Summary: Ms X complains about delay in completing an Education, Health and Care (EHC) needs assessment, which delayed her child being allocated a school place, and led to missed education. There was a 10 month delay in producing a final EHC Plan and a further 2 month delay in consulting schools. This led to 3 weeks of missed education at the start of the next school year before interim tuition was provided. The delays caused unnecessary distress, uncertainty, time and trouble. The Council will apologise, make a payment to acknowledge the impact of the fault and carry out service improvements.

The complaint

1. Ms X complains the Council:
• delayed in completing the Education, Health and Care (EHC) needs assessment for her child between Spring 2022 and Summer 2023;
• delayed consulting and naming a school on the EHC Plan;
• failed to communicate and keep her informed, and this part of the complaint was never answered;
• failed to offer alternative provision when no school place was provided in Autumn 2023 or offer any funding towards expenses for home education;
• wrongly recorded Ms X as ‘electively’ home educating;
• failed to uphold a delay in arranging mediation;
• failed to provide free school meals funding when her child was unable to attend school.
2. As a result of the alleged fault Ms X says she and her child experienced unnecessary time, trouble, uncertainty, distress and expense.

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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. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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

10. I have considered information provided by Ms X and the Council including:
• EHC assessment documents and EHC Plan
• Panel minutes
• Correspondence
• Council’s response to my enquiries
• Expenses information provided by Ms X.
11. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’)

• The Special Education and Disability Regulations 2014 (‘The Regulations’)

• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

• Non-statutory guidance: Free school meals, March 2024
2. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
3. 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

EHC Needs Assessments

14. The Code sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Act and the Regulations. 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).  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

15. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Mediation

16. The code says Councils must make arrangements for parents and young people to receive information about mediation so that they can take part in mediation if they choose before a possible appeal to the Tribunal.
17. Mediation provision must be independent of the Council.
18. If the parent or young person decides to proceed with mediation the Council must ensure a mediation session takes place within 30 days of the mediation adviser informing the Council of the request to go to mediation.

EHC Plans

19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act).

Alternative education

20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We refer to this as alternative education.
21. 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)
22. 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])

Elective home education (EHE)

23. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved.
24. Councils have a power, but not a duty, to provide support, for example funding or therapy at home for children with special educational needs (SEN) who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Free school meals

25. Section 512 Education Act 1996 sets out the position on free school meals. It says a Council may provide registered pupils at any school maintained by the authority with milk, meals and other refreshments. Where such provision is made it can be either on school premises or at any other place where education is being provided. The Council shall exercise their power under this section where a request for provision of school lunches is made to the authority and the child is eligible for free lunches.
26. Non-statutory guidance ‘Free School Meals’ says where a Council provides special educational provision (usually under an EHC Plan) otherwise than in a school under s.61 Children and Families Act 2014, it should consider making equivalent food provision as for children attending school.
27. Where a child is on roll at an Academy the responsibility for providing free school meals lies with the school.

Factual Background

EHC needs assessment

28. Ms X requested an EHC needs assessment in Spring 2022.
29. The Council did not process the application. When Ms X complained about delay the Council said Ms X had started the online application but not completed the process, as if she had she would have received an acknowledgment.
30. Ms X has provided me with evidence she did receive an online acknowledgement and a reference number.
31. Ms X made a second application in Autumn 2022 when she realised the Council had lost the first application. The Council took almost two months to respond to this application rather than the six weeks allowed.
32. Ms X’s request was refused on the basis the Council considered her child’s needs could be met in a mainstream school without an EHC Plan.
33. In late 2022, Ms X contacted the service the Council contracts for mediation prior to any appeal to request mediation. The Council did not respond to the request for mediation.
34. When Ms X had not received a mediation date after two months, she complained. Ms X said the Council failed to reply to emails from herself or school. Ms X said her child had no school place for September 2023. Ms X asked for compensation for expenses for home educating going forward.
35. The Council told Ms X it had not received the emails from the mediation service. It said the fault lay with the mediation service (which is independent of the Council) which was sending emails to the wrong address. The Council did not uphold fault or delay by the Council.
36. After the mediation delay, the Council reversed its refusal to assess decision. Two months later it agreed an EHC Plan was required. A draft Plan was issued in late Spring 2023 and a final EHC Plan issued in early Summer 2023 naming a type of school. A second final EHC Plan naming a school was issued in the middle of the Autumn 2023 term.

School consultations

37. Ms X said she did not apply for a secondary school place for 2023 through the usual admissions route as she had expected her EHC needs assessment request to be dealt with before she needed to decide on schools. As the final EHC Plan in Summer 2023 did not name a placement, the Council provided tuition of ten hours per week. However, this did not start until week 4 of the Autumn term.
38. The Council’s panel records show it expected Ms X’s child to “be attending her new setting, full time and having undergone transition by the Autumn half term, at the latest…entitlement to free school meals will remain and resources will be covered by the named school”.
39. The Council’s panel in Autumn 2023 noted Ms X had submitted an EHE request and the case worker was advised to contact parents and discuss whether this still stood. The Council intended to name a mainstream school (School X) but Ms X considered her child needed unit provision.
40. Ms X confirmed she did not wish to EHE but felt she had been forced to do so as no school place had been allocated in the final EHC Plan, and the final Plan was late. Ms X provided a list of home education expenses of over £2000 to include a tablet and phone contract in Autumn 2023. Ms X also added to this £6000 of SEN funding. £6000 is the nominal funding a school is expected to provide to a child with an EHC Plan before the Council provides additional funding.
41. The Council amended the EHC Plan to name a mainstream school (School X) at half term and told me Ms X’s child started a gradual transition with tuition to be phased out by Christmas 2022.
42. The Council acknowledged via the complaint process it should have started consulting schools at least two months earlier.
43. Ms X was not in agreement with the choice of school and wanted the Council to consult another school, School Y, which had unit provision at the school. Ms X told me tuition of two hours per day was offered but no funding in lieu of missed free school meals, despite her child not being on roll at a school. Ms X said School X agreed it could not meet needs.
44. The Council told me it considered School X’s response to consultation stating it could not meet needs was not legally compliant and it could make reasonable adjustments to meet needs so this school was named.
45. Documents show Ms X’s preference school (School Y) was also consulted. It said Ms X had stated her child needed unit provision, but School Y expected children to attend mainstream lessons, even though it had a small unit. School Y said it could not meet needs in the mainstream part of school.
46. The placement at School X broke down by Christmas 2023. Ms X said staff forgot to attend a transition meeting that was arranged, and her child refused to attend after overhearing a discussion about an incident involving the police. Ms X said her child was then too afraid to attend. Ms X wanted tuition to continue, but the tutor had been reallocated.
47. Council records show it started to consult schools again in Winter 2023 because Ms X was ‘refusing’ to send her child to School X. The Council remained of the view School X was suitable. School X offered an alternative tutor to work with Ms X’s child in School X two hours per day from January 2024 as part of a transition into School X.
48. Due to Ms X’s child stopping attending School X, further consultations were undertaken which led to School Z being named with Ms X’s child starting a transition there in early 2024. Ms X told me this has been successful.

Poor communication

49. The Council’s complaint response did not uphold that its communication had been poor with emails not responded to. However, the complaint only referred to events after Ms X made a complaint in early 2023. Ms X’s complaint related to past communication between Spring 2022 and early 2023.

Analysis

EHC needs assessment

50. I find Ms X did correctly submit the EHC needs assessment request in Spring 2022, she received an acknowledgment and reference number. The error in this not being processed must lay with the Council.
51. The Council was also late responding to the second request.
52. The Council should have provided a response with appeal rights within 6 weeks of the first request. It did not provide a response until 8 months later. This was service failure and fault.
53. Evidence from panel records show the panel’s reasoning for refusing assessment was because Ms X’s child had been successful with school-based support in junior school and the needs could be met through universal teaching. However, this reasoning was not included in the decision letter. This is fault. The decision letter said the Council did not have enough evidence. Lack of evidence is not a reason to refuse assessment, instead it is a reason to do the assessment to gain the necessary evidence. I find the decision letter contained incorrect reasons and failed to include the actual reasons the panel had refused.
54. As the Council reversed its decision with no new evidence, I find the original 20 week timescale applied. The Council should have issued a final EHC Plan within 20 weeks of Ms X’s first application, that is during the school summer holidays in 2022. It did not issue a final plan until 10 months later. This was fault.

Mediation

55. I have not found fault by the Council in failing to reply to the mediation request. There is no evidence the Council was aware a mediation request had been received. It appears the fault lay with the mediation service, which is an independent organisation, and was not acting on behalf of the Council.

Consulting schools

56. When a draft EHC Plan is issued Section I (placement) must be left blank to allow parents to express a preference to be named in the final Plan. In practice as the timescale between draft and final EHC Plan is short, councils should start discussing potential placements with families earlier than this.
57. The Council should have started consulting with schools no later than draft plan stage so it could identify a placement to name in the final Plan. It did not start consulting schools until after it had issued the final Plan. This is fault. The Council’s panel met a month after the final Plan, but as this was in the school summer holidays consultations were not sent out until the end of August 2023.
58. The Council has acknowledged in its complaint response it should have started consultations 2 months earlier. This fault exacerbated the delay that had already taken place in issuing an EHC Plan and meant a second EHC plan needed to be issued.

Alternative education

59. As no school place was named in time for the start of term the Council provided tuition of 10 hours per week. However, this did not start until week 4 of term, so 3 weeks of education were missed.
60. The Council expected to fade out tuition as Ms X’s child transitioned into School X. This did not happen as Ms X’s child stopped attending. There is a dispute between Ms X about whether her child was unable to attend, and the Council, which considered Ms X was refusing for her child to attend. It is clear Ms X did not want her child to attend School X and never considered it suitable.
61. Whether School X was suitable is not a matter for the Ombudsman to determine. Ms X had a right of appeal against the final Plan naming School X. We would have expected her to use her right of appeal if she disagreed with the placement.
62. The Council decided School X was suitable and accessible for Ms X’s child to attend and it was Ms X’s choice not to send her child. This was a judgement it was entitled to reach. The Ombudsman cannot question a council’s decision made without fault.
63. The Council did agree to consult schools again. This led to the parties agreeing a different school place. This does not mean it was fault for the Council to name School X.

EHE

64. There was some confusion as to whether Ms X was EHE. This appears to arise from Ms X’s request for expenses and SEN funding. The Council made enquiries to establish this. As tuition was organised and provided and then a school place allocated, then the issue of expenses or SEN funding for an extended period of home education did not arise.

Free school meals

65. Ms X’s child was not on a school roll until the 4th week of term in Autumn 2023. As School X is an Academy, the responsibility for providing free school meals, from the date Ms X’s child was on roll was on the School, not the Council.
66. Prior to this Ms X’s child received alternative education under s.19 Education Act (tuition), including special educational provision otherwise than in a school. The Council could have considered providing free school meal funding for this period. The Council could not rely on the school to do so before a place was named in the Plan and the child put on the roll.

Complaint handling

67. There was fault in the complaint handling. There is evidence of delay in communication during the period pre-dating the complaint. This should have been investigated and identified in the complaint. Failure to do so was fault.
68. The Council also should have found Ms X’s original EHC request had been correctly made. If it had spoken to her or asked her for her evidence this would have been identified.

Injustice

69. There was a 10 month delay in issuing a final EHC Plan and a further delay naming a school. This caused uncertainty, distress and additional time and trouble.
70. Ms X’s child missed 3 weeks of education in Autumn 2023 before tuition was put in place. Ms X’s child also missed out on special educational provision in Section F of her EHC plan during that time.
71. Ms X mitigated this by providing education to her child herself. Ms X incurred expenses exceeding £2000. This appears to be in anticipation she would need to educate her child for a long period, however as this turned out to be only 3 weeks I find no basis for the Council to reimburse this level of expenses.

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Agreed action

Within four weeks of my final decision:

72. The Council will apologise for the fault identified in this decision statement.
73. The Council will pay Ms X £1000 for the distress, time and trouble caused to her and her child by the delays and fault identified. This includes the missed opportunity of any additional provision provided by an EHC Plan for the period the Plan was delayed.
74. The Council will pay Ms X £600 for the 3 weeks when no education was provided in Autumn 2023 and Ms X incurred unnecessary expense.

Within two months of my final decision:

75. The Council will ensure decision letters for EHC decisions correctly reflect the reasoning of the decision maker or panel in order that a parent or young person can understand the Council’s decision and challenge it if required via appeal.
76. The Council will ensure it has processes and staffing in place to progress EHC needs assessments within the statutory timeframe and that schools are consulted at the appropriate time.
77. The Council should provide us with evidence it has complied with the above actions.
78. In my draft decision I recommended the Council consider the recent guidance on free school meals and ensure all relevant staff are aware of the guidance. The Council’s response to my draft decision confirms it is aware of the guidance and it has a Free School Meals team to administrate the process in conjunction with schools and assess families’ eligibility. However, the Council says it is currently awaiting clarity from the Government about funding free meals for children receiving education otherwise than at school. As I am satisfied the Council is now alert to this issue, I do not propose to make any further recommendations at this time.

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Final decision

79. I have completed my investigation. There was excessive delay in completing an EHC needs assessment, delay in consulting schools and a failure to provide education in Autumn 2023. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman