Summary: Mrs X complains about the Council’s delay in completing the Education Health and Care Plan process when assessing her daughter Y and the failure to make alternative educational provision for her while she was out of school causing distress and impact onto Y’s education. We found there was service failure by the Council due to the delay in carrying out the Education Health and Care Plan Process and have recommended a suitable remedy in this case. We found no evidence of fault by the Council in failing to provide alternative provision as it ensured Y received an educational package while out of school. So, we have completed our investigation.

The complaint

1. I have called the complainant Mrs X. She complains the Council:
• Delayed completing the Education Health and Care Plan (EHC Plan) process when assessing her daughter (Y).
• Failed to make suitable alternative educational provision for Y while she was out of school from January 2022 to July 2022.
• Failed to ensure Y received the provision named in her EHC Plan.
2. Mrs X says this has detrimentally impacted onto Y’s learning and caused distress to Y and the family.

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What I have and have not investigated

3. I have investigated Mrs X’s concerns about the Council’s delay in carrying out the EHC Plan process and the failure to provide alternative provision once Y was out of school in January 2022. I have explained within the text of the statement my reasons for not investigating Mrs X’s concerns about whether the Council is ensuring Y receives the provision set out in the EHC Plan.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent, or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault, and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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

10. I have considered:
• The information provided by Mrs X.
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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 found

Legal and administrative guidance

13. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing Education Health and Care Plans (EHC Plan). The code of practice is based on the Children and Families Act 2014 and the Special Educational Needs Regulations 2014 (SEND regulations). 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; and
• 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.
14. As part of the EHC needs assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist (EP).
15. Those consulted have six weeks to provide the advice.
16. Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC Plan, the local authority must prepare a plan. Where a local authority decides it is necessary to issue an EHC Plan, it must notify the child’s parent or the young person and give the reasons for its decision. The local authority should ensure it allows enough time to prepare the draft plan and complete the remaining steps in the process within the 20-week overall time limit within which it must issue the finalised EHC Plan.
17. A parent or young person can appeal certain decisions about Special Educational Needs to the SEND Tribunal. This includes a council’s decision to refuse to carry out an EHC needs assessment or to refuse to assess. It also includes the Council’s decision to refuse to issue an EHC Plan.
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 submitted 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).

Providing alternative education

19. Under section 19 of the Education Act 1996, councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability, and aptitude, including any special needs.
20. The Council must provide full-time education. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in their interests. (Education Act 1996, subsection 3AA)
21. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
22. The Government’s statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ states the law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. Councils should also review the provision offered regularly to ensure that it continues to be appropriate for the child and that it is providing suitable education.

What happened

23. This section sets out the key events in this case and is not intended to be a detailed chronology.

Background information

24. Y was diagnosed with Autistic Spectrum Disorder (ASD) in 2020 and has anxiety and communication difficulties. The Council refused Mrs X’s request for an EHC Plan needs assessment in October 2020 while Y attended a mainstream primary school. Y moved to a mainstream secondary school in 2021 where it was reported she attended and settled well. Y attended school during the national lockdowns due to the Covid-19 pandemic and enjoyed the smaller groups. Y found it difficult to attend school after the Covid-19 restrictions were lifted and Mrs X requested an EHC Plan needs assessment again in November 2021.
25. Y’s GP signed her off school in December 2021 due to the negative impact onto her mental health. The school advised it felt unable to have Y back at school due to her high levels of dysregulation, number of staff needed to manage her and safeguarding concerns.
26. Council documents record the school, Council and Mrs X agreed Y would not return to school in January 2022. The school put in place a package of education funded by the Council’s Inclusions Service. This was a bespoke package agreed in consultation with Mrs X. It included 2 hours of Maths, 2 hours of English and 1 hour of science lessons a week delivered by tutors. The part time timetable continued to the summer holidays in July 2021. Y was also supported in the community for sessions by an enabler from an Autism support group.
27. In December 2021 the Council agreed to carry out an EHC Plan Needs Assessment. It said it would issue a decision on whether to issue an EHC plan by 2 February 2022 and if it decided to issue a EHC plan it would do so by 20 March 2022.

Events in 2022

28. In March 2022 the Council apologised to Mrs X for delays in the EHC Plan needs assessment due to lack of EP’s to assess and provide advice. It was trying to resolve this, but it would delay the EHC Plan process. Council documents show Y was receiving 5 hours of schoolwork a week and reported she was doing well.
29. The Council apologised to Mrs X again in April 2022 for the continued delay due to lack of EP’s. An EP was allocated to Y in May 2022 and completed a report in June 2022. The report noted Y had verbal communication difficulties connected to ASD but no extra Speech and Language difficulties. The Council decided to issue an EHC Plan for Y on 20 June 2022 and issued the draft EHC Plan on 29 July 2022.
30. The draft EHC Plan noted Y had done well with 1:1 tuition but now preferred to attend school. The draft proposed a bespoke timetable to account for missed learning provided by the school. It would also support Y’s feelings of anxiety around school with a reduced timetable and opportunities to earn in a quieter environment. The timetable would provide for a gradual increase in Y attending lessons and have specialist provision for support through autism groups. The Council consulted with Y’s school and with a specialist setting Mrs X asked for Y to attend.
31. Y’s school responded that it could not meet the provision set out in EHC Plan due to limited space and resources in a full mainstream school. It said it did not have the space if Y could not be reintegrated into lessons.
32. The Council provided the school with extra funding to support its SEN provision and reintegration for Y. So, Y returned to the mainstream school in September 2022 on a reduced timetable with opportunities to learn in a quieter environment. The school arranged for Y to receive English and Maths in a quiet room delivered 1 to 1. The school then added Art and Food Technology and work experience with the school librarian.
33. The Council says the specialist setting delayed in responding to its consultation until October 2022 and this delayed the Council issuing the final EHCP. The specialist setting said it had no space available for Y. On 28 October 2022 Council issued the final EHP Plan naming Y’s setting as a mainstream school and to attend her current school.
34. The Final EHC Plan noted Y saying she was unhappy at school and did not want to attend. Mrs X considered Y’s current school setting was unsuitable with Y unable to cope there. Mrs X reported a steady decline in Y over the two years she attended despite the school’s efforts to put things in place for her. The Council’s view in the final EHC Plan remained that Y should attend a mainstream school on a reduced timetable with support. And then provide a gradual increase in lessons she attended.
35. Mrs X was unhappy with the proposed setting and wanted the Council to put alternative provision in place for Y. The Council and Mrs X mediated over the EHC Plan. Mrs X complained to the Council in December 2022 Y had been without full time education since January 2022, and it failed to provide her with full time alternative provision.
36. The Council responded and apologised for the delay in EHC Plan process due to lack of educational psychologists. It said the school had not told it Y was not attending in January 2022 and the last contact was in March 2022. The school said it was focusing on reintegrating Y into school based on a planned stepped approach and working on her strengths.
37. The Council said Y was on the school roll. As it had not been told of Y’s absence it would expect the school to ensure provision made for her rather than seek alternative provision. The Council said it had a clear process in place to request alternative provision including a form for a consultant overseeing her long-term illness to complete.
38. The Council had not received any application for alternative provision from the school or a medical form. If the Council received a request and form from Y’s consultant, it would consider the information it to see if a lifelong illness prevented her attendance. If this was accepted, the Council would then provide an alternative provision bespoke package.

Events in 2023

39. Mrs X appealed to SEND Tribunal in January 2023 as she wanted Y to attend the specialist provision. The Council and school carried out an early annual review of Y’s EHC Plan in January 2023. The Council issued a decision in March 2023 to maintain the EHC Plan as it was. The Council said it was providing extra funding to support the provision in Y’s EHC Plan and greater engagement in school curriculum offer – which was under the authority and responsibility of the school.

The Council comments on the complaint

40. The Council says its Inclusions Team have had very little contact with Y over the last 12 months. Y is now attending school daily but only after the Council provided £6000 to support to school in the bespoke package for Y. The Council confirmed it also funded reports on clinical psychology, occupational therapy, speech and language and consultant paediatrician in 2022 as part of the needs assessment process. The reports made recommendations where appropriate and there was no suggestion Y should be medically absent from school.
41. The Council confirms schools have access to its Communications and Integration Team for advice which is based on the Autism Education Trust framework. The Council’s OT wrote in March 2022 that Y continued to build up tolerance and work on her continued successes. In March 2023 Y attended school daily in either the morning or afternoon on a reduced timetable for 8 hours (but not in the classroom). The school put two afternoons of alternative provision in place for Y at an autism group. Mrs X says Y receives less provision now as she is struggling to cope with school.

My assessment

Delays in the EHC Plan process

42. Under the code of practice, referred to in paragraph 13 the Council is required to tell parents whether it will complete a needs assessment within six weeks of receiving a request. Mrs X asked for a needs assessment in November 2021. The Council decided it would proceed with the needs assessment in December 2021 which was within the statutory timescales.
43. However, the Council delayed in deciding whether to issue a draft EHC Plan due to a lack of EP’s when carrying out EHC Plan assessments. It is unfortunate that this affected the Council’s ability to carry out its duties which I consider amounts to service failure. The Council has apologised to Mrs X for the delays caused by this service failure and is taking measures to deal with the shortage of EP’s. This is suitable action for it to take.
44. But the delay in responding to Mrs X about whether to issue a draft EHC Plan caused an injustice to Mrs X and Y. This is through distress and uncertainty over whether a plan would be issued. So, I recommend the Council should provide a remedy to Mrs X and Y by making Mrs X a payment of £150 to recognise the distress and uncertainty caused by the service failure.
45. The Council also delayed in the EHC Plan process from July 2022 when it issued the draft EHC Plan until October 2022 to issue the final EHC Plan. This was due to the specialist school’s delay in responding to the consultation about Y. The delay in the EHC plan process at this point is unfortunate, but I do not consider it is through any fault on the Council’s part.

Failure to provide alternative provision

46. The Council’s documents show it was aware Y would not be returning to school in January 2022. It arranged to fund a bespoke package for her through the Inclusions Service so she could be mentored at home. The package was agreed with Mrs X and the school. So, I am satisfied the Council was ensuring Y was receiving educational provision while she was not attending school. There is no evidence of fault by the Council as it was ensuring Y received educational provision.
47. However, the Council’s response to Mrs X’s complaint in December 2022 says it was unaware Y was not attending school in January 2022. It says it had not received a request from the school for alternative provision. This contradicts the action taken by the Council to fund a bespoke education package for Y.
48. The Council says the school did not complete a medical form for Y. But as Council was aware Y was not attending school it should have been proactive in ensuring the school sent in the correct notification to enable it to provide the bespoke package. This lack of oversight is fault by the Council as it is required to regularly review the provision offered to ensure that it continues to be appropriate for the child and that it is providing suitable education.
49. But I do not consider the lack of oversight has caused an injustice to Mrs X or Y. This is because the Council provided Y with a bespoke package, and it was reported she was doing well with the tuition at home. Once Y returned to school in September 2022, the Council continued to provide additional funding to the school to support her. The evidence provided shows it was unlikely Y could have coped with much more tuition given the difficulties she was experiencing.
50. I do however recommend a service improvement to the Council to ensure it is proactive if it is aware a child is out of school, and it has not received information from the school. The Council should also have a system in place to keep better oversight of children who are receiving a bespoke package of tutoring such as Y to ensure it is regularly reviewed, appropriate and remains suitable.

Ensuring Y received the EHC Plan provision

51. Mrs X remains unhappy about the content of the EHC plan, provision, and proposed setting for Y. Mrs X also raises concerns about Y’s current provision. I cannot consider these issues as Mrs X had the right of appeal about them to the SEND Tribunal. Mrs X has now exercised her right of appeal. As paragraph seven explains we cannot consider a complaint when someone has appealed to the SEND tribunal. So, we cannot consider her current concerns about the EHC Plan provision.

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Agreed action

52. To remedy the injustice caused to Mrs X and Y by the Council’s delay in carrying out the EHC Plan process during January to June 2022 the Council will:
• Pay Mrs X £150 in recognition of the distress and uncertainty caused to her and Y by the Council’s service failure to make a decision on whether to issue an EHC plan within the statutory timescales.
• As a service recommendation the Council should ensure it is proactive if it is aware a child is out of school, and it has not received relevant information from the school. And the Council should have a system in place to keep better oversight of children who are receiving a bespoke package of tutoring such as Y to ensure it is appropriate, regularly reviewed, and remains suitable.
53. The Council should provide us with evidence it has complied with the above actions within a month of my final decision.

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Final decision

54. I am completing my investigation. I have found evidence of service delay by the Council and have recommended a suitable remedy for the injustice caused in this case. There is no evidence of fault by the Council as it ensured Mrs X’s daughter received an educational package while she was out of school.

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Investigator's decision on behalf of the Ombudsman