Summary: Ms X complains the Council failed to issue an Education, Health and Care (EHC) Plan for her child, B, within the statutory timeframe. She also complains the Council failed to provide B with suitable alternative education provision and communicated poorly. We have found the Council at fault for the delay in issuing a final EHC Plan. We have also found the Council at fault for failing to arrange suitable alternative provision for B for periods during the 2020/2021 and 2021/22 academic years. We have made recommendations to remedy the injustice caused. There are parts of Ms X’s complaint that we have not investigated. We explain why in our statement.

The complaint

1. Ms X complains the Council:
1. failed to issue a Education, Health and Care (EHC) Plan for her child, B, within the statutory timeframe;
2. failed to provide suitable alternative education provision; and
3. failed to communicate effectively about this matter.
2. Ms X says the Council’s actions have caused avoidable distress and affected B’s educational attainment.

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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. 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)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information provided by Ms X and discussed the complaint with her.
7. I considered information provided by the Council.
8. Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
9. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

10. 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 tribunal can do this.

Appeal rights

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 assessments and plans

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).

Draft plan arrangements

13. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to:
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014)

Alternative education provision

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. 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.
15. 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)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.

The Hillingdon judgement

18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Principles of Good Administrative Practice

19. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Practice sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
20. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

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What I have and have not investigated

21. Ms X said in her complaint that B disengaged from education in 2020 and 2021. As set out in paragraph 5, we cannot investigate late complaints unless there are good reasons. Ms X brought her complaint to the Ombudsman in November 2022. I have not identified any reason Ms X could not have complained to us sooner about B’s lack of provision in 2020. I have not therefore exercised discretion to consider events from 2020.
22. There were long school closures in 2020 and 2021, affecting all children without an EHC Plan in place. B’s experience seems to have significantly diverged from that of his peers when the schools re-opened, leading Ms X to request the Council issue an EHC Plan. Given these factors, I have not investigated the Council’s actions before April 2021.
23. Part B of Ms X’s complaint is about a lack of alternative provision for B. I have considered events up to the 12 May 2022, the point at which Ms X received her right of appeal against the content of B’s EHC Plan. As set out in paragraph 18, we cannot seek a remedy for lack of education after the date the appeal right has become engaged. This is because the lack of educational provision is inextricably linked to the Council’s decisions about the content of B’s EHC Plan. Ms X appealed against the content of the EHC Plan to the SEND Tribunal.

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What I found

Summary of events

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of each exchange between the parties involved. Where necessary, I have expanded on some of these events in the analysis section of this statement.
25. Ms X’s complaint concerns the education provision for her child, B. B has a diagnosis of Autism Spectrum Disorder (ASD), as well anxiety and OCD.
26. Ms X says B disengaged from learning and education in 2020 and 2021, with attendance to school dropping significantly. B had been unable to attend school during the 2021 academic year due to his anxiety.
27. On 21 June 2021, Ms X asked the Council to carry out an Education, Health and Care (EHC) Plan needs assessment.
28. In September 2021, B was due to start at School Z. The same month, the Council wrote to Ms X to confirm it agreed to provide B with an EHC Plan. Ms X asked the Council whether it could consider naming School X on B’s EHC Plan instead.
29. In November 2021, the Council sent Ms X a draft EHC Plan for B. The draft plan named School Z as the setting for B. Ms X asked the Council to consult with other possible school settings for B, as she felt School Z could not meet his needs. She asked how she could change the setting named on B’s EHC Plan. Ms X also provided the Council with reports from B’s medical practitioners, asking the Council to consider these when finalising B’s EHC Plan.
30. The Council says it sent a copy of B’s final EHC Plan to Ms X on the 11 November 2021. Ms X says she did not receive a copy of the final EHC Plan at this point.
31. In April 2022, Ms X attended an annual review meeting with the Council and School Z. The action points from this meeting were as follows:
1. The Council said it would complete and issue a final EHC Plan, which would provide Ms X with the right of appeal.
2. The Council said it would consult with School X for a place for B once it issued the final EHC Plan.
3. The Council said it would seek to put home tutoring and mentoring in place for B.
4. The Council said it would ask Ms X to provide details of the provision she wanted put in place for B. It also said it would update Ms X regularly and plan support for B until it put alternative provision in place.
5. The Council said it would arrange a further annual review for September 2022.
32. Ms X says she asked the Council in May 2022 to send her B’s final EHC Plan, as she had not received this. On the 12 May 2022, the Council sent Ms X a copy of B’s final EHC Plan, along with a letter telling Ms X about her right of appeal.
33. The Council says it consulted for alternative education provision for B, as well as for places at School X. It says Ms X turned down an offer of alternative education provision for B in July 2022, as she did not believe the provision would meet B’s needs.
34. On the 11 July 2022, Ms X complained to the Council about the time taken to issue the final EHC Plan. She also complained about the lack of alternative education provision in place for B, and the impact on B’s engagement with education.
35. The Council responded to Ms X’s complaint on the 16 August 2022.
36. On the 12 September 2022, Ms X asked the Council to escalate her complaint to stage two of its complaints procedure. She explained why she was dissatisfied with the Council’s first response.
37. On the 19 October 2022, the Council provided its final response to Ms X’s complaint.
38. Ms X appealed to the SEND Tribunal about the Council’s decision to name School Z in B’s final EHC Plan.
39. Ms X brought her complaint to the Ombudsman in November 2022.

Analysis

Complaint the Council failed to issue an EHC Plan within statutory timescales

40. Paragraph 12 sets out the statutory timescales councils must abide by when issuing an EHC Plan. The Council must issue an EHC Plan within 20 weeks of a needs assessment being requested, unless certain specific circumstances apply.
41. Ms X sought an assessment for B on the 21 June 2021. As the Council agreed to issue B with an EHC Plan, it should have issued the plan on or around the 9 November 2021.
42. There is no disagreement about when the Council issued a draft EHC Plan. Ms X has confirmed she received the draft EHC Plan on the 2 November 2021. She responded with comments and questions about the setting named on the plan on the 3 November and 5 November 2021.
43. In its complaint responses to Ms X, the Council asserted it had issued B’s final EHC Plan on the 11 November 2021. It said it also provided a copy of this plan to Ms X on the 12 May 2022. The copy including a cover letter that provided Ms X with a right of appeal. Ms X says the Council did not issue the final EHC Plan in November 2021. She says the first time the Council sent her the plan was on the 12 May 2022.
44. Any delay in the Council issuing an EHC Plan is of consequence, because a right of appeal to the SEND Tribunal only becomes engaged at the point the final plan is issued. A delay in issuing the plan denies parents or guardians a timely right of appeal over the content of the plan. Depending on the content, any delay may also result in a child losing access to special educational provision they would otherwise have received.
45. Based on the evidence I have seen, I am satisfied the Council did not issue the final EHC Plan until the 12 May 2022. I am also satisfied the Council was aware Ms X had not received the plan. I believe this to be the case for the following reasons:
1. Between November 2021 and May 2022, Ms X asked the Council to send her the final EHC Plan on more than one occasion. The Council therefore knew she had not received a copy of the final plan.
2. The minutes of an annual review held in April 2022 confirm the Council had issued a draft EHC Plan for B, but not a final EHC Plan. The actions from this meeting include issuing B’s final EHC Plan, so as to provide Ms X with a right of appeal. This is around five months after the Council suggested it had already issued the final EHC Plan.
3. The Council said it provided a copy of the final EHC Plan to Ms X on the 12 May 2022, having issued the original on the 11 November 2021. However, the final EHC Plan document is dated the 12 May 2022, not the 11 November 2021.
4. In response to my enquiries, the Council told me it had a copy of an email to Ms X with the draft EHC Plan. However, it said it did not have evidence it had sent Ms X the final EHC Plan in November 2021. It said its records showed the task of “completing and issuing” the final EHC Plan was carried out on the 12 May 2022. It said it was possible the plan was not sent before this.
46. Given the above, I have found the Council at fault for not issuing B’s EHC Plan within statutory timescales, delaying by approximately 35 weeks.
47. This fault caused Ms X and B an injustice. Ms X did not receive her right of appeal against the content of B’s EHC Plan when she should have. This delayed her being able to appeal against the provision set out in the plan, causing avoidable distress and frustration.
48. Further, because of the delay in issuing the final EHC Plan, it is likely B missed special educational provision he would otherwise have been entitled to, affecting his educational attainment. I have addressed this injustice elsewhere in this statement.

Complaint the Council failed to provide suitable alternative education for B

49. Paragraphs 14 to 17 set out the Council’s responsibilities for arranging alternative provision. While there is no statutory requirement for when suitable full-time education should begin, other than in cases of exclusion, councils should ensure provision begins as quickly as possible.
50. The guidance says:
• Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
• Councils should address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost. Meeting the child’s needs and providing a good education must be the determining factors.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality, and amount of education as they would receive in a maintained school.
• If a child receives one to one provision, the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
51. Ms X said B had been disengaged from education since 2020, receiving only 30 minutes of tutoring every fortnight by the time she requested an EHC needs assessment. For the reasons set out in paragraphs 21 and 22, I am investigating the period from April 2021 to May 2022.
52. I asked the Council when it became aware B was unable to attend school. The Council said it did not receive any evidence that B was categorically unable to attend school. It referred to documents it had received from medical practitioners in 2020 and 2021, which mentioned B’s difficulty in attending school as part of observations carried out for diagnoses. I have seen no evidence the Council sought to obtain professional views about whether B was able to attend school.
53. In the absence of any other direct evidence, I believe the Council would have known B was not attending school from at least the 21 June 2021. This is when Ms X asked for the Council to assess B for an EHC Plan. At that point, I believe the Council should have considered whether B’s absence from school was authorised and whether it had a section 19 duty towards him.
54. I asked the Council for any evidence it had considered whether it owed B a duty to provide alternative provision under Section 19 of the Education Act 1996, and what its decision was. The Council told me the officers familiar with this could not provide evidence of any consideration or decision-making. The Council said there had been discussions, but it had no notes, records or emails to provide.
55. As set out in paragraphs 19 and 20, the Ombudsman expects Council’s to maintain proper, suitable records, setting out the reasons for its decisions. I have found the Council at fault for not keeping suitable records about its decision-making in this case. I consider the fact that the Council later attempted to source alternative provision for B shows the Council accepted it owed B a section 19 duty.
56. I asked the Council for any evidence showing what steps it had taken to secure suitable alternative provision for B. The Council told me about referrals to providers it made in late May 2022, July 2022, November 2022 and February 2023.
57. Each of these referrals occurred after the Council issued the final EHC Plan, not prior. The evidence available suggests the Council knew B was not attending school from at least June 2021, but did not consider whether it owed him a section 19 duty at any point. In its stage one complaint response, the Council suggested this had been the schools’ responsibility to address, stating:

“I apologise for the time it has taken to put in place a suitable education for B. I am hopeful his current school will have been liaising to support his learning whilst he has been unable to attend school.”

58. However, the law is clear that it is the Council’s responsibility to put suitable arrangements in place. The Council has provided no evidence to show how it considered whether B was receiving suitable education in this period, or that it took any steps to provide B with suitable provision for the period in question. Ms X says B was receiving only 30 minutes of tutoring per fortnight. It is difficult to envisage a scenario where this would constitute the equivalent of a full-time education, or as much education as was suitable for B.
59. I have therefore found the Council at fault for not providing B with suitable education provision between 21 June 2021 and 12 May 2022.
60. I believe this fault caused B an injustice. B was not receiving education suitable for his age, ability and aptitude during this period, affecting his educational attainment. I believe the Council has not adequately addressed this injustice in its response to Ms X’s complaint.

Complaint the Council failed to communicate effectively

61. In its final complaint response, the Council accepted it had communicated poorly with Ms X throughout the process of compiling and issuing an EHC Plan for B. It apologised for this and said it was taking steps to improve communication in general.
62. I recognise the Council accepted fault and I agree with its conclusions. I believe its apology and proposed service improvements provide a partial remedy for the avoidable frustration and uncertainty Ms X experienced. However, given the other findings of fault set out in this statement, I believe the Council has not fully addressed the injustice caused.

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Agreed action

63. The Ombudsman’s published Guidance on Remedies document says where faults in providing alternative provision have resulted in a loss of educational provision, we will usually recommend a remedy payment to acknowledge the impact of that loss. This figure is between £800 and £2,000 per term. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• whether the child was in a key phase of their educational career, such as a transition year or preparing for public exams;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
64. I have had regard to the Guidance on Remedies when making the following recommendations. In particular, I have considered that B was a child with SEN, receiving minimal education, in a period of transition between middle and secondary schools.
65. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind officers of the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
3. Remind officers of the Department of Education statutory guidance which says where medical evidence is not quickly available, the Council should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.
4. Remind officers of the Ombudsman’s Guidance and the importance of keeping proper, suitable records.
5. Pay Ms X £300 in recognition of the avoidable frustration and distress she experienced, because of the Council’s poor communication and the delay in receiving her right of appeal against the content of B’s EHC Plan.
6. Pay Ms X a further £3500 in recognition of the Council’s failure to put in place suitable alternative provision for B between 21 June 2021 and 12 May 2022. This is a figure of £1500 per school term, for two full school terms and approximately one month, or a third of a term, in the period specified.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman