Summary: Mrs X complained about the way the Council has dealt with her son, Y’s, Education, Health and Care Plan and alternative provision. She said the Council’s actions caused her distress and negatively affected Y’s mental wellbeing. We found the Council was at fault for not following the statutory procedure during Y’s assessment and failed to provide alternative provision when he stopped attending school. The Council agreed to complete the recommendations set out at the end of this decision to remedy the injustice its actions caused to Mrs X and Y.

The complaint

1. Mrs X complains about the Council’s:
• delay in processing the Education, Health and Care (EHC) Plan assessment for her son Y. She says the Council took longer than the statutory 20 weeks and this had a negative impact on her and Y;
• failure to put alternative provision in place for Y after he stopped attending school in April 2023; and
• poor communication with her about the progress of Y’s EHC Plan assessment, alternative provision and securing a suitable school place.
2. Mrs X said Y missed out on education he was entitled to, and he missed out on socialising with his peers. This aggravated the stress and anxiety he was already experiencing. Mrs X said she was also worried about Y’s transition to secondary school as she felt he was not prepared for this at all.
3. She would like the Council to finalise Y’s EHC Plan and find him a suitable school place without further delay. She would also like the Council to make service improvements to ensure no other family has to share her experiences.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. I have spoken to Mrs X and considered the information she provided together with the Council’s response to her complaint.
10. I have considered the relevant legislation and statutory guidance, set out below.
11. Mrs X and the Council have 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

Education, Health and Care Plan (EHC Plan)

12. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
13. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
14. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
15. An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
17. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
18. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49).
19. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
20. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a Plan.
21. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the Plan; and
• should carry out timely, well-informed assessments.
22. The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a Plan or not.
23. If the Council decides to issue a Plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC Plan meets the needs of the child.
24. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan as these are appealable to the SEND Tribunal.
25. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
26. Once the Council issues the final EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.

Alternative provision

27. 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))
28. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
29. The Council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
30. The education provided by a council must be full-time unless a 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)
31. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
32. 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 (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
33. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
34. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly or have missed ten school days or more without permission.” This applies to all schools, including academies.
35. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
36. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
37. A compulsory school week in the UK is 32.5 hours including breaks.

What happened

38. In January 2022 Y began attending his primary school on a part-time timetable.
39. Mrs X applied for an EHC Plan assessment for Y in mid-June 2022.
40. The Council agreed to assess Y’s needs in late July 2022. At the same time the Council requested an urgent educational psychologist (EP) assessment as Y’s school attendance was below 60%.
41. In September 2022 Y started year five. His attendance was good for a few weeks, but then he became too distressed and attendance dropped significantly. Y’s school worked with Mrs X and a specialist and put a reintegration Plan in place. This was successful for some time, but then Y became too overwhelmed and in mid-April 2023 Y stopped attending school altogether.
42. In December 2022 Mrs X asked the Council for an update and it chased the EP advice after her prompt.
43. In March 2023 Mrs X told the Council Y was struggling in school, and for the last 18 months he had been on reduced timetable. She also complained to the Council about the delay in completing Y’s EHC Plan assessment. She said that she still had no decision, and she was unsure when she would get one. The Council acknowledged her complaint in early April and replied to it at the end of the month. It said that the Council was at fault for not telling Mrs X its decision about Y’s EHC Plan in time. Additionally, the Council explained that it was waiting for information from an EP and because of the national shortage it could not speed up the process of finalising the assessment. The Council did not offer Mrs X any remedy for the fault and later said it should have offered her £500 for the five-month delay in completing the assessment.
44. The Council told Mrs X that it would continue to work with Y’s school to support him and it would nominate an officer to agree a contact protocol with Mrs X so that she could be updated about the progress of his EHC Plan assessment.
45. Mrs X was not happy about the Council’s response and two days later she complained to us.
46. In September 2023 the Council told us it would issue Y’s final EHC Plan within a week. When we spoke to Mrs X in October 2023, she still did not have a final EHC Plan for Y. The Council told us this was because it had passed his final EHC Plan for a panel approval.
47. The Council sent Mrs X Y’s final EHC Plan in late November 2023.

Analysis

Y’s EHC Plan assessment and Council’s communication with Mrs X

48. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
49. Mrs X asked for an EHC assessment in mid-June 2022. The Council decided to carry out an assessment and issued a decision letter in late July 2022, so it made its decision within the allowed six weeks from the date of a parental request.
50. The Code says EP reports should be completed within six weeks of a request. The SEN team requested EP advice in late July 2022 (at the same time as it decided to assess Y). This means the EP’s report should have been available by the start of September to comply with the six-week timeframe. The EP’s report was not completed until the middle of June 2023 – a delay of eight and a half months. The delay is not in line with the Code and is fault.
51. The Council also failed to complete the process and issue a final EHC Plan within 20 weeks from the date of Mrs X’s request in mid-July 2022. It should have issued Y’s final Plan around early November 2022. The final EHC Plan was not available until November 2023. Even taking into account the Council’s later offer of £500, the process was delayed by 12 months, and not five. This is fault. It had an adverse impact on Mrs X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for Y because he could not receive the tailored provision of an EHC Plan yet to be finalised.
52. The records suggest Mrs X was chasing officers in the SEN team many times for updates, that she did not always get substantive replies and any replies did not give meaningful updates. Our view is the Council should have given Mrs X a rough timescale for when Y’s case would reach the top of the EP’s waiting list and an estimated date for the draft EHC Plan, if appropriate. The failure to give a rough timeframe was poor communication and was fault.
53. We have not seen any correspondence to suggest the Council assigned an officer after her complaint as it said it would in April 2023. This is fault. The evidence the Council provided shows communication between March 2023 and November 2023 where Mrs X was asking for updates and how she could progress Y’s case. The Council did respond, but the case still drifted.
54. Mrs X said Y missed out on education he was entitled to, and he missed out on socialising with his peers. Mrs X told us this was crucial for Y as he was not socialising outside of school. This made the stress and anxiety he was already experiencing worse.
55. Lastly, the delay happened at an important transition point for Y as he was supposed to move from primary school to a secondary school. Mrs X said she was worried about Y’s transition to a secondary school as she felt he was not prepared for this at all.
56. Recently, as part of another investigation the Council told us that it was:
• undertaking a full review of its SEN services to ensure it is able to meet all the statutory obligations. This would include a period of action planning and change management. It expects the completed review process to be delivered for September 2024;
• carrying out an extensive recovery programme to resolve any out-of-date activities within the statutory SEN service; and
• expecting to be able to share the review findings and planned actions with all interested parties in mid-2024.
57. Because of the above we have decided not to make further service recommendations until after the Council completed its SEN services review.

Alternative provision after April 2023

58. The Council told us that it was first aware Y was not accessing full-time education in mid-April 2023 when the school notified it. However, when requesting the EP assessment for Y in July 2022 the Council marked the request as an urgent one because of his attendance being below 60%. We consider the Council missed an opportunity to explore if it needed to take action to ensure Y was accessing full-time education. This is fault.
59. We consider that this allowed Y’s case to drift without considering his individual circumstances and checking if the Council’s section 19 duties applied.
60. The Council also said that “it would appear Y was on a part-time timetable”. Councils are responsible for monitoring part-time timetables but is seems this did not happen here, and we consider it to be fault.
61. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more. The Council accepted that in the past its inclusion service would only get involved after an official referral from the school but recognised it should engage with schools and parents at an earlier stage. The Council told us that it has started conversations with schools about children who may be missing out on education and for whom the Council may need to put alterative provision in place.
62. We consider the Council was responsible for Y’s alternative provision from March 2023 when Mrs X told it that he was struggling at school and attendance was an issue. We consider the Council missed another opportunity to check if it needed to arrange alternative provision for Y. This is fault. This caused Mrs X distress and uncertainty about what education Y would get and when.
63. The Council said that it was Y’s school that decided how much tuition he would get. However, under its section 19 duties the Council should have satisfied itself the education Y was getting was an equivalent to a full-time education suitable for his needs. If it was not, then the Council should have arranged additional provision, but it did not. We consider this to be fault. This caused Mrs X further uncertainty about what alternative provision should have been in place for Y had the Council acted without fault.

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Agreed action

64. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and Y for its failure to provide him with the support he needed and the distress and frustration this has caused Mrs X and Y;
• pay Mrs X £500 to remedy the distress and frustration the delays in the EHC Plan assessment process and poor communication caused her;
• pay Mrs X £500 for the uncertainty of what alternative provision Y may have received had the Council monitored Y’s part-time timetable and assessed suitability of any provision the school put in place for Y; and
• pay Mrs X, on behalf of Y, £3,000 to remedy injustice caused by the lack of suitable alternative provision from March 2023 to July 2023 and September 2023 to November 2023. Mrs X should use it as she feels best to support his social and educational needs. In coming to this figure, I have taken into consideration Y missed at least two terms of alternative provision at a crucial point of his education. He also missed the opportunity to socialise with his peers in school or at an alternative provision placement.
65. And within three months from the date of our final decision, the Council will:
• report to us on the progress of the review and recovery programme referred to in paragraph 56 above; and
• provide a report to a relevant overview and scrutiny committee about the timeliness of EHC Plan assessment progress with the Council’s action plan, and what further steps need to be taken to ensure assessments are completed, final EHC Plans issued within statutory timescales and alternative provision put in place when required by law.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. There was fault which caused Mrs X and Y an injustice. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman