Summary: Ms B complained about the Council’s delays during the Education, Health and Care needs assessment process for her daughter. She also says the Council failed to provide alternative provision for her daughter when she could not attend school. We find the Council was at fault for its delays during the Education, Health and Care needs assessment process. It also failed to fully consider its duties to provide alternative provision when Ms B’s daughter was not attending school. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms B complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for her daughter (C). She also says the Council failed to provide alternative provision for C when she could not attend school.
2. Ms B says the Council’s failures have caused distress and upset. It has also affected C’s educational progression and welfare.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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

6. I considered information from Ms B. I made written enquiries of the Council and considered information it sent in response.
7. Ms B 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

EHC needs assessment

8. 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.
9. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
10. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.

Alternative provision

11. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
12. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

What happened

13. C has special educational needs. She was attending school (School A), but her attendance started to suffer because of her anxiety. School A met with Ms B and agreed to implement measures to reintegrate C into the classroom. However, these measures did not work. C’s attendance started to decline further in October 2021. C started attending play therapy sessions once a week, but she did not attend any core lessons.
14. Ms B contacted the Council in January 2022 and asked it to carry out an EHC needs assessment for C. She explained C was struggling to attend School A. She said she was concerned C was at home without appropriate support. She also explained C had received help from a mental health agency, an autism support service, and an educational psychologist.
15. The Council initially said it would not assess C. Ms B provided further information, and the Council changed its mind and agreed to assess C on 8 March.
16. School A arranged for C to attend a behavioural support service in May. This is preventive provision for children who are experiencing difficulties in a mainstream setting. C only managed to attend two sessions and therefore the placement was withdrawn.
17. The Council wrote to Ms B on 20 May and said it would issue an EHC plan for C.
18. The Council sent a draft EHC plan on 17 June. It also consulted with several settings, including School A. School A said it could not meet C’s needs. It said C was not attending any lessons and attempts to re-integrate her had not worked. It said C could not manage her social anxiety to attend.
19. Ms B complained to the Council about its delays in finalising C’s EHC plan in November. She also said it failed to provide C with alternative provision after she stopped attending School A in October 2021.
20. The Council issued C’s final EHC plan on 14 November. It named a specialist school (School C).
21. The Council responded to Ms B’s complaint and apologised for the delays in finalising C's EHC plan. It also said School A was responsible for C’s education while she was on roll.
22. C started attending School C in January 2023.
23. Ms B referred her complaint to stage two of the Council’s complaints procedure. She said it failed to provide a resolution to her concerns.
24. The Council issued its final response. It repeated its apologies for the delay in finalising C’s EHC plan. It also reiterated that it was School A’s responsibility to provide C with education. It said it had learnt from her case about its duties to finalise an EHC plan within 20 weeks of the request for an assessment.

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Analysis

25. The Council was aware from January 2022 C was at home and she was having issues attending School A. It therefore should have considered its duties under Section 19 of the Education Act 1996. It failed to do so, which is fault.
26. The Council says School A was responsible for C’s education. This is incorrect, and it is concerning the Council does not appear to understand its legal duties. The law is clear about councils duties to arrange suitable education for children who are out of school because of exclusion, illness or otherwise, if they would not receive suitable education without such arrangements. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
27. If the Council had acted without fault, it would have considered C’s individual circumstances, discussed matters with School A and consulted with all the professionals involved in C’s education and welfare. It would have then decided whether to require C’s attendance at School A or provide her with alternative provision. School A explained it could not meet C’s needs, she could not manage her social anxiety and its plans to reintegrate her had failed. I therefore consider it is more likely than not if the Council had acted without fault, it would have put some alternative measures in place for C. The Council’s fault means C was left without any education over an extended period. This is a significant injustice. Its fault also caused Ms B frustration and distress.
28. The Council delayed finalising C’s EHC plan, which is fault. It should have issued her plan by 24 May. It did not do so until nearly six months later. This is a significant delay. This has caused Ms B frustration and uncertainty over C’s educational provision. It has also caused C an injustice as the provision would have been in place nearly six months earlier if the Council had acted without fault.

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Agreed action

29. To address the injustice caused by fault, by 22 November 2023 the Council has agreed to:

• Apologise to Ms B for her frustration, uncertainty and distress.
• Pay Ms B £200 to acknowledge the above injustice.
• Pay Ms B £4,200 for the loss of educational provision for C from January to December 2022. We would suggest Ms B uses this payment for C’s educational benefit.

30. By 22 January 2024 the Council has agreed to provide training to relevant staff to ensure they are aware of the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
31. The Council should provide us with evidence it has complied with the above actions.

Final decision

32. There was fault by the Council, which caused Ms B and C an injustice. The Council has agreed to my recommendations and so 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