Summary: Mr X complained the Council failed to carry out an Education, Health and Care needs assessment for his child Y and failed to provide Y with any suitable education in the meantime. The Council was at fault for failing to decide whether to issue an EHC plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist advice, and for not properly considering its duty to provide alternative education provision. The Council has agreed to apologise and pay Mr X £1800 to recognise the frustration and uncertainty the delays caused him and to acknowledge Y’s missed education provision, to make an ongoing payment of £100 per month until it issues Y’s final EHC plan, and to issue staff guidance.

The complaint

1. Mr X complained the Council failed to carry out an Education, Health and Care (EHC) needs assessment for his child Y within the statutory timescales and failed to provide Y with any suitable education in the meantime. This caused him avoidable distress and frustration and meant Y was not receiving the education they needed.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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.
6. 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)
7. 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)
8. 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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How I considered this complaint

9. I considered:
• the information provided by Mr X and discussed the complaint with him.
• information provided by the Council in response to my enquiries.
• the relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

11. Children 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.
12. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice; and
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days.
13. Where a Tribunal has ordered the council to carry out an assessment the council must notify the parent that it will carry out the assessment within two weeks of the date of the Tribunal order. Where, following the assessment it decides to issue an EHC plan, it must make the decision whether to issue the plan within 10 weeks and finalise the plan within 14 weeks of the date of the Tribunal’s order.
14. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

Alternative provision

15. 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. We refer to this as section 19 or alternative education provision. 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)
16. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. 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 sight? published July 2022
18. Our recommendations included that councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with); and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

20. Y has been on the roll of a mainstream school since May 2022. They have had little or no attendance since then. In August 2022 Mr X asked the Council to carry out an EHC needs assessment. Six weeks later the Council advised Mr X it had decided Y did not need an EHC needs assessment.
21. Mr X appealed to the SEND Tribunal. In September 2022 the Council’s family support worker for Y made a referral to the Council’s Intensive Planning Team, which works with children with special educational needs who are at high risk of their educational placement breaking down. The referral set out that Y struggled to pay attention to any activity other than that Y was physically engaged in, which coupled with a pathological inability to comply meant Y struggled to cope in any formal scenario. It also said Y had refused to attend school so there were no school reports available.
22. The Intensive Planning Team replied later that month and recommended the family support worker:
• advise the school to consult with the learning and behaviour advisory team and consider the recommendations it had made previously in December 2021,
• consider emotionally based school avoidance resources available on line,
• research community based activities (and it offered suggestions) and
• it said it would attend a Team around the Family meeting scheduled for later that month.
23. The Council says the Intensive Planning Team reviewed Y’s case the following month and gave further advice. It has provided no supporting evidence of this. The Intensive Planning Team did not attend the Team around the Family meeting.
24. In February 2023 Mr X contacted the Council’s Special Educational Needs Department. He advised it that Y had not attended school that school year. He said he had asked the school for alternative provision but had been ignored. He asked if there was any alternative provision that could be put in place.
25. The Council contacted the school to ask what action it had taken. The school advised it was meeting with Mr X the next day. Following the meeting the school contacted the Council. It said it had raised concerns with the Council’s children’s services department about Y but children’s services considered the issues were education related.
26. In April 2023 the Tribunal ordered the Council to carry out an EHC needs assessment. The Council wrote to Mr X shortly after confirming its decision to carry out an assessment. An officer emailed Mr X in early June. They advised him the EHC needs assessment was a 20 week process and the Council had requested reports regarding Y. They advised the Educational Psychology (EP) Service would contact Mr X and write a report. The email said the Council had a statutory duty to inform Mr X of its decision and to draft an EHC Plan (if agreed) by late June 2023.
27. In May 2023 Y attended school for a short period. Mr X contacted a Council officer in mid June to ask if all was on schedule for the Council to reach a decision on whether to issue an EHC Plan before the end of the month. Mr X said Y had refused to attend school since half term and Y could not cope in a mainstream school. The officer responded and advised they were waiting for the EP report on Y and a decision could not be made until this was received. The email advised there were delays within the EP Service due to a very high number of referrals and a national shortage of EPs.
28. Mr X complained to the Council in July 2023 as he had not received a decision on whether the Council would issue Y with an EHC plan. He said Y had barely attended school since March 2022 and could not cope in mainstream school.
29. The Council responded that month. It accepted there was a delay and upheld the complaint. It explained this was due to a delay in receiving EP advice. It said it was working hard to ensure it undertook assessments as soon as possible and was actively recruiting EPs and working with organisations who could supply EPs. It said it would aim to complete the EHC needs assessment as soon as possible after the EP advice was received. It said it was aware Y was on the school roll and was finding it difficult to attend school. It said an officer from the Autism and Social Communication Team was working with the school to provide advice and guidance on the appropriate provision for Y to encourage them back to school. It said it was hopeful this officer, the school and Mr X were able to work together to help Y back into school.
30. In mid November 2023 the Council agreed to issue Y with an EHC Plan. It issued Y with a draft EHC Plan two weeks later. Mr X says this was issued without an EP assessment. He says the EP report was not completed until early December and the Council is currently rewriting the draft EHC Plan.

Educational Psychologists

31. In response to our enquiries, the Council told us it was being affected by the nationwide shortage of EPs. This is an issue for many councils as the number of EPs has declined and the number of EHC assessment requests has increased dramatically.
32. The Council told us it has a plan in place to increase capacity and improve timeliness of assessments with a view to bringing EHC Plan timelines back on track within the next 12 months. It has:
• increased the substantive full time equivalence of EPs.
• reviewed pay and conditions to attract EPs.
• undertaken recruitment campaigns including recruiting from oversees.
• increased numbers of trainee EPs and assistant EPs to supplement EPs work.
• reviewed service delivery to maximise efficiency of the current workforce.
33. The Council says it has also commissioned assessments from external agencies and locum EPs. It currently commissions around 75 additional assessments a month. These are allocated in chronological order from the date of request.

Findings

The EHC Needs assessment and EHC Plan

34. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council should have received EP advice within six weeks, made a decision on whether to issue Y with a plan within 10 weeks and should have issued Y’s EHC Plan 14 weeks after the Tribunal’s decision, so by mid July 2023. It did not issue the draft EHC Plan until mid-November 2023. This delay was fault.
35. There is a national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Y’s wait to be seen by an EP meant their EHC needs assessment took longer than the statutory timescales allow for. The Council did not make a decision on whether to issue a plan within 10 weeks. It took 30 weeks to do so, which was 20 weeks longer than the statutory timescales allow for and this was fault. The Council was also at fault as it issued the draft EHC Plan before it received the EP advice and so before the assessment was properly completed. Y’s final EHC Plan has yet to be issued.
36. The Council’s plan of action demonstrates its efforts to mitigate the impact of the nation-wide issue on its service users. We will continue to monitor the effectiveness of this through our casework.
37. I cannot say to what extent Y missed out on provision because of the delays. This is because the EP advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. I therefore cannot say what the EP advice would have been or what the Council would have taken from that advice for inclusion in Y’s EHC plan. If Mr X disagrees with the content of the final EHC Plan, it is open to him to appeal this to the Tribunal.
38. However, the delay in the EHC needs assessment caused Mr X uncertainty and frustration while he awaited Y’s final EHC plan and meant his appeal right was delayed.

Alternative Provision

39. Councils must intervene and provide education under their section 19 duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. This means that once the Council was alerted to Y's absence it should have considered its legal duties at the time and taken action where appropriate.
40. Y has barely attended school since starting there in May 2022. It appears the school made substantive efforts to address this and I cannot look at the actions of the school. The Council’s Intensive Planning Team and family support worker were involved from September 2022. At this point the Council was aware Y was not attending school and had not been since May 2022. The Intensive Planning Team made recommendations in September to support Y which were appropriate. However, despite the Council’s comments, there was no evidence of any further involvement or review following this, given Y was out of school. This was fault.
41. Mr X directly contacted the Council for support in February 2023 and in his complaint to the Council confirmed Y had not attended at all since the Spring half term. Although the Council contacted the school following Mr X’s email it did not follow this up. I have seen no evidence the Council properly considered whether it had a duty to arrange alternative provision and whether the school was available and accessible to Y either in the autumn of 2022 or in February 2023. This was fault.
42. The Council should have kept the situation of a child out of school under regular review as set out in our Focus report. It failed to do this which was fault. Had it done so it may have decided to carry out an EHC needs assessment sooner or arrange educational provision sooner.
43. I cannot say the extent to which Y would have engaged with alternative provision had it been arranged sooner or how much school Y would have managed. However, this causes uncertainty over whether Y has received appropriate education provision since September 2022 and this has caused Mr X distress and frustration.

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Agreed action

44. Within one month of the final decision on this complaint the Council has agreed to:
1. Apologise to Mr X and pay him £400 to acknowledge the distress, frustration and uncertainty caused to him and Y by the Council’s failure to issue the final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in July 2023 until the date it made its decision to issue a plan in November 2023.
2. When the Council issues Y’s final EHC plan it should provide Mr X with a further financial remedy. This is to acknowledge the continued injustice caused by the delay in issuing Y’s final EHC plan from November 2023 up to the date of the final EHC plan. The Council should calculate the payment at £100 per month in line with recommendation above. The Council should make this payment to Mr X within one month of the date it issues the final EHC plan.
3. Pay Mr X £1400 to recognise the impact on Y of the lack of education between September 2022 (when the Council should have established what provision Y was receiving) and November 2023.
4. Assess whether it owes Y a section 19 duty and what amount and type of education is suitable. It should write to Mr X explaining its decision.
45. Within two months of the final decision, the Council has agreed to:
1. provide guidance to staff on how to properly consider and record whether to provide alternative provision under its section 19 duty under the Education Act 1996 to children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise, even when a child remains on a school roll.
2. ensure it has a robust process in place to regularly review the situation when it is aware of children out of school and records the actions arising from this review.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman