Summary: Miss Y complains about delays in arranging alternative provision for her child when they stopped attending school in 2022. Miss Y also complains about delays in the Education, Health and Care (EHC) Plan process. We have not investigated the complaint about alternative provision because the matters complained about happened more than one year ago and there is no good reason for us to exercise discretion. In our view there is fault in the second part of Miss Y’s complaint because the Council took too long to issue her child’s EHC plan. The Council has agreed to remedy the injustice caused by fault with the actions listed at the end of this statement.

The complaint

1. Miss Y complains the Council failed to arrange suitable alternative provision for her son when he stopped attending school in 2022. Miss Y says the provision eventually arranged by the Council in July 2022 was not sufficient because it amounted to no more than six hours per week.
2. Miss Y also complains the Council exceeded statutory timescales when issuing her son’s EHC plan.

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

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What I have and have not investigated

7. Miss Y made her first formal complaint to the Council in October 2023 which was 16 months after D stopped attending school. Miss Y received a final complaint response from the Council in January 2024 and complained to the Ombudsman in February 2024. Her complaint refers to 2021 when D had very low attendance and 2022 when D stopped attending school altogether.
8. The law says the Ombudsman should not investigate something which the person affected has been aware of for more than 12 months, unless there is good reason for us to exercise discretion.
9. I have spoken to Miss Y to understand the reasons for the apparent delay in making the complaint. I have also reviewed the available evidence and her response to my draft decision. It is evident that Miss Y raised concerns with the Council from October 2021. If Miss Y felt the Council should have sone more, it was open for Miss Y to complain at that time, or shortly after when D stopped attending school.
10. It is my view that there is no good reason to exercise discretion as there was nothing preventing Miss Y from making a complaint about D’s provision within a year of him not attending school and therefore by May 2023.
11. I have decided to investigate Miss Y’s complains about delays in the EHC process because D received their final EHC plan in April 2024. Miss Y could not have complained about this matter any sooner.

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How I considered this complaint

12. During my investigation I discussed the complaint with Miss Y and considered the information she provided.
13. We made enquiries of the Council and considered its response.
14. I consulted the relevant law and guidance which I have referred to in this statement.
15. Miss Y 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 relevant to the complaint

16. 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. 
17. 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.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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 (unless certain specific circumstances apply);  

Summary of key events relating to Miss Y’s complaint

18. In May 2022 Miss Y’s child, who I will call D, stopped attending secondary school. Prior to this D had very low attendance, at around 19%. Mrs Y asked the Council to assess D for an EHC plan in 2022, but the Council refused.
19. Two months after D stopped attending the school made a referral for D to receive education from the Hospital Education Reintegration Service (HERS) until the end of school Year 8.
20. The Council says the provision covered core subjects: English, Maths, Science and IT. The provision was delivered on a 1:1 basis and each subject covered for 1.5 hours each week.
21. D received a diagnosis of ASD (Autistic Spectrum Disorder) in December 2022.
22. Miss Y made a request for an EHC needs assessment on 20 February 2023. The Council says this is the first time it became aware that D had stopped attending school. It says neither the school nor Miss Y had notified the Council beforehand.
23. The Council agreed to assess D for an EHC plan on 10 March.
24. HERS told the Council in April 2023 that, “[D] has been receiving Education at home with 1:1 teachers in English, Maths and Science” and “[D has] extreme anxiety around school have increasingly impacted [D’s] ability to learn and have led to a significant drop in [D’s] self-esteem and mental health”.
25. In May 2023 HERS recorded “[D] offered a sample tute [sic] lesson for more lessons and wider curriculum, but this was not felt appropriate by the family. HERS could then add SMSC, Humanities and more core subjects this way”.
26. On 28 June the Council completed its assessment and decided that D needed an EHC plan.
27. In addition to the hospital provision, the Council says D had access to other activities and support. The Council says D found it difficult to attend.
28. Miss Y submitted a complaint on 28 October about the provision D had missed and delays in the EHC process.
29. Pending completion of the EHC plan, the Council arranged some additional interim provision in November for D to access in the new year.
30. The Council responded to Miss Y’s complaint on 27 November. In summary the response said:
• D received only partial education since accessing the HERS service.
• HERS stated that D’s access to provision was not a result of any medical evidence but instead was the result of “additional support outside of the service’s normal parameters” and “only where it was possible”.
• When services were offered to D, there is evidence they were not always taken up. This was in part due to D’s ability to engage due to their anxiety.
• On one occasion, D opted to access other provision (Forest School, Football and Gym).
• D was consistently provided with teaching in the core subjects.
• The provision was not sufficient to cater for D as assessments showed D was academically capable of engaging with a larger curriculum.
• It is clear the EHCP process has not taken place within 20 weeks.
• The Council has delayed and provided unclear responses to requests for updates and following a request for Occupational Therapy (OT) assessment.
31. Miss Y complained again at the second and final stage of the Council’s complaints process. It responded in January to apologise to Miss Y for the failures identified during the first stage investigation and offered £150 in recognition of her time and trouble.
32. From February 2024 D had access to online Spanish lessons. The Council says some face-to-face tutoring sessions were also offered to D, but they struggled to engage and continued with online tutoring. In respect of the 15 hours of tutoring, Mrs Y told the Council, “we wont use that to start with but its good to know its there when [D] is ready and for GCSEs”.
33. The Council issued D’s final EHC plan on 22 April. This contains a bespoke package of Education Other than at School (EOTAS) to be funded by a personal budget.

Was there fault causing injustice in the Council’s actions?

34. The Council delayed when issuing D’s final EHC plan. The statutory timescales place a duty on Councils to issue new EHC plans within 20 weeks of the assessment request. In D’s case the deadline was 10 July 2023. The Council issued D’s final EHC plan on 22 April 2024. This amounts to 41 weeks of delay. This caused injustice because D’s full package of EOTAS was provided later than it should have.
35. To remedy that injustice, the Ombudsman can recommend additional provision to be arranged or ask for a symbolic payment if this is not possible or appropriate. Having considered the records, I can see that D received some provision during the 41 weeks of delay. HERS offered to increase the provision in mid-2023 but Miss Y felt it was not appropriate for D at the time.
36. I have compared that provision to his current EHC plan. The plan does not contain full time teaching; instead, D receives around five hours of mentoring per week. This is provided in support of a “gradual” reintegration to full-time education. The mentoring is provided in addition to other provision, such as rock climbing and PC coding. D also receives funding to access GCSE resources.
37. Therefore, in my view, the difference in the quantity of the provision is not significant. Miss Y says D could have accessed more provision from July 2023, but the documents she has provided show that D struggled to increase his timetable. However, it is clear the delay caused D to miss out on some of the specialist provision he now receives for subjects he can engage with. The Council has agreed to provide a symbolic payment in recognition of that delay.

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Agreed action

38. In addition to the apology and £150 already offered to Miss Y, the Council will pay an additional £100 to fully acknowledge her time and trouble. This is also in recognition of the delay in providing her right of appeal.
39. The Council will apologise to D and make a symbolic payment of £500 to acknowledge the distress caused by the delay in making his EOTAS provision available. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
40. The Council will provide us with evidence it has complied with the above actions within four weeks of the final decision.

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Final decision

41. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed in the paragraph above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman