Summary: Mrs X complains the Council took double the time allowed to issue the EHCP for her daughter, who lost out on a year of education provision during this time. We find fault with the Council for failing to adhere to statutory timescales, failing to communicate properly with Mrs X, and giving incorrect information in its complaint response. We have suggested remedies for the injustice caused.

The complaint

1. Mrs X complains the Council took a year to issue the EHCP for her daughter, who lost out on education provision during this time.
2. She could not contact her team worker for over seven months.
3. Mrs X would like the Council to improve communication and to understand the impact this has had on their 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 an injustice, 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)

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How I considered this complaint

6. I have considered:
• The information provided by Mrs X and in discussion with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. 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

Legal and administrative background

Education, health and care plan

8. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
9. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
10. 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)
11. 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.

Timescales and process for EHC assessment

12. 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.

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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absence for health reasons for more than 15 days.
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. 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))
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Service failure

17. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

18. Mrs X applied for a EHCNA (Education, Health and Care Needs Assessment) in October 2021 when she took her daughter (H) out of school for medical reasons.
19. The Council confirmed it would carry out the EHCNA in November 2021. Mrs X should have had the decision by March 2022 but she had to wait until July for an appointment with an Educational Psychologist (EP).
20. Mrs X made a complaint to the Council in July. She had no contact from the SEND service or her lead worker since February, despite her and the Special Education Needs Coordinator (SENCO) chasing them up.
21. At this point H had been out of education for 10 months, only having an hour a week from March 2022 attending animal therapy sessions.
22. In the stage one complaint response to Mrs X the Council said it was faced with a National shortage of EP’s. It was working hard to minimise delays, including actively seeking to recruit more EP’s and working with other providers to identify added capacity.
23. The Council had also launched a temporary support fund which allowed school to access funding while carrying out the ENCNA. Although H’s school had access to this funding, every alternative provision has been at full capacity.
24. The Council said if H could not attend school because of illness then Mrs X should have applied to the Medical Needs Education and Reintegration Service.
25. This was the first time Mrs X had been signposted to this service.
26. The Council apologised for the lack of communication with the SEND lead worker and said a recent reconfiguration of the SEND service is expected to improve how the service works with families. The Council further apologised for not keeping Mrs X updated with the EHCNA process.
27. Mrs X was unhappy with this response and made a stage two complaint. She said despite the reconfiguration she still has not had communication with her SEND lead worker, and the 10 hours of animal therapy H had does not make up for the 11 months of missed education.
28. In the Council response to the stage two complaint it said the school had registered a Reduced Education Provision Plan for H to provide a support framework to reintegrate her into school. As the school is the recipient of the temporary support fund from the Council, it is the school who would be responsible for arranging and sourcing alternative provision for H.
29. If the Council had met the statutory duty of the 20 week deadline for the EHCNA in March, the school would have received higher funding. However, the alternative provision would still have been full and unavailable for H.
30. The Council apologised again for the lack of communication from the SEND lead worker, but understand this has improved since Mrs X sent her stage two complaint.
31. In August the Council agreed to issue an EHCP and named a mainstream provision suitable for H. A decision about secondary education will be made at the end of the calendar year and the EHCP regarding the transfer will be complete by February 2023.
32. The Council apologised for the delay and lack of communication but found no fault with the SEND team.
33. Mrs X then brought her complaint to the Ombudsman.

Analysis

34. Mrs X applied for an EHCNA in October 2021 and the Council was on notice she had taken H out of school.
35. The Council should have completed the EHCNA by March 2022, however there was delay and Mrs X did not get the decision until August, during which time H was out of education. This is fault.
36. There is a shortage of EP’s which delayed H’s needs assessment. The lack of capacity in the SEND team also caused delay. We accept the delays caused by the shortage of EP’s was beyond the Council’s control. But the Council’s failure to issue H’s EHCP within the statutory timescales is service failure and fault even though it was caused by external reasons. The Council could have considered commissioning a private EP report sooner than July 2022 to ensure it met the statutory timescales.
37. H was out of education from October 2021. The Council is at fault as it failed to follow its duty under S.19 of the Education Act 1996 to ensure H received suitable education.
38. The Council’s complaint response (quoted at paragraph 29) is wrong. It is the Council’s responsibility to provide services and alternate provision, not the school. This is fault.
39. The final EHCP is dated 23 September 2022.

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Agreed action

40. When recommending a remedy we seek to repair the injustice caused because of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to recognise the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
41. Where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account various factors including the child’s special educational needs and whether any partial provision was made.
42. I recommend that, within one month of the Ombudsman’s final decision, the Council:
• write a personal apology to Mrs X;
• pay Mrs X £150 to recognise her avoidable distress, frustration and uncertainty;
• pay Mrs X £4000 (£500 per month less school holidays) to remedy the failure to provide H with alternative education from October 2021 to July 2022; and
• pay a further £400 for the missed specialist provision (from March – July) referred to in the final EHCP.
43. We have made service improvement recommendations to the Council previously to ensure future EHCNA’s are held on time, and the action required following the review meeting is taken according to statutory timescales. We ask that compliance with our decisions be monitored.
44. I also recommend that, within three months of the Ombudsman’s final decision, the Council should ensure officers know that it is the Council’s responsibility, not the school’s, to provide alternative provision for a child.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I find fault with the Council for failing to adhere to statutory timescales, failing to communicate properly with Mrs X, and giving incorrect information in its complaint response. I have suggested remedies for the injustice caused.

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Investigator's decision on behalf of the Ombudsman