Summary: Mrs X complained the Council delayed in completing the Education, Health and Care Plan needs assessment for her son J and failed to take the actions it identified as necessary after it upheld her complaint about the same matter. Mrs X also complained J was without education between November 2022 and July 2023. The Council delayed in issuing an Education, Health and Care Plan for J for 25 weeks, failed to provide an alternative education for two terms and failed to take the action it identified as necessary after upholding Mrs X’s complaint. The Council will pay Mrs X £5,575 to recognise the frustration, distress and lack of education caused to her and J.

The complaint

1. Mrs X complained the Council delayed in completing the Education, Health and Care Plan needs assessment for her son J and failed to take the actions it identified as necessary after it upheld her complaint about the same matter. Mrs X also complained J had been out of education since November 2022 and the Council had taken no action to provide him with an alternative provision or respond to her complaint about the same. Mrs X said this caused J significant trauma and impacted on her ability to work causing financial hardship.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I read the documents Mrs X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council sent in response to my enquiries.
7. I considered our Guidance on Remedies, which is available on our website.
8. Mrs X and the Council 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

Relevant legislation and guidance

Education, Health and Care Plans

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
12. 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.
13. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Alternative provision

14. 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))
15. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that councils should provide the education as soon as it is clear the child will be away from school for 15 days or more, whether consecutive or cumulative.
16. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
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. 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. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Council’s alternative provision

19. The Council has an Access to Education (A2E) service. Its website states it provides a flexible, short-term, education service for children and young people who cannot attend school through exceptional circumstances. This could include medical reasons and permanent exclusions. It offers teaching, emotional, behavioural and social development work, mentoring and access to a virtual learning environment. The Council said referrals to A2E can be completed by:
• A school;
• The Schools Admission Team; and
• The Special Educational Needs and Disability (SEND) Team

What happened

20. At the time of these events J was of primary school age and lived at home with his sibling and parents, Mr and Mrs X. J has ADHD and ASD. In June 2022 J was in year five and attending primary school A. Mrs X asked the Council to complete an assessment of J’s special educational needs for an EHC plan on 9 June 2022.
21. The Council declined to complete an EHC assessment for J in July 2022. It wrote to Mrs X and told her of her right to appeal to the SEND tribunal if she disagreed with the decision.
22. Mrs X provided further evidence and again requested a EHC assessment for J in September 2022. The Council agreed to complete an EHC assessment for J on 21 September 2022 and began the assessment process.
23. By the end of October 2022 J had stopped attending school. In mid-November J’s GP provided a fit note for one month that said J was unable to attend school due to anxiety and ASD.
24. The Council said that its register check in December 2022 showed J had been signed off by the GP with high anxiety from mid-November until the end of term and school A had authorised his absence on its register.
25. The Council began an early help assessment for J and his family in December 2022. It recorded that school A had referred to the Council in November for support for the family with school attendance and mental health. It recorded J was not attending school.
26. Mrs X told the caseworker that J was not attending school via email at the beginning of January 2023.
27. School A made a referral to A2E for J at the end of January 2023.
28. Mrs X contacted the Council in January. She complained the Council had failed to tell her if it would issue an EHC plan for J within 16 weeks of her request for an EHC assessment.
29. In February 2023 Mrs X contacted the Council. She said:
• the Council was out of time for completing the EHC assessment;
• J was out of school with no alternative provision; and
• she had a private Educational Psychologist (EP) report from December 2022 the Council could use for J’s EHC assessment instead of waiting for another assessment.
30. The Council responded to Mrs X’s complaint about lack of education in February 2023. It said it was not aware that J was out of school. It said it asked school A to refer J to its A2E team, which it had done but the referral document was completed incorrectly so the Council declined it.
31. The Council contacted school A at the end of February 2023 and said the school should talk to Children and Adolescent Mental Health Service (CAMHS) or the GP about providing support for J in school alongside alternative provision.
32. The Council responded to Mrs X’s complaint about the EHNCA at the beginning of March. It said:
• school A was responsible for J’s continued education as he had been signed off as medically unfit to attend school.
• it should have issued the final EHC plan for J by 23 December 2022 and the delay was caused by a shortage of EPs;
• it would nominate an officer to update Mrs X on the progress of the EHC assessment who would agree when they would provide updates; and
• it would provide an explanation of why it could not use the external EP provider to inform the EHC assessment.
33. Mrs X, dissatisfied with the Council’s response, complained to us in March 2023.
34. School A completed another referral to A2E and the Council decided in April 2023 it did not have capacity to support J. It added him to its waiting list.
35. School A contacted the Council at the beginning of May and said J had not attended school since November 2022 and had been signed off by the GP since then.
36. The Council received the EP report for J in May 2023.
37. The Council met with Mrs X in May 2023 to discuss the A2E support it would offer as it now had capacity to support J. It agreed that lessons in the home were appropriate to J’s needs. It offered one hour of mentoring from the beginning of June, which it may be able to increase later in July.
38. The Council issued a draft EHC plan for J at the end of June and asked Mrs X for her comments.
39. The Council issued a final EHC plan for J in July 2023. It named the mainstream primary school he was already on role at until the end of the academic year, and the type of school he should attend from September 2023 as a mainstream secondary school.
40. J’s GP provided fit notes covering a month at a time from 25 November 2022 until 20 July 2023 specifying J was unable to attend school due to anxiety and ASD. Mrs X said that while J was not attending school he was at home with her, which meant that she was unable to work full time and had to take J to work with her. She stated this caused them both distress. Mrs X stated that she arranged activities for J to attend during the time he was not in school which she paid for herself.

Identified actions by the Council

41. The Council told me it had not provided Mrs X with an explanation of why it could not use the private EP report because at the time of the events it was in the process of developing a policy to cover such requests. It said it now has that policy in place and apologised for not providing a clear explanation to Mrs X.
42. Its new policy states it will consider private educational psychologist (EP) advice to determine if it provides all the information necessary to allow it to make a robust decision and for it to be included in the EHC assessment . If it contains all the information needed the Council will not require its own EP report.
43. The Council’s SEND caseworker provided an update to Mrs X in March and in May 2023 about J’s EHC plan progress.

My findings

EHC Plan delay

44. Mrs X requested an EHC assessment for J at the beginning of June 2022. The Council declined to complete the assessment five weeks later in July. When it received further information, it changed its decision and agreed to complete the assessment in September 2022. The statutory guidance states it should have completed the assessment and issued the subsequent EHC plan within 20 weeks of the request and so by 11 January 2023. (This is calculated discounting the nine weeks between the Council’s initial decision not to assess and when it overturned that decision). The Council did not issue the EHC plan until 5 July 2023, which is a delay of 25 weeks and is fault. It caused Mrs X frustration and uncertainty.
45. The Council identified the delay was caused by a lack of EPs. The Council has developed a policy allowing it to consider private EP reports where they meet the criteria. This is an appropriate action to improve the Council’s service in meeting the statutory timescales for an EHC assessment.

Alternative provision

46. J stopped attending school A in October 2022 and had a medical certificate from mid-November 2023 until the end of the school year (July 2023) stating his absence was due to anxiety and ASD.
47. The Council told Mrs X in February 2023 it was not aware of J’s absence from school. However, the records show the Council was aware in December 2022 at the register check, and when it started an early help assessment, and in January 2023 when Mrs X told the case worker by email.
48. The Council should have considered J’s health needs in December 2022 and decided whether he was able to attend school or whether it needed to arrange an alternative provision. There is no evidence the Council considered the medical evidence but relied on school A’s decision to authorise J’s absence. That was fault as the law states it is for the Council to decide if the child’s health prevents them attending school. It leaves uncertainty about what action the Council would have taken had it acted without fault.
49. As the Council relied on the school’s decision that J was unfit to attend, it should have considered whether to provide J with an alternative provision from December 2022. School A told the Council in February 2023 there was no provision in place for J. The Council did not take any substantive action until June 2023 when it offered one hour mentoring per week. That delay was fault.
50. Section 19 states that an alternative provision should be equivalent to that which a child receives in school. Even considering J’s needs and abilities and the additional intensity of one-to-one support, one hour of mentoring a week is insufficient, which is additional fault. The faults meant J was without education for two terms. It also caused Mrs X distress as she was unable to work full time while J was not at school and she had to arrange and pay for activities for J.
51. The Council issued an EHC plan for J in July 2023 which set out the provision he should receive and the school he should attend. Mrs X has a right of appeal to the SEND tribunal if she disagrees with the content of the plan. Therefore, I have not considered the education J received after July 2023.

Complaint handling

52. The Council upheld Mrs X’s complaint about the delay in the EHC plan process and its communication with her. It said it would take two specific actions:
• agree a schedule of contact with Mrs X and provide regular updates on the process EHC process; and
• provide an explanation of why it could not use a private EP report in the EHC assessment.
53. The Council did not take either of those actions, which was fault and caused Mrs X frustration. The Council has now provided the explanation and apology which I have included in this decision statement. As the Council has now issued the EHC plan the schedule of contact is no longer relevant.

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Agreed action

54. Within one month of the final decision the Council will:
• write to Mrs X and apologise for the injustice caused to her and J by the Council’s faults;
• pay Mrs X £625 to acknowledge the distress, frustration and uncertainty caused to her and J by the Council’s failure to issue his final EHC plan in line with statutory timescales and its failure to complete the actions it identified as necessary. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in January 2023 until it issued the final plan in July 2023;
• pay Mrs X £150 to recognise the frustration caused to her by the Council’s failure to complete the actions it identified as necessary when it upheld her complaint; and
• pay Mrs X £4,800 to recognise the two terms between December 2022 and July 2023 when J did not receive any education. This is calculated at £2,400 per term and is in line with our Guidance on Remedies. Mrs X can use this for J’s educational benefit as she sees fit.

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Final decision

55. I have completed my investigation. I found fault causing injustice and the council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman