Summary: Ms X complained the Council had not completed an Education, Health and Care Needs Assessment for her daughter and not provided an Education, Health and Care Plan. The Council delayed completing both. This has caused Ms X distress and her daughter to miss out on education. I have recommended a financial remedy.

The complaint

1. Ms X complained the Council has not completed an Education, Health and Care Needs Assessment and provided her daughter, D, with an Education, Health and Care Plan. Ms X says D has not been in school since October 2023 and she is missing out on education. This has also caused distress to the family. Ms X wants the Council to provide D with a Plan and a place in a specialist school.

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The Ombudsman’s role and powers

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

5. I have not investigated the contents of the Education, Health and Care Plan. If Ms X is not happy with this, she has a right of appeal to the Tribunal.

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant legislation and statutory guidance

The Education, Health and Care Needs Assessment and the Education, Health and Care Plan

8. 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. 
9. 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.

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).
11. Those consulted have a maximum of six weeks to provide the advice. 
12. There is a right of appeal to the Tribunal against a council’s decision:
• not to carry out an EHC needs assessment or reassessment.
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative education

13. 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.
14. 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)
15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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))
17. 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)
18. 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’)
19. 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

20. I have summarised below the key events; this is not intended to be a detailed account.
21. Ms X’s daughter, D transferred from mainstream primary school to mainstream secondary school (School) in September 2023.
22. D attended School for the first four weeks. D stopped attending in October 2023.
23. In the middle of October, Ms X asked the Council for an Education, Health and Care Needs Assessment (EHCNA) for her daughter.
24. The School sought High Need Block Funding (HNBF) for D in November. The Council decision-making panel refused and advised the School to use the Emotionally Based School Non-Attendance (EBSNA) pathway.
25. The Council confirmed the result of the EHCNA request in early December. It accepted D had difficulties in school but said she did not have special education needs.
26. Ms X asked for mediation in January 2024. The Council reviewed D’s case in February and agreed to do an EHCNA.
27. The Councils attendance team was first aware D was not attending school in March 2024. The following week it contacted the School to review what support it had put in place.
28. In the middle of May 2024, the Council made a referral to Targeted Provision.
29. The Council sourced a tutor for D by the middle of June. D started with half an hour sessions. The Council increased provision gradually up to two and a half hour lessons. D receives six hours tutoring a week. In conversation with Ms X, she told me this is all D can cope with.
30. The EP provided their report in early October.
31. The Council issued a final EHC Plan in late October and sent a copy to Ms X with a covering letter. The letter explains Ms X can contact the Council if she is not happy with the plan, use the mediation service or appeal to the tribunal. In response to my enquiries, the Council said it has not received an appeal.
32. The Plan named the mainstream School for D with support from the School’s delegated budget topped up from the Council’s HNBF.
33. The Council said the tutoring provision in place for D remains the same. The Council has gradually increased the provision which remains at six hours which is what she can manage.

The complaint

34. Ms X complained to the Council in March 2024. She said D has not received any education since October 2024. She asked the Council to provide alternative provision.
35. Ms X received a stage one response in April and a stage two response in August.
36. In the stage two response, the Council upheld the complaint. The Council apologised for the delay in the EHCNA process. It explained it was waiting for the Educational Psychologist report before it could progress the assessment.
37. The Council said there is an expectation schools will tell the Council of a child’s absence. The Council supports the schools to carry out plans and strategies in the first instance. In this case, the Council advised the School to provide the support through the EBSA pathway. The Council accepted it had missed opportunities to check if the School had done this and provided suitable alternative provision. It said it will consider ways to improve information sharing.
38. The Council apologised and offered Ms X a symbolic remedy of £600 for D’s missed education for the period January to June 2024. The letter explained this did not cover the period from October to December 2023 as the Council advised the School to follow the EBSNA pathway.

Analysis

Delay issuing the Educational Psychologist report and Education, Health and Care Plan

39. The EP should have provided their report within six weeks of the request. From when the Council decided to complete the EHCNA in February, this would be roughly the middle of April. The Council received the EP report at the beginning of October. This is a delay of just over five months. This is service failure.
40. From requesting an EHCNA to issuing the final EHC Plan should take the Council a maximum of 20 weeks. The Council agreed to do an assessment in February. The final EHC Plan should have been issued in June. The Council issued the final EHC Plan in October. This is a delay of roughly 20 weeks. This is fault.
41. Once the Council received the EP report, it issued the Plan within the month. There was no further delay. This shows the delay issuing the EP report caused delay issuing the EHC Plan. This caused Ms X distress as she did not know what the result of the assessment was going to be.

Missed education and the Councils remedy

42. I asked the Council to explain how it calculated the £600 remedy for missed education. It referred to the Ombudsman’s guidance on remedies and explained the guidelines say £900 to £2,400 per term. The Council said it was remedying the period from January to June 2024, which it said was just under one term. It said it took the start date as January as this was when Ms X told it D was not attending School. Before this time, the Council said it expected the School to use the EBSNA pathway. The Council said the end date was June at this was when the tutor started working with D.
43. Statutory guidance says where a child is away from school for 15 days or more, it should ensure there is minimal delay in arranging suitable alternative provision where needed. There is no legal deadline to start provision, but the Council should arrange it as soon as it is clear the child will be absent for more than 15 days. D did not attend School from early October and the School requested HNBF in November. The Council said it advised the School to implement the EBSNA pathway. However, the Council accepted in its complaint response there was a breakdown in communication and a missed opportunity for Council officers to know D was not attending School. Where councils arrange for schools to carry out functions on its behalf, the council remains responsible for services provided and should retain oversight. It should have done more earlier on to ensure D was on the EBSNA pathway or received some form of alternative provision. Failing to do so is fault. The date for starting the remedy payment for missed education should therefore have been earlier than January.
44. The end date for the remedy of missed provision suggested by the Council was June, when it arranged alternative provision for D. While the provision provided from June onwards was not full-time education, the guidance says one-to-one tutoring is more intensive and therefore need not be full time. The Council built the provision up gradually, as D was ready. Ms X told me D could not manage any more. The provision, although not full-time was suitable for D’s needs.
45. The Council offered £600 for missed education for the period January to June 2024 which it said was just under one term. The Ombudsman’s guidance on remedies recommends between £900 and £2,400 per term. The period January to June 2024 is not just under one term, as the Council said, it is just under two terms. The spring term in 2024 started in January and ran to the end of March. The summer term started in the middle of April and ran to the end of July. The Council has miscalculated the remedy it offered in its complaint response. The figure should be at least £900 per full term of missed education.

Summary of fault causing injustice

46. The EP delayed providing their report which caused delay in the Council issuing the EHC Plan. This is fault and caused Ms X distress as she did not know what the result of the assessment was going to be.
47. The Council also failed to provide alternative education for D within an appropriate timeframe. D has missed out on education; this is her injustice.

Remedies already offered by the Council

48. The Council upheld Ms X’s complaint, apologised for the delay in the EHCNA process, and for failing to check the School had implemented the correct pathway and provided alternative provision. It offered Ms X £600 as a financial remedy.
49. In response to my enquiries, the Council said the delay in the EP report was due to a national shortage of EPs. To address this, the Council is restructuring its SEND service, recruiting EPs and using locum EPs as well as streamlining the assessment process and expanding the use of the SEND portal. I do not consider it necessary to make any additional service improvements.

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Agreed Action

50. Within four weeks of the final decision, the Council should:
• Pay Ms X £500 to recognise the uncertainty, avoidable distress and frustration caused by the five-month delay in obtaining advice from an EP.
• Pay Ms X for the benefit of D, £1,800 for missed education. This represents two full terms at £900. D missed the full summer term in 2024. D also missed the equivalent of a full term made up from a few weeks of the winter term in 2023 and just under the full spring term in 2024. (This figure will be reduced by the £600 which the Council has already paid to Ms X).
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman