Summary: The Council was at fault because of a significant delay in issuing an education, health and care plan for the complainant’s son. This caused uncertainty, for which the Council has agreed to offer a small financial remedy. It has also committed to issuing the plan within one month. However, we are not persuaded there is evidence of significant fault in how the Council made arrangements for alternative provision for the child. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs K.
2. Mrs K complains the Council has:

• missed the statutory deadline for completing and issuing the education, health and care (EHC) plan for her son, F;
• failed to make proper arrangements for F to receive alternative provision, after he was permanently excluded from school in November 2022.

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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)

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How I considered this complaint

4. I reviewed the correspondence between the Council and Mrs K, F’s draft EHC plan, and chronologies compiled by the Council and Mrs K.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. The following chronology will cover the key points relevant to my investigation of Mrs K’s complaint. It is not intended to document everything which happened.
7. F has been diagnosed with a learning and development disorder. He was attending mainstream education, but in 2022 was permanently excluded from two different schools, in May and November respectively.
8. Shortly after the second exclusion, Mrs K requested the Council carry out an EHC needs assessment for him. The Council also arranged a placement for F at an alternative provision centre, for pupils who had been permanently excluded from mainstream schools. F began attending there, although it was some distance from home, and Mrs K expressed concern about the length of the journey, for which F had to take a taxi. She also expressed concern that other pupils at the centre were a negative influence on F.
9. In January 2023, the Council agreed to issue an EHC plan for F. Due to her concerns about F’s mental health and his safety, Mrs K made the decision to he should stop attending the alternative provision centre, although he remained on roll there for the time being.
10. In February there was a meeting between Mrs K, the Council and the alternative provision centre. Mrs K says it was agreed at this meeting that F would not return to the centre, and that the Council would arrange a ‘bespoke’ alternative provision package for him. The Council says the centre agreed to implement a part-time timetable for F, and that it agreed to consider arranging a bespoke package. Both say the centre then set some online work for F, although Mrs K says he struggled to access this.
11. Later in February, Mrs K says she visited some alternative providers with F, then advised the Council what she thought would be suitable for him. She says the Council then agreed to submit a funding request for this.
12. In March, F started to attend an alternative provider once per week. Mrs K says she decided to pay for this while waiting for the Council to agree funding. At a subsequent meeting, the Council informed Mrs K it had agreed F should be taken off-roll from the alternative provision centre.
13. Mrs K says the Council also informed her it had agreed to arrange a bespoke package, which included the provider F was currently attending, and another provider which offered educational tuition and mentoring. However, it later transpired the tuition provider could only offer a session which clashed with F’s other commitments, and would have no other availability until September. The Council therefore offered another tuition provider, which Mrs K accepted, but this only offered F three hours of tuition per week in English and Maths.
14. In June, Mrs K made a stage 1 complaint. She said F still had no EHC plan, no school placement, and no “transition place … as agreed under s19”. She said this was impacting his education and social skills and increasing his vulnerability to exploitation and poor mental health, and also causing her a financial burden, as she was paying for activities and services for him.
15. The Council responded in July. It acknowledged Mrs K’s reason for withdrawing F from the alternative provision centre, but said it was common for pupils to find it challenging to transition to centre. The Council noted the centre had offered F a place with a ‘nurture group’, but neither Mrs K for F had liked this.
16. The Council said the centre had put F on a reduced timetable, while the Council looked for a bespoke alternative provision package for him. However, Mrs K had then found some other providers herself, and because of this F was not completing the online work set by the centre. The Council had then agreed to implement a bespoke package, and that F should be taken off-roll from the centre.
17. The Council also noted Mrs K had made an in-year school application in May, and said this was “still being pursued” with the Council’s involvement.
18. The Council explained it was currently managing a significant backlog of EHC need assessments and plans, due to increased demand and staff shortages. But it accepted it had not met the deadline for F’s plan and so upheld this element of Mrs K’s complaint. It also upheld Mrs K’s complaint that F still had no school place, although it did not accept this was due to any failure by council departments to work together, as Mrs K had alleged. The Council also did not accept it had failed to put in place appropriate provision for F, and said it had not received a “formal request” for s19 provision.
19. Mrs F then submitted a stage 2 complaint. She said he still had no EHC plan, and that there was no plan in place for his education from September. Mrs F asked the Council to acknowledge the impact this was having on him. She also highlighted the Council had agreed to provide F with a bespoke alternative provision package, and questioned how it could therefore say it had not received a request for s19 education.
20. Mrs F said the meetings she had with the Council had been at her own instigation, and she had received very little information from the Council outside these meetings. She said she had been forced to take on the responsibility of providing information about F’s needs to the alternative provider, in the absence of an EHC plan and with no input from the Council’s special educational need (SEN) team.
21. Mrs F said the Council had advised her in February and March not to make an in-year school application, as the Council would liaise with schools to explore this, but it then reversed this advice in May. Mrs F said the Council’s admissions team then advised her to wait until F had an EHC plan, but that its SEN team told her to make an in-year application if she wished for F to have a school place by September, due to delays in the EHC plan process.
22. The Council responded a few days later, but only to say it did not consider it could add to its stage 1 response. It signposted Mrs K to the Ombudsman if she wished to pursue her complaint further.
23. Mrs K complained to the Ombudsman in August.
24. In September, the Council began making arrangements for F to attend another alternative provision centre, as an assessment placement while he awaits his EHC plan. F began attending there in October, and Mrs K says the intention is for him to gradually increase his attendance to full time.

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Legislative background

EHC plans

25. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
26. 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:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Section 19

27. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
28. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

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Analysis

29. The law says the whole process of issuing an EHC plan – from the initial request, to the finalisation of the plan – should take a maximum of 20 weeks.
30. Mrs K has confirmed she requested the Council complete an EHC needs assessment for F on 6 December 2022. By my calculation, this means the Council, having subsequently agreed to issue a plan for him, should have done so by 25 April 2023. It has confirmed, however, that the plan remains at draft stage, some eight months beyond this deadline.
31. This, inevitably, is fault; although I note the Council has acknowledged this.
32. In its response to Mrs K’s complaint, the Council has explained it has a significant backlog of assessments and plans to process, as well as a shortage of staff. In response to my enquiries, the Council also explained the current version of the plan is the third draft, and added:

“It is hoped that there will be agreement on the draft EHC plan so that it can be finalised without delay. However, if the LA and parent cannot agree on the draft EHC plan the LA will finalise without delay so that the parent has her rights of appeal. The LA would hope to be able to resolve issues without the need for the parent to lodge a formal appeal and will continue to work collaboratively with them.”

33. I appreciate the Council’s desire to avoid an appeal. This does not, however, alter the fact there has been, and continues to be, a significant delay in the production of the plan.
34. It is more difficult to define how this has affected F’s situation in real terms. I will return to this point presently.
35. The Council’s s19 duty requires it to arrange alternative educational provision for children who are unable to attend school due to exclusion, or for other reasons. This applied once F was permanently excluded from school in November, but at that point the Council acted promptly to arrange a placement for him at the alternative provision centre.
36. Unfortunately Mrs K decided quickly this placement was not appropriate for F, with particular concerns about the negative influence of some of the other pupils on F, and after approximately two months she withdrew him.
37. At this point, the Council essentially had two choices: it could either accept F should or could not attend the centre, and that its s19 duty therefore applied again; or it could treat it as an attendance matter (‘truancy’) and consider using its enforcement powers.
38. Key to this issue was the meeting in early February, although the exact details of what was agreed there differ slightly between Mrs K and the Council’s accounts – Mrs K says it was agreed F would not return, and that the Council would arrange a bespoke package of alternative provision; while the Council only says it agreed to “consider” arranging such a package.
39. Either way, there is nothing to suggest the Council considered enforcing F’s attendance at the centre, despite his remaining on-roll there for the time being, and so this is a clear indicator the Council had accepted its s19 duty was engaged again here.
40. On a side note, I find it curious the Council commented, in its stage 1 response, that it had not received a “formal request for Section 19 provision” for F. Not only had the Council already clearly accepted a s19 duty, receipt of a formal request is not part of the process anyway – if a child’s circumstances meet the s19 criteria, then the Council’s duty is engaged. It is unclear what prompted the Council to make this comment, although it appears inconsequential.
41. Putting this point to one side, once F had stopped attending the alternative provision centre, there was a period during which the centre was setting online work for him, albeit I note Mrs K says he struggled to access it. Then, in March, the Council agreed to fund an alternative provision package for him, consisting of one day per week at the provider he was already attending, and another 3.5 days per week of tuition and mentoring.
42. I understand this offer was unworkable due to clashes with F’s other commitments, and the Council therefore arranged another provider to give tuition in English and Maths for three hours per week. This began in May and continued to the end of the school year, although I understand F’s attendance there was not always consistent. And more recently, F has been attending another alternative provision centre.
43. On balance, I am not persuaded I can reasonably find fault by the Council, in terms of making provision available to F. As soon as he was excluded, the Council found a full-time alternative placement for him. Once he stopped attending, there was a period of a few weeks before the Council agreed to provide a bespoke package for him, but during this time the alternative provision centre was supposed to have been setting work for him.
44. I acknowledge it then took some time longer for the package to be identified and implemented. However, I am conscious there is a limited availability of this sort of provision, as demonstrated by the fact Mrs K had to turn down the first tuition provider because its only availability clashed with other commitments F had by then.
45. I also note the tuition provider F eventually began to attend only offered a short package in a limited range of subjects. The law says alternative provision should generally be ‘full-time’, but there is no formal definition of this; and the statutory guidance on the s19 duty also recognises that 1:1 tuition is more concentrated than education in a group setting, and so can involve shorter hours.
46. This said, we would normally expect to see a child out of school receiving more than three hours of tuition per week. The statutory guidance also says alternative provision should seek to cover core subjects, particularly English, Maths and Science – the latter of which F did not receive any tuition in.
47. Again though, I cannot overlook this came about because of the limited availability of providers, and the fact F had other commitments which could not be re-arranged. It is not the case the Council simply failed to make the proper arrangements.
48. Part of Mrs K’s complaint to the Council was that it had failed to create a plan for him to transition back to school, as it had “agreed under s19”.
49. I am unclear what Mrs K means by this. The Council’s s19 duty is simply to make arrangements for suitable provision for a child who is unable to attend school – it does not involve making ‘transition plans’ of this nature. I am also unable to see anything in the evidence available to me to show the Council committed to making such a plan.
50. However, this is not to say the Council should not be considering how to get F back into school, which brings me back to the matter of F’s delayed EHC plan.
51. I understand Mrs K made three in-year applications for schools, each of which rejected the application because of F’s history of exclusions, which they are entitled to do. I note Mrs K has also referred to the Council’s fair access protocol in discussing these applications, although it is unclear to me what part this played.
52. But in fact this is academic, as a child with an EHC plan should not go through the normal admissions or fair access process anyway. This because their plan should name a placement, or at least a type of placement (such as ‘education other than at school’ or ‘EOTAS’); and if a school is named on the plan, it is required by law to accept the child, albeit in some circumstances a school can challenge the decision.
53. I cannot speculate what placement the Council will name on F’s EHC plan. If the Council is unable to settle this, it may also leave this section blank, to allow the matter to be decided at appeal to the SEND Tribunal. Either way, this should all have been decided by April.
54. It is not possible for me to say what real impact the delay in F’s EHC plan has had on him; it certainly cannot be said he would definitely have a school place now, if the plan had been issued on time, or at least before now. As a minimum though, Mrs K would have been able to lodge an appeal, if she was dissatisfied with the placement, or other aspects of the plan.
55. As I have quoted, the Council has told me it has issued several different draft versions of the F’s EHC plan, in an effort to ensure Mrs K is satisfied with it and does not seek to appeal. Again, I acknowledge the logic behind this – appeals are often costly and time-consuming, and it is generally better for both parties if they can be avoided.
56. However, this does not mitigate the significant impact of a lengthy delay on the child or young person at the heart of the matter. While F’s EHC plan remains at draft stage, his educational future is insecure. If Mrs K is not satisfied with what is written in the plan, then her proper recourse is to the Tribunal.
57. I consider, therefore, the injustice arising from this delay to be one of significant uncertainty, both for Mrs K and for F himself.
58. I note the Council has already offered Mrs K its apologies for the delay in issuing the EHC plan. This is positive, but I consider the uncertainty in this case justifies also justifies a modest financial remedy. In line with our published guidance on remedies, I consider £300 to be appropriate.
59. I note also the Council has indicated it will issue the final EHC plan soon, if Mrs K does not agree to the recently issued third draft. However, given the extensive delay which has already happened, I consider the Council should commit to issuing the plan within a fixed timescale.
60. I make recommendations to this effect.

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Agreed action

61. Within one month of the date of my final decision, the Council has agreed to:

• offer Mrs K £300, to reflect the uncertainty caused by the delay in issuing F’s EHC plan and the distress this has caused; and
• issue F’s final EHC plan.

62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman