Summary: Ms X complained the Council failed to provide an alternative education for her child, Y, when they were out of school, delayed in finalising their Education, Health and Care plan, and delayed paying a personal budget. The Council was at fault. It should apologise, make payments to remedy the uncertainty caused, and the impact to Y of the delayed provision, and review its policy.

The complaint

1. Ms X complained the Council:
1. failed to provide an alternative education for her child, Y, whilst Y was out of school from September 2021;
2. delayed issuing a final Education, Health and Care (EHC) plan for Y following a Tribunal order in September 2022, and
3. delayed in paying the personal budget in that plan.
2. Ms X is also unhappy with the content of the final EHC plan issued.
3. Ms X said the failings mean there was a long period where Y was out of education, which made it difficult for them to return to learning and has significantly affected their mental health. Y is now two years behind their peers and has no GCSE qualifications, which will affect their career prospects.

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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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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.
8. 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

9. Ms X complained to us in June 2023 about events from September 2021. I decided to investigate the missed education from that date because of the continuing injustice to Y. I am satisfied it was not reasonable to expect Ms X to complain sooner as she was pursuing an appeal to the SEND Tribunal and then pursuing the Council to issue an EHC plan.
10. Ms X requested an EHC needs assessment in February 2022, which the Council refused. Ms X had a right of appeal to the SEND Tribunal, which she exercised, and the Tribunal ordered the Council to carry out a needs assessment in September 2022. Therefore, in relation to the complaint about EHC plan delays, I have considered the period from September 2022 onwards.
11. Ms X is unhappy with the content of the final EHC plan issued in May 2023. We cannot say whether the support in an EHC plan is appropriate for a child - only the SEND Tribunal can decide this. Therefore, I have not investigated this part of the complaint.

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How I considered this complaint

12. I considered:
• the information Ms X provided and I spoke to her about the complaint;
• the information the Council provided in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

EHC plans

14. A child with special educational needs (SEN) 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.
15. 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; and
• 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).

16. 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) and advice from other professionals requested by the parent, where the council considers this is reasonable. Those consulted should provide the advice within six weeks.
17. 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.

Child out of school

18. The law says councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. 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. (Section 19 of the Education Act 1996, as amended).
19. The council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
20. Statutory guidance says education should be provided as soon as it is clear the child will be away from school for 15 days or more for health reasons, and should address the needs of the individual child. (Statutory guidance: Ensuring a good education for children who cannot attend school because of health needs, 2013).

Child and Adolescent Mental Health Services (CAMHS)

21. CAMHS is a health service for children, and their families, who need support for mental health issues. CAMHS also carry out assessments for conditions such as autism.

Child in need

22. Where a council identifies a child needs support with their health or development, it may support them through a child in need (CIN) plan.

What happened

23. Y is autistic. Y was attending a mainstream secondary school and was supported by an autism outreach team. In early September 2021 Y became unable to attend school due to anxiety.
24. In early October 2021 an education welfare officer (EWO) did a home visit. They advised Ms X to obtain a letter from Y’s GP and ask the school to apply for home tuition. Ms X completed the home tuition form the same day and asked the GP to provide a letter. A GP letter was provided in mid October. In early November, Ms X said the school told her that alternative provision was rare, and the GP letter was not sufficient to obtain this.
25. In response to my enquiries, the Council said:
• the EWO who visited in October 2021 was not a Council employed EWO; and
• it only accepts referrals for alternative education from schools and Y’s school did not make a referral until March 2022. It was therefore not involved in making decisions about alternative provision in this period.
26. In the meantime, Y was admitted to hospital due to concerns about their mental health. Y remained in hospital until late February 2022. Although the hospital education team offered some educational provision, Y was not able to access many sessions because they were either unwell or sleeping during the day.
27. On the advice of the hospital education team, Ms X applied for an Education Health and Care (EHC) plan for Y on 23 February 2022. On 1 April 2022, the Council refused to carry out an EHC needs assessment. Ms X appealed that decision.
28. In the meantime, in March 2022, the school applied for alternative education for Y following their discharge from hospital in late February 2022. From 6 May 2022 to 20 July 2022, the Council arranged four hours of home tuition per week for Y to do a computer science course. The Council has not been able to explain why only four hours was provided or provide any record to show how this was considered. The home tuition stopped in July 2022 because Y had reached the end of their compulsory school education in June 2022.
29. The SEND Tribunal ordered the Council to carry out an assessment on 7 September 2022. The order required the Council to:
• tell Ms X of its decision to carry out an EHC needs assessment by 21 September (within 2 weeks of the order);
• tell Ms X its decision about whether to issue an EHC plan for Y by 16 November 2022 (within 10 weeks of the order); and
• if relevant, issue a final EHC plan by 14 December 2022 (within 14 weeks of the order).
30. On 13 September, officer 1 wrote to Ms X to say that “following the agreement to carry out an EHC Assessment for [Y]” they were the SEND keyworker who would coordinate the assessment.
31. Before it could finalise an EHC plan, the Council was required to obtain advice from an educational psychologist (EP). In October 2022 and again in November 2022, officer 1 said they could not tell Ms X the timescales for allocating an EP to provide advice. Ms X complained to the Council and her MP about this.
32. The Council allocated an EP on 28 November. The EP carried out a home visit in late December to complete their assessment and provided their report to the Council on 3 January 2023. The Council shared the EP report with Ms X the same day.
33. On 10 January, the Council told Ms X it had decided to issue an EHC plan for Y. On the same day, it agreed to arrange home tuition for five hours per week until the end of the academic year to allow Y to prepare for GCSEs (which had been deferred), build confidence and self esteem, and to assess their current working level to enable consultations with appropriate placements for September 2023.
34. The Council issued a draft EHC plan on 14 February 2023. Ms X was unhappy with the content and asked for a meeting to discuss her proposed changes. Officer 1 responded on 20 February that they could not arrange a meeting as they were going on planned long term leave the next day.
35. On 1 March, Ms X met with officer 2, a SEND manager, to discuss amendments to the draft EHC plan. Officer 2 confirmed that:
• the proposal for Y to be educated otherwise than at school (EOTAS) would be considered by the Council’s panel on 8 March 2023, following which they would update Ms X;
• they would source occupational therapy (OT) and speech and language therapy (SALT) assessments, following which any recommended support could be included in Y’s EHC plan, subject to panel agreement.
36. In early April, Ms X complained about the delay in finalising Y’s EHC plan and said:
• she had asked for changes to the support in section F of the plan, which the Council had agreed to make in a meeting to discuss the draft plan in March 2023, but had not made;
• important information had not been included in the draft plan; and
• the support in section F was not quantified and specific.
37. In mid April, Ms X provided details of the costs of specific support included in the draft EHC plan. In early May, the Council agreed a personal budget, which would enable Ms X to arrange and pay for the support in Y’s EHC plan herself. On 10 May 2023, the Council issued the final EHC plan. There was a session to complete paperwork with the home tutor appointed in May and the first session of tuition took place on 6 June 2023.
38. In response to my enquiries, the Council provided records to show it considered the provision Ms X had requested in March 2023 and considered the personal budget on 19 April 2023. The record in March 2023 also shows it was proposing 6 hours per week of tuition, with an ambition for this to be increased to 10 hours per week. The Council said its records were incomplete due to the use of agency staff so it was very difficult for it to explain when or why decisions were made.
39. In its complaint response on 25 May 2023, the Council:
• said a manager had worked with Ms X to ensure the correct support was included in Y’s EHC plan, including obtaining additional advice;
• confirmed the final plan had since been issued, and a personal budget issued to enable Ms X to arrange support for Y herself; and
• accepted it had taken 40 weeks to issue the final EHC plan and upheld the complaint about that.
40. Mrs X remained unhappy and complained again on 21 June. She was pleased the Council had acknowledged its delay in issuing the plan but said Y had missed months of education and was now two years behind their peers. Although a personal budget had been agreed she had not received the payment so some of the support in Y’s plan was not in place. She also said she was not happy with sections B and F of the plan.
41. In response to my enquiry about why it had not considered a remedy for the delay in finalising Y’s EHC plan, the Council said it sent a letter to Ms X summarising its understanding of the complaint, but she did not ask it to amend this.
42. In early July, the Council provided details about how the personal budget would work. It asked Ms X to send it an invoice for a “float” of £1,700 and said she should issue further invoices periodically to top up the float. Ms X provided an invoice on 11 July and was told an initial payment would be made the following week. Ms X said she did not receive the funds until 10 August. This caused a delay in arranging the support for Y because she could not commission this until she had the funds to pay for it. This delayed Y receiving game therapy and animal therapy.
43. The Council responded to the complaint at stage 2 in August 2023. It set out the timescales for the EHC process, and confirmed the personal budget was now in place. It said Ms X could appeal sections B and F, and that further changes could be requested at the annual review of the plan. It did not address the missed education. (By this point, Ms X was out of time to appeal the final EHC plan as it was more than two months since it was issued).

Additional information

44. In response to my enquiries, the Council provided a copy of its policy: Children who are missing Education due to Health/Medical Needs (December 2018). This puts the onus on schools to:
• initially put in place a flexible and suitable arrangement for education with a plan for how the child will return to school. Schools only need to contact the Council if additional financial support is needed; and
• to liaise with the Tier 4 Education Provider if a child is admitted to hospital, to ensure a suitable level of education is provided. Schools only need to contact the Council if there is a cost to the Council for the educational provision.
45. The policy also says schools should not remove a child from the roll, unless certain conditions are satisfied, including the Council-appointed medical officer has confirmed they are unlikely to be in a fit state to return before ceasing to be of compulsory school age.

My findings

Alternative education – 2021 to 2022

46. The Council’s policy does not require schools to tell it that children are out of school, except in certain circumstances, which did not apply here. Y stopped attending school in September 2021 but the Council’s policy meant it was not aware of Y’s school absence or time in hospital until the school made a formal referral in March 2022. As a result, although the Council is responsible for ensuring alternative educational provision after 15 days’ absence, it was not involved in decisions about this, nor had any oversight whilst provision was being delivered. This was fault.
47. Although it is likely the Council would have been under a duty to provide some alternative education, it is unclear whether what Y would have been able to access, particularly given they were not able to access the hospital tuition between November 2021 and February 2022. However. Ms X is left with some uncertainty about whether the outcome would have been different but for the fault, which is an injustice to her.
48. Y’s school made a referral for alternative education in March 2022. The Council arranged home tuition from early May. Although it took longer than I would expect for the Council to arrange this, the delay is not sufficient to amount to fault.
49. The home tuition was for four hours per week. The Council was not able to provide a record to show why it decided four hours per week was a suitable education for Y, nor how it considered this. This was fault.
50. I cannot say, even on balance, whether the home tuition was a suitable education for Y in the period May to July 2022. Again, Ms X is left with some uncertainty about whether the outcome would have been different but for the fault, which is an injustice.

Delay in finalising Y’s EHC plan

51. The Tribunal order required the Council to confirm it was carrying out a needs assessment within two weeks, which it did. The Tribunal order also required the Council to decide whether to issue an EHC plan by 16 November 2022. The Council was not able to do so because it had not obtained EP advice by that point. Although I am aware there is a national shortage of EPs, the Council has not told me what steps it took to obtain advice sooner so I cannot say it took all reasonable steps to do so. The Council told Ms X of its decision to make an EHC plan for Y in mid-January 2023; the seven week delay in deciding it would issue an EHC plan was fault.
52. The Council issued a draft EHC plan on 14 February. Ms X then had 15 working days to comment and suggest any changes she wanted it to make. Ms X asked for a meeting but officer 1 was about to go on planned long term leave. It would have been good practice for the Council to have let Ms X know officer 1 was going on leave and explain what arrangements it was making to progress the plan. However, I do not consider the delay caused amounted to fault because a manager met with Ms X in early March.
53. The manager worked with Ms X to amend the draft EHC plan and the Council issued a final plan on 10 May 2023. Councils are required to issue a final plan within 20 weeks. It took 40 weeks in this case, which was fault.
54. The faults in paragraphs 51 and 53 delayed Y receiving home tuition and other support in section F and caused Ms X avoidable frustration.

Delay in paying the personal budget

55. The records show the Council agreed the provision that would be included in section F of Y’s EHC plan in March 2023. Ms X provided details of the cost of the provision in mid-April. It is not clear when this was formally agreed, but it was included in the final EHC plan issued on 10 May 2023.
56. It is unclear why it took from 10 May to 10 August to arrange payment of the personal budget. The delay in arranging payment amounts to fault. This caused Ms X frustration and meant there was a delay in Ms X being able to arrange some of the support for Y.

Complaints handling

57. The Council accepted there was a long delay in issuing the EHC plan. However, it did not consider whether this caused an injustice to Ms X or to Y that it should remedy. It said this was because Ms X had not specifically asked it to do so when making her complaint. This was fault.
58. Where the Council identifies failings during the investigation of a complaint, its should always consider whether this caused an injustice and seek to provide an appropriate remedy for the injustice caused. It should not require a person to specifically ask it to do this.
59. In its final complaint response, in August 2023, the Council also failed to address the complaint about Y’s missed education, which was further fault. The faults caused Ms X further undue frustration.

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Agreed action

60. Within one month of the date of the final decision, the Council will:
• apologise to Ms X for the injustice caused by the fault set out in this decision;
• pay Ms X £350 in recognition of that injustice; and
• pay Ms X a further £750 for the benefit of Y to remedy the delay in arranging home tuition as a result of the delay in finalising the EHC plan after receiving EP advice in January 2023, and the late payment of the personal budget, which delayed the provision of therapy.
61. Within three months of the date of the final decision, the Council will:
1. review its policy and approach to children and young people out of school for health, medical and other reasons to ensure it is fully meeting its responsibilities to arrange alternative education in line with the law and guidance; and
2. remind relevant staff of the importance of keeping full and accurate records, and for supervisors and managers to ensure this is being maintained when overseeing the work of staff reporting to them.
62. The Council has agreed appropriate actions to address delays in the EHC plan process in other cases recently, so no further recommendations are needed.
63. The Council will provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation. I found fault causing personal injustice. I recommended action to remedy the injustice and prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman