Summary: We uphold a complaint about delay in Y’s Education, Health and Care Needs Assessment and Plan, mainly caused by a shortage of Educational Psychologists. The Council will apologise and make payments to reflect the delay and loss of educational provision. We also uphold a complaint about a failure to consider and put in place alternative education for Y when she became unwell and could not attend school. The Council will make a payment for this as well.

The complaint

1. Ms X complained the Council:
1. Delayed completing her child Y’s EHC needs assessment and plan.
2. Failed to secure alternative education when it became aware Y was too unwell to attend school.
3. Obtained EP advice that was incomplete, did not reflect Y’s needs and was not based on a face-to-face assessment.
4. Failed to offer appropriate support for her as a disabled parent.
2. She said this caused avoidable distress and a loss of education 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 unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We describe these complaints as being ‘premature.’ However, we may decide to investigate a premature complaint if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. The courts said if someone has appealed to the SEND Tribunal, 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)
6. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
7. The evidence indicates Y’s non-attendance at school was due to a decline in her mental health that was not directly connected to her special educational needs.
8. 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)
9. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
10. 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.
11. 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)
12. 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

13. I have investigated complaints (a) and (b). Some of the things Ms X has complained to us about happened more than 12 months before she complained to is and so are late. I have investigated them because Ms X has had significant ongoing health issues which made complaining to us more difficult.
14. I have not investigated complaints (c) or (d). Complaint (c) could have been appealed to the SEND Tribunal (or was part of an appeal) and so I have not investigated it. Complaint (d) is premature and is going through the Council’s complaints procedure. It is reasonable for the Council to complete its procedure. If Ms X is unhappy with the final response, she can ask us to investigate.

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How I considered this complaint

15. I considered the complaint to us, the Council’s responses to the complaint and documents in this statement. I discussed the complaint with Ms X.
16. Ms X and the Council 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

Relevant law and guidance

Education, Health and Care Plans

17. A child with special educational needs may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. Before issuing an EHC Plan, a council carries out an EHC needs assessment.
18. The EHC Plan is set out in sections including B (the child’s SEN), F (special educational provision (SEP) required to meet SEN) and I (placement). We cannot direct changes to the sections about the child’s needs, education, or name a different educational establishment. Only a tribunal or council can do this.
19. 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);
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan;
• Those consulted have a maximum of six weeks to provide the advice.
20. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).

Alternative Provision or Alternative Education

21. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision (AP).
22. The education 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)
23. 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. 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;

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.

What happened

2021

24. There was a request for an EHC needs assessment from Y’s school (School A) on 2 July 2021. The Council wrote to Ms X on 23 July to say it was going to carry one out.
25. I asked the Council to provide me with its referral for advice from an Educational Psychologist (EP). It has provided me with a referral for updated advice in 2023 which is not relevant as it is connected to Ms X’s subsequent appeal to the SEND Tribunal.

2022

26. Y’s draft EHC Plan (see following paragraph) refers to an EP’s advice dated 4 May 2022.
27. The Council sent Ms Y a draft EHC Plan on 7 October 2022. She provided her parental preferences for schools and asked the Council to issue Y’s final EHC Plan. Ms X said Y was not able to cope at School A, her mental health had declined rapidly and she was suicidal. Ms X said Y would be at home for an unknown amount of time.
28. A teacher from School A wrote to the Council in October setting out concerns about Y’s mental health and explaining Ms X was struggling to get Y into school and they were concerned she was going to become a ‘school refuser’. The letter went on to explain Y had recently moved from one specialist unit to another in school which had a one to four staff ratio.
29. The Council issued a final EHC Plan on 18 October. It named School A as Y’s placement. Section F set out the special educational provision Y needed, including:
• A weekly language programme in a small group.
• Individual and/or small group (1 to 3) support in all core subjects. 1 to 6 staff/student ratio support in other subjects.
• Twice weekly individual pastoral support sessions.
• Meet and greet and summary sessions for 10 minutes at the beginning and end of the day.
30. In November 2022, one of Ms Y’s preferred schools refused a place. Ms Y visited one other school and decided it was not suitable.
31. Ms X appealed Section B, F and I of the EHC Plan to the SEND Tribunal.

2023

32. In February 2023, School A sent a learning plan for Y and a referral for the Inclusion Service. This said Y was in school for half days with one-to-one support. The referral went on to set out concerns for Y as follows:

“Y’s mental health has significantly affected her attendance…. She was in a specialist SEN class… she is currently at her home school with a one to one while an appropriate placement is sought….she is timetabled for half a day at school with the rest of the time in EDClass [e-learning] at home, however her attendance has been sporadic even at times when she is expected in….. [we need] advice on supporting Y. She is engaging in little learning and nothing we have tried has been successful in bringing up her attendance.”

33. An officer from the inclusion service carried out a school visit at the end of February. But Y was not in school.
34. School B (an independent special school) offered a place for Y in March 2023, to start in September.
35. At the end of April, an officer from the inclusion service (medical needs co-ordinator) noted Y was still not attending school. Ms X was noted not to be able to get Y out of the house. The recommendation was to get a new doctor’s letter and to contact school to see if the transition to the placement at School B (which was starting in September) could start early. In the middle of May, the officer noted in an internal email that:
• They were leaving post.
• School A had contacted her to say Y would not attend and they did not feel they should follow attendance processes.
• The GP would not say Y was too unwell to attend. The mental health team had assessed Y, but it had not provided a report.
• The medical needs service involvement required health guidance and further contact with the mental health team to gain their advice.
36. Y’s (amended) final Plan was issued in November 2023 following a SEND Tribunal
37. The Council’s responses to Ms X’s complaint said:
• School advised Y was on a reduced timetable between October and December 2022 and it intended to build her hours up.
• School contacted the Council for support in February 2023, but Y was absent when the inclusion officer visited.
• School B started transition work in May 2023.
• The Council recognised there was delay with the EHC needs assessment and was sorry, caused by a lack of EPs and an increase in demand. It offered a payment of £1100 for the delay.
• The Council recognised the duty to provide alternative education provided there is relevant medical evidence supporting the child’s absence. The Council provided advice to school about this.
• It accepted it should have promptly followed up with school to discuss the provision it was implementing and explored alternative education and was sorry for this.
• To recognise Y’s missed education from April 2023, the Council offered a payment of £1500.

EP Shortages in Norfolk

38. The Council, like many other local authorities in England, has been affected by the shortage of EPs. It told me it had increased the number of EPs it employed and was supporting as many trainee EPs as possible. It said it was ‘streamlining’ workflow processes, monitoring trends and recruiting nationally, including EPs from oversees.
39. Ofsted and CQC’s most recent inspection (report published February 2023) found council leaders had increased capacity in the EP service and had commissioned private reports to reduce delays and backlogs. The report noted some delays had reduced significantly, but delays in accessing EP advice remained in a minority of cases. The report concluded the Council had made sufficient progress in addressing the issue.

Findings

Delay in completing the EHC needs assessment and plan process

40. The decision to carry out an EHC needs assessment was made within six weeks of the request by School A and so without fault.
41. The process of assessing Y and issuing her draft and final Plan was not in line with the law and statutory guidance and was fault. In particular:
• It is unclear when the Council referred Y to its EP service for an assessment, however it is reasonable to assume the SEND case officer would have made the referral at the same time as issuing the decision to carry out a needs assessment (23 July). The EP’s advice should have been available within six weeks of that date, so by the end of the first week in August 2021. It was not available until May 2022. This is an unacceptable delay of 10 months and is fault.
• The draft Plan should have been issued by the start of November 2021 to allow 15 days for parental comments. It wasn’t issued until 7 October 2022. An unacceptable delay of 11 months which is fault.
• The final Plan should have been issued within 20 weeks of the request for an assessment so by 19 November 2021. It was not issued until 22 October 2022. A delay of 11 months which is fault.
42. The delay caused avoidable distress, frustration, uncertainty and a loss of appeal rights. It also caused delay in Y receiving special educational provision in Section F of the Plan to which she had a legal entitlement under Section 42 of the Children and Families Act 2014.
43. The shortage of EPs is a national problem not within the Council’s control. However, we still regard not having enough staff resources to complete EP advices within the required legal timeframe to be fault. (service failure).

Failure to secure alternative education when the Council became aware Y was too unwell to attend any school.

44. The Council became aware of Y’s attendance issues in October 2022 because Ms X referred to Y’s mental ill health in the parental comments on the draft Plan. And School A also raised concerns about low attendance and ill-health. The Council took no action to investigate or consider whether any AP was required under Section 19 of the Education Act 1996. This was a missed opportunity to take supportive and collaborative action to help school to improve Y’s attendance and to consider putting in place AP in line with our published guidance as described in paragraph 23. On a balance of probability, the Council would have offered some form of part-time AP from October 2022 coupled with supportive attendance measures had it dealt with the case in line with the law and guidance and without fault. Either way, Y would likely benefitted from more education than she received.
45. School A made a referral to the Inclusion Service in February 2023. Ironically, Y was not in school when the Council’s officer visited school to see her. Yet the visit was not re-booked and there is no evidence of an attempt at a home visit. This response is woefully inadequate. The only action taken before the officer left post was to seek medical advice which was apparently not forthcoming from the medical professionals. The Council should not have let matters rest there. This was a missed opportunity to take supportive and collaborative action to support school to improve Y’s attendance and to consider putting in place AP, again in line with our published guidance. The Council accepts it was at fault from April 2023 and has offered a payment of £1500 to reflect loss of AP. This is not sufficient to remedy the full injustice.

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Agreed action

46. The Council will, within one month of my final decision:
• Apologise in writing to Y in a way that she understands, for letting her down. She has asked for this specifically.
• Apologise to Ms X for the failings identified in this statement.
• Make the following payments:
1. £250 to reflect Ms X’s avoidable distress and frustration
2. £1000 to reflect the avoidable uncertainty caused by the 10-month delay in receiving EP advice (£100 a month)
3. £450 to reflect the loss of special educational provision in June, July and September 2022. Had the Council issued the final Plan promptly on receiving the EP advice in May 2022, Y would have been receiving the provision in Section F of the plan from June 2022. The amount recommended reflects that Y was already in a small group unit in School A before the final Plan was issued and was likely receiving some tailored support for her SEN already identified but not yet formalized in an EHC Plan.
4. £2500 to reflect the loss of AP from October 2022 to the end of July 2023 which the Council should have put in place for Y had it properly considered the law and guidance set out in this draft statement. This is at the lower end of the figures suggested in our Guidance on Remedies and reflects the available evidence about Y’s mental ill health. This likely meant she would have coped with part-time provision only.
47. Since the incidents of this complaint, Ofsted has inspected the Council’s SEND service and has reported improvements in recruitment and retention of EPs. So I am not making recommendations for improvements to the EP service.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. We uphold a complaint about delay in Y’s Education, Health and Care Needs Assessment and Plan, mainly caused by a shortage of Educational Psychologists. The Council will apologise and make payments to reflect the delay and loss of educational provision. We also uphold a complaint about a failure to consider and put in place alternative education for Y when she became unwell and could not attend school. The Council will make a payment for this as well.
50. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman