Summary: Miss X complained the Council failed to complete her child, Y’s, Education, Health and Care Needs Assessment within the statutory timescales. Miss X also complains Y did not receive suitable education from November 2022. Miss X says this caused her and her family distress and Y missed education. We have found fault in the Councils actions for delaying completing Y’s Education Health and Care Needs Assessment and for failing to provide Y with education. The Council has agreed to write to Miss X to apologise and pay her a financial payment.

The complaint

1. Miss X complained the Council failed to complete her child, Y’s, Education, Health and Care Needs Assessment (EHCNA) within the statutory timescales. Miss X also complains Y did not receive suitable education from November 2022.
2. Miss X says this caused her and her family distress and Y missed education.

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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 an injustice, 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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(1), 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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What I have and have not investigated

7. I have not considered Miss X’s complaint about suitable education not being received before July 2023. This is because this complaint is late.
8. I have considered Miss X’s complaint about the Council failing to complete Y’s EHCNA within the statutory timescale and missed education from July 2023 onwards.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

11. A child or young person with special educational needs (SEN) may have an 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.
12. The Special Educational Needs and Disability Code of Practice is statutory guidance (the code of practice). It 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 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.
• 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 (unless certain specific circumstances apply).

Alternative Provision

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 provision.
14. 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. In ‘Out of school, out of sight?’ published July 2022 we recommended councils:

• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence, (except for minor issues 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.

What happened

15. The Council received an EHCNA request from Y’s school in early July 2023 and agreed to complete the assessment towards the end of July 2023. Y was also moved to a local pupil referral unit in around September 2023. Miss X says this was supposed to be a 12-week placement but Y remained in this placement for longer.
16. The Council received Speech and Language Therapy (SaLT) advice in October 2023 and then Educational Psychologist (EP) advice in January 2024.
17. Miss X removed Y from the pupil referral unit in February 2024 following an incident which she was unhappy with. Y was recorded as Electively Home Educated (EHE) from February onwards.
18. The Council issued a draft EHC Plan in early March 2024 and a further draft in May 2024. The Council consulted with various settings but none could offer Y a place.
19. Miss X contacted the Council in August 2024 to try and get an update on what was happening with Y’s EHC Plan and then raised a complaint in September 2024. Miss X complained about the delays in completing the EHCNA process and said Y was not receiving any education.
20. The Council emailed Miss X in early October 2024 and said it had not been able to make a decision about naming a placement in Y’s EHC Plan. Miss X responded to say she was not happy with this.
21. The Council took Y’s case to panel in November 2024 and issued a complaint response to Miss X which apologised for the delays and confirmed it had sent consultations to schools.
22. Miss X raised a further complaint with the Council in early December 2024.
23. The Council issued Y’s final EHC Plan in mid-December 2024 and Y started at the school named in the EHC Plan in mid-January 2025.
24. The Council issued a response to Miss X’s complaint in January 2025 and said it had found there had been delays in the EHCNA process due to a delay in receiving EP advice. The Council apologised for this.

Analysis

Education, Health and Care Plans

25. The Council received an EHCNA request for Y in early July 2023 and should have issued an EHC Plan for Y by mid-November 2023. The Council did not issue this until December 2024. This is fault.

There is a delay of over 12 months in issuing the plan. The Council has said the delay was caused by receiving late advice from professionals. However, the Council received the advice in January 2024 and did not issue the plan for around another 10 months.

26. Miss X has been caused distress and worry by the delay in issuing the plan.

Alternative education

27. The Council has said Y was receiving education up until Miss X removed them from the pupil referral unit in February 2024. Miss X says the placement at that unit was supposed to be for 12 weeks, but Y was there for significantly longer.
28. I understand the placement was longer than Miss X had hoped but Y was receiving education until the point Miss X removed them from the placement. I understand Miss X removed Y following an incident she was unhappy with, and Y was then recorded as being Electively Home Educated.
29. Miss X contacted the Council in September 2024 to complain and said in her complaint that Y was not receiving education. At that point, the Council should have been aware that Y was not in receipt of education.
30. I appreciate the Council were trying to source a placement for Y around this time. However, I cannot see it took any further action to provide Y with alternative education whilst this was ongoing.
31. Y did not receive any provision until the EHC Plan was finalised, and they began their new placement in January 2025. This is fault and has caused Miss X distress and Y to miss provision.

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Action

32. Within four weeks of a final decision, the Council should:

• Write to Miss X to apologise to her and Y for the distress caused by the faults identified. 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 Miss X £1,300 to regognise the delay in issuing Y’s EHC Plan. This is calculated at roughly £100 per month.
• Pay Miss X £2,000 to recognise the missed provision between September 2024 and January 2025.

33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman