Summary: Mrs X complained the Council failed to provide a suitable education for her daughter, Y, when she was unable to attend school. There was fault in how the Council took too long to issue Y’s Education Health and Care plan and to arrange alternative education for Y, and in how it communicated with Mrs X. The Council agreed to fully apologise for those delays and pay a financial remedy. It also agreed to review how it manages contact with its special educational needs team and develop a plan to improve access to educational psychology advice.

The complaint

1. Mrs X complains about delays in the Education Health and Care needs assessment for her daughter Y in 2022 and finding her a suitable school place. She also says the Council communicated with her very poorly. She says that, because of the delays, her daughter has been without suitable education since September 2022. Mrs X says this caused both Y and her family significant distress and upset, and meant that Mrs X could not work full time.
2. She wants the Council to apologise, arrange a suitable school place for Y and properly recognise the impact on Y and her family.

Back to top

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)

Back to top

How I considered this complaint

9. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education health and care plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
13. 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.

Alternative education

14. 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.
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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)
16. 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’)
17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
18. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

Elective home education

19. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
20. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
21. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.

What happened

22. Mrs X asked the Council to assess her daughter, Y’s, special educational needs in late 2021. At the time, Y was attending primary school and was due to attend her local mainstream secondary school from September 2022. Y had some support arranged through her primary school, but Mrs X told the Council she thought Y would need more help when moving to secondary school.
23. In early December 2021, the Council agreed to carry out an Education Health and Care needs assessment for Y. The Council said it requested advice and information from various agencies on the same day it told Mrs X it would carry out the assessment.
24. Mrs X asked the Council for an update in mid-March 2022. The Council told her it had decided to issue an EHC plan for Y, but it had not yet received all the advice it needed to prepare the plan. Although it did not explain this to Mrs X at the time, the Council said the delay was due to a lack of capacity within its educational psychology service.
25. Mrs X asked the Council for an update in early September 2022, as she had heard nothing further from the Council. The Council sent Mrs X a draft EHC plan for her comments around a week later. The draft plan noted that the Council had received the educational psychology advice in late July 2022.
26. Around this time, Y started attending her local mainstream secondary school (School B). She did this without the EHC plan setting out her needs or what help she should receive. Mrs X said Y’s first few weeks at School B did not go well and, after around three weeks of sporadic attendance, Y could no longer attend due to her anxiety.
27. Between September and November 2022, the Council consulted with several schools Mrs X said she would like Y to attend. However, these schools said they could not meet Y’s needs or had no available places.
28. Mrs X met with School B in early November 2022 to discuss the draft EHC plan. Based on that meeting Mrs X told the Council she believed Y would be able to attend School B, with the support set out in the plan. The Council issued the EHC plan for Y, naming School B, in mid-November 2022.
29. After the EHC plan was issued, Y again began attending School B. However, Mrs X said the support from Y’s EHC plan wasn’t properly provided and Y became unable to attend school after only a few weeks, due to her anxiety. Mrs X told the Council about this in early December 2022.
30. The Council took Mrs X’s message to mean that she wanted to electively home educate Y while it found a more suitable school. The Council amended Y’s EHC plan to say that she was electively home educated. However, there is no evidence the Council sent Mrs X a copy of this amended plan. Mrs X said she told the Council several times, both before and after early December 2022 that she did not want to educate Y at home, but that Y was not able to attend School B.
31. Because she had not received an update from the Council, Mrs X contacted her local councillor who raised Y’s lack of a school placement with the Council’s SEND team in early March 2023.
32. In mid-May 2023 the Council contacted Mrs X and discussed arranging alternative tuition for Y. In early June 2023 the Council approved 10 hours of at home, face-to-face tuition for Y. In its decision to approve that tuition, the Council noted it did not have anything in writing from Mrs X to say she wanted to electively home educate Y.
33. The Council referred Y to a tuition provider in mid-July 2023, asking that the tuition start from September 2023.
34. Tuition for Y started in September 2023. However, the tutor could only deliver seven and a half hours a week due to their own commitments. Mrs X asked the tutor company to arrange for a single tutor to cover the whole 10 hours a week, instead of Y having several tutors. During that time the Council continued to consult with other possible schools for Y to attend.
35. According to evidence from the Council, a new tutor was able to offer just under 10 hours a week from October 2023 and the Council arranged a further 5 hours of out of home activities a week to support Y’s social skills from late November 2023.

Council’s response to Mrs X’s complaint

36. In its response to her complaint, the Council accepted it had:
• communicated poorly with Mr X and had failed to reply to some of her messages;
• failed to clarify with her whether she wanted to electively home educate Y, or whether she felt she had no alternatives in November 2022; and
• taken too long to refer Y for tuition after it decide to arrange this in early June 2023.
37. It apologised to Mrs X and offer her £1,600, made up of:
• £200 for the distress caused to Mrs X and Y; and
• £1,400 to recognise seven months of education Y missed.

My findings

38. The Ombudsman cannot usually consider complains about matters someone could appeal to the SEND Tribunal. In this case, that includes the Council’s decision to name School B in Y’s November 2022 EHC plan and any subsequent amended plans it issued. We can consider such complaints if we decide there are good reasons why someone did not appeal.
39. In this case, I am satisfied Mrs X has good reasons for not appealing to the SEND Tribunal:
• For Y’s first EHC plan from November 2022, she believed that Y might be able to attend School B and, since then, has relied on the Council’s assurance that it was trying to find a suitable school place for Y.
• There is no evidence the Council sent the amended EHC plan, which said that Mrs X was electively home educating Y, to Mrs X. Although this was first mentioned in December 2022, the date of the amended plan which mentions EHE was dated the same date as the November 2020 EHC plan.
40. Therefore, I have considered the Council’s actions between Mrs X’s request for an EHC plan in late 2021 to September 2023 when Mrs X brought her complaint to the Ombudsman after the Council sent her its final response to her complaint.

Delays in the EHC needs assessment

41. Mrs X asked the Council to assess Y’s special education needs in late November 2021. Since the Council later agreed to issue an EHC plan, it was required to do this by mid-April 2022, 20 weeks later.
42. The Council issued Y’s final EHC plan in mid-November 2022; around seven months late. That delay was fault.
43. The Council said this delay was mainly due to a lack of capacity for educational psychology (EP) advice. While the Ombudsman recognises there is a national shortage of educational psychologists, we expect Councils to explore alternatives to its own EP services where there are long delays. There is no evidence the Council did this in Y’s case or kept Mrs X informed about the delays or the reasons for them. The failure to keep Mrs X informed caused her further distress, as she did not know what was happening.
44. The evidence also shows the Council received the EP advice in July 2022, but it did not issue Y’s final EHC plan until November 2022. Therefore, I am not satisfied all the delays were due to a shortage of EP advice.
45. The delay in issuing Y’s final EHC plan within the statutory timescales caused Mrs X and Y avoidable distress, frustration and uncertainty. The Council should pay a financial remedy of £700 to recognise the impact of that delay. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in April 2022 until the date it issued the final plan in November 2022.
46. I am not satisfied the delay in issuing the plan caused Y to miss out on any education. The evidence shows that, even after the Council issued the final EHC plan naming School B, she did not cope well in a mainstream school environment and the Council is still trying to find a suitable special school for her. Even if there was more time to prepare Y for attending School B, I believe it is unlikely her placement there would have been successful.

Alternative education for Y

47. After the second attempt at transitioning Y to School B, the placement broke down in late November 2022. Before this, the evidence shows Y did receive some education, though this was sporadic at times.
48. I am satisfied the Council’s later actions, both in providing tuition for Y and consulting special school places, demonstrate it accepted School B was no longer suitable for Y. The Council has not argued that Y should still be attending School B.
49. The Council said it believed Mrs X had decided to electively home educate Y between December 2022 and May 2023. However, in its response to her complaint, it accepted it had not properly clarified with Mrs X what her intentions were at that time. There is also no evidence the Council:
• had its EHE team follow up with Mrs X about that decision;
• contacted Mrs X to check whether the education Y would be receiving following November 2022 was suitable; or
• properly amended or sent Mrs X a copy of the changes it made to Y’s EHC plan.
50. On the balance of probabilities, I am not satisfied that Mrs X made the decision to electively home educate Y after her school placement broke down in November 2022. Mrs X said she told the Council several times that this was not what she wanted to do, but she felt she had no choice but to withdraw Y from School B, because of the anxiety Y associated with attending school. The Council’s own decision to arrange home tuition for Y noted it had no notification from Mrs X about her intention to electively home educate Y.
51. Had the Council properly checked with Mrs X what she intended in November 2022, I am satisfied it would likely have concluded sooner that it needed to arrange alternative education for Y and could have done so from the start of 2023 (allowing for a suitable time to arrange the alternative education and the school holidays).
52. The Council has accepted there were further delays between when it decided it needed to arrange alternative education for Y in June 2023 and when it started providing this in September 2023.
53. The failure to properly clarify with Mrs X that she was genuinely choosing to elective home educate Y and for the later delays in arranging alternative education for Y was fault which meant that Y missed out on education at an important time of her school career (the first year of secondary school).
54. Between the start of 2023 and September 2023, Y received very little education. While Mrs X tried to support Y at home, she was not able to arrange a suitable alternative education herself. Between September and the end of November 2023, Y received around half of the 15 hours a week tuition and social support the Council arranged from December 2023.
55. Based on the evidence from the Council, including that it is still looking for a full-time school place for her, I am satisfied it has decided Y can cope with full time education. Although Y is not receiving the same number of hours as she would be at school, councils can treat one-to-one provision as more concentrated.
56. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
57. Taking into account Y’s special educational needs, her ability to engage with the provision the Council later arranged and that the transition to secondary school is an important stage of Y’s school career, I consider:
• £1,800 a term would be a suitable remedy for the two terms between January and August 2023 (inclusive); and
• £900 a term would be a suitable remedy for the half of a term between September and October 2023, when Y received around half of the hours the Council eventually arranged.
58. This would be a payment of £4,050. The Council has already paid Mrs X £1,400, so should pay Mrs X the difference.

Communication

59. I consider the standard of the Council’s communication with Mrs X between late 2021 and September 2023 fell well below an acceptable standard. There were several periods when the Council did not update Mrs X about what was happening for over a month. On the balance of probabilities, I am also satisfied the Council failed to respond to some of Mrs X’s emails and phone calls. That poor communication was fault which caused Mrs X significant frustration and distress over an extended period of time. This was on top of the frustration caused by the delays in issuing Y’s EHC plan.
60. The Council has already paid Mrs X £200 to recognise the distress its poor communication it caused. I am not satisfied that was a suitable remedy, considering the time over which the failures happened.

School place for Y

61. The evidence shows the Council has consulted with many schools, trying to find Y a suitable school place. However, it has not been successful due to a shortage of suitable places.
62. The Ombudsman cannot direct the Council to arrange a specific school place for Y. The decision about which school Y should attend is a decision for the Council to make.
63. The Council says it has recently arranged a review of Y’s EHC plan. As part of that review, Mrs X has the right to ask the Council to name certain types of schools. If Mrs X is not satisfied with the Council’s decision about which school Y should attend, she would then have the right to appeal this to the SEND Tribunal. The Council should explain Mrs X’s rights to name a school place and her right to appeal the Council’s decision if she does not agree.

Back to top

Agreed action

64. Within one month of my final decision the Council will:
1. fully apologise to both Mrs X and Y for the delays in arranging suitable alternative education for Y from the start of 2023;
2. pay Mrs X £3,950, made up of:
1. £700 to recognise the avoidable distress, frustration and uncertainty caused by the delays in issuing Y’s first EHC plan;
2. a further £2,650 to recognise the education Y missed between January and October 2023. This is intended for Y’s future educational benefit;
3. £300, intended for Y, to recognise the distress caused to her by the delays in arranging suitable alternative education; and
4. a further £300 to recognise the distress and frustration caused to Mrs X by its poor communication with her between late 2021 and September 2023.
3. explain to Mrs X her rights to request a specific school place (including the types of schools she can ask for) during the review of Y’s EHC plan and her rights to appeal the Council’s decision about such a request if she does not agree with its decision.
65. Within three month of my final decision, the Council will:
• produce, and share with the Ombudsman, a detailed action plan for how it intends to address the lack of capacity in its educational psychology service and the delays this has caused to producing EHC plans; and
• review how its SEN team monitors and records contacts to ensure it records and responds to contact in a timely manner, and that it pro-actively keeps people up-to-date where there are delays.
66. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

67. I have completed my investigation. There was fault in how the Council took too long to issue Y’s Education Health and Care plan and arrange alternative education for Y, and in how it communicated with Mrs X. The Council agreed to fully apologise for those delays and pay a financial remedy. It also agreed to review how it manages contact with its special educational needs team and develop a plan to improve access to educational psychology advice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman