Summary: the Council delayed putting in place alternative provision for Miss B’s daughter, delayed completing an education, health and care needs assessment and in issuing a final EHC Plan and failed to respond to Miss B’s communications. An apology, payment to Miss B, review of the case and an action plan to address the issues that arose is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council:
• failed to provide education for her daughter when it knew she could not attend school due to illness and failed to undertake any checks on her well-being;
• delayed completing an education, health and care needs assessment (EHC needs assessment) and in issuing a final education, health and care plan (EHC Plan);
• failed to respond to her communications and request for a meeting;
• failed to respond to her complaint;
• produced an EHC Plan which is not fit for purpose due to the educational psychologist’s report being inadequate.
2. Ms B says the Council’s failures caused her a significant amount of stress and frustration and led to her daughter missing out on education and special educational needs provision.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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)
7. 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

8. I have investigated Miss B’s concerns about the failure to put in place alternative provision for her daughter, the delays completing the EHC needs assessment and the failure to respond to her communications and the complaint. I have not investigated Miss B’s concerns about the content of the EHC Plan or the educational psychologist’s report on which it is based. That is because those matters are outside the Ombudsman’s jurisdiction has Miss B has, and has exercised, her right of appeal.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Miss B and the organisation 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

What should have happened

11. The Education Act 1996 (section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
12. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests. In such circumstances, the Council can arrange education on a part-time basis, based on the child’s best interests.
13. Young people can leave school on the last Friday in June in the academic year when they turn 16 years of age. They will remain in a school roll until this time.
14. A child or young person with special educational needs (SEN) may have an 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 Council can do this.
15. A young person over compulsory school age who has an EHC Plan and who is unable to attend a setting will not be entitled to provision under section 19 but the Council still has a duty under section 42 of the Children and Families Act 2014 to ensure the special educational provision is made. This goes up to age 25 where the EHC Plan remains in place.
16. The special educational needs code of practice (code of practice) says following a request for an EHC needs assessment, the local authority must determine whether an EHC needs assessment is necessary. The local authority must make a decision and communicate the decision to the child’s parent or to the young person within 6 weeks of receiving the request.
17. The code of practice says the whole process of EHC needs assessment and EHC Plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC Plan is issued, must take no more than 20 weeks (subject to exemptions).

Background for the education and SEN aspects

18. Miss B’s daughter stopped attending school due to medical issues in April 2022. There is no evidence the school told the Council about that at the time.
19. Miss B asked the Council to carry out an EHC needs assessment on 23 January 2023. In the document Miss B completed she said her daughter had not attended school since April 2022, was housebound and had not received any work home from her private school. Miss B therefore said she had decided to remove her daughter from school and she would not have any school place. The Council agreed to carry out the assessment on 2 March 2023 but did not tell Miss B about that decision until 6 April 2023. In the meantime an educational psychologist had contacted Miss B to complete the assessment required for the EHC process. The Council received the educational psychology report on 2 May 2023. One of the Council’s SEN officers then discussed the case with Miss B on 2 May 2023. At that point Miss B made clear her daughter could not access full-time education and she wanted provision for one hour per week.
20. The Council says the school previously attended by Miss B’s daughter contacted it on 19 May 2023 to tell it Miss B had been home educating her daughter since 27 March. That information was not accurate and Miss B made clear to the Council she did not intend to home educate her daughter.
21. The Council received a revised educational psychology report on 26 May 2023. The Council decided to issue an EHC Plan on 24 July.
22. Miss B chased the Council for what was happening with the draft EHC Plan and with education provision for her daughter on 16 August 2023. On 6 October 2023 the Council sent Miss B a draft EHC Plan and asked her to provide her comments. The Council said it could meet with her if she wanted to do that. The Council also asked Miss B if she had a preferred school for her daughter to attend. In response Miss B asked the Council for a meeting.
23. Miss B asked again for a meeting when she contacted the Council on 23 October and provided details of her preferred placement. Miss B said her daughter was unlikely to manage more than an hour a week of study at that point. Miss B also reminded the Council she had asked for tutors to work with her daughter on maths and english in the interim. Miss B explained that due to her daughter’s physical difficulties the draft EHC Plan was not representative of her current needs.
24. Miss B contacted the Council for an update on 4 November. A representative for Miss B then contacted the Council for an update on what was happening on 1 December.
25. Miss B chased the Council to find out what was happening with arranging alternative provision in February 2024. In response the Council told Miss B on 8 February the caseworker dealing with the case was making some amendments to the EHC Plan and hoped to provide an amended EHC Plan the following week.
26. The Council issued a final EHC Plan on 13 February 2024. Miss B raised concerns about the failure to put in place alternative provision for her daughter.
27. The Council held a mediation meeting with Miss B on 24 April 2024. At that meeting the Council agreed to amend the EHC Plan and reissue it and to follow up with tuition.
28. The Council issued an amended final EHC Plan on 25 June 2024. Miss B has appealed.
29. Miss B has identified a college for her daughter to attend. However, Miss B accepts her daughter cannot access full-time education at the moment and the aim is for her to start college in September 2025. The Council has made arrangements for Miss B’s daughter to receive 10 hours provision per week. However, Miss B’s daughter can only access two hours provision per week. That has been in place since 22 May 2024 and the Council has agreed for it to continue until Miss B’s daughter starts college in September 2025, with the hope that the level of provision can be increased. The Council has also agreed for the tuition to continue during school holidays to enable Miss B’s daughter to catch up on some of the missing provision.

Key dates for the complaint correspondence

30. Miss B put in a complaint to the Council on 1 October 2023 and the Council acknowledged it on 4 October. Miss B provided further details of her complaint on 15 November.
31. Miss B contacted the Council about her complaint on 23 February 2024. The Council acknowledged Miss B’s email and said it would respond to her complaint as soon as possible. The Council explained it had a significant backlog of complaints which it was working through and this was impacting on timescales.
32. Miss B chased the Council on 28 March.
33. The Council responded to the complaint on 24 June.

Analysis

34. The Ombudsman will not normally consider a complaint about matters which took place more than 12 months ago. I am exercising the Ombudsman’s discretion to investigate what has happened since April 2022. That is partly because Miss B did not know about the Council’s section 19 duty in 2022 and partly because of the length of time Miss B has been in the Council’s complaints procedure.
35. Miss B says the Council failed to provide education for her daughter when she became too unwell to attend school in April 2022. Miss B also says the Council did not undertake any checks on her daughter’s well-being.
36. The evidence I have seen satisfies me Miss B’s daughter stopped attending school in April 2022. However, there is no evidence either the school or Miss B told the Council about that in 2022. The Council says it did not know Miss B’s daughter was not attending school until the allocated school contacted it on 19 May 2023.
37. The evidence I have seen satisfies me Miss B told the Council her daughter was not attending school or receiving any education when she completed the request for an EHC needs assessment in January 2023. I am therefore satisfied the Council knew Miss B’s daughter was not attending school by 23 January 2023. I have seen no evidence the Council made further enquiries about that or considered whether to put in place alternative provision. That is fault. I am particularly concerned about that because Miss B repeated the information about her daughter not attending school when she spoke to a Council officer on 2 May 2023.
38. The Council says the allocated school told it Miss B was home educating her daughter. I have seen no evidence to support that statement. In any event, it is clear this information was incorrect and Miss B subsequently made that clear to the Council. I consider it likely if the Council had made enquiries with Miss B when it became aware her daughter was out of school in January 2023 it would have identified both that Miss B was not providing home education and that the school was not making any provision for Miss B’s daughter. I therefore consider Miss B’s daughter missed out on education because of fault by the Council from 23 January 2023. As I have no evidence the Council knew Miss B’s daughter was not attending school before January 2023 I cannot criticise the Council for not putting in place education between April 2022 and the 22 January 2023.
39. The situation is complicated in this case because Miss B’s daughter turned 16 at the end of 2022. That means the Council only had a section 19 duty to provide full-time education to Miss B’s daughter until the end of June 2023. As I said in the previous paragraph, I cannot criticise the Council for failing to put in place education before January 2023 as there is no evidence the Council knew Miss B’s daughter was not attending school. The Council should have put in place education between 23 January 2023 and the end of June 2023 though and failure to do that is fault.
40. So, I am satisfied fault by the Council in dealing with its section 19 duty meant Miss B’s daughter missed out on education between January 2023 and June 2023. Taking into account the fact Miss B’s daughter can only access a few hours education per week at the moment and the additional provision the Council has agreed to put in place during the summer holidays, I consider £1,200 an appropriate remedy for the missing education between January and June 2023. The Council has agreed to that recommendation.
41. Miss B says the Council delayed completing an EHC needs assessment and in issuing a final EHC Plan. The Council accepts it delayed telling Miss B it intended to carry out an EHC needs assessment as it did not tell her about that decision within the required six weeks. I consider that likely impacted on the EHC Plan process because when the educational psychologist contacted Miss B she (Miss B) did not understand the purpose of that contact or the importance of it in terms of the completion of the EHC Plan. I cannot comment on the adequacy of the EHC Plan as Miss B had, and exercised, a right of appeal in relation to that. I consider though Miss B has experienced frustration and distress because of the Council’s failure to properly explain the process to her.
42. The Council also accepts it delayed completing the EHC Plan once it had decided to issue one. The Council accepts it should have completed the entire process by 11 June 2023 and failed to do that as it did not issue the final EHC Plan until February 2024. That is a significant delay and is fault.
43. I now have to consider what injustice that caused to Miss B and her daughter. Clearly the delay meant Miss B’s right of appeal was also delayed. It is also clear Miss B went to significant time and trouble to find out what was happening with her daughter’s EHC Plan. I cannot seek a remedy though for missing provision from the EHC Plan because Miss B has appealed to tribunal about the provision in section F. The Council does not have any responsibility to put provision in place when an appeal is in progress. However, if the Council had complied with the statutory timescales it is possible Miss B would have completed the appeals process by now. I therefore consider she is left with some uncertainty about whether the special educational needs provision for her daughter could have started earlier. To remedy that uncertainty and the delayed appeal right I recommended the Council pay Miss B an additional £500. The Council has agreed to that recommendation.
44. Miss B says the Council failed repeatedly to respond to her emails and telephone calls to various departments trying to find out what was happening with her daughter’s education and EHC needs assessment. Miss B also says she asked for a meeting to discuss the issues and the Council failed to arrange one. The Council accepts it failed to respond to Miss B’s communications or keep her up-to-date with what was happening. The Council also accepts it failed to arrange a meeting with Miss B, as requested. All of that is fault. I consider that likely added to Miss B’s distress and again led to her having to go to time and trouble to pursue the Council. It also meant Miss B was not properly informed about the process. I consider that has added to her frustration and distress.
45. The Council also accepts it failed to adhere to its complaint timescales when responding to Miss B’s complaint. I am particularly concerned about that in this case as Miss B contacted the Council to chase it and there were therefore several opportunities for the Council to identify the need to respond to the complaint. Failure to adhere to the complaint timescales is fault.
46. As remedy for the considerable time and trouble Miss B had to go to and her significant distress I recommended the Council pay her an additional £750. That makes a total financial remedy of £2,450. I also recommended the Council carry out a review of what happened both in terms of the delays processing the EHC needs assessment and in responding to Miss B’s complaint to identify any learning. The Council should then draw up an action plan to deal with those issues. The Council should also provide evidence to the Ombudsman of what it has done to address the issues that have arisen in this complaint. The Council has agreed to my recommendations.

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Agreed action

47. Within one month of my decision the Council should:
• apologise to Miss B for the distress, uncertainty, frustration and upset she and her daughter experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £2,450.
48. Within three months of my decision the Council should:
• carry out a review of this case and draw up an action plan to address any learning points. The Council should then provide evidence to the Ombudsman of the action it has taken to address the issues that have arisen in this case.

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Final decision

49. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman