s failings described above, the objective fact of Y not receiving suitable education from March 2020 until early February 2021, as explained under paragraph 14 of this decision, would amount to fault.

EHCP

104. When looking at the Council’s process leading to issuing Y’s EHCP I found the Council to be at fault by taking the date when Y’s parents filed relevant documents with the request of Y’s EHC needs assessment as the beginning of the process. As explained under paragraph 27, the Council should have calculated the timescales for making its decision on the EHC needs assessment for Y from the beginning of March 2020, when the EP recommended for School 1 to apply for an EHCP for Y and stated Y was unable to manage the demands of a mainstream secondary school.
105. Consequently the Council should have issued Y’s final EHCP by the end of July 2020, whereas in fact it happened in the beginning of February 2021. The relaxation of the strict timescales for issuing EHCPs due to the COVID-19 pandemic only applied from 1 May 2020 by which date, if the Council had started the process at the right time, on balance of probabilities it would have taken a decision to carry out Y’s EHC needs assessment. On balance, the period of May until July 2020 could have meant it was impractical for the Council to make decision on issuing an EHCP for Y, issue an EHCP draft and Y’s final EHCP. But we have found Council communicated with Ms Z from mid-August 2020 and this correspondence suggests the Council carried out its EHCP duties without relying on the exceptions allowed by the COVID-19 legislation.
106. Taking account of the above, I consider the latest date for issuing Y’s EHCP, even if until mid-August it was impractical or not reasonably practicable to carry out an EHCP process, would be the end of October 2020. The delay of over three months in issuing Y’s EHCP is fault which caused Y and Mrs X injustice as it delayed Mrs X's appeal rights. This also resulted in the delay in resolving dispute on the support needed by Y and the type of placement which he should be educated in.
107. As explained under paragraph ten of this decision, any matters about the content of Y’s EHCP and suitability of the placement to be named in Section I are outside our jurisdiction and I did not investigate.

Delivery of SEP

108. In March 2021 Mrs X appealed Section F of Y’s EHCP, issued in early February. For the reasons explained in paragraph 11 we do not have jurisdiction to investigate alleged non-delivery of SEP until the Council issued post-Tribunal EHCP for Y.

Safeguarding and social care assessments

109. Although councils must seek advice and information from social care as part of the EHC needs assessment, there is no requirement to carry out a specific assessment.
110. I did not find fault in the Council’s children services involvement with Y and his family, including the safeguarding referral, for the following reasons:
• among the legitimate reasons to refer a child to the Early Help Team by a professional, as indicated on the Council’s website, is child’s refusal to go to school, when support might be needed;
• the available evidence shows before visiting Y’s family for the first time in the end of February 2021 the Early Help worker tried to contact Y’s stepfather several times to introduce themselves and explain their role. Although Y’s stepfather did not receive any communication, on the balance of probabilities, it seems more likely than not that these attempts happened;
• the Council’s paramount duty to safeguard Y’s welfare justified the Early Help’s unannounced visit at the end of February and the team’s further involvement;
• the children’s services involvement from February 2021 was also justified by Mrs X’s request for a 38-week residential placement for Y. As there was no evidence Y needed such provision for educational reasons, the Council correctly identified the need to explore whether there were any social care needs which would justify this request;
• following a full social care assessment carried out by the Children with Disabilities Team Y, the Council identified support required by Y as a Child in Need. As part of her appeal to SEND Tribunal Ms Z asked for Tribunal’s recommendations on social care and these matters were resolved during the appeal.
111. As explained under paragraph five of this decision I did not investigate any parts of Mrs X’s complaint which referred to a particular member of the children’s services.

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Agreed action

112. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her and Y by the faults identified;
• pay Mrs X £400 a month to recognise Y’s loss of education in the first half of March, and then from the end of June to the end of October 2020. The total the Council should pay is £1,400 for the period of three and a half months, excluding summer holidays and the autumn half-term;
• pay Mrs X £600 to recognise uncertainty about the failure to explore alternative provision that took account of Y’s needs at times of national lockdowns and local restrictions;
• pay Mrs X £600 to recognise the distress caused to her by the Council’s prolonged failure to secure education for Y as well as the impact of the delay in issuing a final EHCP;

The Council should provide us with evidence it has complied with the above actions.

113. We recommend the Council within four weeks of the final decision ensure all SEN case officers and their managers:
• review Our Focus Report ‘Out of school, out of sight? Ensuring children out of school get a good education’ published in July 2022;
• review paragraphs 9.3 – 9.9 of the statutory guidance ‘SEND Code of Practice’ to be reminded a request for an EHC needs assessment is not necessary for the process to start.

The Council will provide us with the evidence the above action has been completed.

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Final decision

114. I uphold part of this complaint. I found the Council failed to provide suitable education to Y for many months, to ensure delivery of his SEP and delayed issuing his EHCP. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman