Summary: Mrs X complained the Council failed to provide her daughter with alternative educational provision while she was out of school and delayed the Education, Health and Care plan procedure. The Council accepts it failed to provide educational provision and offered an apology and a payment toward childcare costs. We find the Council acted with fault and the remedy offered did not reflect the injustice caused. The Council has agreed to our further recommendations to reflect the injustice caused by fault.

The complaint

1. Mrs X complained the Council failed to offer acceptable education for her daughter’s (Y) educational needs between 2017 and 2020. Mrs X said the Council delayed the Education, Health and Care (EHC) plan procedure and failed to arrange alternative provision while Y was out of school.
2. This led Mrs X to commission and fund private reports for consideration by the Council and private provision to support Y. Mrs X wants the Council to recognise its failings and improve procedures to stop other families experiencing the same delay and lack of provision.

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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. 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)
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. If satisfied with a council’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

9. I considered information Mrs X submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
12. Section 19 of the Education Act 1996 (as amended) sets out council’s responsibility to provide alternative education. The Council must provide suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
13. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ and ‘Alternative Provision’ say councils should:
• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days.
• address the needs of individual children in arranging provision.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality, and amount of education as they would receive in a maintained school.
14. The Education Act 1996 and Children and Families Act 2014 set out the law governing special educational needs procedures and alternative education provision. These support the SEND Regulations 2014. The “Special Educational Needs and Disability Code of Practice 0 to 25 years” (the Code), sets out statutory guidance for councils. These set out the timetable for completing assessments and EHC Plans. The EHC needs assessment and issue of the final EHC Plan must take no more than 20 weeks from when the family asks for an assessment.
15. The Code says the council must gather advice from relevant professionals about the child’s education, health and care needs, and the provision needed to meet them. This includes psychological advice from an educational psychologist employed or commissioned by the Council. Those consulted or asked for advice have six weeks to present their advice.
16. The courts have established that if someone can or has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters which can be appealed. 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 or could be submitted if it is linked to the disagreement about the school place named.

What happened

17. In June 2020 Mrs X complained to the Council about the delay in meeting Y’s special educational needs and lack of educational provision from 2017. The Council considered the complaint under the statutory complaints procedure. The Council accepted the findings of the independent investigator’s report dated July 2021. Therefore, what follows is a summary of the facts as set out in that report. I have included facts on which the independent investigator could not make a finding because I must consider if we can reach a view.
18. Y enrolled at School Z, but the school permanently excluded her in May 2017. The Council assessed and gathered information on Y’s special educational needs. It issued final a EHC Plan in February 2019 and named School W.
19. Mrs X disagreed with School W. The Council entered a period of mediation with Mrs X. It agreed to commission further assessments.
20. The Council issued a further final EHC plan naming School W in August 2019. Mrs X appealed the EHC Plan in October 2019. The SEND Tribunal ruled on that appeal and the Council issued a new EHC Plan in 2020 naming School Q as Y’s named school which she now attends.
21. The Council arranged some home tuition for Y in May 2018. This ended in July 2018.
22. In September 2018 the Council had temporarily placed Y at School Q which said it could with suitable funding meet her needs. However, the placement ended in December 2018. Mrs X says this caused great distress to Y who had realised what she had missed and could not understand why she could not continue at School Q. Mrs X says the Council gave no further alternative educational provision that adequately met Y’s needs.
23. When gathering professional advice for the EHC Plan the Council asked for a report from its educational psychologist. Mrs X challenged this report because of the errors and omissions it contained. Mrs X says the Council failed to gather suitable evidence from speech and language and occupational therapists.
24. The independent investigator found the Council at fault in:
• Failing to assess Y’s special educational needs, gather information about her educational and health needs and issue an EHC Plan within the statutory timeframe leading Y to miss her primary education from May 2017;
• Failing to provide alternative educational provision following Y’s exclusion in May 2017;
• Failing to impose proper quality assurance measures leading to a substandard report by its educational psychologist;
• Failing to respond to Mrs X’s concerns through clear, effective, and timely communications. This led to a breakdown in communications resulting in Mrs X and the Council entering formal mediation.
25. The independent investigator could not reach a view on complaints about the lack of speech and language therapy provision. Similarly, they could not reach a finding on the complaint about the impact of the failings on Y’s siblings. The independent investigator felt unable to recommend payments for increased childcare costs because these did not fall within their remit.
26. The independent investigator did not uphold the complaint about the NHS occupational therapy assessment which Mrs X says had been so poor she commissioned her own specialist report. The independent investigator found following the SEND Tribunal's ruling the NHS and independent occupational therapist agreed a package of support. The independent investigator could not find fault in the original advice because it was a matter of professional expertise and judgement. In their view the Council had gathered relevant professional assessments.
27. On the complaint the Council had not properly followed its complaints procedure the independent investigator did not uphold the complaint. In the independent investigator’s view the COVID-19 pandemic contributed to delays experienced, and the Council had given fitting apologies for that.
28. The report recommended the Council apologise to both Mrs X and to Y. The Council should carry out an audit of other instances of children with special educational needs being out of school without provision. The report recommended the Council should also consider a payment in recognition of the impact on Y and offer further mediation.
29. In response to the recommendations the Council wrote to Mrs X accepting the findings and offered an apology and a payment of £3,000. This represents some of Mrs X’s childcare costs at £100 per month. Mrs X points out she paid £100 per week for her childcare costs during those 30 months.

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Analysis

30. The Ombudsman cannot investigate late complaint unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mrs X was aware of some of the issues from 2019 onwards, but she did not refer her complaint to us until February 2021. I have decided to exercise discretion to look at events from 2017 onwards because of the ongoing injustice to Mrs X and her family. Mrs X also had to wait for a response to her complaint for an extended period.
31. My role is to decide if the Council acted with fault and whether any remedy offered meets the injustice leading from those faults. Following on from the independent investigator’s findings, I find the Council at fault in its failure to:

• Comply with the timescales set for assessing Y’s special educational needs and issuing a final EHC Plan.
• Provide suitable and appropriate alternative provision contrary to its statutory duty, apart from some limited home tuition and the placement from September to December 2018.
• Ensure the educational psychologist’s report met quality assurance standards leading to Mrs X commissioning an independent report.
• Communicate clearly and without delay and have regular management reviews of progress resulting in delay and lack of provision.
• Properly consider extending provision at School Q in December 2018 and withdrawing the provision without any planned alternatives.
• Properly co-ordinating gathering professional reports and ensuring it considered the need for speech and language therapy without delay.

32. The Council considered the views the occupational therapist presented in the report. It reflected the occupational therapist’s professional judgement. I cannot challenge that judgement. Therefore, the Council acted without fault in accepting the occupational therapist’s views. It should however always consider challenges and any alternative view put forward by experts acting on Mrs X’s behalf.
33. The impact on Y is significant. She has missed important early years education. The SEND Tribunal has ruled on what Y needs now in her EHC Plan to enable her to progress.
34. In our “Guidance on Remedies” where we cannot put people in the place they would have been but for the faults we find, we recommend a symbolic payment for periods of lost education. Our Guidance suggests a scale of between £200 and £600 per month of the school year (nine months) depending on the severity of the injustice caused.
35. I cannot include the period from February 2019 onwards as Mrs X had a right to appeal to the SEND Tribunal. Therefore, I can only include the period May 2017 to February 2019. From that period, I must omit September to December 2018 when the Council arranged alternative provision through School Q. I also have taken into consideration the school holidays and that the Council provided Y with some home tuition from May to July 2018, even though it was on a limited scale. I recommend a payment for nine months lost education near the higher end of our scale.
36. Our guidance also recommends a payment in recognition of the avoidable distress and inconvenience caused by the faults to the person making the complaint.
37. The Council offered to pay a contribution towards childcare costs incurred because of its delay. I agree with this offer and the Council should pay these costs.
38. The Council bears responsibility for the poor report written by its educational psychologist. The quality of that report reasonably led Mrs X to commission an independent report. Therefore, the Council should reimburse her for the costs of that report.
39. The Council is not responsible for the content of the NHS occupational therapist’s report or therefore for the costs of commissioning an alternative.
40. In setting out my recommendations I have considered the significant impact the failings had on Y but also on the rest of the family of which she is an intricate part. Y would feel the impact of the pressures on her parents and siblings caused by these faults and that would add to her difficulties.

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Agreed action

41. To address the significant injustice experienced by Y, her parents, and siblings, by 22 April 2022 the Council has agreed to:

• Write an apology to the family and a separate apology to Y.
• Pay Mrs X £3,000 to reflect its contribution to her childcare costs.
• Pays Mrs X on Y’s behalf £4,500 for the 9 months lost educational provision (set at £500 per month).
• Pays Mrs X £500 in recognition of the avoidable distress, inconvenience and anxiety caused to the family.
• Reimburse Mrs X the £600 she paid for the educational psychologist’s report.
• Share this decision with staff as part of continuing training to prevent a recurrence.
• Share this decision with the Councillor who acts as Lead Member on Education so they may reflect on the lessons that may need to be learned.

42. By 17 June 2022 the Council has agreed to report to the Ombudsman progress made in its audit of other cases where a child may have been left in a similar position.

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Final decision

43. There was fault by the Council, which caused Mrs X, Y, and their family an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman