Summary: Mrs X complained about the way the Council has dealt with her son, Mr Z’s Education, Health and Care Plan and alternative provision. She said the Council’s actions caused her distress and negatively affected Mr Z’s mental wellbeing. The Council was at fault for not following the statutory procedure during Mr Z’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 Mr Z.

The complaint

1. Mrs X complains about the Council’s:
• delay in processing the Education, Health and Care (EHC) Plan assessment for her son Mr Z. She says the Council took longer than the statutory 20 weeks and this had a negative impact on her and Mr Z;
• failure to put alternative provision in place for Mr Z after his school stopped providing online tuition;
• decision to name a mainstream school in his EHC Plan after it told her that Mr Z required specialist provision; and
• poor communication with her about the progress of Mr Z’s EHC Plan assessment, alternative provision and securing a suitable school place.
2. Mrs X said Mr Z missed out on education he was entitled to at a crucial time for him. This worsened the stress and anxiety he was already experiencing.
3. She would like the Council to find Mr Z 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 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)
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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What I have and have not investigated

9. Mrs X complained about the Council’s decision to name a mainstream school in Mr Z’s EHC Plan after it told her that Mr Z required specialist provision. After this happened Mrs X appealed this decision to the SEND Tribunal and the law says that we cannot investigate this aspect of Mrs X’s complaint because she asked the SEND Tribunal to consider this.

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How I considered this complaint

10. I have spoken to Mrs X and considered the information she provided together with the Council’s response to her complaint.
11. I have considered the relevant legislation and statutory guidance, set out below.
12. 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)

13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist (EP), and from anyone else the parent has reasonably requested (paragraph 9.49)
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 SEND Tribunal.
26. 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.
27. 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

28. 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))
29. 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))
30. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
31. 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)
32. 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)
33. 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.
34. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
35. 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.
36. 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.
37. 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.
38. A compulsory school week in the UK is 32.5hours including breaks.

What happened

39. In March 2022 Mr Z’s secondary school told the Council that his attendance was below what was expected and two months later he stopped attending school.
40. Between May 2022 and October 2022 Mr Z’s school supported him and attempted to reintegrate him into the school setting but this was not successful. The Council has not provided any evidence showing it checked what education Mr Z received during this time. The Council said that it would check on his progress at the next register check. The Council’s website says that these happen each half-term.
41. Mrs X applied for an EHC Plan assessment for Mr Z in late October 2022.
42. In early November 2022 the Council got actively involved in Mr Z’s case and contacted his school to confirm he had not been attending school since July 2022. It also contacted Mrs X and asked her about Mr Z’s aspirations and any online education that he may have been accessing.
43. Mrs X replied within three days and said that Mr Z had limited access to online resources his school was providing and said that in the past he had been on part-time timetables. She also said that Mr Z was due to start online alternative provision in the next few days.
44. The following day Mr Z’s school told the Council he had not been attending school since May 2022.
45. The Council agreed to assess Mr Z’s needs in late November 2022.
46. In early February 2023 the Council chased the EP report.
47. The following month Mrs X complained to the Council about the delay in completing Mr Z’s EHC Plan assessment. She said that she still had no decision, and she was unsure when she would get one. Two weeks later the Council told her that it was chasing the EP report for Mr Z.
48. In late March the school asked the Council for an update on the progress of Mr Z’s EHC Plan assessment and said it was struggling to fund his online education without the Plan in place.
49. In mid-April 2023 the Council told Mr Z’s school that it would not fund an online provision for him because it thought the school should continue to do it.
50. At the end of the month the Council sent Mrs X its final response to her complaint. It said that:
• it was at fault for not completing Mr Z’s EHC Plan assessment within 20 weeks;
• it apologised for the delay in completing the assessment process;
• the delay was caused by the national EP shortage;
• an EP had been assigned to Mr Z’s case in early April;
• Mr Z’s school should consider contacting the Council’s inclusion team; and
• it nominated an officer who would agree a contact protocol to keep Mrs X updated of the EHC assessment process.
51. In early May Mrs X told the Council that Mr Z’s school was providing little materials for him, if any, and he was not accessing education at all.
52. The EP sent their statutory EHC Plan assessment advice to the Council in mid-May 2023.
53. Mrs X was not happy about the Council’s response and in late July 2023 she complained to us. The Council told us that if it offered a remedy to Mrs X for the delay in the EHC Plan assessment it would have been £100.
54. The Council issued Mr Z’s draft amended Plan in June 2023 and the final amended Plan in early August 2023.
55. At the end of September Mr Z began attending an alternative provision placement three times a week and receiving tuition twice a week. Mrs X told us that Mr Z engaged well with what he was offered, but some of the activities clashed and he was missing out on one of the sessions to have online tuition.
56. In October 2023 Mrs X appealed the type of school the Council named in section I of Mr Z’s EHC Plan to the SEND Tribunal.

Analysis

Mr Z’s EHC Plan assessment and Council’s communication with Mrs X

57. 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.
58. Mrs X asked for an EHC assessment in late October 2022. The Council decided to carry out an assessment in the late November 2022 but it did not share this decision with Mrs X until early December 2022.
59. The Code says EP reports should be completed within six weeks of a request. The SEN team requested EP advice in early December 2022. This means the EP’s report should have been available by mid-January 2023 to comply with the six-week timeframe. The EP’s report was not completed until the middle of May 2023 – a delay of four months. The delay is not in line with the Code and is fault.
60. 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 late October 2022. It should have issued Mr Z’s final Plan around early March 2023. The final EHC Plan was not available until August 2023. Even taking into account the Council’s later offer of £100, the process was delayed by five months. 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 Mr Z because he could not receive the tailored provision of an EHC Plan yet to be finalised.
61. The records show 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 Mr Z’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.
62. The Council’s records show that in December 2022 it assigned a case officer to Mr Z’s assessment. Following Mrs X’s complaint in April 2023 the Council said it would nominate an officer who would agree a contact protocol with her and keep her updated. When we asked if the Council had done this, it said the officer was assigned in December 2022. We do not accept that assigning a case officer to the assessment meant the Council fulfilled its actions it committed to after the fact.
63. Mrs X said Mr Z missed out on education he was entitled to, and he missed out on socialising with his peers. This was an aggravating factor for the stress and anxiety he was already experiencing.
64. Lastly, the delay happened at an important transition point for Mr Z as he was supposed to move from a secondary school into further education. Mrs X said she was worried about Mr Z’s transition and preparation for adulthood as she felt he was not prepared for this at all.
65. 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.
66. 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

67. The Council told us that it was first aware Mr Z was not accessing full-time education in March 2022 when the school notified it his attendance was at 69%. At the time the school was still working to reintegrate Mr Z back into full time education and the Council agreed to check progress at the next register check. This did not happen, and it is fault. We consider the Council missed an opportunity to explore if it needed to act sooner to ensure Mr Z was accessing full-time education. This is fault.
68. This allowed Mr Z’s case to drift without considering his individual circumstances and checking if the Council’s section 19 duties applied.
69. Mrs X told us that before Mr Z stopped attending school, he was on a part-time timetable. Councils are responsible for monitoring part-time timetables but this did not happen here, and we consider it to be fault.
70. 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.
71. We consider the Council was responsible for Mr Z’s alternative provision from October 2022 when Mrs X applied for an EHC Plan and told the Council Mr Z’s attendance was an issue. The Council missed another opportunity to check if it needed to arrange alternative provision for Mr Z. This is fault. This caused Mrs X distress and uncertainty about what education Mr Z would get and when.
72. Even when the Council did consider its responsibilities, in April 2023 it told Mrs X that it was Mr Z’s school that should arrange and decide how much tuition he would get. However, under its section 19 duties the Council should have satisfied itself the education Mr Z 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 Mr Z had the Council acted without fault.

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Agreed action

73. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and Mr Z for its failure to provide him with the support he needed and the distress and frustration this has caused Mrs X and Mr Z;
• pay Mrs X £300 to remedy the distress and frustration the delays in the EHC Plan assessment process and below standard communication caused her;
• pay Mrs X £500 for the uncertainty of what alternative provision Mr Z may have received had the Council monitored Mr Z’s part-time timetable and assessed suitability of any provision the school put in place for Mr Z; and
• pay Mrs X, on behalf of Mr Z, £2,500 to remedy injustice caused by the lack of suitable alternative provision from October 2022 to September 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 Mr Z missed at least two terms of alternative provision at a crucial point of his education. We note that Mr Z did get access to some online provision between November 2022 and March 2023, however we have seen no evidence on how the Council ensured this was an equivalent to full-time education suitable to his needs. Additionally, between March 2023 and September 2023 he also missed the opportunity to socialise with his peers in school or at an alternative provision placement.
74. 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.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. There was fault which caused Mrs X and Mr Z 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