Summary: Mrs X complained the Council took too long to issue her son’s Education, Health and Care Plan, that communication from it was poor and that it failed to deliver suitable alternative education to him when he became unable to attend school. We found fault because there was a significant delay issuing the plan and the Council failed to organise suitable alternative provision for her son. Mrs X suffered avoidable frustration and distress and her son missed out on the education he should have received. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Mrs X, issue reminders to relevant staff and consider reviewing some of its procedures.

The complaint

1. Mrs X complains the Council has failed to issue her son, Y’s, Final Education, Health and Care (EHC) Plan within statutory timescales. She also complains about inadequate communication from the Council and that Y has missed out on education he should have received as he is unable to attend school and no other provision was put in place.
2. Mrs X says this has caused frustration and distress to the family. She also says that as well as an emotional impact, this has had a financial impact as she has paid for online tutoring herself and had to reduce her work hours in order to support her son’s education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. My investigation ends in November 2023 which is when the Council issued Y’s Final EHC Plan.

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How I considered this complaint

9. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

11. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.

Timescales and process for EHC Plan assessment

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 the following:
• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks;
• if the council decides not to conduct an EHC needs assessment, it must give the child’s parent or young person information about their right to appeal to the SEND Tribunal;
• 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;
• if the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks; and
• if the council goes on to issue an EHC Plan, 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).

Appeal rights

14. There is a right of appeal to the SEND Tribunal against a decision not to carry out an EHC needs assessment or reassessment. 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.

Alternative provision

General section 19 duty

15. 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 S19 or alternative education provision (AP).
16. 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)
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’)

Available and accessible

19. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Focus report

20. 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? published July 2022
21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

22. I have set out below a summary of the key events. This is not meant to show everything that happened.
23. Mrs X has a son, Y. At the beginning of September 2022, Y began year 6 at his primary school. He returned to school on a part-time timetable which had briefly begun at the end of the previous term before the summer holidays. The timetable was designed to accommodate the health difficulties Y experienced around attending school. It provided virtual online opportunities for Y to access small parts of lessons being delivered at his school whilst he was at home, as well as physically attending school for limited sessions.
24. In mid-October 2022, Mrs X requested the Council carry out an EHC needs assessment (the assessment) on Y.
25. In mid-November 2022, the Council agreed to carry out the assessment on Y.
26. Mrs X sent chase emails to the Council in early and late February 2023 asking for an update on Y’s EHC Plan and when it would be issued. The Council issued his first draft EHC Plan the day after the second chase was sent, at the end of February 2023.
27. At the end of February 2023, Mrs X emailed Y’s school to say that he would not be returning for the time being. She advised that although she had hoped Y’s difficulties in physically attending school would be less over time, the planned return to full time education had not been successful. She said this was causing greater health difficulties for Y and having a negative impact on his confidence and self-esteem.
28. At the end of the first week in March 2023, Mrs X sent her comments on Y’s draft EHC plan to the Council. In this document, she advised the Council that Y was not attending school and that he was expressing a desire to attend online schooling and some form of AP, but that he felt unable to attend any form of school setting.
29. In mid-March 2023, Mrs X complained to the Council that it had now been more than 20 weeks since the request for the assessment had been made. She was unhappy as Y’s first Final EHC Plan had still not been sent to her and not within statutory timescales.
30. Towards the end of April 2023, the Council sent its stage one complaint response to Mrs X. In this letter, it:
• apologised for the delays she had experienced and upheld her complaint;
• explained it would confirm her EHC Plan amendments by the end of that day;
• confirmed that an officer (Officer J) would provide weekly updates until it issued Y’s Final EHC Plan which would be by the end of May 2023; and
• explained the delays were due to a lack of capacity within the SEND team.
31. At the end of April 2023, Mrs X emailed the Council to escalate her complaint to stage two. She said:
• she had not received the confirmation of amendments to Y’s EHC Plan as promised in its stage one response;
• that she had ongoing concerns other deadlines would be missed as the Council had a poor track record;
• that it had not done anything to mitigate the 12-week delay she was going to experience in waiting for Y’s Final EHC Plan to be issued;
• Y had not attended school full time since May 2022, had not attended at all since February 2023 and that suitable arrangements to provide Y with AP had not been put in place;
• the only education he had received was a privately funded tutor;
• Y’s move to secondary school later in 2023 would be impacted by the delays; and
• the Council’s reply did not address the emotional and financial impact the delays, lack of communication from the named SEND team officer and uncertainty had on the family.
32. At the beginning of May 2023, Officer J emailed Mrs X to confirm the Council had sent consultation letters to six providers to see if they could offer a placement to Y.
33. By the end of the first week in May 2023, Mrs X chased the Council twice more as she said she had still not had Y’s EHC Plan amendments confirmed to her or any contact from Officer J who was supposed to be providing weekly updates.
34. In mid-May 2023, the Council emailed Mrs X to advise Officer J would no longer be working on her case and a new caseworker had been appointed.
35. At the end of the first week in June 2023, Mrs X again contacted the Council. She remained unhappy because she said she had not had any contact from the new caseworker as promised. Mrs X said she felt she had no choice but to home educate Y as she had lost faith in the Council and was appalled by its lack of action. She asked that Y’s Final EHC Plan, when it was produced, should reflect that he would be home educated, that she had declined his secondary school place and would be taking him off roll at primary school.
36. Mrs X brought her complaint to us at the end of June 2023 as she had still not received the Council’s stage two complaint response.
37. Towards the end of July 2023, the Council sent its stage two complaint response to Mrs X. In this email, it:
• apologised to Mrs X for the delay in responding to her escalation request;
• agreed its stage one complaint response did not address her concerns;
• agreed it had failed to arrange for Y to receive suitable AP;
• said it could not address the financial impact Mrs X complained of through its complaints process; and
• upheld her complaint before signposting to the Ombudsman.
38. At the beginning of August 2023, the Council emailed Mrs X to say that another new caseworker had been appointed.
39. Towards the end of October 2023, the Council received a consultation response from a provider to say it could offer Y a place as one had become available. The placement on offer was around 15 miles away from Y’s home.
40. Mrs X emailed the Council the same day to advise that it appeared to have disregarded her previous email and draft EHC Plan amendments stating that Y would be unable to attend any formal setting due to his health difficulties and that the placement was too far away for him to attend.
41. After further emails between Mrs X and the Council, Y’s first Final EHC Plan was issued at the end of November 2023. Section I of the plan did not name a specific school, but listed Y’s type of placement as a “local mainstream setting”. It detailed how the Council considered Y’s needs could be met at a local mainstream secondary school with access to an enhanced provision in a specialist base there. It also noted that Mrs X had chosen to home educate Y.
42. Mrs X was advised of her appeal rights in the letter sent to accompany the EHC Plan. She has confirmed that she does not intend to appeal the EHC Plan to the SEND Tribunal.

Analysis

Alternative provision from March 2023 to November 2023

43. Mrs X complains that Y missed out on education he should have received when he was unable to attend school due to his health needs and that no other provision was put in place for him by the Council.
44. The Council was aware that Y had been on a part-time timetable from late July 2022 due to his health difficulties around physically attending school. By the end of February 2023, Mrs X had advised the school that he would not be returning for the time being as the part-time timetable had not been successful and Y’s health difficulties had increased.
45. The Council was clearly aware of his non-attendance by the end of the first week in March 2023 when Mrs X included this information in her draft EHC Plan comments to the Council. She also clearly stated that Y was expressing a desire to attend an online school and access some form of AP.
46. When it became clear that Y was going to be unable to attend school due to his health difficulties, the Council should have considered whether it had a duty under S19 of the Education Act 1996. Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs says councils can expect schools to provide support to pupils absent for short periods but should be ready to take responsibility for any child whose illness will prevent them from attending school for 15 or more days and ‘where suitable education is not otherwise being arranged’.
47. As part of my enquiries to the Council, I asked what action it had taken to deliver an education equivalent to full time when it was clear Y had stopped attending his primary school in February 2023. The Council’s response provided evidence linked to the part-time timetable from 2022. No evidence has been provided of any consideration given to its S19 duties from March 2023 onwards, other than to say that no medical evidence had been provided to say he was unable to attend and required alternative arrangements.
48. Given that Y had been on a part-time timetable for over a term and a half and the Council’s own later responses say that it failed to arrange suitable AP for Y, I am satisfied, that in the circumstances of this complaint, on the balance of probabilities it was not reasonably practicable for Y to access the education offered by the school. The Council should have taken more decisive action to consider how it could provide Y with education under its S19 duties. This lack of action is fault. It would have caused avoidable distress and frustration to Mrs X. It also meant that Y had no access to education other than that arranged and paid for by Mrs X, as by this point that offered by the school was not available and accessible to him. I have made a recommendation below to remedy the injustice caused.

Delay in issuing the Final EHC Plan

49. As detailed in paragraph 13, statutory guidance expects the EHC Plan to be issued no later than 20 weeks from the date the initial request to assess was received by the Council. 20 weeks from the request date was the beginning of March 2023, but the Council had only issued the draft EHC Plan towards the end of February 2023.
50. In this case, the Council took just under 58 weeks to issue the final plan (13 months and 9 days) by the time it arrived in late November 2023. This was despite assurances in its April 2023 stage one complaint response that the plan would be issued by the end of May 2023.
51. The only evidence to explain the delay is that mentioned in the Council’s stage one complaint response where it confirmed delays were due to a lack of capacity within its SEND team. The Council has provided no other specific explanation or evidence to explain the significant amount of time taken to finalise the plan or why it was not issued in May 2023 as promised.
52. Issuing the EHC Plan late was fault. It would have caused significant distress and frustration to Mrs X, especially given that she had chased its delivery several times and been assured it would be issued by the end of May 2023. It meant that Mrs X’s right to appeal the plan to the SEND Tribunal was severely delayed. It also meant that Y lost out on the potential opportunity to access the services detailed in Section F of the plan for a significant amount of time. The injustice to him was increased as the delay spanned the time he was due to move from primary to secondary school. I have made a recommendation below to remedy this injustice.
53. Mrs X confirmed she did not intend to appeal the EHC Plan issued, which was her right.
54. In its enquiry responses to me, the Council confirmed it had recruited a number of SEND team officers to join in September 2023. On this basis, I do not intend to make any recommendation linked to staffing or capacity within the service.

Inadequate communication

55. Mrs X complains of inadequate communication on the Council’s part.
56. In response to my enquiries, the Council acknowledged the poor service Mrs X received and repeated that it had recruited the new officers.
57. Having reviewed the evidence on file, I am satisfied, that in the circumstances of this complaint, the Council’s communication was not as good as it could or should have been. Examples of poor communication are:
• a lack of response to chase emails Mrs X sent in February 2023 asking when the EHC Plan would be issued;
• delays in acknowledging Mrs X’s stage one complaint to the Council;
• delays in responding to Mrs X’s stage one complaint;
• failure of Officer J to provide weekly updates to Mrs X as promised;
• failure to issue the EHC Plan by the end of May 2023 as promised and not providing further information on what was happening; and
• a significant delay in issuing Mrs X’s stage two complaint response which should have been issued by the end of May 2023 but was instead issued at the end of July 2023. This was only after chases by the Ombudsman and gave no other assurance to Mrs X of when the EHC Plan would be issued.
58. This poor communication is fault. Individual instances would have built up to create a bigger picture of distress and frustration for Mrs X meaning she was often waiting for communication which did not then happen. I have made a recommendation below to remedy the injustice caused.

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Agreed action

59. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• make an effective apology to Mrs X and Y for the delay in issuing Y’s Final EHC Plan, for Y’s lost opportunity to access Section F provision from March 2023 to November 2023, poor communication overall, and for failing to deliver a suitable alternative education equivalent to full time from March 2023 to November 2023;
• pay Mrs X £500 to reflect the distress and frustration caused by the issues highlighted directly above;
• pay Mrs X £4050 to acknowledge Y’s lost opportunity to access specialist provision contained in his EHC Plan from March 2023 to November 2023 and to acknowledge that it did not provide Y with a suitable education equivalent to full time from March 2023 to November 2023;
• remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996; and
• consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties.
60. Payments made are in line with the Ombudsman’s guidance on remedies.
61. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman