Summary: Miss B complained about the actions of the Council in respect of her daughter C’s special educational needs following an annual review in May 2022. The Council accepted some fault as part of its complaint response and offered to pay Miss B around £4000. It has now agreed to reimburse the cost of a private educational psychology report (£1600) as well. We considered this was a fair and proportionate way of putting right the injustice caused to Miss B and C.

The complaint

1. Miss B complained that Leicestershire County Council (the Council) in respect of her daughter, C (who has an Education, Health and Care Plan (EHCP)), has failed since January 2021 to provide education consistently or ensure the special educational provision in her EHCP was put in place. The Council has also delayed in issuing an amended EHCP following the Annual Review in May 2022 and in responding to Miss B’s complaint. The Council accepts some fault and has offered Miss B approximately £4000. Miss B says this is insufficient for the injustice to her and C and for the additional costs she incurred.

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What I have and have not investigated

2. I have not investigated the period prior to 10 September 2021 because there was an ongoing appeal to the SEND Tribunal about the provision and placement in C’s EHCP.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

Special educational needs

9. A child with special educational needs may have an 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.
10. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
11. 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.

Appeal rights

12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.

Arrangements for reviewing an EHCP

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. The statutory guidance states if a council decides to amend the plan, it should start the process of amendment “without delay”.

Alternative education

14. 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))
15. The statutory guidance says 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”.
16. 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))
17. The education provided by the council must be full-time unless the council determines that 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)
18. 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

Background

19. Miss B’s daughter, C, has a number of health conditions including ASD, ADHD and anxiety. She was attending a mainstream primary school and had an EHCP. In January 2021 C was having problems attending school due to anxiety. Miss B requested a specialist placement, but the Council declined as it considered the school, with the EHCP support, was able to meet C’s needs. It issued a final EHCP on 19 March 2021, against which Miss B appealed to the SEND tribunal. The appeal ended on 10 September 2021 by consent.

September 2021 onwards

20. The agreed final EHCP was issued on 17 September 2021 naming a specialist provision (School Z) from 25 October 2021. C started there shortly afterwards with a transition period.
21. In 2022 C experienced problems at School Z. On 18 March 2022 the Council held an emergency meeting with Miss B, her advocate and the placement. During the meeting the Council agreed to obtain an educational psychology (EP) assessment to inform the EHCP and to hold an emergency review. Miss B was very unhappy with the meeting. The Council said Miss B’s advocate was very challenging.
22. The annual review was held on 3 May 2022. Miss B informed the Council that C was not returning to School Z. She requested an alternative placement and education in the meantime. The Council prepared a draft EHCP and used it to consult schools. But on 24 May 2022 Miss B’s advocate requested the annual review process be put on hold because the Council had provided misleading and fraudulent information. The Council says it asked the advocate for more information but did not receive any details.
23. Home tuition started for C on 23 May 2022 with six hours a week, increasing to nine once C had settled. Miss B says the tutor attended at most for two hours a week. On 13 June 2022 C started to attend an alternative provision for two days a week (totalling 10 hours).
24. The Council had been funding independent speech and language therapy and occupational therapy since August 2021. This provision, along with the home tuition and the alternative provision, all ended on 8 July 2022.
25. On 13 July 2022 the Council resumed the annual review process. By this time Miss B’s preferred school (School Y) had offered C a place. The Council then consulted with some other specialist schools, but none were able to offer a place. The Council agreed with the placement at School Y and C started there on 5 September 2022.
26. Miss B commissioned a private EP report on 24 October 2022. The Council said it will use this to inform the next annual review.

Complaint

27. Miss B complained to the Council on 26 September 2022 about problems with C’s education since Year 2, including:
• a delay in recognising she needed a specialist placement;
• a lack of education from January until November 2021;
• problems with the placement at School Z;
• the conduct of the meeting on 18 March 2022 and the annual review on 3 May 2022;
• the failure to get an EP assessment as agreed in March 2022;
• the failure to provide horse riding therapy on a weekly basis or sufficient alternative education;
• the failure to reimburse Miss B for equipment and private reports;
• the failure to consult other schools sooner;
• a small delay in sending School Y the contract which delayed C’s start date by a few days; and
• the continuing delay in issuing an amended EHCP.
28. The Council replied on 18 January 2023. It partially upheld the following elements of Miss B’s complaint:
• a lack of education from 9 February until 31 October 2021;
• no educational provision from 3 to 23 May 2022
• during the second half of the summer term in 2022, not ensuring all the provision in C’s EHCP was in place;
• the Council could have consulted specialist schools earlier in 2022 even though the process had been put on hold due to a request from Miss B’s advocate.
• the Council acknowledged that it in March it had agreed to get an EP report but there was no evidence it had agreed to a full reassessment. It agreed it should have chased up the school to ensure this was done;
• it accepted that a lack of communication fell below its expected standards of customer care;
• it agreed it had delayed in issuing the EHCP. Some of this was due to the advocate’s request for a hold between 24 May and 21 July 2022, additional requests for changes from Miss B and waiting for the private EP report but it accepted there had been some delay. It issued a draft EHCP on 16 January 2023.
29. It offered a total of £4129 as a remedy:
• £2700 for the lack of educational provision in 2021 (based on £400 for every 4 weeks).
• £375 for the three weeks of no education in May 2022 (based on £500 for 4 weeks).
• £104 for the horse riding lessons for the second half of the summer term in 2022 (for four lessons between 1 June to 8 July 2022).
• £250 for the failure to progress the EP report.
• £250 for distress and inconvenience, £250 for time and trouble and £200 for the delay in responding to the complaint.
30. It did not offer a remedy for failing to consult the specialist schools earlier because C started at School Y in early September 2022. It did not agree there was a delay in the start date and said the 5 September 2022 had been agreed based on C’s needs.
31. It did not uphold the request for reimbursement of the original SALT and OT reports because they had been obtained in 2020 and Mis B had not complained at an earlier point. It did not require the private OT report for the annual review as it had a summary from the therapists who had been working with C (funded by the Council) since August 2021. It did not uphold reimbursement of the psychiatric report as the Council had used a CAMHS report following a GP referral and the private psychiatrist was Miss B’s choice. It also declined to refund the advocate costs as alternative free services were available.
32. It explained the Council was carrying out a wide ranging review of its whole SEND system over the next 12 months to identify opportunities for improvement across the Council and all types of provision. It hopes that some initial impact will be felt by December 2023.
33. Miss B then complained to us. In responding to my enquiries, the Council has accepted there was evidence in the transcript of the meeting on 3 March 2022 that a full EP reassessment was agreed. It has now agreed to pay the cost of the private report (£1600), on provision of an invoice or receipt.

Analysis

34. The period prior to 10 September 2021 is outside of my jurisdiction as there was an ongoing appeal.
35. The Council’s complaint response was thorough and detailed. It has considered each aspect of Miss B’s complaint and provided a reasoned response. It has also accepted fault causing injustice and provided a remedy based on similar amounts to those we use (see Guidance on Remedies).
36. I also welcome its offer to pay for the cost of the private EP report as this was agreed during the meeting on 3 March 2022.
37. In respect of the other issues raised by Miss B:

Horse riding lessons

38. Mrs B has requested reimbursement of all the lessons between 16 March and 11 September 2022 totalling £381. The Council has refunded the cost of four lessons which fell in the second half of the summer term of 2022 to recognise it had not been able to put all the provision in C’s EHCP in place. It has provided a financial remedy for the three weeks in May where no education was in place and C was still at School Z during March and April. The easter holidays and half term were also included in the period claimed. I consider the Council’s remedy is appropriate.

Advocacy

39. We would not normally recommend reimbursement of advocate fees unless a case was extremely complicated or exceptional. This is not the case here and as the Council has pointed out, free advocacy services were available.

SALT and OT

40. The original SALT and OT reports were obtained in 2020, which is outside the period of my investigation. Miss B paid for two addendum reports in May 2022 for the annual review. The Council used a summary report from the OT and SALT who had been working with C since August 2021 to inform the annual review. I do not find fault with the Council’s decision not to reimburse the addendum reports.

Psychiatric assessments and prescriptions

41. The Council had the benefit of a report from the Child and Adolescent Mental Health Service (CAMHS) so it did not require additional private reports to inform the EHCP. I do not find fault with the Council’s decision not to refund these costs.

Loss of wages

42. We are not a court and we do not award damages. We do not usually recommend payments to cover lost wages. Our financial remedies include symbolic payments to recognise that fault by the Council may have caused distress, frustration, inconvenience, uncertainty and time and trouble. The Council has offered a remedy based on the tariffs we use and I do not consider any further payment for lost wages is appropriate.

Delay in EHCP

43. The Council accepted it had delayed in issuing the amended EHCP following the annual review on 3 May 2022. It did not issue the draft until 16 January 2023, approximately 38 weeks later. Some of this was due to the advocate’s request to put the case on hold for two months, and a large amount of requests for changes from Miss B and her advocate, but I still consider the Council took too long which was fault.
44. The Council has offered a remedy up until the end of the summer term of 2022 and C was in a new specialist placement by the start of September 2022, so I do not consider any further remedy is appropriate.

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Agreed action

45. The Council has agreed to pay Miss B an additional £1600 (on production of an invoice from Miss B) for the private educational psychology assessment. This is in addition to the £4129 already offered, making a total of £5729.
46. I do not consider any service improvement recommendations are necessary as the Council is already undertaking a county-wide service review. The Council should provide evidence it has complied with the above actions.

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Final decision

47. I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman