Summary: Mrs B complained the Council failed to adhere to the statutory timeframes for completing an education, health and care assessment for her son and failed to provide him with access to suitable full-time education. Mrs B says this has impacted her son’s emotional and social wellbeing. We have found the Council at fault. The Council has agreed to apologise, pay a financial remedy and issue the final education health and care Plan.

The complaint

1. Mrs B complained the Council:
• Failed to provide access to suitable, full-time education for her son;
• Failed to adhere to statutory timeframes for completing an education, health and care (EHC) needs assessment for her son.
• Offered to issue a final plan without completing an educational psychology assessment, and;
• Has not communicated in a timely manner throughout the education, health and care plan (EHCP) process.
2. Mrs B says this has worsened her son’s emotionally based school avoidance (EBSA) and impacted his emotional and social wellbeing and academic progress. Mrs B says it has also impacted the family’s mental health and had a negative financial impact.
3. Mrs B would like the Council to complete an educational psychology assessment and issue an EHC Plan for her son, provide her son with access to suitable, full-time education and provide compensation for the provision he has missed.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
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)
7. 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

8. I have not investigated Mrs B complaint the Council offered to finalise the EHC Plan without completing an educational psychology assessment as this could be raised with the SEND (Special Educational Needs and Disabilities) Tribunal. 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.

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How I considered this complaint

9. I discussed the complaint with Mrs B and considered the evidence she provided.
10. I made enquiries of the Council and considered its response.
11. Mrs B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care needs assessments

12. Children 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. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
13. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
14. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

Access to suitable, full-time education

15. 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. 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 education provision.
16. 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)
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 courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
19. The Department for Education (DfE) non-statutory guidance states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020)
20. 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.
21. 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;
22. 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

EHC needs assessment

23. Mrs B submitted a parental request for an assessment of X’s education, health and care needs in October 2023. In accordance with the statutory timeframes for completing an EHC needs assessment and issuing a final plan, the Council should have issued X’s final EHC Plan by mid-March 2024.
24. In May 2024 a professionals meeting took place to discuss X’s case. The meeting was attended by several professionals involved in supporting X and Mrs B. The professionals at this meeting agreed that X needed to be observed in a school environment to progress with the EHC needs assessment and other medical assessments.
25. Due to X being unable to attend school the educational psychology assessment did not take place until August 2024.
26. Following the educational psychology assessment, the Council agreed to issue an EHC Plan for X. The final EHC Plan has not yet been issued.

Section 19 duty

27. In the parental EHC needs assessment application, Mrs B advised the Council X had not been able to attend his school placement for the majority of the term.
28. At the end of November 2023, X’s school provided education advice for the Council. This advice detailed X had been excluded from school for a total of eight days between September and November 2023. It also states X was on a reduced timetable as he was unable to cope with the school environment.
29. The Council told us a suitable plan was put in place for X and his parents chose to remove him from school in March 2024. The evidence suggests X was not able to access full time education from September 2023.
30. According to attendance records, X had missed at least 34 days of school by the end of November 2023. From December 2023 to the end of the summer term in July 2024, X did not attend any school sessions.
31. The Council has told us it did not consider its section 19 duty in relation to X’s access to suitable, full time education as there is no record of X having a medical need.

Correspondence and complaint handling

32. Throughout the EHC needs assessment process Mrs B sent numerous emails to the Council to request updates and ask questions about the process. The Council did not always provide timely responses to these questions.
33. In January 2024 the Council upheld a complaint submitted by Mrs B, agreeing that communication from the SEND team had fallen short of the customer care standards. The Council offered an apology and said it would conduct a review to help improve communication.
34. Mrs B submitted a further complaint to the Council in March 2024. The complaint raised the following issues:
• X had been out of school since September 2023 and prior to this he was on a reduced timetable.
• Actions from a Team Around the Family meeting had not been completed.
• Poor communication from the Council when parents asked questions relating to the EHC needs assessment process.
35. An EHCP co-ordinator responded to Mrs B’s complaint informally and provided answers and next steps to some of the concerns raised. Mrs B requested her complaint be escalated to stage one.
36. A further informal response was provided by a complaints officer which set out the SEND complaints process would only investigate the part of Mrs B’s complaint which related to the delay in completing X’s EHC needs assessment. Mrs B was told to direct her complaint about health services to the NHS. This letter also told Mrs B to send her complaint about X’s access to education to the Council’s corporate complaints procedure. The Council asked Mrs B to confirm if she wished to register a stage one SEND complaint.
37. The Council issued a formal stage one complaint response in early April 2024. This is within the complaints policy timeframe. The stage one SEND complaint response upheld Mrs B complaint and the Council apologised for the delay in completing X’s EHC needs assessment. Mrs B requested her complaint be escalated to stage two.
38. The Council wrote to Mrs B’s three days later. The Council told Mrs B it would not escalate the complaint to stage two as it could not add anything further or achieve anything different to the stage one investigation. The Council told Mrs B she could request a complaint review once the EHC needs assessment was complete and the full extent the delay was known.
39. In response to Mrs B’s complaint about X’s access to suitable, full-time education, the Council wrote to Mrs B in April 2024. The Council advised its inclusion team only accept referrals from schools and can only offer support and intervention to young people attending school. Therefore, X would need to attend school to receive inclusion support.

My findings

EHC needs assessment

40. Due to X not accessing education there was a delay in the Council completing X’s EHC needs assessment and issuing the final EHC Plan. This has caused distress, frustration and uncertainty to X and Mrs B.

Section 19 duty

41. The Council was aware X may not have been able to access suitable, full time education from September 2023, but it failed to take action to consider its section 19 duty.
42. The Council says it did not do this because X did not have a medical need. But the Council’s section 19 duty does not apply only to children with health needs. It also applies to children who cannot attend school because of exclusion or ‘other reasons’.
43. It is not for the Ombudsman to decide whether a child should have received alternative provision. This is for a council to decide. But we expect councils to properly consider whether they have a duty to deliver such provision to a child who is out of school. In X’s case, the Council did not do so.
44. This means I have seen no explanation why, despite evidence which shows he was unable to attend school, X did not receive alternative educational provision.
45. In the absence of such an explanation, I have found fault with the Council. Its failure to deliver alternative provision (or give good reasons why it should not do so) contributed to a significant loss of education for X, who did not receive access to education for almost a full school year. Mrs B and X also likely suffered distress, uncertainty and frustration.

Complaint handling

46. The Council has acknowledged its communication with Mrs B has not met its customer care standards during the EHC needs assessment process. This has caused Mrs B frustration, distress and uncertainty.
47. The Council’s response to Mrs B stage complaint in March 2024 was confusing. Mrs B received two informal responses and asked three times for her complaint to be accepted at stage one of the Councils complaints process. This caused Mrs B frustration, distress and uncertainty.
48. The Council failed to investigate and address Mrs B’s complaint relating to the Council failing to provide X with access to suitable, full time education. This caused Mrs B frustration, distress and uncertainty.

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Agreed action

49. Within one month of the final decision the Council will:
• Apologise to X and Mrs B for the faults identified. 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 its apology.
• Finalise and issue X’s EHC Plan.
• Pay Mrs B £100 for every month of delay in issuing the final EHC Plan. The payment should cover the period from the original statutory deadline, 13 March 2024, up to the date the final plan is issued.
• Pay Mrs B £4500 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to consider its section 19 duty. This is calculated at £1500 per term between September 2023 and July 2024, in line with our guidance on remedies.
• In addition to the above payments, the Council should pay Mrs B £300 to recognise the distress, frustration and uncertainty caused by the faults identified with its communication and complaint handling.
50. Within three months of the final decision the Council will:
• review its process for completing EHC needs assessments for children who are unable to access school and ensure it has a process in place to ensure these children are not further disadvantaged by delays to their EHC needs assessments.
• Provide section 19 training and guidance to its SEND and Inclusion team to ensure all relevant staff are aware of the Council’s section 19 duty and how and when to record section 19 decisions.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman