Summary: Mr X complained about the significant delays in the education, health and care plan process. We find the Council was at fault. This caused significant stress to Mr X and his son was out of education. We make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains about the significant delays in the education, health and care plan process. He also complains about:
• the council’s poor communication;
• poor complaint handling;
• the council's failure to respond to meeting invitations; and
• the Council lying to them.
2. Mr X said this has caused him and his family significant distress. He also said this has had a negative impact on his son who he said has missed out on education.

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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 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
7. Mr 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

Timescales and process for EHC assessments

8. 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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Part-time timetables

9. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
10. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Alternative provision

11. 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.
12. 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)
13. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Summary of the key events

14. Towards the end of November 2022, the Council sent Mr X a copy of his son, B’s, draft EHC Plan.
15. Mr X contacted the Council early December 2022. He said:
• the draft plan did not reflect B’s current needs;
• since September 2022, B had been suspended from school twice and had been put on a part-time timetable since. This started with 30 minutes per day and built up to two hours per day;
• since the suspension, B had missed 233.5 hours of education;
• the school had been providing additional work for B to complete at home, but B had struggled with this;
• B was attending an outside alternative provision (AP) on a 1:1 basis. But he now needed it to be 2:1; and
• him and the school did not think B’s needs could be met in a mainstream school. But said the way the plan was written; B would not be accepted at a specialist school.
16. B’s mother, Mrs X contacted the Council in January 2023. She said she had tried calling and texting as she had not heard how the EHC Plan was progressing. Mrs X said she was concerned with the amount of education B was missing.
17. Mr X contacted the special educational needs and disability information advice and support service (SENDIAS) officer in February 2023. He said he was concerned about the draft plan and said he had tried to contact the Council numerous times. He said schools had already been consulted with a plan that did not reflect B’s needs.
18. The SENDIAS officer contacted the Council. They expressed concerns around the consultation process. They said they understood the amendments on the plan were yet to be considered. But said consultation responses had already been received. If the amendments were put in place, the officer said the plan would not be the same as previously consulted on. The SENDIAS officer chased the Council for a response four times.
19. Mr X asked the SENDIAS officer to arrange a meeting. He said B had been suspended again and his timetable had been shortened further.
20. The case note stated the school requested a change of placement. A specialist placement was agreed by the Council’s panel and the Council sent out consultations. It was noted the Council backdated the schools funding to the 11 December 2022.
21. The Council had a meeting with the school in March 2023. This was to adjust the provision to minimise the risk of suspension. It was noted suggestions were given around how to implement the provision suggested and adjust it where it hasn’t been effective.
22. Following an email from Mr and Mrs X’s family intervention worker, the Council said in April 2023, it had not been able to identify an AP for B. It said it was waiting to hear back from consultations.
23. In the same month, the school told the Council B had been suspended for four days. They said since the last suspension in March, they significantly reduced B’s timetable. For B to remain safely in education, the school said it needed additional funding for B to attend AP.
24. The Council asked the school to explore an AP setting to see if it had space for B. It also said it had confirmation a new school (school A), could offer B a place. The Council said it had requested costs and a start date before it could proceed.
25. The Council asked the school for an update on B’s attendance. It also said the funding would be continued until the May half term.
26. But the school said the funding was not sufficient. They said B was in school Monday to Friday between 9:15 and 11am. They said he also attended part of the school’s nurture provision. But the school said between Monday to Friday, a risk assessment is carried out prior to B starting school. This is between 9 and 9:15am.
27. In May 2023, the Council told the school Mr and Mrs X were not happy for B to go to the AP suggested during term time. This was because B attends this AP during the holidays. Mr and Mrs X did not want this to jeopardise their childcare provision.
28. The Council asked the school for other AP suggestions. It also said the placement at school A would likely start in September 2023. It said it would need to look at additional funding to support school the rest of the term.
29. The school said the AP was the only one that stated they could meet B’s needs.
30. Mr X contacted the Council in May 2023 following a recent phone call. He said his initial request for a EHC needs assessment was 25 July 2022 and said B had been let down by the Council. He attached a copy of his private autism assessment report for B.
31. The family intervention worker asked the Council to ensure it attended the team around the family (TAF) meeting or to let them know who could represent the SEND team. They said they needed to discuss plans for B moving forward. They also attached an early help assessment which referred to B’s part-time timetable of two hours per day.
32. In June 2023, the Council told the school it had been agreed B would start at school A in September 2023. It asked the school for ideas on what could be put in place in the meantime.
33. The school told the Council B had been suspended again. They said they had concerns following the TAF meeting and said they were expecting the Council to have attended.
34. The school said they had previously researched AP locally and there was nothing which provided transport. The school said they needed to know how the Council was going to support B.
35. The Council said it could factor in transport costs if another choice was available.
36. The EHC Plan was finalised on 12 June 2023. It named B’s current school. But named school A from September 2023.
37. The Council contacted Mr X and the school in the same month following a discussion about B. It said:
• school had been using the funding to support B’s time in school. But said if they felt it was more appropriate, school could organise AP outside of school; and
• if the package agreed is likely to cost more, the school will need to send the Council a proposed timetable, with the associated costings.
38. The school permanently excluded B in June 2023. This was due to persistent breaches of the school’s behaviour policy.
39. The school contacted the Council a few days later and said they were concerned they had not heard back from it following the permanent exclusion.
40. In response the Council said in line with the guidance, the school must put in the first five days full time equivalent of education for B. It said it would contact Mr and Mrs X.
41. The school rescinded its exclusion decision on 23 June 2023. It said 1:1 tutoring for B was to be provided up until the end of the summer term.

Complaint to the Council

42. Mr X initially complained to the Council on 20 April 2023 about the delays in the EHC process and the Council’s poor communication.
43. The Council responded on 31 May 2023. It:
• apologised for the delay in responding to the complaint and said this was due to staff shortages;
• apologised for the service Mr X had received regarding the needs assessment. It said there had been considerable delays as the Council had tried to find a suitable placement;
• said there had been delays in its communication; and
• asked the case officer to contact Mr X in June as the Council had agreed to name school A in the plan.
44. Mr X complained again on 6 June 2023. He said:
• following his complaint in April, he was told he would receive a response by the 5 May. But said this was delayed;
• he requested a needs assessment on 25 July 2022 and said the delays were significant;
• the communication has been difficult throughout and the Council has not responded to invites to two different TAF meetings;
• the school cannot offer more education than the current limited timetable. He said this would make the transition to full days in September difficult; and
• they had sent their private reports to the case officer. But said they had no response.
45. The Council sent Mr X its final complaints response on 20 October 2023. It:
• apologised for the delay in the complaint being escalated; and
• said there had been significant delays with processing the assessment and apologised.

Analysis- was there fault by the Council causing injustice?

46. Mr X requested the needs assessment on the 25 July 2022. The draft EHC Plan was issued on 28 November 2023 and the final plan issued the 12 June 2023. The guidance states 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. Therefore, there is a significant delay. This is fault. This caused significant distress to Mr X and frustrated his right of appeal.
47. On 5 December 2022, Mr X made the Council aware B was on a part-time timetable. He said B had missed 233.5 hours of education.
48. We recognise that in March 2023 the school met with the Council. It was noted suggestions were given to the school around how to implement the provision suggested and adjust it where it hasn’t been effective. In my view, it was appropriate for the Council and the school to work together in the first instance to support B’s attendance. But this was nearly four months after Mr X had contacted it. Therefore, the delay in acting is fault and B’s education was limited.
49. In April 2023, the school re-confirmed the part-time timetable and said the funding was insufficient. This is detailed in paragraph 26. In May 2023 it was noted Mr X did not want B to attend the suggested AP. The Council asked the school to suggest other AP settings. But no other AP settings were suggested until June 2023.
50. Any hours of teaching provided by the school will count towards the full-time duty, but councils remain responsible for the shortfall. The guidance states a part-time timetable must only be in place for the shortest time necessary. Councils should keep all cases of part-time education under review. The Council has provided no evidence showing how it satisfied itself the part-time provision was suitable and sufficient. This is fault.
51. In acknowledgement of missed education, we recommend a payment per term. In this case the lack of education amounted to approximately three terms. This is between December 2022 when the Council became aware of the part-time timetable to March 2023, when the Council met with the school. Then between May 2023 where no further AP was found to June 2023 when tuition was put in place. I consider an appropriate figure to be £1000. In determining this I have taken into account B did receive some education.
52. The family intervention worker asked the Council in May 2023 to attend the TAF meeting or to let them know who could represent from the SEND team. This was so they could discuss plans for B moving forward. I have seen no response to this. But the school later said they had concerns after the meeting and that they expected the Council to have attended. The failure to respond is fault and this caused further stress and uncertainty to Mr X.
53. There is evidence of poor communication throughout and the Council has acknowledged this in its complaint’s response. But this did cause significant stress to Mr X. The Council’s complaints response also fails to respond to all of the concerns raised by Mr X.
54. There is evidence of further fault. The Council’s complaint’s policy states it aims to respond within 10 working days. But says for more complex issues, it aims to respond within 20 working days. It says if its unable to meet this deadline, it will contact the complainant. In this case, there is evidence of delays in providing the complaint’s response. This caused further distress to Mr X.
55. Mr X said the Council lied to him. He said the case officer told him the school had applied for funding at a time B was not at school. But said the school confirmed this was not the case. As detailed in paragraph 26, the school requested funding for risk assessments it carried out before B gets to school. This is what the Council was referring to. Therefore, I do not find fault here.

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Agreed action

56. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• apologise to Mr X for the faults identified in this statement;
• pay Mr X £500 to acknowledge the distress caused to him by the fault identified in this statement; and
• pay Mr X £3000 for the educational benefit of B, in recognition of the missed education which amounted to three terms.
57. Within two months:
• remind relevant officers of the guidance that states 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;
• by training or other means, ensure the relevant officers are aware that all issues raised in a complaint are appropriately addresses;
• remind relevant officers of the timescales set out in the Council’s complaint’s policy; and
• remind relevant officers the importance of providing clear communication and responding in a timely manner.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman