Summary: Mrs X complained about the Council’s consideration of her request for an Education Health and Care plan (EHC plan). She also complained the Council failed to provide her son with a full-time education while he was out of school. We found there was significant delay in issuing an EHC plan and Y did not receive a full-time education. We recommended an apology, and payments to recognise the impact of the fault we found.

The complaint

1. Mrs X complains the Council wrongly refused to provide her son (referred to in this statement as Y), with an Education and Health Care plan (EHC plan).
2. She also complains that the Council has not provided sufficient education and support for Y and the Council failed to find Y a new school placement in a timely manner.
3. Mrs X says the situation has been stressful for the family and Y has struggled to do his school-work which led to her to finding a private tutor.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I spoke to Mrs X and considered the information she provided and the complaint she made. I asked the Council for information and considered its response to the complaint.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

The Council’s Fair Access Protocol (FAP)

9. Paragraph 4.1 of the Council’s Fair Access Protocol (FAP) states that the FAP does not include a child in care, or a child with an EHC plan naming the school in question, as these children must be admitted.
10. Paragraphs 5.1 to 5.5 set out procedures for pupils who have been permanently excluded. They state from Day 6 of an exclusion, the responsibility to provide an education falls to the Local Authority. The Council will make provision to comply with Day 6 requirements, and pupils in receipt of this will be presented at In-Year Fair Access Panel (IYFAP) after the School Governors’ Disciplinary Committee meeting has been held to decide whether to uphold the exclusion.

The SEN Code

11. 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).

Education when a child cannot attend school

12. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
13. 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))
14. 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)

What Happened

15. The Council told us that Y’s attendance between September and December 2022 was 78%. The periods of non-attendance were mostly due to a number of fixed term exclusions at school. The school did not refer the matter to the Council during this time and Y remained on the school roll, receiving an education from the school.
16. On 16 December 2022 Y was permanently excluded from school. The Council made contact with Mrs X and its Education Access Team (EDAC) attended an appeal hearing on 20 January 2023. At the hearing the permanent exclusion was upheld.
17. Mrs X requested an EHC plan needs assessment on 10 January 2023. The Council referred the request to a panel.
18. The Council told us it referred to the IYFAP panel on 24 January 2023. The next panel date was 2 March 2023 (for which applications had to be submitted by 9 February 2023). However, the Council explained that because Y was being considered for an EHC plan, this delayed the In Year Fair Access Panel (IYFAP) considering his case. The Council’s complaint response stated children pending an assessment for an EHC plan are not heard at a panel as their needs may not be met at a mainstream school. The Council stated it had to await the outcome of the EHC needs assessment and this process was a statutory six weeks.
19. The Council asked Mr and Mrs X to provide information to support the EHC needs assessment on 9 February 2023. They sent this back the same day.
20. The Council should have determined whether to carry out a needs assessment within six weeks, by 21 February 2023. The Council wrote to Mrs X on 14 March 2023 explaining its decision not to conduct an EHC needs assessment. The letter set out how Mr and Mrs X could appeal against the decision.
21. The Council stated Y’s case was put to the next IYFAP on 27 April 2023.
22. On 6 June, following mediation, the Council told us it agreed to proceed with the EHC needs assessment by 20 June 2023. In December 2023 the Council told us a draft EHC plan was issued on 30 October 2023. Mrs X told us the final EHC plan was issued on 6 December.

Alternative Provision

23. The Council says the EDAC team made a referral to the Alternative Tuition Service (ATS) when Y was permanently excluded. The EDAC team offered education provision from day 6 of Y’s permanent exclusion at a Pupil Referral Unit (PRU), however, Mrs X declined this.
24. The Council told us that it provided 1 day per week of alternative education via an external organisation (4.5hrs between 10am to 2:30pm). This started in February 2023.
25. From September 2023 an additional 1.5 hrs per week (in two 45 minute sessions) was provided on other days of the week. This totalled 6 hours of provision per week after September. The Council stated that Y also had work set for him on an online learning platform.
26. We asked the Council how it decided the education provided constituted a suitable education for Y. It stated it considered the referral to its ATS service was suitable because they are 6th day education providers and it could be provided promptly. It did not comment on how it determined the level of tuition it provided subsequently was appropriate in Y’s case.
27. Mrs X told us Y the provision the council made with the external organisation was an 18 mile round trip which was difficult. She stated Y is unable to do school work unless someone is sat beside him and he has their full attention. This meant that he is unable to do any work independently online. Mrs X told us she paid for a private tutor in while Y was not at school to supplement Y’s education while Y did not have a school place.

What should have happened

EHC Plan Timescales

28. I recognise Mrs X considered the Council’s initial decision to decline an EHC Needs Assessment was wrong. As this is a decision that carries appeal rights, we cannot investigate whether the decision was correct or not. However, we have considered the process that the Council followed once it agreed it should assess Y and issue a plan.
29. The SEN Code states a council must confirm if it intends to carry out an assessment for an EHC plan within six weeks of a request. Mrs X made a request for a needs assessment on 10 January 2023. The Council should have confirmed if it intended to agree to an EHC plan by 21 February 2023. It took the Council until 14 March 2023, (9 weeks) to reach a decision. The delay represents fault.
30. Had there not been a delay in deciding whether a needs assessment should be done, the Council could have presented Y’s case to the IYFAP on 2 March, rather than delaying its consideration until 27 April.
31. In any event, I found the Council’s decision not to take Y’s case to the IYFAP panel in March was fault. The Council told us the pending EHC Needs Assessment decision was the reason. However, the Council’s Fair Access Protocol (FAP) only excludes children who have an EHC plan naming a school. It does not refer to situations in which pupils are at the early stages of consideration for an EHC plan to exclude them from being heard at an IYFAP.
32. The SEN Code requires councils to issue EHC plans within 20 weeks of a request being made. In Mrs X’s case, the deadline to issue a final plan was 30 May 2023. As at December 2023 the Council told us it had issued a draft EHC plan to Mrs X on 30 October 2023. Mrs X told us a final plan was issued 6 December. The delay in issuing a final plan was fault.

Alternative Provision

33. The Council offered a place for Y at a Pupil Referral Unit (PRU) on or around 16 December when he was permanently excluded. Although Mrs X declined this, we would consider this was an appropriate action for the council to have taken to provide an education for Y while he was not at school, provided the education was going to be full-time and suitable for Y. Although it is not clear what level of education was to be provided, we have taken this into account.
34. However, as there were continuing delays in providing a school place and delays producing an EHC plan for Y, the Council provided some other educational provision. We found this was not sufficient to constitute the full-time education that Y was entitled to receive. Unless a full-time education would not be in a child’s best interests, it must be provided. The Council could provide no evidence to explain how it determined this level of education was sufficient for Y. The lack of provision represents fault by the Council.
35. We will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of a complete loss of education. Taking into account that the Council initially made an offer of support at a PRU and the fact that some education was provided, we have recommended £450 per term in this case. The lost provision was from January 2023 to December 2023 (3 terms), so We have recommended the council makes a payment of £1350.

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Agreed action

36. Within four weeks of our final decision, the Council should:
37. Send a written apology to Mrs X and to Y for the delay in issuing his Education, Health and Care plan and for not providing a full-time education. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
38. Make a payment to Mrs X of £300 to recognise the distress caused by the significant delays in the Education, Health and Care plan process.
39. Make a payment to Mrs X, for Y of £1350 to recognise the loss of education during 2023 while he was not at school during which time he was not receiving a full-time education.
40. The Council should remind its staff that the In Year Fair Access Protocol does not exclude pupils who are undergoing an EHC Needs Assessment, only those who have EHC plans naming a school.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. There was fault by the Council. I have completed my investigation on the basis the Council carried out the actions agreed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman