Summary: Mrs X complained about the time taken to provide her daughter with an Education, Health and Care Plan (EHC Plan) and for a lack of educational provision. We found there was fault by the Council. The EHC process was delayed and Mrs X’s daughter was not provided with a suitable education while she was not able to attend school. We recommended an apology and a payment to reflect the impact.

The complaint

1. Mrs X complains:
1. There was delay in the process of assessing her daughter for an Education and Health Care plan and in issuing the plan.
2. That the Council’s decision not to issue an EHC plan in February 2023 ignored the evidence and was flawed.
3. The Council failed to ensure her daughter received a suitable education when she was unable to attend school.
4. The Council failed to respond to emails and failed to investigate concerns Mrs X raised and its complaint responses were inaccurate.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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).
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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

5. I am not investigating part b) of the complaint. This is because a decision not to grant an EHC plan carried appeal rights. As Mrs X had the right to challenge how this decision was reached at a Tribunal, we have not investigated this element of the complaint.

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How I considered this complaint

6. I considered Mrs X’s complaint and the information she provided. I asked the Council for information and considered its response to the complaint. I had regard to relevant statutory guidance.
7. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

The SEN Code

8. 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 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.
• 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);  

Education when a child cannot attend school

9. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
10. 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))
11. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What Happened

12. Mrs X says that when schools re-opened in Autumn 2020, following the COVID‑19 lockdown earlier in the year, Y was not able to participate fully. Y struggled with anxiety and refused to attend school.
13. In August 2020, the Council wrote to Mrs X about Y’s low school attendance. Mrs X received a phone call in September 2020 but she received no further letters about Y’s attendance after September 2020.
14. The Council stated its Early Help team became aware of Y in November 2021 and alternative education was being considered. One provider (Provider A) was approached in December 2021 but it had no capacity.
15. As at December 2021 the school told the Council that weekly safe and well checks were taking place. On 14 January 2022 the Council was told by the school that Y was on the waiting list for a place at another alternative education provider (Provider B).
16. A place was offered to Y on 21 January 2022 by Provider B. The Council stated Y attended for a week, then expressed a preference to return to her old school. She only attended her old school for one day in early February. This did not go well and she refused to attend either her school or Placement B.
17. The Council provided evidence that Placement B provided online lessons between the end of January and the end of March. These were mostly with a maths teacher. The teacher also visited Y at home on occasions, starting in February. It seems clear Y did not always agree to participate based on her anxiety levels and general health. The notes recorded some work was provided for Y to do independently on occasions.
18. At the end of March the lessons by Provider B were put on hold. Mrs X says this was due to the impact on Y’s welfare and as she was not engaging.
19. In May Y’s school stated, as the service from Care Provider B had ended, it was now responsible for providing her with an education. Mrs X stated weekly safe and well checks took place from January 2023. However, based on the information provided by Mrs X and the Council I understand no education was provided between March 2022 and April 2023.
20. In response to our enquiries about the provision of a suitable education to Y, the Council told us because Y was on the school roll, it was the school’s responsibility to source alternative education for Y while she was not attending. The Council stated its EHC Team are not responsible for education until an EHC plan has been issued.

Education, Health and Care (EHC) Plan Timescales

21. Mrs X applied for an EHC plan for Y on 16 March 2022. The Council agreed to proceed with an assessment on 26 April 2022.
22. The Council requested information from a variety of professionals. It explained there was a delay receiving advice from an Educational Psychologist (EP). It noted there is currently a national shortage of EPs, and this advice was pivotal to its decision. The required information was received by 15 December 2022.
23. On 21 December 2022, the Council wrote to Mrs X declining to issue an EHC plan. It set out Mrs X had a right to appeal the decision.
24. Mrs X submitted an appeal on 22 February 2023. The Council says it agreed it should provide an EHC plan for Y on 22 March and issued a draft EHC plan on 31 March 2022. A final EHC plan was issued on 24 April 2023.

Mrs X’s complaint

25. Mrs X complained on 23 February 2023. The Council provided a response at Stage One of its complaints process on 3 March 2023. Mrs X asked for the complaint to be escalated. The Council provided a further response to Mrs X on 19 May 2023.
26. Mrs X complained that the Council’s response did not properly reflect the situation that Y was in. She disagreed with some of the content and the Council’s conclusions.

Was there fault by the Council

27. The Council told us that it was not responsible for providing an education for Y while she was on the school roll and she did not have an EHC plan. However, caselaw has established that a council has a duty to provide alternative education under section 19 of the Education Act if there is no suitable education available which is “available and accessible to the child”.
28. 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. This provision generally should be full-time unless it is not in the child’s interests.
29. Statutory guidance - Ensuring a good education for children who cannot attend school because of health needs (January 2013, as amended) makes it clear that Councils are not expected to become involved if a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. However, where a child cannot attend school because of health problems, and they are not receiving a suitable full-time education, the Council is responsible for arranging provision. The law states that councils must arrange must also arrange alternative education for children who are ‘otherwise’ unable to attend school. This is not defined in legislation but it has been explored in several judicial reviews. The common definition of ‘otherwise unable to attend school’ is any situation where it is not reasonably possible for a child to take advantage of any existing suitable schooling. 
30. In Y’s case, the Council was aware that Y was not attending school from Autumn 2020, caused by extreme anxiety. I note the Council stated that medical evidence was not provided to Y’s school to justify her absence and the school had been trying to encourage Y to engage. However, the school’s actions had not been successful and Y was not attending school or receiving an education. In this situation, we would expect the Council to be able to evidence that it has objectively considered whether Y’s school were providing an education, that was accessible and suitable. The Council has not explained how it satisfied itself that Y was receiving an education while not attending school. We found:
• For four terms between September 2020 and January 2022 Y was not receiving an education that was accessible to her. This was fault.
• Between the end of January 2022 and end of March 2022, provision was made for Y at Provider B. The provision was initially face to face, then online and the provider also visited Y at home. We note that Y did not consistently engage, but this provision was made available.
• From April 2022 to February 2023 (three terms) Y was not attending school and she was not receiving education elsewhere. This was fault.
31. We will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of a complete loss of education. While Y was not receiving an education for long periods of time, we note that when provision was made, Y was not able to participate, so it is not clear that, if the council had made provision, Y would have been able to engage and benefit from it. We have taken account of this and reduced the usual remedy we have recommended as a result. However, we consider a remedy if still appropriate given the outcome is uncertain. The lost education occurred over a long period and Y’s engagement may well have changed over time.
32. In all of the circumstances, we have recommended the Council makes a payment to recognise that Y missed 6 ½ terms of education. The payment should be £450 per term, a total of £3,000.

EHC Plan timescales

33. Councils are required to decide whether to conduct a needs assessment within six weeks. In Mrs X’s case the Council says it received a request on 16 March and decided to proceed on 26 April. The decision to proceed with an assessment was made in the statutory timescale.
34. However, there was significant delay in receiving the advice needed to reach a decision. The Council says the delay was with receiving EP advice. There is a known national shortage of EPs. The Council told us it has worked hard to mitigate the delays from EP shortages. The delay resulting from the shortage of EPs constitutes service failure.
35. Once the advice was received it took the Council a further 18 weeks to issue a final EHC plan. The SEN code states the whole process must be carried out within 20 weeks. In Y’s case it took the Council a total of 57 weeks. The EHC plan set out support for Y to help her return to school and provided a new school placement. Had it been provided earlier, it is possible it may have helped Y return to education sooner. To recognise the distress caused by the delay in the EHC process, I recommend the Council pays Mrs X £300.

The Council Complaint response

36. The Council’s response to the complaint was relatively prompt. We found no fault in the process the council followed in responding to the complaint. I recognise Mrs X disagreed with some of the Council’s comments. We have considered what both the Council and Mrs X said in reaching our decision on the complaint.

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Recommended action

37. Within four weeks of my final decision:
38. The Council should apologise to Mrs X and to Y for the fault we have identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
39. The Council should make a payment to recognise that Y missed around 6 ½ terms of education. The payment should be £450 per term, a total of £3,000.
40. To recognise the distress caused by the delay in the EHC process, the Council should pay Mrs X £300.
41. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

42. There was fault by the Council Subject to further comments by Mrs X and the Council, I intend to complete my investigation.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman