• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Was there fault in the Council’s actions causing injustice to Mrs X and B?
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained about delay in issuing an Education, Health and Care Plan for her son and about the failure to provide a suitable education from February 2022. Mrs X says this caused distress and affected the development of her son’s social and communication skills. The final plan was issued 18 weeks late which is fault and the Council failed in its duty to provide suitable education for one term. A suitable remdey for the injustice caused is agreed.

The complaint

1. Mrs X complains the Council delayed issuing an Education, Health and Care Plan (EHC Plan) for her son, B, and failed to provide him with a suitable education from February 2022.
2. Mrs X says B is struggling to develop social and communication skill, her mental health has suffered and all the family has experienced distress.

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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. 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)
5. 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 have and have not investigated

6. I have not investigated any lost education provision from March 2023 onwards as this is when the final EHC Plan was issued and appeal rights engaged. Those issues fall outside the Ombudsman’s jurisdiction.

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How I considered this complaint

7. As part of the investigation, 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;
   • discussed the issues with the complainant;
   • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

What should happen

Special Educational Needs

8. A child or young person with special educational needs may have an Education, Health and Care Plan (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 education or name a different school. Only the tribunal or the council can do this.
9. The whole process for issuing an EHC Plan must take no more than 20 weeks.
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.
11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
14. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Provision of suitable education

15. 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))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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”. 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’)
19. 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 mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should:
    • consider the individual circumstances of each case and be aware that councils 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 in coming to decisions;
    • decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
    • keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
    • adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

20. Mrs X says her son, B, struggled with the move from primary to secondary school. She says that from the first day of school B’s mood changed. She said the school made some adjustments but this was not enough and in January 2022 there was a significant incident as a result of his mental health issues. Following this B was hospitalised for periods and he was unable to return to school.

Delay in EHC Plan process

21. The Council agreed to carry out a special education needs assessment for B and to provide an EHC Plan. There is a statutory timescale for the EHC Plan process of 20 weeks. The Council should have provided B’s final EHC Plan by 11 November. However, it failed to meet this timescale which it says was initially due to the national shortage of Educational Psychologists.
22. The Council issued a draft EHC Plan to Mrs X on 21 December. However, it did not include all the relevant information and so it re-issued the draft EHC Plan on 3 January. Mrs X had 15 days to comment on the draft EHC Plan and emailed the Council on 18 January to confirm her views on the draft.
23. In a complaint response the Council said it issued the final EHC Plan on 27 January. Mrs X disputes this saying she did not receive it until March. In response to my enquiries, the Council was unable to provide evidence to show it issued the final EHC Plan on 27 January. However, the copy of the final EHC Plan provided to me is dated 20 March. Therefore, it seems more likely than not that the Council issued the final EHC Plan on 20 March.

Provision of a suitable education

24. B failed to make the transition to secondary school as explained above. Following the incident in January 2022, Mrs X focused on ensuring his mental health improved. While he remained on roll at the mainstream school and it offered some provision, B was unable to engage in this due to anxiety and trauma.
25. The Council was aware from March 2022 that B was not attending school. Initially the school offered alternative provision including a home tutor and online learning. This was not taken up and it became clear that B would not engage in any support from the mainstream school. In June, Mrs X confirmed this position in an email to the Council. The Council then offered a specialist intervention placement at a hospital school to start in the Autumn term 2022. B attended the hospital school regularly until January 2023 when his attendance reduced.
26. From January to March 2023, the Council consulted with schools to find a placement for B. Mrs X’s preference was sought as part of this process and maintained schools she suggested were consulted. However, there is nothing I have seen which shows a place was found for B.
27. In March 2023, Mrs X explained to the Council that B was continuing to suffer mental health issues and she said an EOTAS (Education other than at school) package was preferred. It was around this time the Council issued the final EHC Plan. While it did not name a specific school, it named maintained specialist school as the institution type. If at this point Mrs X considered this was not appropriate and that EOTAS was the most suitable provision for B, then I consider it was reasonable to expect her to use her right of appeal. As a result, I cannot consider any loss of provision from March 2023 onwards as it falls outside the Ombudsman’s jurisdiction.
28. However, I can consider whether the Council delivered suitable educational provision before the appeal rights engaged. I have therefore considered the Council’s actions from February 2022 to March 2023.
29. The Council was aware at the end of March 2022 that B was not attending school. I note that some provision was offered via the school but that it was not considered accessible for B because of his anxiety with anything linked to the school. Mrs X was in contact with the Council and school more regularly from June onwards explaining B’s situation and seeking alternative education.
30. The Council’s has a duty under the Education Act 1996 (Section 19) to provide suitable educational provision for children of compulsory school age who are absent because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The legal test, as determined by caselaw, says the Council must provide education that is reasonably available and accessible to the child.
31. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If, having considered all relevant evidence, a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.
32. While there is evidence the Council consulted with professionals involved with B’s education and welfare and that some alternative provision was offered, I have not seen evidence to persuade me the Council considered the issue of whether it was accessible to B. A place at the hospital was sought in June 2022 but B was placed on a waiting list and a place did not become available until after the start of the Autumn term in 2022. There is an email dated 4 July 2022 in which the Council says it is unsure what additional support can be offered.

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Was there fault in the Council’s actions causing injustice to Mrs X and B?

33. The Council failed to meet the statutory timescale of 20 weeks when issuing B’s EHC Plan. The Council took 38 weeks to issue the final plan. While some of this was due to the national shortage of educational psychologists, some of it was due to administrative failings by the Council. This delay is fault and caused Mrs X and B distress and meant her right of appeal was also delayed.
34. There is no evidence to show the Council took prompt action as per its Section 19 duties to arrange suitable provision when it became aware of B’s absence. When it was clear B could not engage with the mainstream school, there is no evidence to show the Council promptly stepped in to offer an available and accessible education from April 2022 until the placement at the hospital school started in October 2022.
35. As Mrs X has argued, the lack of education provision has impacted on B’s social and educational skills. It also caused her stress in trying to work while B was not in school.

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Agreed action

36. To remedy the injustice caused to Mrs X and B as a result of the fault identified, the Council will, within one month of my final decision take the following action:
    • Issue separate written apologies to Mrs X and B. When doing so, the Council should consider the LGSCO’s guidance on Making an effective apology;
    • Make a symbolic payment of £900 for B’s educational benefit to recognise one term of missed provision between April and July 2022.
37. The Council should provide us with evidence it has complied with the above actions.
38. I am not recommending any service improvements as I am aware the Ombudsman has made recommendations in similar cases recently and the Council has taken action. This includes agreeing to provide quarterly reports to the relevant committee to ensure it is making progress to reduce delays in progressing EHC Plans. It has also agreed to publish updates on its website to those affected by delay can track progress.

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Final decision

39. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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