Summary: Ms X complained the Council delayed assessing her son, C’s, special educational needs following a request in January 2021. There were delays in the assessment. The Council has agreed to apologise and make a payment to recognise the frustration caused to C and his family.

The complaint

1. Ms X complains the Council delayed completing an Education, Health and Care Plan (EHCP) for her son, C, after agreeing to carry out an assessment. She says it did not complete the assessment within the 20 weeks allowed. She says C has been unable to attend school since June 2021 and this has meant the support he needs to return to school has been delayed. She believes her son missed the opportunity to apply for a particular school because of the delay.

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What I have investigated

2. I have investigated Ms X complaint about the Council’s delay in completing an EHCP assessment. The final section of this statement contains reasons for not investigating the rest of the complaint.

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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. 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)
5. 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.

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How I considered this complaint

6. I have considered:
• The information provided by Ms X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Ms X and the Council have had an opportunity to comment on my draft decision.

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What I found

The law and guidance

8. 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.

9. 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. Those consulted have a maximum of six weeks to provide the advice.
10. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. 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

12. In early 2020 C spent some time out of school due to the national lockdown imposed in response to the Covid-19 pandemic. C moved to secondary school in September 2020. Ms X reports he was not able to cope there due to the size and number of students.
13. Due to his difficulties C’s school submitted a request on Ms X’s behalf for an EHCP assessment in January 2021. In March 2021 the Council rejected the request. Ms X promptly responded indicating she intended to appeal. On further consideration in April 2021 the Council accepted the request for an assessment. No appeal action had been taken at this point.
14. The Council contacted an Educational Psychologist for an assessment in late May 2021.
15. In late June 2021 C’s school provided the Council with notes from a meeting that had taken place. These notes indicate C’s attendance had become a concern having dropped to 53%. It stated a referral to the Education Welfare Officer had been made. The actions agreed to help reintegration noted forest schools would be arranged. C started to attend this for three hours a week.
16. In mid-August Ms X notified the Council that C would not be able to return to school in September and asked about educational support.
17. C received counselling from CAMHS which had concluded by October 2021 to assist him with his anxiety.
18. In October 2021 a meeting was held to discuss C’s attendance. The Council discussed a recent CAMHS report which advised on techniques to assist C with his anxieties in school and whether these had been tried. The CAMHS report did not indicate that C was unable to attend school. At this meeting Ms X stated home-schooling would not be suitable. The Council also offered forest schools and mentoring but these were declined.
19. In early November 2021 the Council-arranged Educational Psychologist assessment took place for C EHCP assessment.
20. The Council received the advice in late November 2021 and in mid-December decided to issue C with an EHCP. A final EHCP was issued in late January 2022.
21. In mid-January 2022 the Council discussed alternative education provision options with Ms X.
22. Ms X has appealed the final EHCP issued. The hearing has been postponed until September 2022.

Findings

23. In response to Ms X’s complaint, the Council acknowledged there had been a delay in arranging an Educational Psychologist report. It explained it was experiencing high demand for Educational Psychologist assessments which meant the process was taking longer than it should. The Council explained it was working to reduce the delays and secure more Educational Psychologists.
24. The Council is responsible for ensuring EHCP assessments are completed within the 20-week timescale from the point the assessment is requested. This includes the six-week period to agree to the assessment. The law accepts there are specific circumstances where the assessment can take more than 20 weeks such as if mediation occurs, or a tribunal decision is made.
25. Whilst Ms X said she wanted to appeal no appeal was lodged and mediation did not occur prior to the Council’s amended decision to carry out an assessment. As such the specific circumstances which allows an assessment to take more than 20 weeks do not apply.
26. Ms X requested an assessment in early January 2021 and the final decision was issued in late January 2022. This was 55 weeks after the initial request. I appreciate the Council in its response to the complaint explained there was a delay caused by the unavailability of Educational Psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. Whilst I accept there are reasons for some of the delays, this is fault.
27. But for the fault, I have concluded on the balance of probabilities the Council would have been in a position to issue the EHCP before the end of the summer term in C’s first year of secondary school. As such it is likely C would have begun receiving the provision agreed at this point. However, without the Tribunal’s final decision about the provision that should have been included in C’s EHC plan I cannot say, even on a balance of probabilities, what, if anything, he has missed out on.
28. The delay has also caused Ms X and C avoidable anxiety, uncertainty and frustration. Ms X could have issued her appeal to the SEND Tribunal sooner had the Council not delayed issuing a final EHCP.
29. By the end of the summer term Ms X says C was refusing to attend school as a result of his increasing levels of anxiety. Ms X’s email in August 2021 made it clear the absence was likely to be more than 15 days and as such the Council had a duty to consider alternative provision.
30. The Council has a duty to provide alternative educational provision for a child who is unable to attend school due to exclusion, because of illness or for other reasons it would not receive suitable education with such arrangements being made. Case law has established that if a council has arranged for the provision of education, which is suitable for the child and is reasonably practicable for the child to enjoy, it would not be under a duty to provide alternative suitable education simply because, for one reason or another the child is not taking advantage of it.
31. The Council had obtained medical information on C’s anxiety from CAMHS. This detailed C’s anxiety but did not indicate that he was unable to attend school as a result of his anxiety. The Council offered forest schools and mentoring alongside the schools offer of an individual timetable. Ms X turned these offers down. Given this advice, the provision provided for C in school was suitable for C and reasonably practicable for him to enjoy. There is no fault in the Council’s actions.
32. I am aware that Ms X disagrees that C was capable of attending school. I do not consider there are grounds for the Ombudsman to question the merits of this decision. The documents show the Council considered all information including medical evidence when reaching its decision. There is no evidence of administrative fault.

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Agreed action

33. Within one month the Council has agreed to:

• Apologise to C and Ms X for the injustice caused by the identified faults;
• Pay Ms X £200 to recognise the uncertainty and frustration caused to her and C by the delay in issuing C’s EHC plan.
• Pay Ms X £100 for the injustice arising from her delayed appeal rights.

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Final decision

34. I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Parts of the complaint that I did not investigate

35. I have not investigated Ms X complaint that her son missed a school place or about the loss of provision once the EHCP was issued. Ms X has appealed the EHCP put forward by the Council and is awaiting a tribunal decision. It is therefore not possible to determine the level, if any, of lost provision at this stage.

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Investigator's decision on behalf of the Ombudsman