Summary: There was fault and excessive delay in the way the Council carried out an EHC needs assessment. There was fault in failing to provide a child out of school with anxiety with s.19 education. There was fault in failing to secure therapy provision in an Education, Health and Care (EHC) plan. This led to loss of education and distress. The Council will make a financial payment, apologise and make service improvements.

The complaint

1. Mrs X complains on her own behalf and on behalf of her son whom I shall refer to as Y. Y is of secondary school age and has special educational needs (SEN).
2. Mrs X complains the Council:
• Failed to carry out a legally compliant needs assessment for an Education, Health and Care (EHC) plan as it failed to obtain mandatory advice.
• Delayed in completing the EHC needs assessment, issuing a final plan and identifying a suitable school.
• Delayed in putting in place alternative education when Y could not continue to attend school and then did not put in place enough tuition.
3. Mrs X says this had an adverse impact on Y and the whole family:
• Y missed out on education, special educational provision and social interaction due to being out of school for an extended period.
• Y being out of school placed extra stress on the family juggling tuition and employment and providing extra care.
• Mrs X paid for private reports because the Council did not obtain the correct evidence.
4. Mrs X later raised new concerns that provision in the new EHC plan was not in place at Y’s new school.

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The Ombudsman’s role and powers

5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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What I have investigated

9. I have investigated all the matters above addressed in Mrs X’s complaint to the Council.
10. I have also considered Mrs X’s additional complaint that provision in the EHC plan was not in place between April and July 2022. The Council has had an opportunity to respond to this complaint. I have not investigated the period from September 2022, as this postdates the Council’s response to me. If problems continued after July 2022, Mrs X can raise this as a new complaint with the Council.

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How I considered this complaint

11. I have considered information provided by Mrs X and the Council including:
• EHC needs assessment documents
• Draft and final EHC plans
• Correspondence with schools.
12. Complaint documents.
13. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Education Act 1996
• Statutory Guidance on alternative education, children missing from education and children with health needs who cannot attend school.
14. I have considered guidance issued by the Ombudsman:
• Focus reports on special educational needs and Education, Health and Care Plans
• Focus report on support councils should offer to children unable to attend school
• Guidance on Remedies.
15. 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.
16. Mrs X 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

EHC needs assessment

17. A child 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. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.

18. 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 needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
19. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
21. Those consulted have a maximum of six weeks to provide the advice.
22. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
23. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
24. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative education provision

25. 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.
26. 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)
27. ‘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))
28. It is considered that for a child in Years 7 to 10, 24 hours per week constitutes a full-time education. Statutory guidance for children who cannot attend school says that where one to one tuition is provided, the hours of education may be less than in a school, as the education will be more concentrated.

Securing provision in an EHC plan

29. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
30. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Key events

31. The following is a summary of key events pertinent to the complaint issues. It does not include everything that happened.

EHC needs assessment

32. In December 2020 Mrs X made a request for statutory assessment with the support of Y’s school for the Council to consider if Y required an EHC plan.
33. The Council had to decide whether to carry out the assessment within six weeks. The Council asked professionals and the family to provide advice and information to assist it in this decision in January. It then decided to assess. It made this decision within the six week period.
34. In March 2021 the Council sought professional advice as required by SEND Regulation 6(1).
35. Documents provided to me show that it obtained advice, in March, from the paediatrician (who referred to Y attending Child and Adolescent Mental Health Services (CAMHS)) and from social care. In April, the Council received advice from the current education setting.
36. The education advice referred to Y returning to school in early March 2021 after a national ‘lockdown’ due to COVID-19. The school said Y had struggled to engage in online learning during ‘lockdown’ and was anxious and overwhelmed with his workload on return to school.
37. Speech and language therapy (SLT) replied to the Council’s request for advice that as Mrs X was seeking private SLT advice, it had enclosed only the most recent report from October 2020. No updated educational psychology (EP) advice was sought by the Council, although EP interventions from 2019 and September 2020 are on file and so were available to the Council’s SEN team.
38. Mrs X provided private reports from an Occupational Therapist (OT), SLT and EP. Complaint documents show Mrs X provided these to the Council on 22 April. Mrs X says this was within the timeframe provided by the Council for her to submit advice.
39. The Council’s panel considered the case on 21 April, that is before Mrs X’s private reports were received. The panel decided, based on the 2019/2020 EP advice, and other information, that an EHC plan was not required as Y’s needs could be met within the resources of his current mainstream school. Panel refer to there being ‘no information on levels or progress’.
40. The Council issued a decision letter in early May 2021. The decision letter wrongly said the Council had decided not to assess for an EHC plan, rather than decided not to issue a plan. The Council later corrected and apologised for this error.
41. Mrs X’s advocate challenged the decision and complained:
• The Council had failed to obtain mandatory EP advice.
• No information had been provided to show how the school would meet need, for example provision maps or that all provision was currently in place.
• Mrs X’s evidence indicated unmet need and that a full assessment had not been undertaken.
42. Following receipt of this complaint the Council sought further evidence from the school including progress data and costed provision. The Council told Mrs X it was willing to reconsider its decision not to issue a plan based on a ‘further look at the circumstances around our original decision’.
43. The Council reversed its decision in late May and agreed to issue an EHC plan. It then received further advice from CAMHS. It issued the draft plan in August.
44. Mrs X says when she queried why the Council had not got its own reports the Council told her it felt an EP assessment would be ‘too taxing’ for Y due to his anxiety. In June, the Council said it would use Ms X’s reports to write the draft plan.
45. The Council consulted one school in September and further schools in November/December. In January 2022 it issued a final plan naming the current mainstream school as it had not found an alternative. It consulted further schools in February and issued another final plan in February 2022 naming a type of school (specialist), but no specific school and with alternative education to be provided on an interim basis.
46. In March 2022 Mrs X chased a response about her preferred school. There was some negotiation between the school and Council about how all the needs in the EHC plan would be met. In late March 2022 Mrs X requested the Council issue the final plan naming this school or she would pursue judicial review as Y had now been out of formal education for over a year.
47. The Council issued an amended final plan naming the requested school in April.
48. Ms X had a right of appeal in January and February but did not use these. Ms X told me this was because discussions about schools were ongoing and one of the schools being considered was new. Ms X also did not appeal the final plan in April.

Alternative education provision

49. The Council says Y was on roll at his mainstream school until the final amended EHC plan was issued in April 2022.
50. Attendance data for 2020/21 shows sporadic attendance from October 2020 onwards, partly due to COVID-19 but also due to anxiety and ‘school refusal’. Y attended eight days in April and three days in May, and then did not attend school again. In May 2021 CAMHS advised outreach education provision needed to be provided to maintain the regularity of being ‘schooled’.
51. The Council provided interim alternative education via home tuition of ten hours per week from the second week of December 2021, but only for two weeks. After the first week tutors had to work at home due to COVID-19 and worksheets were sent to complete at home. After Christmas 2021 Y received no tuition until Ms X’s advocate intervened. Tuition resumed in the last week of January, termtime only.

Securing provision in an EHC plan

52. During this investigation, the Council confirmed there had been delay in putting in place some of the special educational provision since Y started his new school.
53. I understand although a first plan was issued in January 2022, SLT and OT was not in place until September 2022.

Complaint response

54. The Council’s response to the complaint found:
• It had reversed its decision not to issue a plan when Mrs X provided her private reports, this evidence had not been available when it made its original decision. The Council considered these reports and concluded they showed ‘variations of Y’s level of SEN to those that informed the decision not to issue a draft EHC plan’. It found no fault in its actions.
• The Council said it was prevented from obtaining EP and therapy advice itself because Regulation 6 (4) bars the local authority from seeking advice, including advice from their own services, where such advice is already available, and both parents and the local authority are satisfied that it is sufficient for the purposes of the EHC needs assessment. The local authority considers the EP, SLT and OT advice Ms X commissioned and provided sufficient for the purposes of the EHC needs assessment. The Council understood Mrs X also found this advice sufficient. It found no fault in its actions.
• The Council did not miss the twenty-week time limit to issue a final EHC plan because this was superseded by Regulation 10, that is, a decision not to issue an EHC plan… The Regulations make no provision for a local authority overturning its decision not to issue an EHC Plan when further information is forthcoming, that is, there is no legal framework to prescribe what happens in such instances, and no timescale ascribed to such a process. The Council concluded the EHC needs assessment in May 2021 when it issued its decision not to issue a Plan. It found no fault in its actions.
• The Council accepted it had not issued a draft plan after reversing its decision in a timely way and upheld this part of the complaint in July 2021.
• The Council declined to contribute towards Mrs X’s private reports which she says cost £3000 in total.

Fault

EHC needs assessment

55. The Council failed to obtain mandatory evidence required by Regulation 6(1) from an EP. This was fault.
56. The Regulations also required the Council to seek advice and information from any person requested by the parent or young person, where the council considers it reasonable, and any other advice and information the council considers appropriate for a satisfactory assessment. The Council clearly considered OT and SLT evidence to be necessary as it accepted and relied on Mrs X’s private evidence. It also wrote to its own SLT, who declined to provide an updated report on the basis Mrs X was seeking her own. The Council failed to obtain SLT and OT evidence itself this was fault.
57. The Council has relied on the exception that new evidence is not required where evidence already exists which all parties, including the professional who provided the evidence, considers existing evidence sufficient. The Council says Mrs X had provided her evidence and the Council did not need to seek its own as it regarded this as sufficient. However, the Council also says it did not see this evidence until after it concluded the EHC needs assessment in April by deciding not to issue a plan. The Council cannot therefore have relied on Mrs X’s evidence for the purpose of the EHC needs assessment when making this decision. It was fault for the Council to rely on this exception.
58. I find the Council did not agree which advice it should seek with Mrs X at the start of the EHC needs assessment and did not seek confirmation from the EP and SLT that ‘old’ reports were sufficient. This was fault. The Council should have required SLT and EP to provide updated reports or at least confirm Y’s needs had not changed.
59. However, I also do not find Mrs X obtained her own reports because the Council failed to do so. Mrs X’s experts saw Y between January and March 2021 and so were commissioned before Ms X received the Council’s decision refusing an EHC plan and before she knew it had not carried out a legally compliant EHC needs assessment. I therefore find Mrs X would have paid for private reports in any event.
60. A council should complete an EHC needs assessment and issue a final EHC plan (where appropriate) within a maximum of twenty weeks from the date the request is received. The Council received the request in December 2021 and should have issued a final plan by May 2022.
61. The Council says that by issuing a decision not to issue a plan, and then reversing this decision on receipt of new evidence, this ‘stopped the clock’ and no timescale applied other than a need to complete the process in a timely way.
62. When a council decides not to proceed with an EHC needs assessment or not to issue an EHC plan these are appealable decisions. The Council is correct therefore to say that this ‘stops the clock’ on the assessment timeframe because it ‘starts the clock’ for an appeal. However, where a Council decides to change a decision of its own motion, and the matter does not proceed to appeal, then whether this is to be regarded as part of the original decision-making process (and twenty-week timetable) or ‘re-sets the clock’ is largely a matter of fact. Where the Council changes its mind because of previous maladministration, it is open to the Ombudsman to conclude that a remedy for exceeding the twenty week timetable is merited.
63. In this case I find that the reason the Council did not have sufficient evidence when it made its decision not to issue a plan was due to its own fault. But for the Council’s failure to follow SEND Regulation 6(1) it would have had evidence from an EP and SLT in addition to evidence from the school. The Council should also have sought the evidence from CAMHS (that was referenced in the paediatricians advice) before it made its decision and ensured the school provided more detailed information that included Y’s attainment levels or progress. Records show the evidence available to the Council’s panel was limited.
64. I therefore find that ‘but for’ the Council’s fault Y’s final EHC plan should have been issued within twenty weeks. The final Plan instead took thirteen months and was then revised twice before a school was identified and added to the Plan in April. This was unacceptable delay and was fault. While it obviously took some time to identify a suitable school, the Council started consulting schools too late and then consulted them consecutively rather than concurrently, adding further delay.

Alternative education provision

65. The Council received advice in May 2021 that Y was unable to attend school and alternative education provision under s.19 Education Act 1996 was required. The Council failed to put in place tuition until December 2021, but this was then withdrawn after two weeks and not reinstated until late January 2022. This was fault.
66. The tuition when it was provided was limited to ten hours per week.
67. Ms X did not appeal the final plans of 2022. I find this was reasonable as the parties were continuing to try and agree a school.

Failure to secure provision in an EHC plan

68. The Council failed to put in place some of the special educational provision, including therapy, for two terms. This was fault.

Injustice

69. We aim to remedy personal injustice when our investigations reveal there has been fault that, where possible, puts the affected person back in the situation they would have been in if the fault had not happened. There must be a clear causative link between any fault we find and the personal injustice to the complainant.
70. I do not recommend the Council refund the full cost of Ms X’s reports. She did not commission these because of the fault by the Council, she would have obtained these even if there had been no fault in the EHC needs assessment. I do consider that as the Council failed to obtain mandatory advice from an EP, failed to follow SEND Regulation 6(1) regarding SLT and OT advice and relied on these reports, that a financial payment to acknowledge this fault is merited.
71. Y missed out on s.19 education, which should have been in place from May 2021 and should have been equivalent to full-time. Y also missed out on opportunities with peers.
72. Y missed out on special educational provision and therapy from when the Council failed to implement the first final EHC plan.
73. The EHC plan was issued seven months late. This delayed Ms X’s right to appeal to the SEND Tribunal, however Ms X did not use her appeal rights. It is difficult to say whether, had the EHC plan been issued earlier, Y would have started his new school sooner. I understand the school eventually agreed upon was new. I acknowledge Ms X and Y will always have the uncertainty as to whether, but for the fault, Y would have returned to school earlier.
74. Y being without fulltime suitable education had an impact on the family as a whole. Ms X had a difficult time juggling work and tuition and additional care for Y.
75. The fault caused unnecessary delay, distress and time and trouble to Ms X in bringing the complaint.

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Agreed action

Within four weeks of my final decision

76. The Council will apologise for the faults identified in this decision.
77. The Council will pay Ms X 50% of the cost of her private reports (on receipt of copy invoices provided to it by Ms X). This is to acknowledge it failed to complete a legally compliant EHC needs assessment and failed to seek or agree appropriate advice.
78. The Council will pay Y £4800 to acknowledge the loss of education (s.19 and special educational provision) between May 2021 and July 2022. This takes into account the provision that was put in place.
79. The Council will pay Ms X £1000 to acknowledge the significant impact the delay had on her as a parent carer and the time and trouble she was put to bringing the complaint.

Within two months of my final decision

80. The Council will remind officers / provide update training to ensure:
• Legally compliant EHC needs assessments are always carried out
• The advice to be sought is discussed with parents and professionals, in line with the Code of Practice.
• Where the Council decides advice is not necessary or it is not ‘reasonable’ to obtain advice it provide this decision to parents in writing with reasons at the time.
• S.19 education is provided in a timely way and is suitable and fulltime where appropriate.
81. The Council will ensure it has a mechanism to check special educational provision in an EHC plan is put in place when a new plan is issued.
82. The Council will provide a report to the Ombudsman setting out the steps it has taken in response to these recommendations.

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Final decision

83. I have completed my investigation. There was fault and excessive delay in the way the Council carried out an EHC needs assessment. There was fault in failing to provide a child out of school with anxiety s.19 education. There was fault in failing to secure therapy provision in an EHC plan. This led to loss of education and distress. The complaint is upheld. I am satisfied the agreed actions set out above represent a satisfactory resolution to the complaint.

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Parts of the complaint that I did not investigate

84. I have not investigated events after August 2022.

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Investigator's decision on behalf of the Ombudsman