Summary: We upheld a complaint about delay in issuing Y’s Education, Health and Care Plan. This caused avoidable distress and a loss of education provision. The Council will apologise and make payments for distress and missed education provision.

The complaint

1. Mr X complained the Council delayed completing his son Y’s Education, Health and Care (EHC) needs assessment. He also complained the Council failed to arrange suitable education provision when Y was too unwell to attend school. He said this caused a loss of education for Y and the family avoidable distress.

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The Ombudsman’s role and powers

2. 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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 considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement, I discussed the complaint with Mr X.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

8. On receiving a request for an Education, Health and Care (EHC) needs assessment, a council must determine whether an assessment is necessary. (Children and Families Act 2015, section 36).
9. As part of an EHC needs assessment, councils must gather advice from relevant professionals This includes psychological advice and information from an Educational Psychologist (EP) (SEND Regulations 2014, Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. (SEND Regulations 2014, Regulation 9(1))
10. The council must prepare an EHC plan if, after a needs assessment, it is necessary for special educational provision to be made. (Children and Families Act 2014, Section 37)
11. If the council decides not to issue an EHC plan, it should inform the parent within 16 weeks of the request (SEND Regulations 2104, Regulation 10(1))
12. If a council carries out an EHC needs assessment but refuses to issue an EHC plan and is then ordered by the SEND Tribunal to issue a plan, it must issue a draft plan within 5 weeks and final plan within 11 weeks of the date of the order. (SEND Regulations 2014, Regulation 44(2)(c))
13. 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 2014). 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)
14. 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 ‘the Section 19 duty’ or ‘alternative provision’ (AP).
15. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
16. Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013) says:
• Local authorities should work together with agencies and parents to ensure best outcomes.
• There is no legal deadline to start provision it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one to one), which is intensive, need not be full-time. It also says provision offered must be similar to what is offered in school.
• Once parents have provided evidence from a consultant, councils should not demand further evidence without good reason.

What happened

17. Y has autism and Attention Deficit Hyperactivity Disorder (ADHD). Mr X requested an EHC needs assessment on 7 August 2021 and on 17 September, the Council informed him it had decided to carry one out. On the same day, it requested advice from its Educational Psychology (EP) service. The letter to the EP said the deadline for a reply was 29 October.
18. In the middle of March there was an incident at school. Records indicate Y stopped attending school soon after the incident.
19. On 4 April, Mr X emailed a Council SEND officer. He asked for a meeting to discuss Y’s education. He said Y did not want to attend school, school was not supporting him and he was finding things difficult there. The SEND officer and Mr X spoke and he explained about the incident where Y had gone missing from school for several hours. Mr X said Y hated school and was often sent to the ‘reset’ room and kept getting punished.
20. On 8 April 2022, the EP provided their advice. On 26 April, the Council decided not to issue Y with an EHC plan.
21. On 17 and 26 April, Mr X emailed the SEND officer again. He said Y was refusing to go to school, felt unsafe there and wanted a fresh start. Mr X requested another school placement. He said Y was badly affected by his experiences at school.
22. In May, Mr X emailed the school several times and copied in Council officers. He said Y had extreme anxiety which was preventing him from attending school.
23. The SEND officer noted in their records that the school had marked Y’s absences as unauthorised until the school received a letter from the GP on 17 May.
24. In July, the school emailed Mr X and the SEND officer to say it would record Y’s absences as illness. The school referred Y to the medical needs team saying his attendance was poor, he had not attended school since the end of March and it had authorised his absence following a consultant’s letter. The referral said school had sent Y work packs, offered a part-time timetable and provided a support worker.
25. Officers from the SEND team and medical needs team attended a meeting at school on 18 July. This noted:
• Mr X had appealed the decision not to issue an EHC plan.
• The Council agreed Y met the criteria for Section 19 provision following receipt of a medical report (from a paediatrician, dated 14 July).
• The medical needs team were to deliver core subjects – Maths, English and Science.
• An alternative provider would deliver Geography and History.
26. Mr X appealed the Council’s decision not to issue an EHC plan to the SEND Tribunal. The parties discussed the dispute through mediation and the Council agreed to issue an EHC plan before the hearing. The proceedings ended by a consent order on 8 August.
27. On 8 September, Mr X and the education officer spoke and discussed options. As Y had not been in learning for some time, the best approach was felt to be a gradual start back with core subjects. Parents wanted to add Geography and History when Y was able to manage. Core provision was arranged to start the following week.
28. On 10 October, Mr X asked for provision to be increased in hours to 25.
29. On 11 October, the Council consulted with several schools, including the parental preference.
30. The Council issued Y’s final EHC plan on 3 November. The plan named School B, the parental preference. Mr X told me Y started at School B in November 2022. He is currently in year 9.

The Council’s responses to Mr X’s complaint

31. Mr X complained to the Council in 2022 about the matters I am investigating and other matters and received several responses. I have summarised these below:
• There was a high demand for EHC needs assessments and EP reports for those assessments. The school had access to temporary high needs funding. Any case where the legal timescales had not been met were eligible for this funding while the Council completed the EHC needs assessment.
• In May 2022, the school told council officers it was providing work for Y to do at home, tailored to his needs and had offered a support worker to help Y engage. If he was unhappy with this arrangement, he needed to use the school’s complaints procedure.
• The letter from the paediatrician had the appropriate information to progress the referral for medical provision. The Council usually required evidence from a consultant, in line with national guidance.
• It accepted it did not meet the statutory timescales.
32. The Council told me due to an increase in demand for EHC needs assessments, its EPs did not always complete assessments within the legal timescales. It said it had:
• Recruited five more EPs in 2022 (four started in September and a fifth in December)
• Recruited Assistant Psychologists to support EPs
• Used agency EPs
• Streamlined EP report writing processes to improve efficiency.

Was there fault and if so did this cause injustice?

The Council delayed completing Y’s Education, Health and Care (EHC) needs assessment.

33. The Council should have completed the EHC needs assessment and told Mr X it had decided not to issue Y with an EHC plan within 16 weeks of Mr X’s request for an assessment, so by 27 November 2021. It did not inform him until 26 April 2022. This was a delay of five moths and was fault.
34. There was a delay in provision of the EP advice which should have been available by 29 October 2021 and was not available until 8 April 2022. A delay of five and a half months which was also fault.
35. The delays caused a delay in appeal rights and avoidable distress and frustration.

The Council failed to arrange suitable education provision when Y was too unwell to attend school

36. Mr X made the Council aware in April 2022 that Y was absent from school due to anxiety. Medical evidence from Y’s GP was available in May. There is no evidence the Council considered the GP letter at the time or gave reasons why it was not sufficient to trigger the Section 19 duty on any of the statutory grounds (illness, exclusion or ‘other’ reasons). This failure to consider GP evidence and explain to Y’s parents was fault. But I cannot say on balance that proper consideration of the GP letter would have resulted in a decision that Y’s absence was for reasons related to health or ‘otherwise’. There is not enough evidence to conclude any injustice flowed from the fault.
37. I note the Council’s usual policy is to require evidence from a consultant which was not available till July. I have no grounds to criticise the Council’s policy because of the case in paragraph 15 which establishes the principle that it is for councils to decide what weight to give medical evidence. And, statutory guidance allows councils to rely on evidence from a consultant when they are considering whether or not a section 19 duty is owed.
38. As soon as the Council received a copy of the paediatrician’s letter in July, it arranged a meeting between officers and the school and set up AP for Y to start in September. This was within 15 days of accepting Y’s condition (anxiety) which meant he was unable to attend school because of ill health. The Council then increased the hours of provision when Mr X asked it to. This was in line with the guidance in paragraph 16 as it was in partnership with the parents.

Did the fault cause injustice?

39. Had the Council acted within the statutory timescales, on a balance of probabilities the appeal process and Y’s final EHC plan naming the preferred parental placement would have been available around June or July 2022. On balance, Y would have been able to start at School B at the start of the school year in September, whereas he did not start until November. This would have been a chance to meet new friends and settle into school at a natural point. However, Y did receive AP from September in some, but not all GCSE subjects.

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Agreed action

40. The Council will, within one month:
• Apologise to Mr X and Y in writing and make a payment of £500 to acknowledge the avoidable distress caused by the delay in issuing Y’s final EHC plan.
• Make an additional payment of £450 to reflect Y’s loss of SEN provision for about half a term.
41. I have not made any recommendations for improvements to service as I am satisfied the Council has taken appropriate steps to address the shortage of EPs which contributed to the delay I have identified.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have upheld a complaint about delay in issuing Y’s Education, Health and Care Plan. This caused avoidable distress and a loss of education provision. The Council needs to apologise and make payments.
44. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman