Summary: Ms Y complained the Council delayed completing her child’s Education, Health and Care needs assessment and issuing an Education Health and Care plan. She also complained the Council failed to make any alternative provision for her child when she was unable to attend school. We have found fault by the Council in failing to complete the assessment and plan within the statutory timescales. We have also found fault by the Council in failing to make alternative provision for the child in the period from March to September 2022, and with its complaint handling. These faults have caused injustice. The Council has agreed to remedy this injustice by apologising to Ms Y, making payments to recognise the impact on the child of the missed education, and to reflect Ms Y’s uncertainty, distress, time and trouble, together with service improvements.

The complaint

1. The complainant, who I am calling Ms Y, complains about the Council’s response to her requests for an Education Health and Care (EHC) needs assessment and alternative provision for her child, who I am calling Z. Ms Y says the Council:

• delayed completing the assessment and issuing an EHC plan; and
• failed to make any alternative provision for Z when it knew she was not able to attend school.

2. Ms Y says these failures have affected her and Z’s well-being and Z missed the education she should have received. She wants the Council to pay financial redress for Z’s missed education and the upset caused.

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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.
4. 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)
5. 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)
6. 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)
7. 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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What I have and have not investigated

Complaint about Z’s education in the period from October 2022 to July 2023

8. 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.
9. 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).
10. I have not investigated that part of Ms Y’s complaint about the Council’s failure to make alternative provision for Z during the period from 30 September 2022 (when the Council issued the final EHC plan giving Ms Y the right to appeal) to July 2023. This is because this issue is inextricably linked, in my view, to Ms Y’s appeal to the SEND Tribunal about the placement named in Z’s plan.

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How I considered this complaint

11. I spoke to Ms Y, read her complaint and the Council’s response to our enquiries, together with all the other information Ms Y and the Council provided about the complaint.
12. I invited Ms Y and the Council to comment on a draft version of this draft decision. I considered their responses before making my final decision.

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What I found

What should have happened

Special Educational Needs

13. A child with special educational needs may have an EHC plan. This sets out the child’s needs and arrangements for meeting them.

Timescales and process for EHC assessments

14. 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.
15. The Code 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 provision

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) We refer to this as section 19 or alternative education provision.
17. 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))
18. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
19. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
20. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

21. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

22. Ms Y and her family moved in 2021. Z started at a new mainstream primary school.
23. In January 2022 Ms Y contacted the Council’s Educational Welfare Service (EWS) with concerns about a lack of support for Z at her new school. Ms Y said Z had additional needs and the new school had not arranged appropriate support. She told EWS she was having a meeting later that month with the school’s family support worker and special educational needs coordinator (SENCO) and her own family support worker.

2022: Ms Y’s request for an EHC needs assessment for Z

24. On 18 February Ms Y asked the Council to carry out an EHC assessment for Z. The Council acknowledged the request on 23 February. It confirmed it would make a decision on her request within six weeks.
25. On 23 March, the Council told Ms Y it had decided to carry out an EHC assessment for Z which would be completed by June. The Council asked for advice for the assessment from an Educational Psychologist (EP), Z’s school, and social care and health professionals.
26. In June the Council told Ms Y it had not yet completed the assessment because it was still waiting for the EP’s report. It said it hoped to receive this by August.
27. The Council received the EP’s advice in August.
28. On 31 August the Council told Ms Y it had completed the assessment and had decided to issue an EHC plan for Z. It sent Ms Y a draft plan for comment.
29. The Council had discussions with Ms Y about Z’s proposed placement. Z was moving from primary to secondary education in September. The Council considered Z’s SEN provision could be delivered in a mainstream school. Ms Y disagreed. She wanted Z to be in a specialist setting.
30. The Council issued Z’s final EHC plan on 30 September. It named a local mainstream secondary school as her placement.

2022: Ms Y’s request for alternative provision for Z

31. In March EWS wrote to Ms Y about its concerns regarding Z’s school attendance.
32. Ms Y contacted the EWS duty team. She said they were still going through the needs assessment process. Z was not attending school. She found the classroom environment overwhelming, exacerbating her anxiety and the support plan the school had put in place wasn’t working.
33. Ms Y contacted the EWS duty team again in May. She said there was no support at school for Z’s anxiety and sensory difficulties. The duty officer discussed the reduced timetable and phased return offered by the school. Ms Y asked the Council to arrange alternative provision for Z. She said it knew Z had been out of school for more than 15 days now. She was told her request would be referred to a manager.
34. When Ms Y spoke to the Council’s SEN team in June about the delay in completing the needs assessment, the officer asked her about the education provision being made for Z by her school and said they would follow this up.
35. Ms Y also spoke to EWS in June. She complained about Z’s situation. She said Z had been out of school for months now. The school had tried a reduced timetable, which hadn’t worked, and been unable to provide Z with the 1:1 support or the other reasonable adjustments she had requested.

October to December 2022: Z’s educational provision

36. The Council arranged for the mainstream secondary school named in her plan to provide Z with an education and deliver her SEN provision from October.
37. Ms Y was unhappy with this arrangement. She wanted the Council to name a specialist school in Z’s plan.
38. I understand there were difficulties with Z’s attendance at school. In December the school proposed an additional support package including online tuition Z could access from home, work to engage Z through a temporary part-time timetable and a place in the school’s nurture provision.
39. Ms Y appealed to the SEND tribunal in December against the Council’s decision to name a mainstream school for Z.

January to July 2023: Z’s educational provision

40. In January Ms Y asked the Council to arrange private tuition for Z. She was not attending school.
41. Z remained on the school’s roll while the Tribunal process continued.
42. In May the Council decided Z needed provision additional to and different to a mainstream placement as it had not been possible to integrate her into a mainstream placement despite an offer of suitable provision. It told Ms Y it would arrange alternative provision for Z as there was no educational placement currently available to meet Z’s needs.
43. Z was formally registered as receiving alternative provision from 7 June. The Council told her school Z could now be removed from its roll.

July 2023: conclusion of tribunal proceedings

44. The proceedings were concluded by consent. The Tribunal ordered Z would now receive an education otherwise than at school (EOTAS) package until a suitable specialist school could be found for her.

My analysis – was there fault by the Council causing injustice?

Completion of EHC needs assessment and issue of final EHC plan

45. There was no fault in the way the Council made its decision to carry out an assessment for Z. It did this within the statutory six week timescale.
46. But the Council should have then completed the assessment and issued the final EHC plan by 8 July 2022 (within 20 weeks of Ms Y’s assessment request of 18 February). The final plan was not issued until 30 September – 12 weeks outside the required timescale.
47. A Council is required to obtain an EP’s advice as part of the assessment and cannot complete this process until the advice has been received. The Council has explained there was a delay with this, due to issues outside of its control.
48. We appreciate there is a national shortage of EPs. But my view is the Council’s failure to complete the assessment process and issue the plan within the statutory timescale was a failure to provide a service. This service failure is fault.

Impact of the fault

49. This delay in completing the statutory process caused Ms Y uncertainty and frustration.
50. Our remedy for this, as explained in our published guidance on remedies, is generally a payment of £100 for each month outside the statutory timescale until the final plan is issued giving appeal rights. This is a symbolic payment to recognise the uncertainty and frustration the delay caused.

Alternative provision March to September 2022

51. The information seen shows the Council’s EWS team had concerns about Z’s attendance at school in early 2022. The Council knew Ms Y had had meetings with the school to discuss this. The Council was also in process of completing an assessment of Z’s EHC needs. Ms Y told EWS in March, Z was not attending school because she found the environment, and her anxiety about this, too overwhelming, and the school’s support plan had not worked.
52. I consider it should have been clear to the Council by March 2022 that because of Z’s difficulties and anxiety about school, her absence would last for more than 15 days.
53. But although it knew Z was not attending school, and the reasons why, there is no evidence the Council considered Z’s individual circumstances, the action it should take and whether it should provide her with suitable alternative education.
54. Ms Y contacted the Council again in May and June about her concern Z was missing education because she could not attend school. I have not seen any evidence the Council considered Z’s circumstances or Ms Y request for alternative provision.
55. In my view, this failure to do so was fault.

Impact of the failure to consider making alternative provision for Z

56. My view is, by failing to consider Z’s circumstances and deciding what action to take and whether to make alternative provision, the Council also failed to ensure Z was provided with a suitable education.
57. Because of this, Z was not provided with any education for the remainder of the 2021/2022 school year or the start of the 2022/2023 Autumn term, until it issued the plan naming her school at the end of September 2022.
58. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
59. Z was not provided with any education during this period, just before she was due to move up to secondary school. Taking this into account, I consider the payment should be at the top of the scale.
60. The failure also caused Ms Y distress and worry that Z was not receiving any education during this time.

Delays in the Council’s complaint handling

61. I note Ms Y made a formal complaint to the Council in May 2022 about the delays in completing the assessment and lack of alternative provision. The Council acknowledged her complaint but did not provide any substantive response.
62. Ms Y complained again in January 2023. Once again, the Council failed to provide any substantive reply to her complaint.
63. I consider this failure to respond to Ms Y’s complaint was fault. Because of this she was put to the time and trouble of bringing her complaint to us.

Service improvements

64. We issued a decision in June 2023 about a complaint the Council had failed to make alternative provision for another child. We found also found fault with the Council’s complaint handling. The Council agreed, in that case, to review why the complaint procedure was not followed and act to ensure the delay in responding did not happen on future cases.
65. It reported back to us about this review. It said the delays were due to understaffing in its feedback team. It had addressed this by drafting in staff to assist with the backlog and recruiting additional staff so that the feedback team was properly resourced to prevent future delays.
66. The Council also said:

• It was undertaking a comprehensive review and reorganisation of the Education Welfare Service, which included its section 19 duties. This was due to be completed for September 2023;
• At the start of the new term, all employees within the service would receive comprehensive training, which would include section 19; and
• As a part of this reorganisation it was also reviewing all documentation, advice and guidance to ensure that the service was better equipped to work effectively and in a timely manner with children, families and schools where attendance was challenging.

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Agreed action

67. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its delay in completing Z’s EHC needs assessment and issuing the EHC plan, failure to make alternative provision for Z from March to September 2022, and its complaint handling failures:
2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
3. pay Ms Y £280 to reflect the uncertainty and frustration caused by the delay in completing the EHC assessment and issuing the final EHC plan. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
4. pay Ms Y £250 to reflect the worry and distress caused by the failure to provide Z with an education from March to September 2022, and her time and trouble bringing the complaint to us This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
5. pay Ms Y £2,400 for each school term Z did not receive any education from March 2022 to September 2022 (excluding the summer holidays). I have assessed this as being 1.5 school terms totalling £3,600. This is a remedy for Z’s benefit to recognise the injustice the missed education has caused her.
68. Within three months from the date of our final decision, the Council has agreed to report to us on:
1. any action it has taken to address the issues in completing EHC needs assessments within the statutory timescales due to delays in receiving advice from Educational Psychologists;
2. the outcome of the action it proposed to take to address delays in its complaint handling (as set out in paragraphs 64 and 65 above); and
3. the outcome of its comprehensive review and reorganisation of the Education Welfare Service, and its section 19 duties (as set out in paragraph 66 above).
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation of this complaint. I have found fault by the Council causing injustice. The Council has agreed to take the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman