Summary: The complainant (Miss X) said the Council failed to follow the right process when assessing her daughter’s (Y) Education Health and Care (EHC) needs and issuing her EHC plan. Miss X also complained about the Council’s failure to provide Y with education for many months, its complaint-handling and inadequate communication. We found fault with the Council which caused injustice to Y and Miss X. The Council agreed to apologise and make payments to recognise Y’s loss of provision and Miss X’s distress. The Council also agreed to carry out some staff training and review its processes.

The complaint

1. Miss X says the Council failed to:
• Comply with the statutory timescales when issuing a final EHC plan for Y;
• Follow the correct process during Y’s EHC needs assessment and when issuing her EHC plan;
• Name a school in Y’s EHC plan;
• Provide suitable education to Y since June 2022;
• Communicate with her and properly handle her complaint.
2. Miss X says the Council’s failings caused her and Y distress and anxiety.

Back to top

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 significant injustice, or that could cause injustice to others in the future 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. 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.
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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. I have not investigated the content of Y’s EHC plan. Sections B, F and I can be appealed to the SEND Tribunal and it would be reasonable for Miss X to do so. Miss X reported the Council’s actions after issuing Y’s final EHC plan had prevented her from appealing. The Council amended section I of Y’s EHC plan several times without issuing a new document. Moreover there were delays in obtaining a mediation certificate. I have investigated the Council’s actions when amending Y’s final EHC plan issued in March 2023 and found fault in the process. Despite all the Council’s failings, however, Miss X could have appealed to the SEND Tribunal, even if her appeal would fall outside the statutory timescales.

Back to top

How I considered this complaint

9. I spoke with Miss X and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. I reviewed the Council’s policy ‘Customer Compliments, Comments and Complaints Policy’ issued in April 2021 and referred to our Focus Report ‘Out of school, out of sight?’ issued in July 2022 and amended in August 2023.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative framework

EHC plan process

13. 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.
14. A council can amend an EHC plan without a review or reassessment but it should follow the process for making amendments after a review. (The Special Educational Needs and Disability Regulations 2014 regulation 28)
15. When sending a copy of the final EHC plan to the child’s parent the council must tell them of their right to appeal and the time limits for doing so. (The Special Educational Needs and Disability Regulations 2014 regulation 14(3))

Alternative provision

16. 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.
17. 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)
18. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022 which got updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• Consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending.
• 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, retain oversight and control to ensure your duties are properly fulfilled.

Delivery of special educational provision

19. The council has a duty to secure special educational provision specified in an EHC plan for the child or young person. (Children and Families Act S.42)
20. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Complaint handling

21. According to the Council’s complaint policy the Council will:
• Respond at stage one within twenty working days. If the complaint is more complex the Council will let the complainant know and will set up new timescales for its response.
• Respond at stage two within similar timescales as at stage one. At stage two the complaint will be investigated by an independent, senior manager.

What happened

Background

22. Y is now ten and in her last year of primary education. She is autistic, demand avoidant and experiences separation anxiety.
23. In September 2020 she started attending a junior mainstream school (School 1).
24. In March 2022 School 1 referred Y to the Educational Psychology (EP) service due to concerns about her mental health and well-being.

EHC plan process

25. In mid-September 2022 School 1 asked the Council to carry out Y’s EHC needs assessment.
26. At the beginning of October the Council agreed to carry out an EHC needs assessment for Y. The panel was informed about the decline in Y’s mental health and her inability to access education and learning since June.
27. At the beginning of December School 1 responded to the Council’s request for information as part of Y’s EHC needs assessment. School 1 told the Council Y had not attended any lessons since June 2022 and her academic progress had declined. She was attending School 1 with her mother to do some crafting activities for an hour at a time.
28. The Council decided to issue an EHC plan for Y at the end of December and sent Miss X a draft EHC plan in mid-January 2023.
29. The Council issued Y’s final EHC plan in mid-March 2023. School 1 was named in section I.
30. At the end of March the Council considered a request for a change of placement. The Council agreed Y needed to attend a special school and started consulting with various educational settings.
31. In mid-May the Council agreed to name an independent special secondary school (School 2) in section I of Y’s EHC plan from September 2024. The Council also decided to take Y off School 1’s roll and provide an Education Otherwise than at School (EOTAS) package for Y in the interim period.
32. Once confirmed, the Council included the details of Y’s EOTAS package starting from the beginning of June in section I of her EHC plan dated March 2023.

Y’s education

33. In September 2022 Y started attending School 1 on a part-time timetable. Because of Y’s ongoing difficulties over school attendance, at the beginning of September School 1 made a referral to the social emotional and mental health outreach service (the Outreach Service).
34. At the end of September School 1 introduced an individual support plan for Y. It provided for a gradual re-integration to build up the time Y spent in School 1 and away from Miss X. Y’s sessions at school were meant to last an hour. School 1 intended to review this plan at the beginning of November.
35. In December 2022 Y stopped attending School 1. Y’s attempt to return to School 1 in January 2023 was unsuccessful.
36. At the end of May the Council discussed Y’s education at the provision meeting. The Council agreed to put together an EOTAS package that would gradually increase over the following 15 months. The package would include tutoring, equine provision and yoga sessions.
37. In June and July Y attended yoga sessions funded by School 1 and equine provision funded by the Council. From the end of June until mid-July she received twelve hours of tutoring.
38. Miss X told me Y has been receiving ten hours a week of individual tutoring from the beginning of September 2023. Y’s tutor is a qualified teacher with experience of working with children with special educational needs. Miss X confirmed Y probably could not access more than ten hours of tutoring a week. The Council has also been funding equine provision for Y.

Complaint

39. In the third week of November 2022 the Council responded to Miss X’s complaint:
• apologising for the lack of formal education for Y since June 2022. The Council said the situation was caused by School 1’s difficulties in meeting Y’s needs.
• Confirming it was seeking information from professionals through an EHC needs assessment and would be working closely with School 1 through graduated approach, referring Y also to the Outreach Service.
• Recognising it needed to improve communication and confirming Y’s special educational needs and disabilities (SEND) case officer had informed Miss X the Council agreed to carry out Y’s EHC needs assessment and explained the process.
40. A month later Miss X asked the Council to escalate her complaint, as:
• Y’s SEND case officer left the service and she had not received an alternative contact;
• Y still could not access any education at School 1;
• There were delays within the EHC plan process.
41. Miss X contacted the Council a few times asking for a stage two response to her complaint. She was raising further concerns about the EHC plan process and the Council’s failings to communicate with her.
42. In mid-September the Council told us it was still investigating Miss X’s complaint at stage two.

Analysis

EHC plan process

43. The Council should have issued Y’s final EHC plan within 20 weeks from receiving request for an EHC needs assessment, so by the end of January 2023. This, in fact, happened in mid-March 2023. The delay of six weeks is fault. This delay was not long enough, though, to cause significant injustice to Y and Miss X.
44. After issuing a final EHC plan for Y in mid-March, several times the Council changed its position on the content of section I and amended it. First the Council replaced School 1 with a special school. It then named School 2 for Y from September 2024 and specified an EOTAS package to be provided in the interim. Finally the Council provided details of the EOTAS package. When making amendments the Council failed to follow the right process, explained in paragraph 14 of this decision. The Council should have:
• sent proposed amendments to Miss X for her comments;
• issued amended final EHC plans with correct dates;
• advised Miss X each time of her appeal rights.
45. The Council’s failing to follow the right process when amending Y’s EHC plan is fault. It caused injustice to Miss X. She was confused about the process and the timescales for appealing. She was also uncertain about the Council’s position on Y’s education for longer than necessary.
46. After issuing Y’s final EHC plan in March 2023 Y’s circumstances did not change and there were no new assessments or reports. The Council’s actions suggest it tried to minimalise delays within the EHC plan process whilst it had failed to properly consider professional advice obtained during the EHC needs assessment regarding arrangements necessary for Y to access education. This meant that Y’s educational provision and support was delayed by at least two further months. The cumulative delay of three and a half months, after adding the delay in issuing Y’s final EHC plan, was significant enough to have caused injustice to Y, who had no formal education from June 2022 to May 2023.

Alternative provision

47. In mid-September 2022 the Council received from School 1 a request for Y’s EHC needs assessment. The Council found out Y was struggling to attend School 1, was on a part-time timetable and from the beginning of December had stopped attending School 1. At no point did the Council consider whether it should have arranged suitable education at school or elsewhere for Y in line with its section 19 duty as explained in paragraph 16.
48. In its correspondence with Miss X and ourselves the Council has repeatedly said that as long as Y had no EHC plan her education was School 1’s responsibility. This shows the Council’s lack of understanding of its responsibilities for arranging alternative provision for children who are out of school because of illness, exclusion or for other reasons, even if they do not have an EHC plan.
49. The Council’s failure to consider Y’s circumstances to decide whether it should be arranging alternative provision for her is fault. It would be reasonable for the Council to have started this process at the beginning of December 2022 after the reintegration plan implemented at the end of September by School 1 had failed.
50. If the Council had considered its section 19 duties for Y in December it is more likely than not that it would have decided Y needed alternative provision. This is because the evidence shows:
• Any attempts to reintegrate Y at School 1 were unsuccessful;
• Professional advice confirmed Y’s difficulties attending School 1 stemmed from her social emotional and mental health needs;
• In May 2023 the Council accepted Y needed EOTAS.
51. The Council’s fault caused injustice to Y and Miss X. Y did not receive any education or support from the beginning of January to the end of May 2023. This resulted in a further academic decline and affected Y’s personal development. The lack of educational support for Y had a negative impact on Miss X and the whole family.

Delivery of special educational provision

52. The Council issued Y’s final EHC plan in mid-March 2023 and should have started delivering special educational provision as soon as possible after this date. Even allowing some time for making arrangements, Y should have been getting some support for her needs from the beginning of summer term 2023.
53. In May the Council agreed an EOTAS package for Y and amended her EHC plan accordingly. She started receiving some provision at the beginning of June with also some tutoring starting at the end of June. There was a delay of a few weeks in putting in place some support for Y which is fault. This caused Y injustice as she remained without any support for longer than necessary.
54. I considered whether the Council can be criticised for providing limited support and education for Y in June and July 2023. Councils should be providing full-time education to a child who is out of school unless it is not in the child’s best interest. Taking into account Y’s difficulties, the fact that she was not attending school from December 2022 and professional advice obtained during the assessment of her needs, it was reasonable for the Council to offer limited alternative provision with some equine and yoga sessions in summer 2023 with a gradual increase from September.

Complaint and communication

55. The Council failed to respond to Miss X’s complaint at stage two. This is fault, which caused injustice to Miss X. Miss X was increasingly frustrated by the lack of accountability of the Council’s SEND services. She felt distressed by not being able to challenge the Council’s actions and by the Council’s failure to follow up its response at stage one.
56. The Council also failed to communicate effectively with Miss X. This increased her distress. Some of her correspondence remained unanswered and she was not provided with the contact details of the person responsible for Y’s EHC plan process after her SEND case officer had left.

Back to top

Agreed action

57. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified;
• pay Miss X £2,600 for the injustice caused to Y by the lack of educational provision from January to May 2023;
• pay Miss X £500 to recognise the distress caused to her by the Council’s delays and failure to communicate with her effectively;
• pay Miss X £250 for the unnecessary time and trouble when complaining.

The Council will provide the evidence that this has happened.

58. We also recommend the Council within three months of the final decision:
• Remind all front-line staff in the SEND team and their managers of the process to follow when amending EHC plans;
• Ensure all front-line staff in the SEND and education teams and their managers review our Focus Report ‘Out of school, out of sight?’ issued in July 2022 and amended in August 2023;
• Review its complaint handling to ensure there are no delays in providing stage two responses to complaints about EHC plans process.

The Council will provide the evidence that this has happened.

Back to top

Final decision

59. I uphold Miss X’s complaint. For the reasons explained in the Analysis section I found fault in the Council’s process of issuing Y’s Education Health and Care plan and in the Council’s failure to consider its duty to provide alternative education and to deal with Miss X’s complaint. The Council’s failings caused injustice to Y and Miss X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman