Summary: We found fault in the Council’s delay to issue a final Education Health and Care Plan for the complainant’s son (Y) and in its communication with the complainant (Mrs X). This fault caused injustice to Y and Mrs X. We did not find fault in the Council’s actions to provide education to Y when out of school. The Council agreed to apologise, make the payment for Y’s and Mrs X’s distress and share this decision with the Special Educational Needs and Disabilities team staff.

The complaint

1. Mrs X says the Council failed to issue Y’s Education, Health and Care (EHC) Plan within the statutory timescales and to provide suitable alternative provision when Y could not attend his school.
2. Mrs X says the Council’s failings meant for Y a year of missed education. She struggled to combine a full-time job with providing support for Y and challenging the Council to comply with its statutory duties.

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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. 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)
5. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
7. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  
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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have not investigated the quality of advice provided during Y’s EHC needs assessment and which school the Council should have named in Section I of Y’s EHC Plan issued in July 2023. Mrs X appealed shortly after Y’s EHC Plan was issued. As explained in the paragraphs four to six of this decision we cannot look at anything that could or was appealed and anything closely related to the appeal.
11. As provision of alternative education was consequential to the Council’s decision on Y’s school placement, I investigated the events complained about until the date of issuing Y’s final EHC Plan in July 2023.

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How I considered this complaint

12. I spoke with Mrs X and considered the information she provided.
13. I made enquiries with the Council and considered the information it provided.
14. I referred to our Focus Report “Out of school, out of sight?" in July 2022, updated in August 2023. Although our updated Focus Report was published after the events complained about, it is still relevant to refer to its content. The Focus Report aimed at clarifying what can be expected from the Council in relation to the alternative provision for children based on the legislation which has been in place at least since 2014. I also referred to our “Principles of Good Administrative Practice” issued in December 2018.
15. Mrs X and the Council 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

Legal and administrative framework

EHC needs assessments and EHC Plan process

16. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)
17. 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.

Alternative provision

18. 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.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. 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)
21. 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’)

SEND Tribunal

22. 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.
23. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued. (Children and Families Act 2014 Section 51(2))

What happened

EHC Plan process

24. The Council received a request to carry out an EHC needs assessment for Y at the end of October 2022.
25. At the end of November the Council agreed to carry out Y’s EHC needs assessment. Among the advice sought by the Council was Occupational Therapy (OT) and Physiotherapy advice but the service declined to provide it as they told Mrs X National Healthcare Service (NHS) would support Y through its provision.
26. The Council sent Y’s draft EHC Plan to Mrs X at the end of February.
27. In mid-March Mrs X provided the Council with the private OT and psychotherapy reports for Y. She expressed her gratitude to the Council for agreeing to name a special school (School 2) in Y’s EHC Plan from September 2024 and for the agreement to provide Education Otherwise than in School (EOTIS) until the end of the school year 2022/2023.
28. The Council issued Y’s final EHC Plan at the beginning of July 2023. The Council named School 1 in Section I of Y’s EHC Plan. Mrs X appealed but withdrew her appeal after the Council had agreed to name School 2 in Y’s EHC Plan in October 2023.

Alternative provision

29. In the summer term of 2022 Y struggled with attending his school (School 1). After a key stage transfer in September 2022 Y developed physical symptoms and could not attend School 1 at all.
30. School 1 tried to support Y with attendance and put a part-time timetable in place for him.
31. In the early November 2022 School 1 referred him to the Council’s service supporting pupils unable to attend school for medical reasons (ESMA). The service did not accept the referral at first due to the lack of medical evidence. It explained to School 1 what documents it needed to consider the referral. ESMA accepted School 1’s referral later in the month.
32. At the end of November ESMA’s planning meeting took place, during which the Council’s services set Y’s reintegration targets.
33. From January 2023 ESMA started supporting Y by coordinating delivery of the online tutoring. Mrs X was concerned Y could not access online tutoring independently and she had to support him to engage with this form of education. During the second review of ESMA the Council offered provision of education to Y through the advanced computer technology. Mrs X raised the issue of the detrimental effects of any short-term, interim provision on Y’s mental health, quoting the recent psychotherapy advice.
34. After a change of tutors to deliver teaching more in line with Y’s abilities, Y found it harder to engage with the ESMA provision.
35. Mrs X asked for a Personal Budget for Y to cover individual tutoring, which would be possible without Mrs X’s help and some support for various areas of Y’s needs. The Council told her it needed updated medical advice on Y’s mental health to find what package of education would be suitable for Y.
36. In May and June Mrs X met with the Council, School 1 and health partners to discuss support arrangements for Y’s health and education. The Council was exploring alternative educational options for Y but also was waiting for updated medical information which it considered necessary to find what would work for Y. School 1 continued providing virtual support sessions for Y. Following the June meeting Mrs X contacted ESMA to stop their involvement.
37. In a pre-action protocol letter in June Mrs X’s legal representative asked for a specific package of education for Y until the Council found a suitable school for him.
38. Mrs X arranged and funded some online emotional support sessions for Y in July and August 2023. This support was discussed and agreed as suitable for Y at the meetings in May and June 2023.

Complaint

39. At the beginning of February 2023 Mrs X complained about the delays with Y’s EHC needs assessment and over a week later sent a pre-action protocol letter to the Council.
40. Mrs X complained in mid-April about the Council’s failings to:
• Issue Y’s final EHC Plan within 20 weeks from the date of the request for an EHC needs assessment;
• Provide suitable alternative provision for Y; Mrs X said the provision delivered by ESMA was not suitable for Y as confirmed by the Educational Psychologist’s advice.
41. The Council responded to Mrs X’s complaint in mid-July, apologising for the delay. It did not accept it had failed to seek advice and information as part of Y’s EHC needs assessment. The Council upheld Mrs X’s complaint about the delays with issuing Y’s final EHC Plan, but not the part of her complaint about the Council’s failure to provide alternative education to Y when he was not attending School 1. The Council admitted it considered Y medically unfit to attend School 1. The Council offered education for Y through ESMA in November 2022 but this was declined in June 2023. The Council said ESMA would review its offer for Y after receiving updated medical advice.

Analysis

EHC Plan process

42. The Council should have issued Y’s EHC Plan within 20 weeks from the date of the request for an EHC needs assessment, so by mid-March 2023. The Council issued Y’s EHC Plan at the beginning of July 2023, nearly four months after its due date.
43. The delay of nearly four months is fault, which caused injustice to Y and Mrs X. It delayed putting support arrangements for various areas of Y’s needs in place when he was not attending school and was struggling to access education offered by the Council. The Council’s fault caused Y and Mrs X uncertainty on which school placement the Council would consider suitable for Y and delayed Mrs X’s appeal rights.
44. I did not find fault in the way the Council dealt with Mrs X’s request for the OT advice as part of Y’s EHC needs assessment. The Council asked for the relevant advice and thus followed its duty explained under paragraph 16 of this decision. The NHS services’ refusal to accept the request was outside the Council’s control, therefore the Council cannot be held responsible for this action.

Alternative provision

45. I did not find fault in the way the Council carried out its duties to provide alternative education to Y when he could not attend School 1 for medical reasons. This is because the Council:
• Put in place online tutoring from January 2023;
• Considered suitability of this provision through the regular reviews;
• Changed ESMA tutors to provide more adequate level of tutoring;
• Because of Y’s difficulties in engaging with online tutoring offered alternative options for him;
• Sought medical advice from the NHS to address the complexity of Y’s mental health difficulties and to find a suitable package of education;
• School 1 provided continuous involvement through weekly sessions with the member of staff, sending individual learning projects and ensuring Y’s access to differentiated tasks for Maths and English.
46. I do not consider the Council excessively delayed arranging alternative provision for Y, especially when looking at the complexity of his mental health needs and the professional advice on the right approach to addressing them. Looking at the period between September and December 2022 I found:
• For the first half term School 1 tried to support Y with his school attendance and put a part-time timetable in place;
• In November 2022 School 1 referred Y to the Council’s services ESMA. ESMA asked for the extra evidence but accepted the referral shortly afterwards and held a planning meeting at the end of November;
47. ESMA started supporting Y in January 2023, rather than in December 2022. Three weeks delay in putting provision in place does not seem excessive especially in view of the Christmas break and the need to prepare Y for the new arrangements.
48. As explained in our Focus Report mentioned in paragraph 14 of this decision for the children who are out of school we expect councils to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• Consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
49. I understand that objectively the extent of the education Y received from September 2022 to July 2023 was not in line with that of his peers attending school, which is what we would normally expect. I also appreciate Mrs X’s frustration caused by the difficulties in finding a suitable education package for him and her efforts to support him throughout this year. However, as explained in the paragraphs above, at this stage I consider the Council acted adequately to the situation when carrying out its statutory duties. Some circumstances were outside the Council’s control and we would not criticise the Council for their consequences.
50. Y’s EHC Plan was issued at the beginning of July 2023. Mrs X’s request for refund of the cost of the emotional support provision arranged for Y by her in July and August 2023 would need to be addressed through considering whether the Council delivered special educational provision included in Y’s EHC Plan. This was not included in Mrs X’s complaint to the Council. Besides most of this provision happened outside the school term.

Communication

51. Among the principles of good administrative practice identified in our guidance is being open and accountable. To adhere to this principle councils should provide advice which is clear, accurate and complete.
52. I found the information provided to Mrs X by the Council’s staff in relation to Y’s proposed school placement lacked consistency. In March 2023 the Council told Mrs X it would name School 2 in Section I of Y’s EHC Plan, which raised her expectations. She was distressed and disappointed when shortly after this communication she learnt this was not the case.
53. The Council’s failings in its communication with Mrs X amount to fault. It caused her injustice by raising her expectations and causing distress when the information was revoked. In Mrs X’s circumstances the inability to rely on the communication received from the Council was likely to have been particularly distressing.

Service improvement

54. During our investigation of the complaint 22 008 853, for which we issued our final decision in March 2023, the Council told us it had introduced improvements to its Special Educational Needs and Disabilities (SEND) services. We will monitor the effectiveness of these improvements through our casework.

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Agreed action

55. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified;
• pay Mrs X £500 to recognise distress and uncertainty caused to Y and Mrs X by the Council’s failing to adhere to the statutory timescales for issuing an EHC Plan and its inadequate communication with Mrs X;

The Council will provide the evidence that this has happened.

56. We also recommend within four weeks of the final decision the Council share this decision with the staff of its SEND team to remind them of the statutory EHC Plan timescales and ensure compliance. The Council will provide the evidence this has happened.

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Final decision

57. I uphold part of this complaint. I found fault in the Council’s delay to issue Y’s final EHC Plan and in its communication with Mrs X. This fault caused injustice to Y and Mrs X. I did not find fault in the Council’s actions to provide education to Y when out of school. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman