Summary: There was delay in issuing an Education, Health and Care plan after a needs assessment. And, the Council did not provide alternative provision for a child out of school for 2 terms. The Education, Health and Care plan has now been issued and the Council has proposed to try out some alternative educational provision. This, with a payment for the time the child was out of education and the parents stress, remedies the injustice from the fault.

The complaint

1. The complainant, who I shall call Miss X, complains the Council has taken over 20 weeks to issue an Education, Health and Care (EHC) plan from the date the needs assessment started.
2. Miss X also complains the Council has not provided alternative educational provision for her child, Y, that has not been accessing suitable education for 15 days. Miss X says it has been difficult to provide education at home as she is working and that she wants Y to be able to catch up so she can re-enter the education system.

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The Ombudsman’s role and powers

3. 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)
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 read the papers put in by Miss X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Miss X and the organisation 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

9. Miss X asked the Council to carry out an EHC plan needs assessment on 11 May 2022. Y was in year 7, the first year of secondary school.
10. On 9 August 2022 the Council decided it would issue an EHC plan.
11. Y started a new school in September 2022. The new school was not aware that the Council was going to issue an EHC plan. Y attended school for one hour on 14 September.
12. Miss X complained on 3 November 2022 that she had not received a final EHC plan and asked the Council to finalise the plan.
13. The Council issued the final EHC plan on 23 March 2023. The Council had mistakenly told the Ombudsman that it issued a final plan in February, when it was a draft plan it issued.

EHC plan

14. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. 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.
16. There was delay in issuing the final EHC plan. The plan took 45 weeks to issue, rather than 20 weeks. This delay of 25 weeks was fault.

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Alternative provision

17. 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.
18. 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)
19. Y has been out of school since September 2022, when they started year 8. The Council has said the school place was available, but that ‘Y was struggling to leave the house’. In response to my enquiries the Council said there was no evidence at that time the school could not meet Y’s needs. The Council was also aware that Miss X had asked the school for alternative provision but the school had only seen Y for one hour so were unsure if the provision would meet her needs.
20. Miss X and the school were consulted on the draft EHC plan on 15 September. At this point, the school questioned if it should be the named school as it had not been aware the EHC plan needs assessment was being carried out. So, I do consider the Council would have become aware that Y had been out of education for 2 weeks and not receiving suitable education at this point. The law says the Council must arrange suitable education and once it was aware Y could not attend school it was aware that a placement other than the school was needed.

Conclusion

21. Miss X has explained that she has tried to provide an education for Y at home. But, as she works, this has been difficult.
22. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure is based on the impact on the child and take account of several factors. The delay in issuing the EHC plan delayed Miss X’s right to appeal to the SEND tribunal and Y has been without education for approximately 2 terms. In this case, Y had some education from her parent at home and is described as a capable student. So, I consider a remedy of £1500 per term, a total of £3000 acknowledges the impact of the loss of education and distress caused to Miss X.
23. I note that some alternative provision has now been suggested to the family and they are waiting to trial it.

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Agreed action

24. The Council should apologise to Miss X.
25. The Council should pay £3000 to Miss X.
26. The Council should provide us with evidence it has complied with the above actions within one month of the date of the decision on this complaint.

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Final decision

27. I have completed my investigation of this complaint. There was fault by the Council and the actions above remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman