Summary: Mrs X complained about delays in assessing her daughter, Z’s, special educational needs. The Council accepted there was fault in delays issuing Z’s Education Health and Care plan and how it failed to consider whether it needed to arrange alternative education for her when she was unable to attend school. The Council agreed to further apologise to Mrs X and Z, and to pay Mrs X a financial remedy.

The complaint

1. Mrs X complains about delays in assessing her daughter, Z’s, special educational needs. Despite being ordered in February 2023 by the SEND Tribunal to arrange an assessment, Mrs X says the Council took too long to complete the assessment and failed to arranged alternative education for Z in the meantime while she was unable to attend school. She says this has caused Z to miss out on education and caused them both frustration and distress. She wants the Council to apologise and properly recognise the impact of the delays on them both.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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)

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What I have and have not investigated

6. I have investigated the delays in how the Council caried out the assessment of Z’s special educational needs and how it responded when it was told that Z was not attending school.
7. I have not investigated how Z’s school managed her attendance or education, before the Council issued Z’s Education Health and Care (EHC) plan. The law does not allow the Ombudsman to investigate the actions of schools which are not connected with providing the support set out in an EHC plan.

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How I considered this complaint

8. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
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

Education health and care plans

11. 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.
12. 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. 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).
13. There is a right of appeal to the Tribunal against various Council decisions about EHC plans. This includes a decision not to carry out an EHC needs assessment.
14. The Special Educational Needs and Disability Regulations 2014 set out the timescales within which councils must comply with orders of the SEND Tribunal. Where a tribunal orders that a council carries out an EHC needs assessment regulation 44 days that council must:
• within two weeks of the order, tell the child’s parent it will carry out the assessment; and
• if it decides to issue an EHC plan, issue the final plan withing 14 weeks of the order.

Alternative education provision

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 section 19 or alternative education provision.
16. 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
17. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
18. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

19. Mrs X’s daughter Z has special educational needs. These include severe anxiety, which includes anxiety associated with attending school. Mrs X asked the Council to assess Z’s special educational needs in July 2022. At first, the Council refused so Mrs X appealed to the SEND Tribunal. In early March 2023, the Tribunal ordered the Council to assess Z’s needs.
20. After the tribunal decision, the Council alerted Z’s former caseworker of the decision. However, during the tribunal appeal Z’s caseworker had changed roles so did not receive the notice. After Mrs X asked the Council for an update in April 2023, it realised the error, allocated Z’s case to a different caseworker and started the EHC needs assessment process.
21. Mrs X contacted the Council’s SEN team in December 2022. She told it that Z was no longer able to attend school due to her anxiety and asked the Council to arrange alternative tuition. Although the Council sent an automatic acknowledgement of Mrs X’s email, there is no evidence the Council responded further.
22. Mrs X then complained to the Council in June 2023 about the delays in the assessment. She told the Council Z was still not currently attending school.
23. The Council replied to Mrs X the following month. It apologised for the initial delay starting the assessment and explained that, due to a shortage of educational psychologists (EPs), Z was still on a waiting list for an EP assessment. It told Mrs X it was working to increase the amount of EP assessments it could carry out, but that it could not say when it expected to be able to complete Z’s assessment.
24. In September 2023, Mrs X contacted the Council again to say that Z was not able to attend school and asked for help finding alternative placements for her.
25. The Council received the EP advice for Z in early November 2023. Just over a week later, the Council told Mrs X that it would be issuing an EHC plan for Z and that it would work with Z’s current school to arrange a reintegration plan and alternative education for the rest of the year.
26. The Council checked with the school in early December 2023 about whether discussions had taken place with Mrs X and Z. The school told the Council about the plans it had agreed with Mrs X to encourage Z to attend school and that it would keep that plan under review. The Council spoke to Mrs X a few days later and noted that she was happy with her conversation with the school. The Council issued Z’s final EHC plan the following day.
27. In January 2024, after issuing Z’s final EHC plan, the Council apologised again to Mrs X for the delay in the assessment and offered Mrs X £550 to recognise the distress and uncertainty caused by those delays. Mrs X told the Council she was not satisfied it this remedy, as she felt it did not properly recognise the education Z has missed out on during the past year.

My findings

28. In its response to Mrs X’s complaint, the Council accepted there had been delays with both allocating Z’s case to the right person after the tribunal decision and in it getting the EP advice it needed.
29. The Council should have told Mrs X it was going to carry out the assessment within two weeks of the Tribunal’s decision. However, it did not tell her until she asked it for an update in April 2023. This first delay, of around three weeks, was due to the Council’s failure to keep its systems updated when its SEND staff change roles and was fault.
30. I am satisfied the later delay, in receiving the EP advice, was due to the ongoing national shortage of educational psychologists, which also affects the Council. While the Council has taken proportionate steps to increase the access to EP advice, it still took too long to issue Z’s EHC plan. Following the tribunal, it should have done this by June 2023. However, it issued Z’s final EHC plan in December 2023, just under 6 months late. Although this delay was outside the Council’s control, it still took much longer to issue Z’s EHC plan than the law allows. Therefore, I am satisfied this delay amounted to service failure and was also fault.
31. The delays in issuing Z’s EHC plan caused avoidable distress, frustration and uncertainty to Mrs X and Z for around six months. The Council has offered Mrs X £550 to recognise that distress. Since I have calculated the delay at just under six months, I consider a remedy of £600 would be more appropriate. This remedy is calculated at roughly £100 per month from the date the council should have issued the final EHC plan in June 2023 until the date it issued the final EHC plan in December 2023.
32. In its response to my enquiries, the Council said it first knew that Z was not attending school when Mrs X complained to it in June 2023. However, the evidence from Mrs X shows that she told the Council this in December 2022.
33. The Council accepts that, when Mrs X complained in June 2023 that Z was not attending school it should have considered whether it needed to arrange suitable alternative education for her, but that it failed to do so. The Council has offered to pay Mrs X a further remedy of £2000 to recognise any education Z missed between June and early December 2023, when it issued the EHC plan and contacted Z’s school to arrange a reintegration plan.
34. However, I am satisfied Mrs X told the Council Z was not attending school in December 2022. The Council’s failed to consider or respond to that message from Mrs X. I consider that, and the Council’s failure to consider whether it needed to arrange alternative education for Z, was fault which caused Z to miss out on suitable education between January and December 2023. That allows for a reasonable time to arrange alternative education and the winter school holidays.
35. Our Guidance on Remedies says that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
36. The evidence shows that Z would likely not have been able to take part in full-time education during that time. Taking that into account, I consider a remedy of £1,100 per term, would be suitable to recognise the education Z missed. Z missed out on just less than three terms of education between January and December 2023. However, the last term during this time was an important one in Z’s school career. Taking this, and that Z’s school begin her reintegration towards the end of that term, I consider a remedy of £3,300 would be suitable to recognise the education Z missed.
37. As explained above, I cannot investigate the actions of Z’s school in supporting her education, including how it arranged any part-time timetables before the Council issued Z’s EHC plan.
38. The Council has also offered a further £200 to recognise the distress and frustration caused by its poor communication with her, particularly when Mrs X needed to chase the Council for updates. I am satisfied the Council did not keep Mrs X updated about the delays in the assessment as it should have done. This caused Mrs X further avoidable distress and I consider the financial remedy the Council has suggested is suitable and in line with the Ombudsman’s Guidance on Remedies.

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Agreed action

39. Within one month of my final decision the Council should:
• apologise to Mrs X and Z for the distress and lack of education it caused when it failed to consider whether it needed to arrange alternative education for Z; and
• pay Mrs X £4,100, made up of:
1. £600 to recognise the distress, frustration and uncertainty caused by the delays issuing Z’s EHC plan;
2. the £3,300 it has offered to recognise the education Z missed out on between June and December 2023; and
3. the £200 is has offered to recognise the further frustration caused to Mrs X by its poor communication with her.
40. The Council should provide us with evidence it has complied with the above actions.
41. In its response to my enquiries the Council explained the plans and actions it is taking to improve its SEND service and access to education psychology advice. I am satisfied the Council is taking proportionate action to improve its services. Therefore, I have decided I do not need to make any service improvement recommendations at this time.

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Final decision

42. I have completed my investigation. The Council accepted there was fault in delays issuing Z’s EHC plan and how it failed to consider whether it needed to arrange alternative education for her when she was unable to attend school. The Council agreed to further apologise to Mrs X and Z, and to pay Mrs X a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman