Summary: Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education and delayed in completing Y’s Education, Health and Care Needs Assessment. She also complained the Council delayed in responding to her complaint. The Council delayed in completing Y’s assessment, delayed offering an increase in one-to-one tuition and in responding to Mrs X’s complaint. The Council has agreed to apologise and make payments to Mrs X and Y to acknowledge the distress, frustration, and uncertainty these faults caused.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education and delayed in completing Y’s Education, Health and Care (EHC) Needs Assessment. She also complained the Council delayed in responding to her complaint. Mrs X says this impacted Y’s mental health as they missed out on an education. She wants the Council to compensate her for the distress and frustration caused.

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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 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. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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

10. I have not investigated events before March 2023. We do not normally investigate events from more than 12 months before the complaint to us. 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.

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How I considered this complaint

11. I discussed the complaint with Mrs X and considered the information she provided. I also considered information provided by the Council.
12. Mrs X and the Council had an opportunity to comment on my draft 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)

13. 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.
14. 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.
15. 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

16. 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.
17. 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))
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’)

The Council’s complaint process

19. The Council operates a two-stage complaint process. It says it will usually respond to stage one and stage two complaints within 10 working days, and a maximum of 20 working days.

What happened

20. Mrs X’s child, Y, was diagnosed with severe ADHD in 2022 and struggled to attend school regularly due to anxiety. In March 2023 Mrs X asked the Council to provide Y with a suitable alternative education as they were unable to attend school. Mrs X also asked the Council to carry out an EHC Needs Assessment of Y at the same time.
21. The Council arranged a 25 hour a week blended learning offer. This combined online learning with two hours of one-to-one tutoring per week. The Council set the following outcomes for Y’s blended learning:
• The Council, school and Y’s parents to meet and plan Y’s provision.
• Y to engage with the provision and continue to engage with health professionals.
• Consideration of how to increase Y’s social interactions.
• Y’s school to enter them for any relevant exams and have a clear plan for Y’s transition back to school when appropriate.
22. The Council said the offer would start in the summer term. On 24 April 2023 the Council refused Mrs X‘s request for an EHC Needs Assessment.
23. An alternative provision planning meeting took place in April 2023. The Council said online lessons would be available at all times and Y would be supported by blended learning staff. It also said Y had the offer of pastoral support if needed.
24. In May 2023 Mrs X appealed to the SEND Tribunal and complained to the Council about its decision to refuse Y’s EHC Needs Assessment. She also emailed the Council to report that Y was not engaging with their online learning and was refusing to attend tuition.
25. The Council carried out an alternative provision review in June 2023. It accepted Y was struggling to engage with the blended learning, and that Y did not feel online learning at home was right for them. The Council made changes to Y’s curriculum and one-to-one sessions. This included changing Y from a GCSE curriculum to functional skills, changing their tutor and relocating the one-to-one sessions.
26. In late June 2023 the Council responded to Mrs X’s complaint at stage one of its complaint process. It said it was happy to meet with Mrs X to discuss her concerns but its refusal to carry out an EHC Needs Assessment of Y was appealable to the SEND Tribunal and it would not consider it through its complaints process. Mrs X asked the Council to escalate her complaint to stage two of its process as Y had been out of school for over a year.
27. On 16 August 2023 the Council agreed to carry out an EHC Needs Assessment of Y and began seeking the views of relevant professionals, including an Educational Psychologist. The Council emailed Mrs X later in August to clarify her stage two complaint. It reiterated any disagreement with the EHC Needs Assessment was appealable. It asked Mrs X to clarify whether she wished to complain about Y’s alternative education.
28. Mrs X responded to the Council in September 2023. She said the Council had now agreed to assess Y but its initial refusal had caused a delay. She said the Council’s refusal to assess was unlawful. She said Y was unable to handle the current blended learning.
29. The Council held a second alternative provision review meeting in October 2023. It reported Y’s engagement with the blended learning was improving. While Y’s attendance remained low, they were beginning to engage with the learning. Y’s termly report showed Y was only attending their one-to-one sessions and had not accessed any online learning. It noted under ‘the next steps and actions’, ‘blended learning to continue – offer of more sessions if possible’.
30. In January 2024 Mrs X chased the Council for a response to her complaint. The Council apologised to Mrs X. It said it had overlooked her complaint by mistake and would respond as soon as possible. The Council held a third alternative provision meeting. It reported Y was engaging well with the blended learning and one-to-one sessions. Y had still not accessed any online learning.
31. Mrs X chased the Council for an update in February and March 2024. The Council received the educational psychology report for Y’s EHC Plan on 14 March 2024. It issued a draft EHC Plan on 18 April 2024.
32. A few days later it responded to Mrs X’s stage two complaint. It apologised for the delay in issuing the response and its failure to meet the EHC Needs Assessment timescales. It said this was due to a shortage of Educational Psychologists and it was doing all it could to address this. The Council offered Mrs X £100 for the delay in its complaint handling, and £100 for the delay of the EHC Needs Assessment. It said Mrs X should make any complaint about Y’s education to Y’s school and alternative provision provider.
33. The Council issued Y’s final EHC Plan on 9 May 2024. The plan named Y’s current school as their placement. In May 2024 Mrs X and the Council discussed an increase in Y’s one-to-one tutoring. Mrs X said as it was so close to the summer holidays it may disrupt Y’s progress. In June 2024 a local college agreed to admit Y from September 2024 and the Council issued an amended EHC Plan, naming the college, on 30 July 2024.

My findings

Alternative Provision

34. Mrs X asked the Council to provide Y with a suitable alternative education in March 2023. The Council arranged a blended learning offer for Y and set objectives to review Y’s progress. The Council then reviewed Y’s progress at regular intervals.
35. The reviews noted Y was engaging well with their blended learning, but in reality, Y was only engaging with their one-to-one tuition, and did not access any online learning. While the Council adapted Y’s one-to-one sessions when they were initially not working, it failed to do the same for Y’s online learning. The records show Y’s increasing engagement with the one-to-one sessions, but the Council failed to consider an increase in these sessions until May 2024, despite saying it would look at this following the review in October 2023. This is fault.
36. We cannot say, even on balance, the extent to which Y would have engaged with any additional provision had the Council arranged it. However, the Council’s failure to offer an increase is likely to have caused Mrs X and Y uncertainty and frustration.

EHC needs assessment and Plan

37. 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 Mrs X’s 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.
38. The Council then decided to assess Y on 16 August 2023. Having agreed to assess Y the Council should have issued Y’s plan within 14 weeks of its decision. This was 22 October 2023. The Council issued Y’s plan on 9 May 2024; a delay of six months. This is fault.
39. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks. It took 34 weeks to receive this advice. This was 28 weeks too long and was fault.
40. The Council has not met these timescales due to the 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 Mrs X and Y frustration, distress and uncertainty.
41. Once the Council received the Educational Psychologist advice in March, it should have issued Y’s final EHC Plan within around six weeks. It took the Council eight weeks to issue the final EHC Plan. While this is slightly outside the expected timescale, I do not consider it fault by the Council.
42. Once the Council issued Y’s EHC Plan it had a duty to make sure Y received the special educational provision set out in section F of the Plan (Section 42 Children and Families Act). Mrs X complained the Council failed to deliver the provision in Y’s Plan since it was issued.
43. The provision in Y’s Plan is based on Y attending the placement named in the Plan. The Council assessed Y and decided Y could attend the placement to receive the provision in the Plan. If Mrs X disagreed with the provision in the plan or the placement, she had a right of appeal to the Tribunal. I will not investigate whether Y received the provision set out in section F of their Plan as Mrs X had a right of appeal to the Tribunal and I consider it reasonable for her to have used that right, as set out in paragraph four.
44. 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.

Complaint handling

45. The Council says it will respond to both stage one and stage two complaints in a maximum of 20 working days. Mrs X first complained to the Council on 26 May 2023. The Council responded at stage one of its complaint process on 28 June 2023, 22 working days. While this is slightly outside of the Council’s timescale, I do not consider it fault by the Council.
46. Mrs X asked the Council to escalate her complaint to stage two on 30 June 2023. The Council asked Mrs X to clarify her complaint on 24 August 2023, which she did on 11 September. The Council did not then respond to Mrs X’s stage two complaint until 22 April 2024. A delay of seven months. The Council accepted it failed to meet its complaint handling timescales and offered Mrs X £100 for the delay. This is an appropriate remedy in line with the Ombudsman’s guidance.

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Agreed action

47. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X and Y for its delay in issuing Y’s final EHC Plan and the frustration caused by its failure to increase Y’s tuition and its delayed 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 Mrs X the £100 offered in its complaint response, to recognise the avoidable frustration caused by its delayed complaint response.
3. Pay Mrs X £500 to recognise the avoidable frustration and uncertainty caused by failing to offer an increase in Y’s one-to-one tuition from October 2023 to May 2024.
4. Pay Mrs X £600 to recognise the avoidable distress and frustration caused by the delay in assessing Y. This equates to around £100 per month for the six month delay in the Council issuing an EHC Plan for Y.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation and found fault with the Council causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman