Summary: Mrs F complained the Council delayed reassessing her son’s education, health and care needs and failed to put alternative provision in place. We found fault. The Council has agreed to make a payment to remedy the injustice caused.

The complaint

1. Mrs F complained the Council:
1. Failed to update her son’s Education, Health and Care plan from February 2020 to April 2024.
2. Delayed reassessing his EHC needs in 2023.
3. Failed to put in place suitable alternative provision since he stopped attending school in May 2023.
2. Mrs F says this has caused her son to miss out on suitable education, affected his mental health and has caused distress affecting the whole family.

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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 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. 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. 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)
7. 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.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. I have not investigated part a) of the complaint. This is because we cannot investigate late complaints unless we decide there are good reasons. My view is that it would have been reasonable for Mrs F to have complained about any failure to issue revised EHC plans at the time.

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How I considered this complaint

11. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• The SEND Code of Practice: 0-25 years (“the Code”)
• Arranging education for children who cannot attend school because of health needs (“the Guidance”)
12. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
15. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
16. Once a council has issued a final plan and given the right of appeal, we cannot investigate matters that could have been appealed except in limited circumstances.

EHC needs re-assessment

17. The Code says councils must conduct a re-assessment of a child or young person’s EHC plan if a request is made by certain people, including the child’s parent (unless it is less than six months since a previous assessment). They must notify the parent of their decision within 15 calendar days of receiving the request.
18. The process for re-assessment is the same as that for a first assessment. Councils must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the council considers appropriate and from any person the child's parent reasonably requests.
19. The council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC plan.
20. Councils must give the child's parent or the young person 15 days to comment on a draft EHC plan. The council then consults with the school(s), allowing 15 days to respond.
21. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan, subject to exemptions including if the school is closed for at least four weeks. However, councils must aim to complete the process as soon as practicable. (SEND Code of Practice, para 9.192)

Alternative educational provision

22. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
23. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
24. 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))
25. 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)
26. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. Councils should review reintegration plans and part-time timetables.
27. When a child refuses to attend school due to anxiety or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
28. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.

What happened

29. I have set out the key events. This is not meant to detail everything that happened.
30. Mrs F’s son, J, has special educational needs. He was attending a school for children with autism (“the School”). An EHC plan had been issued in February 2020 naming the School but no revised plans were subsequently issued. As a result, Mrs F says the EHC plan was significantly out of date. There was an annual review in March 2023 which recommended changes be made to the plan, but the School would continue to be named.
31. J stopped attending school on 5 June 2023; the first week was marked as illness. Mrs F says he had school-based anxiety as his needs were not being met. The School sent work home for J to do. I have not seen evidence that the Council was aware at this stage that J was not attending.
32. On 22 June, Mrs F wrote to the Council asking for a reassessment of J’s EHC needs. The Council needed to decide on this by 7 July.
33. Mrs F also asked for alternative provision to be made as she said J was not able to attend school.
34. J’s GP wrote a letter for the School and Council which said Mrs F had concerns about J absconding from school and his mental health. The GP said there needed “to be a discussion about how his attendance at school can be facilitated and supported.” The School said it could not authorise J’s absence as being due to illness as the GP’s letter did not say J could not attend. It applied to a college as J may be able to attend one day a week.
35. The Council agreed to re-assess J’s EHC needs on 10 July. Any final EHC plan should therefore have been issued by 13 October (14 weeks after the Council should have agreed to re-assess).
36. I have seen no evidence that the Council replied to Mrs F’s request for alternative provision.
37. In September, the School sent the Council a reduced education provision notification with a plan to reintegrate J, including home visits, slow transition and exploring special interests.
38. The college responded to the School and Mrs F. It said that as Mrs F had noted that the current EHC plan was out of date it needed to see the new plan before it could determine if it was able to offer J a place.
39. In October, the Council asked a locum EP to assess J due to delays caused by the national shortage of EPs.
40. On 28 November the Council agreed to fund online learning for J. The School was arranging this but it was not due to start until January 2024.
41. The Council received the EP’s report on 25 January 2024. This had been completed on 27 November 2023 but due to an administrative error it was not sent to the Council’s EHC plan team until after Mrs F had chased.
42. Mrs F complained to the Council on 7 February that there was still no EHC plan and J had had limited access to education as a direct result of his EHC plan being out of date.
43. The Council spoke to the School which advised that there had been problems with J’s reintegration. The online learning had started but Mrs F said it was not appropriate and it had not been successful. The School would instead offer to arrange tuition.
44. The Council responded to Mrs F’s complaint on 21 February. It apologised that no amended EHC plans had been issued since 2020 and for the delay in issuing the final EHC plan. It said this was due to the national shortage of EPs.
45. The Council did not accept that J’s education had been affected by the delay in issuing the EHC plan and said the delay had not prevented provision being made available at school. It said the School was trying to reintegrate him and had adjusted its curriculum and support offer to meet his needs.
46. Mrs F remained dissatisfied and asked for her complaint to be escalated to the next stage as there was still no EHC plan. She said the delay in the plan had meant J had missed out on a place at the college.
47. The School arranged for a mentor to start in March, but this was not successful and a further mentor was arranged for April.
48. The Council issued J’s final EHC plan on 3 April 2024, naming the School. At this point, Mrs F had a right of appeal and requested mediation.
49. The Council’s final complaint response was sent on 24 April. It said the college could have agreed to take J based on the current EHC plan. The Council did not consider J had been without access to education since May 2023 as the School had been adjusting its offering and engaging with the family to support his re-engagement.
50. Following mediation, the Council agreed to put an education of out school package in place and a new EHC plan was issued on 2 September 2024.

My findings

EHC needs assessment

51. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following the Council’s agreement to re-assess J’s EHC needs, it had to progress the assessment so it could issue the final EHC plan within 14 weeks of 7 July, i.e. by 13 October 2023.
52. But EHC plans must include advice from an EP, so it could not be issued until after the private EP report was received on 25 January 2024. There was then further delay until April.
53. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, J’s EHC plan was issued five months late, which is service failure.
54. This caused a delay to Mrs F’s appeal rights and uncertainty about what SEND provision could have been made. My view is that I am not able to say, even on the balance of probabilities, whether the college would have accepted J once it had seen his new EHC plan, so there is also uncertainty here. This is an injustice.
55. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress and uncertainty caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Where EHC plans are delayed due to the shortage of EPs, we usually recommend a payment of £100 for every month of delay.
56. I note the Council is using locum EPs to tackle the shortage and in September 2024, we asked it to produce an action plan in relation to EHC plans, so I make no further service improvement recommendations.

Alternative provision

57. The law is clear that councils must intervene and provide alternative provision under Section 19 if no suitable educational provision has been made by their school, for a child who is missing education through exclusion, illness or otherwise.
58. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. In doing so it should consider any medical evidence and determine whether the education offered is “reasonably available and accessible” to the child.
59. But the statutory guidance makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. We therefore expect councils to consider whether any education arranged by the school is suitable or whether the child could attend the school with support. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child.
60. On the evidence seen, the Council became aware on 22 June 2023 that J had stopped attending the School. I have seen no evidence that it considered at that stage whether alternative provision should be made or that it replied to Mrs F’s request for alternative provision. This is fault.
61. But, on the balance of probabilities, I do not consider that, if it had made a decision, the Council would have decided that the School was not accessible or available to J. This is because the School had a reintegration plan and was sending work home. I consider it likely that the Council would have waited to see whether this reintegration was working before deciding that education was not accessible. It then reviewed the reduced education plan in September. I therefore do not find that J missed out on alternative provision from June to November 2023.
62. But on 28 November the Council agreed to fund online learning as an alternative provision. This was its acceptance that reintegration had not worked and the section 19 duty was now engaged.
63. This online learning was put in place in January 2024, after the Christmas holiday, so there was a delay of about three weeks. Mrs F says it was not suitable but I have seen no evidence of fault in the way the Council approved the provision, so I cannot question it.
64. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of at least £900 per term (approx. £70 per week) to acknowledge the impact of that loss. I have taken into account that J was in an important school year.

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Agreed action

65. Within a month of my final decision, the Council has agreed to pay Mrs F:
• £500 to remedy the uncertainty caused by the delay in issuing the final EHC plan.
• £200 to remedy the delayed opportunity to appeal.
• £300 to remedy three weeks loss of education.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman