Summary: Miss X complained the Council failed to provide her child, Y, with a suitable full-time education when they could not attend school, delayed issuing Y’s Education, Health and Care (EHC) Plan in line with statutory timescales and handled her complaint poorly. The Council was at fault when it delayed issuing Y’s EHC Plan, failed to properly consider the education Y received between mid-February 2023 and mid-June 2024 and delayed responding to Miss X’s complaint. The Council will apologise for the uncertainty this caused Miss X, make a symbolic payment to acknowledge the distress, frustration and uncertainty caused and provide service improvements.

The complaint

1. Miss X complained the Council:
• failed to provide alternative educational provision between summer 2022 and May 2023 when her child, Y could not attend school because of a mental health condition;
• failed to provide Y full-time education with a balanced curriculum between May 2023 and January 2024;
• delayed progressing Y’s Education, Health and Care (EHC) needs assessment which delayed issuing Y’s EHC Plan; and
• had poor complaints handling.
2. Miss X said this all happened at an important stage of Y’s school career and will affect their post 16 setting for September 2024. Miss X said this caused avoidable time and trouble, distress, mental health impacts and a financial burden.

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The Ombudsman’s role and powers

3. 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)
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. 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 in my findings.
6. 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)
7. 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.
8. When considering complaints 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.
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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. As explained in paragraph 4 above we cannot investigate late complaints unless we decide there are good reasons. Miss X complained to the Ombudsman in mid-March 2024 about events starting in May 2022. The complaint is late and there are no good reasons to exercise discretion to investigate events going back to May 2022.
12. In relation to Y’s educational provision I have investigated between mid-February 2023 when the Council was aware Y was not attending school and mid-June 2024 when the Council issued its stage 3 response and Y finished compulsory education.
13. In relation to the delay in issuing Y’s EHC Plan I have investigated between early October 2023 when Miss X requested an EHC needs assessment for Y and late October 2024 when Y’s final EHC Plan was issued. After which Miss X had appeal rights to the SEND tribunal.

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How I considered this complaint

14. I considered:
• the information Miss X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
15. Miss 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

Relevant law and guidance

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. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Timescales and process for EHC assessment with mediation

18. Regulations 42 and 44 of the Special Educational Needs and Disability (SEND) Regulations 2014 sets out the process for carrying out EHC assessments and producing EHC Plans after mediation.
19. It says if the parties have agreed that the Council will carry out an EHC needs assessment: within two weeks the Council must tell the parent/ carer that it is starting it. It must then either let the parent/carer know the Council has decided not to issue an EHC Plan within 10 weeks, or send a finalised EHC Plan within 14 weeks of the mediation agreement. The Council officer attending the mediation should be senior enough to be able to make a decision on the Council’s behalf.
20. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
21. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (SEND code of practice: 0 to 25 years, section 9.47).

Section 19 duty

22. Council’s 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as Section 19 or alternative provision.
23. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013).
24. 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’)
25. 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
26. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

27. 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.

Complaints handling

28. The Council has a three-stage complaints handling process as follows:
• Stage 1 – the Council would try to resolve complaints straight away but if that was not possible would respond within six working days. If it needed more time to investigate the complaint it would let the complainant know and give a date for its response;
• Stage 2 – a senior manager would arrange for the complaint to be investigated and provide a response within 15 working days. If longer was needed to investigate the complaint it would let the complainant know; and
• Stage 3 – the Council’s Corporate Customer Standards Officer would review the complaint and give a written response within 20 working days. If longer was needed it would let the complainant know.

What happened

29. Y has a mental health condition following an incident at a mainstream school, School 1 in 2022. Y started to attend a different mainstream school, School 2 in Summer 2022 in a different Council area. Y attended School 2 for two days but could not enter the school building and did not return because of their school-based anxiety. Y remained on roll at School 2. Y did not have an Education, Health and Care (EHC) Plan at this point.
30. In mid-February 2023 Y’s mother, Miss X contacted the Council about support available for Y’s education. She explained Y was on roll at School 2 but was not attending School 2 and was on the waiting list for Child and Adolescent Mental Health Services (CAMHS). Miss X explained medical professionals said Y was unfit to attend school because of severe trauma. The Council told School 2 to make a referral to its medical tuition provider, Alternative Provision 1.
31. The Council received a referral from School 2 and in May 2023 Y started to attend Alternative Provision 1. Miss X said Y received three hours provision a week at Alternative Provision 1 in core subjects of English Literature, English Language and Maths until the end of the academic year in July 2023. Miss X was concerned Y missed a full-time education, suitable and appropriate learning, in many subject areas.
32. In the Autumn 2023 term Miss X remained concerned Y was not receiving a full-time education and was still only receiving home tutoring in core subjects.
33. In early October 2023 Miss X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y. Miss X said Y was seen by CAMHS and would benefit from an EHC Plan to ensure Y received the correct support to meet their needs as they transitioned to adulthood.
34. In late October 2023 and again in late November 2023 a Council panel decided it would not complete an EHC needs assessment for Y. It sent Alternative Provision 1 a letter in early November 2023 and Miss X a letter in late November 2023 after the panel meetings. The Council explained there was insufficient evidence that Y had or may have special educational needs and Y’s needs related to their health.
35. Miss X complained to the Council in early December 2023 that Y had lost educational provision, had an ongoing inadequate educational package and the impact this had on Y. She was disappointed with the Council’s decision not to assess Y. Miss X requested mediation.
36. Miss X chased the Council for a stage 1 response in late December 2023. The Council apologised for the stage 1 delay and said mediation was the correct approach.
37. Mediation took place in early January 2024. Mediation was attended by the mediator, Miss X, the Council and Alternative Provision 1. It was agreed Alternative Provision 1 would provide the Council with information on the transitional support it provided Y and the current educational support and assistance it was providing Y. It was agreed a panel would review the original EHC needs assessment decisions.
38. In early January 2024 Y started attending Alternative Provision 1 on site on a full-time placement and took GCSE lessons in Maths, English and Biology. Miss X remained concerned Y was not taking a balanced range of subjects.
39. Miss X chased the Council twice for a stage 1 complaint response. In late January 2024 the Council told Miss X it would respond at stage 2 of its complaints procedure.
40. In early February 2024 a Council panel agreed to complete an EHC Plan assessment for Y and told Miss X a day later. A week later the Council sent Miss X a letter explaining the panel’s decision.
41. The Council sent letters to professionals asking for an assessment report, including an educational psychology (EP), CAMHS, School 2 and Alternative Provision 1. It said the reports must be completed by late March 2024.
42. In late February 2024 the Council sent its response to Miss X’s complaint. It apologised for the delayed response. It also apologised for delay after the mediation meeting because of staff absence. Miss X was unhappy with the Council’s response and in mid-March 2024 the Council escalated Miss X’s complaint to stage 3 and said she would receive a response within 20 working days.
43. In mid-April 2024 the Council sent its first stage 3 response to Miss X and apologised for the delay in providing its complaint responses and offered a remedy of £100 to acknowledge the uncertainty and time and trouble caused to her. It accepted the EHC Plan timescales had been missed. It apologised and offered a remedy of a further £100 for the distress caused and a further £100 per month until the EHC Plan was finalised. It said the Council would respond about Y’s educational provision as soon as possible.
44. Three days later Miss X responded and said she was unhappy with the stage 3 response and said she had complained to the Ombudsman.
45. In mid-May 2024 the Council sent Miss X, Y’s draft EHC Plan. Miss X was unhappy Y’s draft EHC Plan had been issued before EP advice had been finalised and said she would not make comments on Y’s draft Plan until EP final comments had been received. In late May 2024 the EP report was completed.
46. In mid-June 2024 a Council Speech and Language Therapy (SALT) officer spoke to Miss X to offer Y a virtual SALT assessment. Miss X said Y would prefer an in-person assessment and she had already paid for an independent SALT assessment for Y. The Council officer said they would consider an in-person SALT assessment and would enquire about an Occupational Therapy (OT) assessment which Miss X said she was also commissioning.
47. In mid-June 2024 the Council sent its final stage 3 response about Y’s part-time timetable from May 2023 and said the Alternative Provider decided what education was appropriate for Y. It accepted it had a monitoring role but relied on Alternative Provision 1 to make the decision about Y’s full-time placement and when it would commence. Miss X remained unhappy with the Council response she met with the Council to discuss it.
48. Miss X provided a copy of the OT report she had commissioned to the Council in July 2024 and asked it to consider it. The Council issued Y’s second draft EHC Plan. Miss X submitted privately commissioned SALT advice to the Council.
49. In early October 2024 the Council emailed Miss X and said the Council had reviewed the content of Miss X’s privately commissioned reports and did not agree with the content. The Council commissioned its own SALT and OT assessments.
50. In late October 2024 the Council issued Y’s final EHC Plan and gave Miss X her appeal rights to the SEND tribunal.

Enquiries

51. In response to my enquiries the Council did not provide any records to show how it reviewed Y’s part-time timetable to ensure it was suitable, or how it monitored this provision while it completed the EHC needs assessment and issued an EHC Plan. It said this was outsourced to Alternative Provision 1 as part of a commissioned contract.
52. The Council said it had reviewed its complaints procedure and changed its process to ensure all verbal communication was followed up with a written outcome.

My findings

53. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
54. Miss X requested mediation on the Council’s decision not to assess Y for an EHC Plan in November 2023, which took place in early January 2024. The Council officer attending the mediation should have been able to make a decision about the Council’s actions at the mediation meeting. The Regulations say once a decision was made that the Council would carry out an EHC needs assessment it had two weeks to tell the parent/carer that it was starting it. However the Council included an additional step and a panel agreed to assess Y. This caused a delay of approximately a week in informing Miss X it agreed to carry out a needs assessment for Y. This short delay did not cause Miss X an injustice.
55. The Regulations also say a decision to issue a final EHC Plan must be issued within 14 weeks of the date of the mediation, so by mid-April 2024. The Council did not issue Y’s final EHC Plan until late October 2024. This was a delay of approximately six months. The delay was fault and caused Miss X distress, frustration and uncertainty, it also delayed her appeal rights. The Council has already apologised and offered Miss X a remedy of £100 for the distress caused and an additional £100 per month until Y’s final EHC Plan was issued. This was an appropriate remedy for Miss X. The Council has also agreed to put in place a service improvement set out in paragraph 62 of this decision.

Y’s education

56. When the Council became aware Y was not attending School 2, and the school requested alternative provision the Council should have considered its section 19 duties to Y, and if it decided it owed a duty it should have considered what education was suitable for Y’s needs. There is no record of how the Council considered its duty, which is fault.
57. The Council then arranged for Y to attend Alternative Provision 1 and so, on the balance of probabilities, it did consider its section 19 duties and decided it owed Y a duty. Arranging Alternative Provision 1 was an appropriate action to take. It should have also considered whether the part-time arrangements were suitable and kept them under review. There are no records the Council considered the suitability of the education Y was receiving or kept the part-time timetable under review. The Council said Alternative Provision 1 was its commissioned provider and did this on its behalf, however the Council should have maintained proper oversight. Its failure to do so caused Miss X uncertainty if Y received an appropriate amount of education between mid-February 2023 and mid-June 2024 when Y finished compulsory education.
58. Miss X had appeal rights to the SEND tribunal about the provision and placement named in Y’s final EHC Plan dated late October 2024. For the reasons set out in paragraph 6, I have not investigated what happened after Miss X appeal rights arose.
59. The Ombudsman has already made recommendations to this Council on two similar cases. It has been asked to provide evidence of a review to its procedures to ensure it considers its section 19 duty as soon as a child is absent from school for 15 days and considers the amount and type of alternative education the child needs while out of school to meet their needs see case 22006285. It has been asked to provide evidence it has reminded relevant officers and managers of the Council’s statutory duties under section 19 of the Education Act 1996 and consider reviewing its policies and procedures to ensure it retains oversight and control for its section 19 duties see case 23016084. However, the Council should also make and store clear and accurate records of its section 19 decision making.

Council complaints handling

60. Miss X complained to the Council in early December 2023. Miss X did not receive a stage 1 complaint response. In late January 2024 the Council said it would respond through its stage 2 process. The stage 2 response was approximately a week late. In mid-March 2024 the Council said it would send a stage 3 response within 20 working days. It did not send the full stage 3 response until mid-June 2024 which was over two months late. The continued response delays were fault and caused Miss X frustration and avoidable time and trouble chasing the Council. The Council has already apologised and offered Miss X £100. This is an appropriate remedy for the injustice caused. The Council has also changed its process to ensure all verbal communication was followed up with a written outcome. The Council will provide evidence of this.
61. The Ombudsman has already made recommendations to this Council on a similar case. It has been asked to provide evidence of a review to its system for monitoring complaints to ensure the Council better tracks their progress, the timeliness of responses and provides regular progress updates to complainants when responses are delayed see case 22006285. On this basis, no further recommendations were needed.

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Agreed action

62. Within one month of the final decision the Council will:
1. pay Miss X a total of £700 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council’s failure to issue Y’s final EHC Plan in line with statutory timescales. This is in line with the Council’s stage 3 response to include £100 and an additional £100 per month between May-October 2024;
2. apologise and pay Miss X £500 to acknowledge the uncertainty caused if Y received appropriate education between mid-February 2023 and mid-June 2024;
3. pay Miss X £100 to acknowledge the frustration and avoidable time and trouble caused by the delayed complaint responses;
4. remind relevant SEND staff of the statutory timescales for issuing final EHC Plans;
5. remind relevant officers and managers to make and store clear and accurate records of section 19 decision making; and
6. provide evidence of its change in complaints handling to ensure all verbal communication is followed up with a written outcome.

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Final decision

63. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman