Summary: Ms X complained about delays in the EHC needs assessment process and in issuing an EHC Plan for her daughter. Ms X also complains the Council failed to provide her daughter with a suitable education when she was unable to attend school. We found the delays in the EHC plan process and in issuing a final EHC Plan is fault. As was the failure to provide suitable alternative educational provision. These faults have caused Ms X frustration, distress and uncertainty and have meant that Y has missed out on education. The Council has agreed to apologise to Ms X and Y and make payments to remedy the injustice.

The complaint

1. The complainant, Ms X complained about delays in the EHC needs assessment process and in issuing an EHC Plan for her daughter.
2. Ms X also complains the Council failed to provide her daughter with a suitable education when she was unable to attend school.
3. Ms X says the matter caused her frustration, distress, and uncertainty. She also says the faults caused Y to lose out on education. Ms X has funded additional tuition to supplement her daughter’s education which has caused financial difficulties for the family.

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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 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. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care Plans

9. 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 council can do this.
10. 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:
11. 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.
12. 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.
13. 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.
14. If the council then 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);
15. Councils must give the child's parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

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. 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.
17. 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)
18. 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))
19. 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)

What happened here

20. I have summarised below the key events; this is not intended to be a complete account.

Y’s EHC needs assessment

21. Ms X’s daughter Y attended a small independent school. On 27 November 2023 the school requested an EHC Needs assessment for Y. The Council agreed to carry out an assessment on 20 December 2023. It told Ms X it would decide by 17 March 2024 whether or not to issue an EHC Plan. And if a Plan was needed it would aim to issue this by 14 April 2024.
22. At the end of January 2024 the Council told Ms X it was awaiting an Educational Psychologist’s (EP) assessment for Y, but there was a delay in the EP service. It said the Council’s Inclusion service was working on how Y could be supported with her education while the EHC Plan assessment was completed.
23. Ms X chased the Council for an EP appointment in March 2024 as a decision on whether to issue an EHC Plan was due in less than a week. Ms X also raised concerns that Y was not receiving any education despite the Council’s duty to provide alternative provision. The Council confirmed on 18 March 24 that an EP had been allocated to Y’s case and it expected a report within six to eight weeks.
24. The Council received the EP report on 4 April 2024. On 22 April 2024 the Council told Ms X it aimed to issue a decision within in the next few weeks. It also confirmed Y was not officially registered as a Child Missing Education. Its records showed this status ended on 12 April 2024.
25. The Council then wrote to Ms X on 3 May 2024 agreeing to issue an EHC Plan.
26. The Council issued a draft plan on 25 July 2024 and asked Ms X to confirm her preferred setting. The Council said it would then consult with these settings and Y’s current school. Ms X questioned whether the Council had properly considered Y’s file as she did not have a current school and could not return to the catchment school. Ms X asserted there were no suitable schools in the area and asked for an Education Other Than At School (EOTAS) package.
27. Ms X discussed her concerns with a senior officer in late July 2024, who then wrote confirming their conversation. They explained there were certain processes the Council had to go through to determine a placement when an EHC Plan has been agreed. This includes consulting with the current or nearest mainstream school, a parental choice of school and any other school the Council deems could meet the needs identified in the EHC Plan. Once the educational settings return their consultations the Council will make a decision on placement. If no school can meet needs, then the Council has a duty to provide an education package.
28. The officer said that as Y was going into year 10 and in anticipation of negative consultation responses, the Council would be looking at around 10 hours of educational support to be delivered by personal tutors. They noted Y was already receiving six hours tutoring provided by the inclusion service and that Ms X was paying for an additional two hours science tutoring.
29. Ms X provided her own and Y’s comments on the draft Plan. She did not want the Council to name a school in Y’s EHC Plan. Ms X was concerned mainstream schools were not suitable and there was only one special school in the area, but Y did not meet the criteria for that school. She asked for a personal budget and EOTAS package.
30. The Council issued a final EHC Plan on 28 November 2024. The Plan did not name a school or setting, or the type of setting. The Council then agreed an EOTAS package in December 2024 and sent Ms X paperwork regarding the personal budget in January 2025. It issued an amended Final EHC Plan on 7 February 2025 setting out the EOTAS provision.
31. Mrs X says the Council has backdated the personal budget to the start of the spring term and has agreed to reimburse her the cost of the tutors she employed from the 20 week date until the EHC Plan was finalised.

Alternative provision

32. Y was on roll at an independent school but was unable to attend. The school made a section 19 request for alternative provision on 1 November 2023. Ms X then withdrew Y from school and deregistered her in December 2023. The school had advised her as it could not meet Y needs she should not pay the fees for the next term. Ms X also asked the Council to provide alternative provision.
33. The Council registered Y as a Child Missing in Education (CME) on 13 December 2023.
34. On 16 January 2024 the Council accepted the s19 referral. The Council told Ms X it had accepted the referral as an exceptional case as Y was not on roll at a school. It explained it would usually be the school’s responsibility to organise meetings with the family and professionals to identify the most appropriate plan to support Y. In the absence of a school the Council told Ms X it was exploring the next steps and would invite Ms X to a meeting.
35. Ms X chased the inclusion service for an update in late January 2024. The documentation shows the Council advised that in order to provide s19 provision Y would need to be on roll at a school. The Council also advised Ms X that Y was not eligible for any alternative provision as the EHC Plan was still in the very early stages.
36. Given Y’s previous experiences at school Ms X was unwilling to enrol Y at a local mainstream school.
37. In early February 2024 Ms X enrolled Y at a virtual school so that she would no longer be missing from education. Ms X told the Council the family was currently paying the fees for this, but she would be pursuing the Council for these costs. The Council told Ms X the virtual school was not on the Council’s list of approved providers
38. On 7 February 2024 the Council then told Ms X that as Y was not on roll at a mainstream school it was unable to progress a support package under s19. It confirmed Y was registered as CME and that team would contact Ms X.
39. Ms X was unhappy the Council had not done as it said it would and arranged a meeting to discuss the appropriate provision for Y. She questioned how the Council was following statutory guidance by denying Y alternative provision because she was not on roll at a local school. She also disputed that a child needed an EHC Plan to be eligible for alternative provision. There is no record of the Council’s response.
40. However, an officer contacted Ms X in late March 2024 to discuss arrangements for alternative provision. The Council then arranged on line tuition for four hours a week which began on 15 April 2024. This was increased to six hours a week at the end of April 2024.
41. The SEND team reviewed the alternative provision in June 2024 and noted the tuition was going well. The records show Y asked for more hours with the tutor. The Council offered additional tuition in online classes, but this was not accessible for Y as she require one to one tuition.
42. Ms X arranged for additional one to one tuition, which she funded herself to supplement the provision commissioned by the Council.
43. At a meeting in October 2024 the Council agreed to an addition four hours tuition for geography and maths. In November 2024 the Council checked with the tuition service when the additional hours would be added. The service told the Council that Y had limited availability because of the other tutors she was working with. They had agreed an additional hour of maths and an hour of geography and would build up to more sessions once Y and the tutor had more availability.

Complaints

44. In early July 2024 Ms X made a formal complaint to the Council. She complained the Council had failed to complete the EHC need assessment and issue a Plan within the required 20 week timeframe. And that it had failed to provide Y with a suitable full time education. She asserted there was no justification for providing only six hours provision, and complained she was having to pay for additional hours of tuition. Ms X asked the Council to issue an EHC Plan as soon as possible.
45. The Council responded to Ms X’s complaint on 12 August 2024. It explained the Council’s view was that a young person is best supported in a school environment. The Council’s medical inclusion team will meet a young person’s immediate needs in the best way possible, but always with a view of getting them in a position to engage in a school setting.
46. The Council said its section 19 duty meant it needed to act to provide accessible education when a young person was prevented from accessing school. One to one tuition can be used to provide equivalent to the 25 hours of education outlined in the Education Act. As one to one tuition is a more intensive experience it will generally be offered for shorter periods and take account of the individual’s needs.
47. It noted the Council had agreed to discuss Y’s provision at the next meeting and if agreed will look to increase her access to a tutor. But it would not be able to do this until schools return in September.
48. As Ms X was not satisfied with the Council’s response, she has asked the Ombudsman to investigate her complaints.

Analysis

49. The Council’s failure to complete the EHC assessment in accordance with the statutory timeframes is fault. The whole process should be completed within 20 weeks of the request. In this case the Council took a year. The Council should have issued a final Plan by 14 April 2024 but did not do so until 28 November 2024. Delays of this nature are both concerning and clearly unacceptable.
50. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
51. I also consider the Council was at fault in failing to ensure Y received a suitable education. Councils have a duty to arrange suitable education for a child it knows cannot attend school.
52. The Council was aware Y had not attended school since December 2023. Although it accepted the referral for s19 provision in January 2024, it did not put any provision in place until April 2024. The Council wrongly told Ms X it could only provide s19 provision if Y was on roll at a school and that she was not eligible for alternative provision as the EHC process was only in the early stages. This delay in providing educational provision is fault.
53. Government guidance is clear that all children of compulsory school age are entitled to a full-time education. Full time education is not defined, but it is generally accepted to be between 22 and 25 hours a week depending on the age of the child. However, if the tuition is one to one, fewer hours may be appropriate given the increased intensity of the learning.
54. It is unclear how the Council initially decided four, then six hours a week was appropriate. This, even on a one to one basis, is unlikely to equate to a full time education. There is no evidence Y would not have been able to cope with more tuition. Ms X and Y asked for increase hours of tuition and Ms X ultimately commissioned this herself.
55. Having identified fault I must consider whether this has caused Ms X and Y an injustice. The delay in completing the assessment and in issuing a final EHC Plan caused Ms X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her right of appeal to the SEND tribunal. I consider the Council should make a symbolic payment to recognise the frustration and distress Ms X has experienced.
56. The faults identified also meant Y did not receive suitable education. Y did not receive any education in January 2024. Ms X then enrolled Y in a virtual school for six weeks, but Y struggled to engage. There was then a further month when Y did not receive any education before the Council commissioned one to one tuition. Even then, Y did not receive a full-time education. This is a significant injustice.
57. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. This is to acknowledge the education they have missed and help them to catch up.
58. In this instance I consider a payment of £1000 is appropriate. In considering an appropriate remedy I am mindful that Ms Y mitigated some of the shortfall in Y’s education by commissioning private tuition which the Council has agreed to pay for.
59. Ms X says the Council has offered to pay reimburse the cost of the tutors she employed from the 20 week date until the EHC Plan was finalised. That would be from 14 April 2024. This offer is to be welcomed, however I consider the Council should also reimburse Ms X the cost the virtual school Y was enrolled in. This expense would not have been necessary if the Council provided alternative provision from the outset.
60. The Ombudsman has made recommendations to the Council for service improvements in similar investigations. I do not consider it necessary to make further service improvement recommendations.

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Action

61. The Council has agreed to:
• apologise to Ms X and Y for the distress and anxiety and missed education caused by the faults identified above. 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.
• pay Ms X £1000 in recognition of the education and SEN provision Y has missed. Ms X should use this for Y’s educational benefit as she sees fit.
• reimburse Ms X the cost of the virtual school and all tuition fees incurred to supplement Y’s education between February and December 2024;
• pay Ms X £500 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
62. The Council should take this action within one month of the final decision and provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council has agreed to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman