Summary: Mrs X complained the Council exceeded the statutory timescales for completing an Education, Health and Care needs assessment for her daughter and failed to provide alternative education or personal budget for her when she was no longer able to attend school. We found fault by the Council on both matters. The Council has agreed to apologise, make a payment in recognition of Mrs X’s daughter’s missed education and a further payment for the distress and time and trouble caused because of the fault.

The complaint

1. The complainant, who I shall call Mrs X, complained the Council delayed in completing an Education, Health and Care (EHC) Needs Assessment for her daughter, Y, and exceeded the statutory timescale for doing so.
2. Mrs X also complained the Council did not provide alternative education for her daughter when she was no longer able to attend school full time and took too long to consider her request for a personal budget for Y.
3. Mrs X says because of the Council’s fault she and Y have suffered avoidable distress, uncertainty and time and trouble in pursuing these matters. She also says that Y missed education.

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The Ombudsman’s role and powers

4. 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)
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. 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.
7. 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)
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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How I considered this complaint

9. As part of my investigation, I have:

• considered the complaint and documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the Council’s response to Mrs X and documents it provided to us;
• considered guidance we published in 2022-Out of School…out of sight? and our guidance on remedies
• sent my draft decision and revised draft decision to both the Council and Mrs X and invited their comments.

10. 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 found

11. 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;
• 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;
• 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);
• if the council decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request; and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
12. 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))

• The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.

13. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
14. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
15. A Personal Budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. (SEND Code of Practice, paragraph 9.95)

What happened

16. Mrs X requested an EHC needs assessment for her daughter, Y, in October 2021. The Council agreed it would complete a needs assessment and it began to gather the information it needed including advice from an educational psychologist (EP). It did not request an Occupational Therapist report at this time.
17. Y was assessed by an EP and a report issued in May 2022.
18. On 24 May 2022 Mrs X and Y’s school told the Council it was detrimental to Y’s wellbeing to attend school on a full-time basis. Y would be placed on a part time timetable as an interim measure until a specialist placement was found for her.
19. In September 2022 Y returned to school after the summer break. She remained on a reduced timetable however no home-based tuition was provided and Mrs X told the Council she could not home educate Y.
20. Also, in September Mrs X made a complaint to the Council because a EHC plan for Y had not been issued. In response a EHC manager spoke with Mrs X and told her that a draft EHC plan would be issued imminently.
21. The EHC manager also told Mrs X she should start looking at local schools with a Speacilst Resource Base (SRB) for Y to attend. Mrs X did so but found SRB schools would not meet Y’s needs.
22. On 16 September the Council issued a draft EHC plan for Y. Mrs X was unhappy with the draft and requested amendments.
23. On 12 November the Council sent Mrs X the final EHC plan for Y (the plan sent to Mrs X was dated 21 October). Mrs X was unhappy with the plan and requested mediation to address her concerns. The mediation provider contacted the Council to arrange mediation but did not get a response.
24. Also, in November the Council requested an Occupational Therapist report for Y.
25. On 4 January 2023 Mrs X told the Council that Y was unable to cope with attending her current school placement.
26. On 17 January a meeting between Mrs X, Y’s school and Y’s EHCP Co-Ordinator took place where it was agreed that it was detrimental for Y to continue attending school. Mrs X requested alternative education provision for Y at the meeting and asked about a personal budget for this.
27. On 24 January a further meeting between Mrs X, Y’s school and the Council took place. At the meeting Y’s school confirmed it was no longer making education provision for Y. Mrs X requested Y be provided with interim alternative education provision and suggested provider W.
28. A further meeting was held on 31 January. At the meeting Mrs X was told the Council would not be providing Y with alternative education provision. She was also told that Y had a place at a specialist school for September 2023.
29. On 8 February Mrs X met with Y’s EHCP Co-Ordinator and an EHCP manager. She was advised to consult the Council’s website for advice on arranging a personal budget for Y.
30. At the meeting Mrs X was also told that Y’s place at a specialist school was only agreed in principle. Mrs X contacted the specialist school after the meeting and was told there was no place for Y.
31. In March Mrs X completed the mediation process regarding her concerns about Y’s EHC plan and lack of educational provision.
32. Later that month Mrs X meet with her EHCP Co-Ordinator and was told that her request for a personal budget for Y would need to be referred to a panel for consideration.
33. Unhappy with the Council’s handling of Y’s case, Mrs X made a complaint on 23 March. Mrs X had to chase the Council for a reply in April and May.
34. In April Mrs X lodged an appeal with SEND Tribunal regarding her concerns about Y’s EHC plan.
35. On 19 May Mrs X was told that Y’s place at specialist school for September 2023 was confirmed.
36. Also, in May the Council replied to Mrs X’s complaint. It said:

• there has been a significant increase in EHC needs assessments requests which has caused a back log of cases. It is working to resolve the issue. It apologised for the delay.
• it was not the Council’s role to provide alternative education for Y. Her school received funding for Y’s education provision and so her school could have found alternative provision.
• it apologised if Mrs X found the advice to research an SRB placement unhelpful.
• it apologised for the confusion around how to request a personal budget and said it would amend the information on its website to make it clearer and arrange training for staff to remind them of the process for requests.
• it offered Mrs X a symbolic payment of £500 in recognition of the delays in Y’s case and a £100 for the time and trouble of pursuing the complaint.

37. On 26 May the Council told Mrs X that it had secured funding for a placement at provider W and would contact her to arrange the placement.
38. On 6 June Mrs X chased the Council about a placement at provider W, as the Council had not been in touch. The Council replied on 16 June to tell Mrs X that provider W had no places available. Instead, the Council offered Y a placement at provider Z instead. Mrs X said the placement was not appropriate as attending another setting for only half a term would heighten Y’s anxiety and be detrimental to her wellbeing.
39. Y’s special educational needs co-ordinator (SENCO) suggested that she receive an enhanced transition to her specialist school placement instead. This meant Y would receive more than the standard two transition days.
40. Mrs X chased up the enhanced transition for Y with her EHCP Co-ordinator and was told that costings had be requested from the placement. Mrs X chased this up with the placement directly and was told they were unaware of the request. Mrs X was given contact details for the appropriate person to contact, and she forwarded these to Y’s EHCP Co-ordinator. Mrs X did not hear back from her.
41. In June Y attended two transition days at her specialist placement. She did not receive any other transition days.
42. Mrs X remained unhappy with the Council’s handling of Y’s case and approached the Ombudsman. In additional to the matters raised in her complaint to the Council Mrs X clarified a personal budget was not provided by the Council and that she had funded activities to help with Y with social interaction, a need identified in her EHC plan.
43. We notified the Council we would be investigating Mrs X’s complaint. In response the Council told us it had carried out a further review of her complaint and it proposed to take the following action:

• make a symbolic payment of £500 for the delay in finalising Y’s EHC plan;
• make a payment for £2400 for the failure to provide education to Y between January 2023 and June 2023.
• make symbolic payment of £100 in recognition of the time and trouble caused to Mrs X in pursuing her complaint; and
• make a symbolic payment of £200 in recognition of the distress caused to Mrs X and Y.

It also told us that a detailed review of Y’s case had been carried out by the Assistant Director for High Needs. As a result of the review, it proposed to:

• issue a letter of apology to Mrs X for the failings identified in Y’s case; and
• commence a review of the Council’s arrangements for considering the circumstances of children not receiving a full education to ensure the Council fully and expediently considers its duty under Section 19 of the Education Act.

44. In response we asked the Council to consider the period May 2022- December 2022 when Y was on a part time timetable and so not receiving a full time education. We also asked it to consider the period from June 2023 to the summer break when Y was also without education.
45. In response the Council told us it had further considered the case and acknowledged the Council should have provided alternative provision for Y between May 2022 and December 2022. It offered £1350 in recognition of the lost provision.
46. The Council said that it did not think a payment was necessary for the period June 2023 to the summer break. This was because it had made an offer of alternative provision for Y which Mrs X had declined.

My consideration

47. We expect councils to follow statutory timescales set out in the law and the Code. In this case the Council failed to complete the EHC needs assessment process within the 20 week timeframe and took over a term and a half longer to issue a final EHC plan for Y. This is fault by the Council. I consider the Council’s proposed symbolic payment of £500 suitably recognises the uncertainty and distress caused by the delay.
48. From May 2022 to December 2022 Y was on a reduced part time timetable as she was too anxious to attend school. Mrs X and Y’s school told the Council about her situation. The Council must provide full time education to a child unless full time education would not be in the child’s best interests. Therefore, the Council should have provided Y with alternative provision to cover the half of her timetable not being provided her school.
49. Because of the fault identified Y only received a part time education for a term and a half. The Council has proposed a payment of £1350 for Y’s missed provision. This is in line with our guidance on remedies and so I consider it an appropriately addresses the injustice to Y.
50. From January 2023 to June 2023 Y stopped going to school. The Council was aware of the change in Y’s situation and it her discussed her case at meetings with Mrs X and Y’s school. Despite this no alternative provision was provided for Y. For the reasons set out above the Council should have provided Y with alternative provision.
51. Because of the fault identified Y did not receive any education provision for a term and a half. The Council has proposed a payment of £2400 for Y’s missed provision. This is in line with our guidance on remedies and so I consider it appropriately addresses the injustice to Y.
52. Mrs X raised the issue of alternative provision and being allocated a personal budget to provide this for Y at meetings with her EHCP Co-ordinator from January 2023 onwards. The Council’s response to Mrs X’s complaint recognised there was confusion around how to progress her request. For this reason, a personal budget for Y was never issued.
53. Mrs Y requested alternative education provision for Y in January 2023. The Council did not secure the funding for Y to attend a placement at provider W until late May 2023. It then failed to follow up securing a placement until Mrs X chased the Council, by which time, a placement was no longer available. I consider this is delay by the Council which resulted in Y not being offered funding for alternative education in a timely manner and her missing out on the offer of a suitable placement at provider W.
54. I note the Council offered Y a placement at provider Z and Mrs X refused this placement because she felt it would be detrimental. I recognise this was Mrs X’s choice however the Council’s delay in acting on her request for alternative provision contributed to the reasons for her feeling the placement would be detrimental.
55. I am aware that Mrs X was pursuing additional transition days to Y’s new school, as suggested by her SENCO and that these would have gone someway to compensate for the lack of an alternative placement between June 2023 and the end of the summer term. However no additional transition days were provided despite Mrs X pursuing this matter with Y’s EHCP Co-ordinator.
56. For the reasons set out in paragraphs 52-55 I consider it is appropriate for the Council to make a payment in recognition of Y’s missed education during the final half of the summer term.
57. Mrs X made a complaint to the Council in March 2023 but did not receive a response until May. Mrs X had to chase the Council for a response. This is fault by the Council and put Mrs X to avoidable time and trouble. I consider the Council’s proposed symbolic payment of £100 suitably addresses the injustice caused to Mrs X.

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Agreed action

58. To remedy the injustice to Mrs X and Y because of the fault identified above, the Council should, within one month of my final decision, take the following action:

• provide a written apology to Mrs X and Y for the failings identified;
• pay Mrs X £100 to recognise the distress the time and trouble caused in pursuing this matter:
• pay Mrs X £200 to recognise the distress cause to her and Y;
• pay Mrs X £500 to recognise the uncertainty and distress caused by the failure to issue a final EHC plan in line with statutory timescales;
• pay Mrs X a payment of £3750 in recognition of the education that Y missed between May 2022 and June 2023.
• pay Mrs X £450 in recognition of the education Y missed between June 2023 and the summer break. This figure takes into account that Mrs X declined an offer of interim alternative education, and that Y also did not receive additional transition days at her new school.

59. Within three months of my decision the Council should undertake a written review of its process for considering the circumstances of children who are not in receipt of full-time education. The review should also include the Council’s process for considering personal budget requests. Following the review, the Council will provide guidance and training to the staff on the new protocols.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. I found fault and the Council agreed to remedy the injustice caused by the fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman