Summary: Mrs D complained the Council caused delay in the Education, Health and Care needs assessment process for her son (X) and failed to provide him with suitable alternative provision. We found the Council at fault for failing to adhere to the statutory timescales, how it communicated with Mrs D, and its failure to provide X with alternative provision for a six-month period. The Council agreed to apologise to Mrs D and make payment to acknowledge the injustice this caused them.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained about the Council’s handling of her request for an Education, Health and Care (EHC) plan for her son (X) since Autumn 2021. She said it:
• wrongly initially refused her request for and EHC Needs Assessment for X;
• caused delays in the EHC plan process and a data breach;
• failed to provide X with an education since April 2022 when she told the Council his home education was no longer working; and
• failed to find a school which could meet X’s needs and to consult with a school she had requested.
2. Mrs D said, as a result, she experienced distress and had time and effort to get the Council to address her concerns. She also said X experienced distress and had a loss of education and provision in his EHC plan.

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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. 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. 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. 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. 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.
7. 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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What I have and have not investigated

8. I have investigated Mrs D’s complaint about:
• the Council’s handling of X’s EHC needs assessment from April 2022 until it issued his final EHC plan in May 2023;
• how the Council communicated and shared information with Mrs D;
• how the Council consulted with schools to enable a placement to be listed in X’s final EHC plan; and
• lack of alternative provision for X.
9. I have not investigated Mrs D’s:
• complaint about the Council’s decisions not to complete EHC needs assessments for X in 2021. This is because such matters were for the SEND Tribunal and Mrs D exercised this right;
• concerns about the Council’s data breach as such matters should be brought to the attention of the Information Commissioner (ICO), who is best placed to consider such issues; and
• disagreement about X’s final EHC plan which the Council’s issued in May 2023. This is because Mrs D has appeal rights to the SEND Tribunal regarding any disputes about the contents of X’s EHC Plan, including school placements.

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How I considered this complaint

10. As part of my investigation, I have:
• considered Mrs D’s complaint and the Council’s responses;
• discussed the complaint with Mrs D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
11. Mrs D 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 law and guidance

Education, Health and Care plans

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
13. The Government publishes statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’). This includes advice to schools where pupils have special education needs but do not have an EHC plan. It recommends they should involve specialists if a child’s progress is not as expected. It says schools and local authorities should work together to provide local services to include education psychologist advice, specialist teachers and support services.
14. The Code sets out the procedure for carrying out EHC assessments and producing EHC plans. The guidance follows the law contained in 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 decide within six weeks whether to agree to the assessment;
• it must assess needs and develop EHC plans “in a timely manner”. It should complete steps as soon as practicable;
• it should decide whether to issue an EHC plan within 16 weeks; and
• the point from requesting an assessment until issue of the final EHC plan should usually take no more than 20 weeks.
15. There are rights of appeal to the SEND Tribunal if the Council:
• decides not to carry out an EHC needs assessment; or
• decides after an assessment, a child does not need an EHC plan; or
• issues a final EHC plan and the parent disagrees with the content of that.
16. Where, after an appeal, the Council agrees to issue an EHC plan, Regulations say the Council must do so “as soon as practicable and in any event within 14 weeks”. This applies in cases where a council has agreed to assess following a parental appeal, where the SEND Tribunal has issued a consent order stating the Council will issue an EHC plan.
17. We cannot investigate where someone has appealed to the SEND Tribunal about any of the decisions listed in paragraph 14. In addition, the courts have established that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. For example, if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for the 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).

Alternative provision

18. 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))
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
20. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
21. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
23. 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 sight? Ensuring children out of school get a good education, published in July 2022)
24. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they may need to act whatever the reason for absence (except for 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 reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
25. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

26. Mrs D’s son (X) was on roll with a school in September 2021.
27. Mrs D asked the Council for a EHC needs assessment for X as he was struggling with attending and engaging in school. She said the school told her she could be fined due to his failure to attend school, and arranged for a safe and well check of X. So, she decided to deregister X from school and home educate him.
28. The Council refused her request for a EHC needs assessment on two occasions in late 2021. Mrs D appealed its decision to the SEND tribunal.
29. In April 2022, the Council agreed to complete an EHC needs assessment for X and started the process for X to receive an EHC plan.
30. Mrs D asked the Council to arrange for an Occupational Therapist (OT) and a Speech and Language Therapist (SaLT) to assess X as part of the EHC plan process. The Council agreed.
31. Mrs D chased and complained to the Council during Summer 2022 as she believed it was causing delays in obtaining the professionals assessments and the EHC plan process.
32. The Council arranged for an Educational Psychologist to assess X in June 2022 and issued its draft EHC plan for X in July 2022. It received the OT and SaLT reports soon after.
33. Mrs D received the OT and SaLT reports and were not satisfied these were suitable and asked for corrections.
34. The Council issued a further draft EHC plan for X in Autumn 2022. However, when Mrs D again chased the Council for the draft plan, the Council realised it has sent this to an incorrect email address. It told Mrs D, re-shared its draft EHC plan with her and self-referred to the Information Commissioner (ICO) due to causing a potential data breach.
35. Mrs D told the Council she remained dissatisfied with the draft EHC plan, and she shared further comments on the plan in late 2022.
36. In early 2023, Mrs D told the Council X was no longer able to engage with his elective home education.

Mrs D’s complaints

37. In early 2023, Mrs D complained to the Council about its handling of the EHC needs assessment process for X. She said:
• it had failed to adhere to statutory timescales in the EHC plan process and caused delay in consulting with professionals;
• it had caused a data breach; and
• she disagreed with contents in the draft EHC plan and the lack of a named school placement. She also said she had not been given the opportunity to express preference for schools; and
• she had asked for alternative provision for X in January 2023 but had received no feedback from the Council.
38. In response the Council partly upheld Mrs D’s complaint. It said it:
• accepted it had sent its draft EHC plan to an incorrect email address for Mrs D which caused delays and apologised. However, it did not believe this caused a data breach;
• found it had not caused delays in its consultations with professionals as it had acted on this in a timely manner when Mrs D requested it;
• would seek clarification on points in the draft EHC plan and professionals’ reports Mrs D had commented on; and
• acknowledged Mrs D had not been able to find schools which met X’s needs in the Council’s Local Offer. However, she had since provided preferences for schools which it would consult.
39. The Council consulted with several schools in line with Mrs D’s preference. However, all the schools told the Council they could not admit X due to his needs and the environment he needed, or they were already oversubscribed.
40. In Spring 2023 the Council issued a further draft EHC plan for Mrs D to consider.
41. In its final complaint response, the Council said it:
• accepted it had failed to adhere to the statutory timescales for X’s EHC needs assessment process. It acknowledged a final EHC plan for X was yet to be issued. It explained it had received unprecedented requests for statutory assessments, but it had recently restructured and redesigned its service to manage this better. It apologised and said it would prioritise finalising X’s EHC plan;
• had shared a form for Mrs D to express her school preferences with its draft EHC plan for X in Summer 2022. It also said it had spoken with her and directed her to its Local Offer at the time. However, she had only recently shared her school preferences, which it had unsuccessfully consulted with. It said it would continue to work with her to find a suitable placement for X; and
• had considered Mrs D’s request for alternative provision, but a service was not currently available, and X would usually need to be on roll with a school for this to be arranged.
42. The Council issued X’s final EHC Plan in May 2023. The type of placement was included but no specific school placement was listed.
43. Mrs D made a further complaint to the Council as it had not consulted with one of the schools she had requested, nor responded to her request.
44. In response the Council accepted it had failed to respond to Mrs D and consult with the school she had recently requested. It apologised for the delay and distress this caused her.
45. Mrs D asked the Ombudsman to consider her complaints as she was not satisfied with the Council’s responses.
46. In response to my enquiries, the Council said it accepted it had caused delays in X’s EHC Plan process. It also found it had failed to put in place alternative provision for X from January 2023 when Mrs D told the Council X was no longer able to access his elective home education. It proposed a remedy to acknowledge the period X had a loss of education and the time and trouble Mrs D had to raise her complaint.

Analysis and findings

The EHC needs assessment process

47. The Council agreed it should complete the EHC needs assessment process in April 2022 and issue X with an EHC plan.
48. The Code of guidance says the Council should have completed the process and issued X with his final EHC plan within 14 weeks. However, it took the Council 59 weeks to do so. This was fault.
49. I found its delay included:
• consulting with professionals such as the Educational Psychologist, OT, and SaLT. This is because it did not start the consultations until up to nine weeks later, which meant it could not meet the statutory timescales to complete the EHC needs assessment process for X;
• sending X’s draft EHC Plan to an incorrect email address on two occasions which meant Mrs D did not receive them;
• sending its school preference form to an incorrect email address, which meant Mrs D was unable to share her preferred schools; and
• failing to amend its draft EHC plan within a timely manner to enable it to finalise X’s EHC plan without causing further delay to the process.
50. While the Council said it had experienced a significant increase in demand for EHC needs assessments, it agreed it was at fault for causing delays in the EHC plan process for X.
51. I found Mrs D experienced distress due to the uncertainty the Council’s delayed EHC needs assessment process caused and the time she had to chase the Council to complete the process. She also had a loss of opportunity to appeal her disagreements with X’s EHC Plan to the SEND Tribunal for a period of 10 months.
52. While I acknowledge the Council worked with Mrs D to amend its draft EHC plans following her comments, it remained the Council’s responsibility to ensure it completed the process within the statutory timescales.

The Council’s communication with Mrs D

53. The evidence shows the Council continued to be in communication with Mrs D throughout the EHC needs assessment process. However, I found it at fault for failing to properly communicate with Mrs D. This is because:
• there were periods where it failed to respond to her communication, or caused delays in its responses;
• it sent two draft EHC Plans for X and its school preference form to an incorrect email address, which meant she did not receive these; and
• it failed to respond to her request to consult with a school placement in Spring 2023.
54. The Council agreed it had sent two draft EHC plan’s incorrectly and its communication at times had not met its own expectations. It proposed a remedy of £300 for the time and trouble Mrs D had to raise her complaint.
55. I found the Council’s proposed remedy was not enough to acknowledge the distress and uncertainty Mrs D experienced as a result of its poor communication and delayed EHC plan process. This is because of the significant period of delay it caused, which was made worse by its poor communication and lack of responses to some of her requests.

Alternative provision

56. Mrs D said X had not received an education since April 2022 as he stopped engaging with his elective home education.
57. I have considered the available evidence regarding when the Council became aware X was no longer receiving his education. While Mrs D said she spoke with the Council in Spring 2022, there is no evidence available of the call or a request for alternative provision being made as X was unable to engage with his elective home education. However, it was clear Mrs D wanted to explore a suitable school placement for X as part of the EHC needs assessment process.
58. I have therefore found the Council was not at fault for failing to provide X with alternative provision between April 2022 to December 2022.
59. However, Mrs D asked the Council for alternative provision for X in January 2023 and explained this was because he could no longer engage with his elective home education. The Council therefore had a duty to either find X a suitable school placement, or provide alternative provision, without delay.
60. The Council has since agreed it was at fault for failing to provide X with suitable alternative provision from January 2023 until the end of the 2022/2023 academic year. It also accepted this caused X a loss of educational provision.

School placement for X

61. The Council shared evidence of its consultations for a suitable school placement for X in early 2023. I have not found fault in the process the Council followed to do so, except for its failure to consult with the school Mrs D requested in May 2023.
62. However, it remains the Council’s duty to ensure it has school placements available for children and young people in its area which meets their needs.
63. In this case, the Council failed to find a suitable school placement for X over a six-month period, as the schools it approached could not offer X a placement. The Council therefore caused a service failure, which caused Mrs D some additional uncertainty as to how X will receive his education.

Injustice to X

64. The Council’s delayed EHC Plan process may also have caused X an injustice. This is because, had the Council issued its final EHC Plan within the statutory timescales:
• it could have started the process of finding him a suitable school placement much sooner. However, I cannot say whether this would have led to a suitable school placement being found for X; and
• his special educational needs, as set out in his final EHC Plan in May 2023, would have been known sooner. He therefore also had a loss of this provision from January 2023 when he should have been receiving alternative provision from the Council.
65. I also found the Council’s failure to find X a suitable school placement by the end of the 2022/2023 academic year caused him some additional uncertainty about how he would receive his education and special educational needs provision going forward.
66. I have considered the Council’s proposed remedy offer of £800 per month for X’s missed education and found this to be in line with our published Guidance on Remedies. However, I also found X experienced some unnecessary distress due to the Council’s delays and failure to put alternative provision in place.

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Agreed action

67. To remedy the injustice the Council caused to Mrs D and X, the Council should, within one month of the final decision:
1. Apologise in writing to Mrs D and X, and pay her;
1. £500 to acknowledge the distress and uncertainty the Council’s faults and service failure caused her;
2. £300 to acknowledge the distress and uncertainty the Council’s faults and service failure caused X;
3. £4,800 to acknowledge the loss of educational provision X missed out on from January to July 2023.

In total the Council should pay Mrs D £5,600.

68. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. provide the Ombudsman with evidence of the Council’s February 2023 redesign and restructuring of its service, and explain how this will reduce delays in the Education, Health and Care plan process and improve communication with the parents of children and young people it is supporting; and
5. review how it can ensure it has sufficient provision available in its Local Offer to meet the educational needs of the children and young people in its area.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. There was fault which caused Mrs D and X an injustice, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman