Summary: Mr and Mrs X complained the Council failed to provide their child, Y, with a suitable alternative education and delayed in completing their assessment for an Education, Health and Care Plan. The Council delayed in completing Y’s assessment and arranging an increase in Y’s tuition. It was not at fault for its efforts to arrange a suitable alternative education for Y from July 2023 onwards.

The complaint

1. Mr and Mrs X complained the Council failed to provide their child, Y, with a suitable alternative education and delayed in completing their assessment for an Education, Health and Care Plan. They say this has impacted Y’s mental health and caused their family uncertainty, distress and frustration over a prolonged period of time. They want the Council to recognise the impact of its failings, finalise Y’s EHC Plan and provide them with a suitable education.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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. 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)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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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What I have and have not investigated

11. I have not investigated events before March 2023. We do not normally investigate events from more than 12 months before the complaint to us. Mr and Mrs X could have complained to us sooner about the Council’s actions before this date, so I am not persuaded to investigate these matters now.
12. I cannot investigate the actions of Y’s schools. We cannot investigate complaints about what happens in schools.

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How I considered this complaint

13. I have discussed the complaint with Mr and Mrs X and considered the information they have provided. I have also considered information provided by the Council.
14. Mr and Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

15. 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.
16. 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.
• 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.
• 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.
17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

Alternative provision

18. 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.
19. 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))
20. 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)
21. 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’)

The Council’s complaint process

22. The Council operates a two-stage complaint process. It says it will usually respond to stage one and stage two complaints within 20 working days. If the issues raised are more complex, it says it will let complainants know it needs more time to respond and provide a new timescale.

What happened

23. Mr and Mrs X’s child, Y, struggled to regularly attend primary school from 2021 onwards due to anxiety. Y’s primary school, School A, attempted to reintegrate Y during this time without success.
24. On 14 March 2023 the Council received a request for an Education, Health and Care (EHC) needs assessment from School A. The Council rejected the request on 24 April 2023. It said Y’s needs were not at a level above the SEN support which would normally be provided in a school. Mr and Mrs X had a right of appeal to the SEN Tribunal about the Council’s refusal. They did not use that right.
25. Between April and June 2023, the records show Y continued to have low attendance at School A. Y was due to transition to secondary school at School B in September 2023. During this time School B held transition meetings with Mr and Mrs X and outlined the support Y would receive at School B. Y visited School B in June 2023.
26. In July 2023 Y stopped attending School A completely. Mr and Mrs X asked School A and the Council to put in place alternative provision for Y. The Council told School A its threshold for putting alternative provision in place was high and it did not think Y would meet the threshold. Mr and Mrs X complained to School A.
27. During the summer holidays School B put transitional support in place for Y and the Council visited Y at home. At the end of August 2023 Mr and Mrs X told the Council it was not meeting its duties under section 19 of the Education Act. The Council agreed to put in place six weeks of short-term tutoring and to work with School B to support Y back into education. Mr and Mrs X complained to the Council.
28. In its stage one complaint response the Council said it had agreed to support Y’s transition to School B. In September 2023 School B emailed Mr and Mrs X with details of its plan to re-integrate Y back into education. This included:
• A personalised timetable.
• Regular home visits and access to online learning at home.
• Clear communication.
• Wellbeing breaks and a quiet space for Y at school.
• Counselling.
• Regular assessing and monitoring of Y’s progress.
29. Mr and Mrs X, School B and the Council began attending weekly review meetings from September 2023. At the first meeting School B set Y the target of attending school in their uniform to say hello to a designated teacher and attending an art therapy class. School B also said it would complete a referral for a medical educational placement at School C. Mr and Mrs X agreed to gather evidence to support their case for Y to receive alternative provision. They said they felt the targets were a big step for Y and not achievable in their first week of term.
30. At the same time School B started regular visits to Y’s home and asked Y’s psychotherapist for an update. The psychotherapist reported that Y’s trust with school was broken due to issues with School A and Y’s integration needed to be very slow to rebuild that trust.
31. At the review meetings Y’s parents said the Council had not arranged Y’s tuition yet and that Y refused to engage in anything related to school. School B reported it was completing a new application for an EHC needs assessment. Y did not meet School B’s targets and refused to meet staff from School B on some home visits.
32. Mr and Mrs X continued to complain to the Council. They said Y had been unable to start School B due to the Council’s slow intervention when Y was at School A and Y still had no alternative provision in place.
33. On 22 September 2023 the Council refused Y’s application for a medical educational placement at School C. It said while it appreciated Y was out of education, it had commissioned 60 hours of one-to-one tuition, divided into six hours per week, to help transition Y back into education at School B.
34. By the end of September 2023 Y continued to not meet School B’s original targets. The Council identified a tutor to deliver two visits a week with Y. Mr and Mrs X told School B they would prefer to take a lead on Y’s EHC needs assessment application. The Council wrote to Mr and Mrs X. It apologised for the poor service throughout the last years of Y’s time at School A. It said it should have given Y more support. It acknowledged Y’s road back to education would be a long one and recommended continuing Y’s tuition beyond the 60 hours. Mr and Mrs X responded saying they hoped for continued support from the Council to ensure Y could return to education.
35. School B consulted with an Educational Psychologist at the Council in October 2023. The psychologist recognised Y had previously been able to attend School A on a reduced timetable and said it was practical for School B to work towards Y attending school again.
36. The records show Y engaged well with their tutor. Mr and Mrs X, School B and the Council continued to meet to review Y’s progress. School B maintained its original targets which Y did not meet. In November 2023 the Council agreed to extend Y’s tuition into the next term. It also suggested Y attend a therapeutic intervention service for a day a week to enable their transition back to school. Mr and Mrs X agreed to begin talking to Y about the service with a view to starting in January 2024. School B offered to fund an additional session with Y’s psychotherapist within school.
37. Y’s tuition continued to work well. Mr and Mrs X submitted a new application for an EHC needs assessment on 4 December 2023. The Council agreed to the assessment on 29 December 2023 and immediately requested advice from an Educational Psychologist. It said if it decided not to issue a Plan it would respond by 25 March 2024. If it decided to issue a Plan it would do so by 20 April 2024.
38. Y visited the intervention service in January 2024. Mr and Mrs X emailed the service afterward to say Y struggled with the visit. The service said it could develop a structure for Y on a weekly basis, build Y’s attendance slowly and assign Y a mentor to help them feel able to attend. Mr and Mrs X agreed to take Y to the service’s café each week to help build a routine. The service agreed to send a plan of activities ahead of each week, so Y knew what to expect.
39. Over the next month Mrs X and Y visited the café at the service each week and attempted to organise animal therapy for Y at the service. The service struggled to arrange this. In February 2024 Mr and Mrs X told the Council they would not continue visiting the service as Y needed a clear plan which the service could not deliver.
40. At the same time School B offered to support Mr and Mrs X with an early help assessment. Mr and Mrs X refused. They said Y was no longer at a preventative stage and they needed support from children’s services. The Council referred Mr and Mrs X to a social worker.
41. At review meetings School B continued to monitor Y against the original targets, which Y did not meet. Mr and Mrs X repeated their view that Y was not receiving suitable alternative provision.
42. A new attendance lead reviewed Y’s case for the Council at the start of February 2024 and arranged a professionals meeting. The meeting noted Y had never met the original targets set by School B and had not used online learning since November 2023. The meeting discussed a new referral to School C. Mr and Mrs X reported that while Y continued to engage with the tutor, their learning had plateaued. As a result of the meeting School B updated Y’s targets to:
• Engage with school staff during home visits.
• Access online learning independently.
• Independently complete work from school at home.
43. Mr and Mrs X complained to the Ombudsman on 16 February 2024. The Council said it had not considered their complaint at stage two of its complaint process and agreed to do so.
44. On 19 February 2024 Mr and Mrs X emailed the Council to ask for an increase in Y’s tuition. They also said they did not feel School C was a good option for Y as it was only for two terms and designed to reintegrate Y into mainstream education. They said Y could not be educated in a mainstream setting. Mr and Mrs X also expressed concern over the progress of Y’s EHC needs assessment.
45. In March 2024 the Council approved an increase in Y’s tuition to 10 hours a week and it was waiting to hear from Y’s tutor company before this could start. Mr and Mrs X said this was still not enough. School B reported that Y refused to engage during home visits. The school reported there was no diagnosed mental health reason Y could not access school, and Y did not meet the threshold for mental health support from Child and Adolescent Mental Health Services (CAMHS). School B and the Council put in place the following action plan and targets for Y:
• School B to visit Y at home every Thursday and Y to engage with the visits.
• Y to independently complete schoolwork at home and return it the following week.
• School B to provide a teaching assistant to support Y at 2pm each day on the school premises.
• Mr and Mrs X to consider School C and discuss a forest school with Y.
• Mr and Mrs X to share Y’s ASD diagnosis letter.
• Mr and Mrs X to discuss visiting school at 2pm every day with Y.
46. At the next review meeting Mr and Mrs X said they did not feel School C or the forest school was suitable for Y. The reiterated that Y could not attend mainstream education. They said they would not discuss Y attending school at 2pm every day with Y as they did not want to upset Y. Mr and Mrs X asked School B not to visit any more or send schoolwork home. They said Y would never attend School B. School B and the Council adapted the action plan to:
• Y to attend school after hours to play badminton
• Mr and Mrs X to provide Y’s ASD diagnosis letter and put in writing their reasons for stopping School B’s home visits.
• School B to explore therapeutic support with Y at home.
• The Council to explore further targeted provision.
47. Mr and Mrs X’s MP wrote to the Council on their behalf on 11 March 2024. Mr and Mrs X provided Y’s diagnosis letter on 12 March 2024 and repeated they no longer wanted School B to carry out home visits. The Council told Mr X and School B there was a delay to Y’s EHC needs assessment due to a lack of Educational Psychologists. School B provided the Council with a summary of Y's case to date. It confirmed Y had 0% attendance despite its best efforts. It said it had carried out regular home visits, put an action plan and targets in place and identified changes to enable Y to attend school, such as a reduced timetable, wellbeing breaks, a quiet space, mechanisms for Y to alert staff to increased anxiety and counselling.
48. On 26 March 2024 Mr and Mrs X contacted a private Educational Psychologist who agreed to carry out an assessment for Y’s EHC Plan on behalf of the Council. Mr and Mrs X then contacted the Council for an update on the remaining elements of Y’s EHC needs assessment and a timeline for the Council to issue the plan. The Council said it would issue a draft Plan as soon as it had the Educational Psychologist’s report.
49. In April 2024 Mr and Mrs X asked School B for an update on its efforts to transition Y back into school. They said School B had failed to review Y’s targets or provide a suitable alternative education. School B said it was working on a tailored approach to Y’s education, but it did not feel it could meet Y’s needs. It reiterated the offer of a referral to School C. Mr and Mrs X said they would prefer to discuss Y with the head teacher of School C first, but a short term placement to bridge Y back into education would not work. School B emailed the Council on 15 April 2024 to say Y’s transition to secondary school had been unsuccessful and it could not meet Y’s needs. It told the Council it had concerns over the impact on Y’s mental health of any mainstream setting.
50. On 18 April 2024 a councillor for the Council responded to Mr and Mrs X’s MP. They said the Council and School B had worked extensively with Y and had put in place a home tutor as alternative provision. They agreed this had not worked and the Council was now reviewing the case. Mr and Mrs X said the response failed to address any of their complaint. The Council responded to Mr and Mrs X’s complaint at stage two of its process on 2 May 2024. It reiterated it was currently reviewing Y’s provision and was satisfied it was doing all it could to resolve the situation. Mr and Mrs X returned to the Ombudsman.
51. In May 2024 Mr and Mrs X continued to chase the Council for an update on Y’s EHC Plan and the agreed additional tuition. In their emails to the Council, they re-emphasised Y could not access mainstream education and had been failed by their schools and the Council. They refused to attend further review meetings.
52. The Council received the Educational Psychologist’s report on 4 June 2024. It’s recommended outcomes includes Y’s transition to a “suitable educational establishment”. The Council confirmed it would go to its panel for a decision on Y’s EHC Plan immediately. Mr and Mrs X continued to chase the increased tuition.
53. The Council agreed to issue Y with an EHC Plan and told Mr and Mrs X it would aim to issue a draft Plan by the end of June. Mr and Mrs X told the Council they wanted it to name “Education Otherwise Than at School” (EOTAS) for Y’s placement.
54. The Council issued a draft EHC Plan on 8 July 2024. Mr and Mrs X received the draft on 11 July. On 9 July 2024 the Council confirmed an extension to Y’s tuition beyond September. In response to the draft Plan School B confirmed to the Council it could not meet Y’s needs and should not be named as Y’s placement. Mr and Mrs X asked for an extension to prepare their response to the draft. On 8 August 2024 an advocacy agency responded to the draft Plan on behalf of Mr and Mrs X highlighting many issues with the draft plan. The Council issued a revised draft Plan on 25 September 2024. The Council has yet to finalise Y’s EHC Plan.

My findings

EHC Needs Assessment and Plan

55. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepted Mr and Mrs X’s first assessment request on 14 March 2023. It rejected the request on 24 April 2023. This was within the six weeks the Council had to decide whether to assess Y or not. The Council is not at fault. Mr and Mrs X had a right of appeal to the SEN Tribunal over this decision. It was open to them to use that right.
56. Mr and Mrs X submitted a new assessment request on 4 December 2023. The Council accepted this request on 29 December 2023. This was also within the six weeks the Council had to decide whether to assess Y or not. The Council is not at fault. Having agreed to assess the Council should have issued Y’s plan within 20 weeks of Mr and Mrs X’s application, so by 22 April 2024. The Council has still not issued Y’s final plan. This is fault.
57. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks of its decision to assess Y. It took 27 weeks to receive this advice. This was 21 weeks too long and was fault.
58. The Council has not met these timescales due to the national shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure). I cannot say whether the delay that occurred before the Educational Psychologist gave their advice meant Y lost out on special educational provision. This is because the advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the fault caused Mr and Mrs X and Y frustration, distress and uncertainty.
59. Once the Council received the Educational Psychologist’s advice in June, it should have issued Y’s final EHC Plan within around six weeks. Mr and Mrs X asked for an extension to respond to the Council’s draft of around two weeks, giving the Council eight weeks to issue Y’s final plan, so by 30 July 2024. The Council has still not issued Y’s final EHC plan. This is fault.
60. The provision in Y’s final plan will be based on Y attending the placement named in the Plan. If Mr and Mrs X disagree with the provision in the plan or the placement, they have a right of appeal to the Tribunal. However, the delay in finalising the plan has caused Mr and Mrs X uncertainty over what its content will be and has delayed their right of appeal.
61. We found fault with the Council for EHC Plan delays in another recent investigation. The Council agreed to provide or produce a plan to confirm the actions it is taking to ensure EHC Plans are issued within statutory timescales, including what actions the Council is taking to address the delays in allocating cases to Educational Psychologists. Because the Council is already producing an action plan, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Alternative Provision

62. The records show Y has struggled to consistently access education at school for several years and stopped attending school completely in July 2023, just before the school holidays. Mr and Mrs X asked the Council to provide Y with a suitable alternative education at this time. The Council arranged at home tuition from September 2023. At the same time School B began work with Y to support their transition back into education. This included access to online learning for Y.
63. Mr and Mrs X complain Y’s tuition and access to online learning did not amount to a suitable alternative education. Given the length of time Y had struggled to access education, and the efforts School B were making to re-integrate Y, the Council decided that more tuition hours and alternative provision was not in Y’s best interests at this point. There was no fault in the way the Council reached that decision.
64. The Council and School B continued to review Y’s progress throughout their first term of tuition. At the end of the term, they proposed Y look to attend a therapeutic intervention service to further increase their alternative provision. While Y struggled to engage with the service this does not mean the Council was at fault. The Council was entitled to identify and try additional provision to support Y back into education. The Council was not at fault.
65. Following Mr and Mrs X’s decision not to pursue Y’s attendance at the service, School B adapted Y’s targets for returning to school. The Council also proposed Mr and Mrs X reconsider an application to School C and a forest school. Mr and Mrs X refused these offers as they did not feel they were in Y’s best interests. At the same time the Council agreed to increase Y’s tuition to 10 hours a week. While this was a legitimate next step the Council failed to put the tuition in place. Having agreed the increase in hours, Mr and Mrs X had to repeatedly chase the Council for its implementation. This was fault and caused Mr and Mrs X frustration and distress. It also meant Y missed out on some additional tuition they should have received.
66. The records show the Council has worked with School B since July 2023 to support Y back into education. The Council’s duty is to make suitable arrangements for Y’s alternative provision. It is clear Mr and Mrs X disagree with the Council on whether Y can access an education at school and what amounts to suitable alternative provision. However, the records show the Council based its plan on professional advice and regular reviews of Y’s progress. It has constantly sought to find a solution to Y’s non-attendance at school. While it is at fault for the delay in Y’s additional tuition hours it has not failed to make suitable arrangements for Y’s alternative provision.

Complaint handling

67. Mr and Mrs X have remained in regular contact with the Council since 2023. Council officers have provided regular updates and responded to issues Mr and Mrs X have raised.
68. Mr and Mrs X complained to the Council in August 2023. It is not clear whether the Council handled this as a complaint. It responded to Mr and Mrs X’s “feedback” within 20 working days but failed to signpost them to stage two of its complaints process. When Mr and Mrs X responded to the Council it failed to consider this as a stage two complaint. This was fault.
69. When Mr and Mrs X attempted to complain to the Ombudsman the Council said it had not completed its complaint process and agreed to respond at stage two of the process on 21 February 2024. The Council confirmed to Mr and Mrs X that an investigation was under way, and it expected to respond by 15 March 2024. The Council did not respond until 7 May 2024. This was fault and caused Mr and Mrs X frustration.
70. At the same time as considering Mr and Mrs X’s complaint the Council responded to contact from Mr and Mrs X’s MP via a councillor. The double handing of Mr and Mrs X’s complaint understandably caused Mr and Mrs X confusion over what stage of the complaint process they were at and when to expect a response. This was fault.

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Agreed action

71. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mr and Mrs X for its delay in issuing Y’s final ECH Plan, arranging the increase in Y’s tuition, and the frustration caused by its inconsistent complaint response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. Pay Mr and Mrs X £500 to recognise the five-month delay between April and September in issuing Y’s EHC Plan and an ongoing payment of £100 a month until it issues Y’s final EHC Plan. This is to recognise the avoidable distress and frustration caused by the ongoing delay in assessing Y.
3. Pay Mr and Mrs X £600 to recognise the frustration, uncertainty and missed provision caused by the four-month delay in arranging Y’s increase in tuition hours.
72. Within three months of the final decision the Council has agreed to take the following action:
1. Review its complaint response templates and procedures to ensure it is clear at what stage of its process it is responding, and signposts to the next stage if appropriate.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have completed my investigation and found fault with the Council which caused an injustice for which I have recommended a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman