Summary: Mrs C complained at the delay in the Council completing an education, care and health needs assessment for her daughter. Also, that it provided insufficient support for her daughter’s education while it assessed her needs. We upheld both parts of the complaint. We found the faults resulted in delay before Mrs C’s daughter received an education, health and care plan and costs to Mrs C in supporting alternative education provision. The Council has accepted these findings. At the end of this statement we set out the action it has agreed to take to remedy this injustice and improve services to avoid a repeat.

The complaint

1. I have called the complainant ‘Mrs C’. She complained about delay in the Council completing an Education, Care and Health needs assessment for her daughter, whom I will call ‘D’. This resulted in a delay in D receiving an Education, Care and Health Plan (EHCP). Mrs C also complained the Council did not pay for alternative education provision arranged for D, provided while she waited for the assessment to complete.
2. Mrs C said as a result D suffered gaps in her education provision and the education she received was not supported by her having an EHCP. Mrs C said she also incurred expenses, as for several months she paid for half of D’s alternative provision. Further, Mrs C said she felt unsupported by the Council causing her distress.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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

8. Before issuing this decision statement I took account of the following:

• Mrs C’s written complaint to the Ombudsman and any supporting information she provided, including by email and in a telephone conversation;
• correspondence between Mrs C and the Council about the matters covered by this complaint which pre-dated this investigation;
• information provided by the Council in reply to written enquiries;
• any relevant law or Government guidance referred to in the text below;
• relevant Ombudsman guidance including that on remedying complaints.

9. I gave Mrs C and the Council opportunity to comment on a draft version of this decision statement. I considered any comments they made before completing my investigation and issuing this final decision statement.
10. We have an information sharing agreement with the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, I will share my final decision with Ofsted in advance on any publication on our website.

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What I found

Legal Background

Education, Care & Health Plans (EHCPs)

11. A child with special educational needs may have an EHCP which sets out their needs and what arrangements should be made to meet them. The EHCP 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.
12. Statutory guidance contained in the ‘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 EHCPs. The guidance follows the law set out in 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 EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply).

13. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This can include psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

Alternative 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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
16. 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)
17. Non-statutory guidance published by Government (Department for Education School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. This report made several recommendations, including that Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they retain oversight and control and should ensure their duties are properly fulfilled.

Key Facts

D’s School Attendance March 2022 – March 2023

20. D is a child of primary school age, who entered Year 1 of her education in September 2021, attending a mainstream school. During this school year, D began to display a range of challenging behaviours including unsafe behaviour such as running away, physical aggression towards peers and so on. D subsequently received a diagnosis of autism.
21. In March 2022, Mrs C contacted the Council wanting its support in meeting D’s needs. She spoke to its Education Inclusion Service. The Council says it discussed with Mrs C options for D, including the use of its alternative teaching service (ATS) and D going on to a part-time or flexible timetable.
22. Around this time, D began a part-time timetable. She reduced her attendance at school to three afternoons a week. This fell to two afternoons a week in April 2022.
23. The Council appointed an ‘Outcome Co-ordinator’ to D’s case in April 2022. They spoke with both Mrs C and D’s school. The Council says the officer asked D’s school to arrange a ‘Team around the Family meeting’. These are multi-agency meetings involving families and professionals, to discuss how a child can be best supported. At this time D was in education for around 10 hours a week.
24. In May 2022, an Education Psychologist privately instructed by Mrs C, assessed D. They recommended she may benefit from time spent at an alternative provision setting. They recommended a private school around 17 miles from Mrs C’s home which caters for children outside mainstream education. It provides a ‘low demand’ environment. I will refer to this as ‘the alternative provision’.
25. In June 2022 Mrs C enrolled D at the alternative provision setting and she began attending two days a week while maintaining attendance at her mainstream school for two afternoons a week. So, overall D was now receiving around 17 hours a week education.
26. Around the time D began at the private education setting, an advisory teacher from the Council’s ATS assessed D at her mainstream school. They knew D was attending the alternative provision also. They discussed with the school a programme for D’s reintegration. This relied on her continuing to access the alternative provision two days a week.
27. In July 2022 a ‘team around the family’ meeting took place, arranged by the school. The meeting noted that D was better emotionally regulated in the alternative provision setting.
28. From September 2022 onward D continued to attend the alternative provision setting and began increasing her attendance at the mainstream school to three afternoons. The school also put in place a package of measures to try and help D when at school. Overall, D was now receiving around 23 hours a week education.
29. In October 2022 the Council agreed to help the school fund equine therapy for D, to complement its existing provision. Mrs C had first requested this in June 2022.
30. Between June 2022 and February 2023 Mrs C and the mainstream school split the cost of D’s attendance at the alternative provision setting. Each paid £2500 in fees. From February 2023 onward the Council began paying for the provision, now included in D’s EHCP (see below).
31. In September 2022 Mrs C gave up work in order to help support D’s education. This was because of the time D spent at home and also the time taken to transport her to and from the alternative provision. Mrs C paid for those transport costs.

Mrs C’s request for Education, Health and Care needs assessment

32. Mrs C asked for an assessment of D’s education, health and care needs in late May 2022.
33. On 1 July 2022 the Council agreed to the assessment. A few days later it wrote to professionals for advice to inform the assessment. This included its education psychology (EP) service.
34. By mid-August 2022 the Council had received advice from all professional services except the EP service.
35. During Autumn 2022 Mrs C made more than one request the Council fund a private educational psychologist to assess D. This included a suggestion the Council instruct the Educational Psychologist who saw D privately in May 2022.
36. In December 2022 a locum Educational Psychologist assessed D and the Council received their advice mid-month. At the start of January 2023, a panel of council officers met and agreed to provide D with an EHCP. The Council then issued a draft version of the EHCP around a week later.
37. Mrs C commented on the draft two weeks later. It took several more weeks before the Council issued the final EHCP. In total, 43 weeks after Mrs C’s initial request for a needs assessment.
38. While waiting for the needs assessment to complete, in November 2022, Mrs C made a complaint to the Council. It apologised for the delay, explaining the service faced “ongoing and unprecedented demand”. It explained there was a shortage of educational psychologists and that it was doing more to recruit them to join the Council. In the meantime, it engaged the services of locum educational psychologists, such as that which assessed D in December 2022.
39. When Mrs C went on to escalate her complaint in December 2022, the Council said that it did not think it could add to its earlier reply. But apologised again for the delays she experienced.
40. In comments during this investigation the Council has explained it has increased its budget to provide EP services. It continues to use locum educational psychologists while looking to recruit to permanent positions. It says resulting delays in EHCP assessments are reducing. But for the 2022-23 financial year the average waiting time for an educational psychologist assessment was around 21 weeks.
41. Mrs C has said she is disappointed with some of the content of the final EHCP. In particular that it has named a mainstream school for D. Mrs C wants her to attend a specialist school.

My findings

42. I considered each part of Mrs C’s complaint in turn, beginning with the complaint about delay in completing the EHCP assessment.
43. The law is clear, that the Council should complete an EHCP assessment within 20 weeks. It took more than double that time in this case. That was a service failing and so I must record a finding of fault.
44. The main cause of the delay was the wait for an educational psychologist assessment. We recognise there is a nationwide shortage of educational psychologists leading to delays in assessment. So, this matter is partly outside the control of the Council. But we still expect it to do what it can to address the gap in its service. I welcome therefore the steps the Council has taken to try and recruit more educational psychologists on a permanent basis.
45. But I also note some of the delay in this case was not due to waiting for psychological advice. It took the Council nearly the maximum six weeks allowed to agree to assess D’s needs. It took it four weeks to issue the draft EHCP after receiving that advice. It then took several more weeks to issue the final EHCP after receiving Mrs C’s comments on the draft version. None of these delays on their own is especially significant and would not lead to findings of fault. And even if less time had been taken on these occasions, there would still have been an overall significant delay before D received her EHCP. But even so, the Council might reflect on the need to try and reduce delay wherever it can in other parts of the assessment process, for so long as the shortage of educational psychologists will impact assessment timescales.
46. Turning to the injustice caused to Mrs C and D I work on the basis that any child is likely to suffer a detriment to their education when they are without an EHCP to which they are entitled. Because that document will inform the education they receive. So, while the evidence shows D’s school worked to meet her needs while they were under assessment, whatever education she received in this period is likely, on balance, to have been sub-optimal.
47. I note Mrs C is unhappy with some of the content of the final EHCP - in particular, the named education setting. This is not a matter I can take a view on, as Mrs C has the right of appeal to a SEND Tribunal which can adjudicate on this matter. But the right to appeal cannot be engaged until the Council finalises the EHCP. The delay in its production therefore also impacted on Mrs C’s right to appeal, which was delayed by consequence. This too was an injustice.
48. If some of the impact of D not having an EHCP was mitigated, this was because she attended an alternative provision. However, D could not have accessed this to the same extent had not Mrs C paid half its costs between June 2022 and February 2023.
49. Commenting on a draft of this decision the Council said that had it did not commission the alternative provision and did not necessarily support it. But I find the Council’s education service knew D attended the alternative provision from the time she started. There is nothing to suggest it did not think the provision appropriate to complement and / or make up for her limited attendance in mainstream schooling from March 2022. It supported D’s attendance at the alternative provision as part of a plan to gradually re-integrate her at school.
50. Given these factors I considered it fault the Council did not also consider meeting the cost of this provision in full from the outset. It should not have expected Mrs C to fund any of the cost given the alternative provision formed part of D’s education. So, the costs incurred by Mrs C were a further injustice to her.
51. I recognise Mrs C’s efforts to support D have extended beyond the alternative provision fees. She has given up her work and incurred travel expenses to help ensure D attends the alternative provision. I do not consider the Council’s duty extends to recompensing Mrs C for loss of income. This is because I consider some disruption to Mrs C’s working life likely inevitable from the point D could not attend mainstream school full-time. Had other alternative provision been made for D, such as home tuition, this would also have disrupted family life.
52. But the question of Mrs C’s travel costs does require further consideration. The Council has a policy for supporting the costs of education transport for some pupils with special educational needs, which can include a personal travel allowance for parents. This will be in circumstances where a child has an EHCP.
53. D’s alternative provision forms part of her EHCP and the Council began funding this in full, from February 2023 (around six weeks before issue of the final EHCP). I consider given the delay in completing the EHCP, the Council should also have considered funding transport costs from that time.
54. In addition, the delay in D’s EHC needs assessment meant that even in February, completion of her EHCP was running behind schedule. So, any consideration of Mrs C’s entitlement to a personal travel allowance should be further backdated to take account of that delay. The agreed actions below therefore include a commitment from the Council to consider Mrs C’s eligibility to claim a personal travel allowance taking account of the delay.
55. Next, I noted Mrs C’s comments that generally she felt unsupported by the Council’s education service. I could not say the Council took no interest in D’s case once it became aware of her absence from school. It pointed to the involvement of both one of its outcome co-ordinators and an advisory teacher, while D was attending school part-time awaiting completion of the education, health and care needs assessment. There was some liaison with Mrs C and the school to discuss D’s needs and encouragement for planning to return her to full time education.
56. However, I considered these efforts fell short of the expectations placed on the Council by Government, once it becomes aware a child is out of school and not receiving a full-time education. Government guidance makes clear the undesirability of a pupil being on a part-time attendance programme for anything other than a short period of time. The Council knew of D’s situation from March 2022, before any needs assessment began. Yet there was no indication that it undertook any reintegration planning with the school or considered offering any alternative provision at an early stage. It was four months after D went on a part-time timetable before the advisory teacher assessed her. It was five months before a Council representative attended a team around the family meeting to discuss planned re-integration. I considered these delays unacceptable. I also found D only received alternative provision to complement her mainstream attendance because of Mrs C’s determination to support her daughter. The Council was simply not sufficiently engaged in D’s case. This too leads to a finding of fault.
57. This caused Mrs C some additional distress, on top of that inherent in a situation where a child is struggling with their schooling because they have unmet needs. And, in considering the remedy for Mrs C and D’s injustice it is appropriate to consider all of the schooling D missed between March 2022 and March 2023 (not just that she missed while the education, health and care needs assessment was ongoing). Based on figures provided by Mrs C and the Council I calculate D to have received only around 60% of full time education in this time (based on her combined time in mainstream schooling and the alternative provision over the full 12 months). This is relevant to the agreed actions below.
58. Finally, I noted that if D’s EHCP still did not provide for her to have a full time education, that was something Mrs C would need to appeal to the SEND Tribunal. So, this investigation did consider any shortfall in D’s education after issue of the final EHCP.

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Agreed action

59. I welcome the Council has said that it accepts the findings set out above. It has agreed to remedy the injustice caused to Mrs C and D. Within 20 working days of this decision it will:
1. provide an apology to Mrs C accepting the findings of this investigation; this should be in line with our guidance on remedies: Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment of £3000 to Mrs C to reflect D’s loss of education over the 12 months identified above; this payment also covers the distress caused to Mrs C and her loss of appeal rights;
3. make a further payment of £2500 to Mrs C to recompense her for the fees she paid to the alternative provision subject to any receiving any proof of payment it may require (it should make the payment within 20 working days of receiving such proof);
4. consider making a personal travel allowance payment to Mrs C for the cost of transporting D to and from the alternative provision from the date it agreed to fund this in full (February 2023). If successful (or if already in payment) that payment will be backdated to the point when D’s EHCP should have completed; i.e. 20 weeks after Mrs C requested it. In total, allowing for any information requested from Mrs C (see below) the Council’s consideration here should not extend beyond two months.
60. The agreed action at 59b) above takes account of the Ombudsman’s published guidance on remedies. This says that when fault has resulted in a loss of education provision for a child then a payment in recognition of this impact should be between £900 and £2400 a term. I have recommended a figure at the lower end of this tariff (£1000 per term) taking account of D’s age and my calculation of the extent of the loss of education set out in paragraph 57 above.
61. The agreed actions at 59c) and d) above allow the Council to request from Mrs C any supporting evidence reasonably required. For example, proof of payment to the alternative provision or completion of a form to claim a personal travel allowance. In the event there is any dispute about the proof required, or the Council decides not to make payment it should put its reasons in writing to Mrs C. She can then return to this office asking us to investigate further in the event she is dissatisfied. There would be no expectation in this instance that the Council consider any grievance via its complaint procedure first.
62. The Council has also agreed to make service improvements as a result of this complaint. I recognise again the efforts it is making to reduce delays in education psychology assessment waiting times and there is nothing further I recommended here. But I considered the Council could learn wider lessons from Mrs C’s experience when it learnt D was missing significant amounts of schooling from March 2022. So, within three months of a decision on this complaint, the Council has agreed to:

• issue advice to all relevant staff that where a pupil is missing some or all of their mainstream schooling but receiving some alternative provision, consideration must be given to who funds this. The starting presumption will be that if the Council supports the alternative provision as being in the interests of the child that it will pay for it, unless it has proposed a suitable alternative.
• issue advice to all relevant staff that where pupils are not receiving full time education for reasons of illness, exclusion or otherwise, that they must give consideration to how the child can return to full-time education in line with Government guidance and our Focus Report ‘Out of School, Out of Sight?’ (unless this is not considered suitable for the child). They must record their thinking and the steps being taken in furtherance of that objective with clear recording of who is responsible for taking action and by when.

63. The Council will provide us with evidence it has complied with the above actions.

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Final decision

64. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs C and D. The Council accepted these findings and agreed action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman