Summary: Ms C complained about the Council’s delays during the Education, Health and Care needs assessments process for her daughter. She also says the Council failed to provide her daughter with alternative provision when she stopped attending school. We find the Council was at fault for its delays in issuing Ms C’s daughter’s Education, Health and Care Plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms C complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for her daughter, D. She also says the Council failed to provide D with any alternative provision when she stopped attending school.
2. Ms C says the Council’s failures have caused her distress and upset. She also says D has missed out on the education she is entitled to.

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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. When considering complaints, if there is a conflict of evidence, 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.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. Ms C exercised her right to appeal to the SEND Tribunal educational placement named in D’s EHC Plan. Therefore, I have not investigated what educational support the Council provided to D after July 2023 as this cannot be separated from the matters Ms C raised in her appeal.

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How I considered this complaint

10. I considered information from Ms C. I made written enquiries of the Council and considered information it sent in response.
11. Ms C 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

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
13. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person.
14. 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.
15. 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).

Alternative provision

16. 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.
17. 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.
18. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 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)
19. 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])

What happened

20. This chronology provides an overview of key events in this case and does not detail everything that happened.
21. Ms C’s daughter, D, has special educational needs. Ms C asked the Council to carry out an EHC needs assessment for D in September 2022.
22. The Council wrote to Ms C and refused to assess D in October. Ms C contacted the Council and said she was unhappy with its decision. She provided further information. The Council reviewed the case and decided to assess D at the end of November. It contacted Ms C and confirmed this in early January 2023.
23. The Council emailed Ms C and said it had asked for advice from professionals. It said there was a national shortage of educational psychologists (EP), and this was affecting the speed it could complete assessments.
24. D was struggling to attend school because of her mental health. She stopped attending completely towards the end of January.
25. The school emailed the Council about the support it could provide for D. It said it could provide pastoral support and one to one support in lessons.
26. The Council contacted Ms C in February about D’s absence from school. Ms C explained D had not attended school for two weeks and the GP had written a letter which said D has anxiety.
27. Ms C complained to the Council about its failure to provide D with alternative provision. She also said it failed to issue D’s EHC Plan within statutory timescales.
28. The Council continued to contact the school to discuss D’s absence. The school emailed the Council in late February and said it had made adjustments to get D to attend. It said it had offered a phased re-entry into the classroom and it had adjusted her timetable. It said D needed to engage with the support it was offering.
29. The Council discussed D’s struggles with attending school with the EP. The EP said the school would need to be more flexible and would need to make further adjustments to meet D’s needs.
30. A mental health support service assessed D and provided Ms C with advice about D’s mental health in mid-March. The service said D’s school should identify whether it could meet D’s needs or whether she should access alternative provision. It also said the school should offer D a mentor and a safe space.
31. The Council responded to Ms C’s complaint. It said the school had no evidence to suggest D could not attend. It said the expectation was D should attend school, rather than receive alternative provision. It said it would arrange for a reintegration officer to support D’s return to school. It said the delay in completing the EHC needs assessment was due to the national shortage of EPs. It said it was increasing capacity within its educational psychology service.
32. The Council received the statutory advice from all professionals for the EHC needs assessment at the end of March.
33. The Council attended a meeting with Ms C and staff from D’s school in April. The school agreed to provide a new timetable to reintegrate D into the classroom. It also agreed to implement further reasonable adjustments. It said it would review the matter at the end of May.
34. D met with some of her teachers in line with the reintegration plan. Ms C contacted the Council and said she was concerned the plan was too overwhelming for D. D’s GP sent a letter to school in May and said the plan was worsening D’s mental health. The Council told the school to send the medical alternative provision form to the GP to complete. It said it would review the matter when it had the further information. The school considered the GP’s advice and decided to stop the plan.
35. The school sent the completed medical alternative provision form to the Council at the beginning of June. The GP stated D needed to be in a smaller setting with a higher staff to child ratio.
36. The Council decided to issue D with an EHC Plan. It sent a draft EHC Plan in late June.
37. The Council started looking for alternative provision for D on 23 June. A provider (Provider A) contacted Ms C in July and offered D an induction. Ms C said the Council told her it had set up a trial day with an independent mainstream school in September. She said if D attended Provider A it could cause further anxiety. Provider A agreed to revisit the matter in September.
38. The Council spoke to Ms C about Provider A. Ms C said there was a lack of communication and the special educational needs department had advised her D could attend a taster session at an independent mainstream school.
39. The Council issued D’s final EHC Plan in July. It named D’s school as the setting to deliver the provision in the plan. Ms C appealed to the SEND Tribunal about the content of D’s EHC Plan.

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Analysis

40. The law or guidance does not say the statutory clock stops and restarts where a council has initially refused to carry out an EHC needs assessment and then changes its mind on review. Therefore, the Council had until February 2023 to issue D’s final EHC Plan. The Council missed the deadline by five months. This fault caused Ms C distress and frustration and delayed her appeal rights to the SEND Tribunal.
41. When the Council responded to my enquiries, it said the delays were due to staffing issues within its business support team, several changes in case officers and a shortage of EPs. It has recruited more business support staff and it now uses locum EPs. It has also improved training for new case officers which has resulted in a more stable workforce. I welcome the steps the Council has taken and therefore I do not recommend any further service improvements.
42. The Council was aware D was struggling to attend school. It liaised with the school, considered information from the EP and a mental health service, and arranged a reintegration package with the school for D. There is no fault in this approach. It is for a council to decide whether a child’s health needs prevent them from attending school. The Council was satisfied the school could meet D’s needs with a slow and gradual reintegration package. That was a decision it was entitled to take.
43. When it became clear the reintegration package was not working, the Council sought further information from D’s GP. It decided D met the threshold for alternative provision after reviewing the referral form as it contacted alternative provision providers on 23 June. I therefore consider the Council’s section 19 duties applied from then.
44. The Council says it found alternative provision for D, but Ms C chose not to accept it. The case records show Ms C was under the impression D could attend a trial day at a new school in September 2023. Therefore, she thought it would confuse D if she attended Provider A for a couple of weeks at the end of the summer term. I have not been provided with any correspondence between the Council and Ms C about the trial day at a new school. However, given Ms C was keen for D to receive alternative provision, I consider it is unlikely she would have refused it if the Council had not led her to believe there was an alternative setting available in September. Therefore, on the balance of probabilities, the Council was at fault for its lack of clarity. This caused Ms C some confusion.
45. However, it is unlikely this lack of clarity has caused D an injustice in relation to lack of educational provision. There is no guarantee the placement at Provider A would have succeeded given it was only an induction. The offer from Provider A also came one week before the Council issued D’s final EHC Plan which named the school, rather than Provider A, as the setting required to provide D with an education. Given this short turnaround, it is unclear what, if any, education D would have received at Provider A before the Council issued her final EHC Plan.

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Agreed action

46. By 7 March 2024 the Council has agreed to:

• Apologise to Ms C for the injustice caused by the faults identified.
• Pay Ms C £300 to remedy distress and frustration from her delayed appeal rights to the SEND Tribunal.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council, which caused Ms 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