Summary: Mrs X complained the Council delayed completing her son, F’s Education, Health and Care (EHC) needs assessment in line with statutory timescales and delayed putting in place alternative provision. The Council was at fault. It failed to decide whether to issue F with an EHC plan within the statutory timescale, caused by a delay in obtaining Educational Psychologist advice. This caused a further delay in the Council issuing F’s final EHC plan. It also delayed considering Mrs X’s request for alternative provision. The Council agreed to make payments to Mrs X to acknowledge the distress, frustration and uncertainty caused to her and F as a result of the delays. It will also review its alternative provision procedures.

The complaint

1. Mrs X complained the Council delayed putting in place alternative provision for her son, F, who stopped attending school in September 2022. She said the delay was caused by the Council failing to consider relevant evidence which meant F went without alternative provision for longer than necessary.
2. She also complained it failed to complete F’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist advice. This subsequently delayed the Council issuing F’s final EHC plan by six months.
3. Mrs X says the faults have caused her and F distress and uncertainty.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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 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

8. I spoke to Mrs X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website. I also considered our focus report titled ‘Out of school, out of sight?’ which we published in July 2022.
11. Mrs X and the Council had an opportunity to comment on the draft decision and I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

12. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND 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;
• if, following the EHC needs assessment the Council decides not to issue an EHC plan then it must notify the parent/young person within 16 weeks of the original EHC needs assessment request. In doing so the Council must provide the parent or young person with their right of appeal to the SEND tribunal.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
15. 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. The appeal can be 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.
16. 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).

Alternative provision

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Where it is clear a child will be away from school for 15 days or more, councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required.
19. Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. It says councils must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make. The Guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
20. We have issued a focus report titled ‘Out of school, out of sight?’ published in July 2022 on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.  We made six recommendations including:
1. consider the individual circumstances of each case and be aware that a council 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;
2. consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
3. choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
4. keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
5. 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:
6. put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
21. 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]).

The Council’s policy

22. The Council said its process, at the time, was to put all requests for alternative provision due to medical/health issues to its medical panel for a decision. It said there was a requirement for evidence of a specific nature from a certain level before it would consider putting provision in place.

What happened

23. Mrs X has a son, F, who in 2022 attended a mainstream secondary school, beginning year 8 in September 2022. Records show F struggled with attending school due to anxiety and depression. He stopped attending completely during October 2022.
24. At the start of November 2022 Mrs X notified the Council that F had been absent from school for the last three weeks due to anxiety. She said F was on the Child and Adolescent Mental Health Services (CAMHS) waiting list and awaiting an autism assessment. The Council’s Education Welfare Officer (EWO) followed up Mrs X’s notification and arranged a meeting. Due the EWO being unwell this was delayed until the start of December 2022.
25. Mrs X said the EWO agreed signing off F from school due to illness was appropriate and that the school would apply for alternative provision on medical grounds. The school submitted this application to the Council on 8 December 2022.
26. Following the meeting the EWO contacted the Council’s education officer around whether alternative provision could be put in place for F. The EWO confirmed Mrs X had evidence from F’s GP. Email records show the education officer said the Council’s medical panel which decides alternative provision needs evidence from CAMHS or consultants and not GPs. The education officer said F’s anxiety and depression should be diagnosed by a mental health practitioner. The EWO advised Mrs X that the GP evidence would likely not be accepted.
27. In mid-December Mrs X asked the Council to carry out an EHC needs assessment for F. The Council agreed to do so in mid-January 2023. In line with statutory timescales this meant the Council should have made a decision about whether to issue F with an EHC plan by the start of April 2023.
28. Mrs X said she heard nothing about the alternative provision application so in mid-January she chased the EWO for an update. Mrs X heard nothing further until the end of January 2023 when the EWO said the online medical form had not been completed. They said the medical panel would not consider Mrs X’s request until medical evidence was submitted. There is no evidence Mrs X was told the online form was a requirement prior to this date. Mrs X sent the online form link for the GP to complete.
29. Mrs X’s GP completed the medical form. Mrs X also provided evidence that F was on the CAMHS waiting list and had recently been diagnosed with autism by a private practitioner.
30. The Council’s panel considered the application in early March 2023 and declined to put in place alternative provision for F due to a lack of medical evidence.
31. Mrs X complained to the Council in early March 2023 about the decision to refuse F alternative provision. She was unhappy about the Council’s insistence on consultant level medical evidence without considering the medical evidence already submitted.
32. In April 2023 Mrs X obtained a report from a private psychiatrist and submitted a further application for alternative provision for F. The panel considered the new application at the end of April and agreed to put in place alternative provision for F. This began at the beginning of May 2023.
33. The Council responded to Mrs X’s complaint in June 2023. It said the Council’s medical panel decides cases for alternative provision based upon evidence provided. It said it is for the Council to decide what weight to give to that evidence. The Council said following the private psychiatric report it agreed to put alternative provision in place.
34. Mrs X remained unhappy and complained to us in June 2023. She said the Council had also failed to make a decision around whether to issue F with an EHC plan due to a delay in obtaining EP advice caused by a lack of EPs to carry out the assessments
35. Following her complaint to us the Council obtained EP advice in July 2023 and issued an agreement to issue F with an EHC plan at the start of August. The Council issued F’s draft EHC plan at the end of September and his final EHC plan on 19 October 2023. Mrs X says she intends to appeal the content of the plan to the SEND tribunal.

My findings

Alternative provision

36. The Council became aware F had stopped attending school due to health reasons and Mrs X was requesting alternative provision at the start of November 2022. It appropriately offered Mrs X a meeting which was delayed due to illness until the start of December. Following the meeting however the Council told Mrs X the medical panel would not consider her request because it expected evidence from a consultant or from CAMHS, and therefore her request was not progressed. This is despite there being other evidence available such as that from Mrs X and F’s GP and F being on a waiting list for CAMHS. This was not in line with the statutory guidance or our recommendations from the focus report. This approach risks disadvantaging children from poorer economic backgrounds who may not have the resources to bypass the CAMHS waiting list by paying for private reports. The Council should have considered F’s specific circumstances at the time without insisting on consultant level evidence.
37. The above fault meant the Council did not properly consider Mrs X’s request for alternative provision until early March 2023 when its medical panel declined the application. As outlined in paragraph 21 it is for the Council to decide what weight to give to medical evidence in deciding whether to put alternative provision in place. Given the evidence available at this time was much the same as that available in December 2022 I cannot say the outcome would have been different had the Council not delayed. However, an earlier decision from the Council would have given Miss X the opportunity to seek further supporting evidence which she did in April, resulting in alternative provision being put in place. Therefore, the fault in paragraph 36 caused Mrs X undue frustration as well as uncertainty about what provision F could have received but for the fault.

EHC needs assessment delay

38. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
39. Following Mrs X’s request for an EHC assessment the Council should have made the decision whether to issue a plan by the start of April 2023 and then issued the final plan by the start of May 2023.
40. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. The EP report should have been available to the Council by March for it to have met the April deadline. The EP report was not complete until July 2023 which was fault, and caused a delay in the Council deciding whether to issue F with a plan. This service failure came about due the Council being unable to recruit enough EPs to meet demand and because no private EP was able to carry out the assessment any sooner. This in turn had a knock-on effect which meant the Council did not issue the final EHC plan until October 2023. This was a delay of 24 weeks and was further fault.
41. I have taken the original final plan deadline at the start of May as the start date for the injustice F and Mrs X have suffered as a result of the delays. Had the Council issued the plan in line with timescales it may have helped reintegrate F back into school earlier. It also delayed Mrs X’s right of appeal to the SEND tribunal. The delay caused them both distress, frustration and uncertainty.
42. I have made a recommendation to acknowledge this injustice up to the point where the Council issued F’s final EHC plan in October 2023. Information the Council has provided on similar cases persuades me that it is actively recruiting EPs in its area to address the shortage. I have therefore not made any further service improvement recommendations.
43. Mrs X has a right of appeal to the SEND Tribunal if she disagrees with the special educational needs, provision or placement specified in the final EHC plan. She has indicated she intends to exercise this right.

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Agreed action

44. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £600 to acknowledge the distress, frustration and uncertainty caused to her and F by the Council’s failure to issue his final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in May 2023 until the date it issued the final plan in October 2023.
2. Pay Mrs X £200 to acknowledge the frustration and uncertainty caused to her by the Council’s delay in considering whether to put alternative provision in place for F.
3. Review its procedures to ensure it considers all applications for alternative provision because of health reasons in line with statutory guidance. The Council should ensure its policy is in line with the statutory guidance and ensure officers and panel members do not unnecessarily insist on consultant level evidence. The Council should ensure it considers the recommendations from our focus report ‘Out of school, out of sight?’ published in July 2022.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman