Summary: Mrs B complained the Council had failed to provide alternative education for her daughter, seek advice as part of an education, health and care needs assessment, and issue an EHC plan within statutory timescales. There was fault which caused injustice. The Council has agreed to make a payment to remedy this. The request for advice is outside our jurisdiction.

The complaint

1. Mrs B complained the Council had failed to:
• provide alternative education for her daughter, M, since January 2023.
• seek advice and information as part of an EHC needs assessment (specifically a SALT and OT assessment).
• adhere to the statutory EHC needs assessment timeframes.
• respond to her complaint on time.
2. As a result, M had missed out on education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. 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.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. 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

11. I spoke to Mrs B about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014
12. Mrs B 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

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
15. If a SEND Tribunal decides the council must carry out an EHC assessment, the council must start the assessment within two weeks of the decision. If the council decides as a result of the assessment to issue an EHC Plan, it must issue the final EHC Plan “as soon as practicable” and in any event within 14 weeks of the Tribunal Order. (SEND Regulations 2014, Regulation 44(2)(b)(ii))
16. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
17. The Council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC plan.
18. The Code says advice and information requested by the local authority must be provided within six weeks of the request.
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
20. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Alternative educational provision

21. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
22. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
23. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
24. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
25. The Council’s Fair Access Team oversees its responsibility to provide education for pupils who are deemed not fit to attend school for medical reasons.

The Council’s complaints procedure

26. The Council has a two stage complaints procedure. At the first stage it aims to respond within ten working days. At stage two it aims to respond within twenty working days.

What happened

27. Mrs B’s daughter, M, was struggling to attend a mainstream primary school due to severe anxiety. In summer 2022 M was seen by the school nurse who referred her to the Council’s early help team and an early help plan was developed. M was also referred for an NHS assessment as she was unable to talk in some circumstances. The School arranged some sessions for M until Christmas 2022. In January 2023, M stopped attending school.
28. Mrs B had requested an EHC needs assessment. The Council had refused this, but Mrs B’s appeal to the SEND Tribunal was upheld and on 14 March 2023 the Tribunal ordered the Council to carry out an EHC needs assessment. The final EHC plan was therefore due to be issued by 20 June 2023, in line with the Regulations.
29. On 17 March 2023, the Council asked NHS services, including educational psychology (EP), children and adolescent mental health services (CAMHS), speech and language therapy (SALT) and occupational therapy (OT), for information and advice for the assessment. M was not known to the OT service. SALT replied on 20 March saying M had been described as a good communicator and the concerns related to her anxiety, so it would not be contributing to the needs assessment. CAMHS advised that M was awaiting an initial assessment. The EP report was not received until December due to delays caused by a national shortage of EPs.
30. In April, Mrs F asked the Council to request a SALT and OT assessment. A clinical psychologist sent a report to the Council which said M needed an assessment to determine if she was autistic and a SALT assessment was recommended. The Council replied that it had received advice from SALT and did not consider a SALT assessment was necessary.
31. Mrs B asked the Council to make alternative provision for M. A referral was sent to the Council’s Fair Access Team on 24 April.
32. Mrs B complained on 13 May that M was not receiving any alternative provision, that the Council had not sought a SALT or OT assessment and that the draft EHC plan had not yet been issued.
33. The Council agreed provision should be made due to M’s anxiety preventing her from accessing school. An alternative provision planning meeting on 5 June determined that M would not be able to access full time education as she was unable to leave the house and could not engage with professionals. It was proposed that a mentor meet with M. Mrs B says an online tutor was provided for two hours once a week, but M would not engage.
34. The Council responded to Mrs B’s complaint; it apologised for the delay in issuing the EHC plan which was due to delays in educational psychology. It said it was recruiting EPs and Mrs B should seek support from the School in the meantime. The Council did not consider a SALT assessment was necessary. If Mrs B wanted an OT assessment, she should ask M’s GP to make a referral.
35. Mrs B asked for her complaint about the EHC plan and therapy assessments to be escalated. The Council’s stage two response was issued on 25 August. It apologised for the delays in responding and in issuing the EHC plan. It offered Mrs B £150 to acknowledge the distress caused by this. Mrs B says the Council then agreed to commission an OT sensory assessment.
36. Mrs B came to the Ombudsman. She said the Council said it was dealing with EHC needs assessments in date order but she was aware of at least one case where an EP had been allocated before M, out of turn.
37. The Council received the EP report on 7 December and issued a draft EHC plan on 4 January 2024.
38. In relation to the educational psychology issues, the Council told us it has:
• A SEND improvement plan which includes working with the EP service to increase capacity and prioritise cases.
• Recruited EPs, engaging with outside partners to undertake assessments and had produced a document for parents about the delays.
• Reviewed pay and conditions to attract Eps.
• Reviewed service delivery to maximise efficiency of the current workforce.
• Put in place the measure so that if an EHC needs assessment remains incomplete, temporary funding will be paid to the school so that additional and sustainable support can be made available.
• It allocated assessments in chronological order from the date of request.

My findings

EHC plan delays

39. 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. Following the Tribunal’s order, the Council started to assess M’s EHC needs, at which point, M joined the waiting list for an EP assessment.
40. The Council had to progress the assessment so it could issue M’s final EHC plan within 14 weeks of the order; by 20 June. However, EHC plan assessments must include advice from an EP. So as the EP did not provide their advice until December, a final EHC plan has not yet been issued.
41. This delay is due to the nationwide 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. While I accept there are justifiable reasons why the EP advice took longer than it should have, M’s wait to be seen by an EP meant her EHC assessment has taken 46 weeks so far, instead of the statutory timescale of 14 weeks. This is a seven-month delay, which is service failure.
42. The delay in the EHC assessment has caused Mrs B uncertainty and frustration while she awaited M’s final EHC plan and means her appeal right has been delayed. This injustice is ongoing and it is also in an important year for M – a Key Stage change and change of school.
43. However, without a final EHC plan, we do not know what needs will be met in a plan and so cannot provide a remedy for lost provision. If Mrs B feels the educational support set out in the final plan does not meet M’s needs, she would have a right of appeal to the SEND Tribunal.
44. I welcome the efforts the Council is making to resolve the issue, as set out in paragraph 38. Because the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made a further recommendation.

SALT and OT assessments

45. The Council has requested information and advice from SALT and OT, in line with the Code, but it has not requested assessments be carried out. Councils cannot usually direct the NHS to carry out an assessment or produce a report.
46. But I cannot make a finding about anything which could be considered by the Tribunal, even though it happened before the appeal right started. This includes failing to seek advice during an assessment and failing to decide whether to seek evidence a parent ‘reasonably requests’.
47. This is because any injustice caused by non-existent reports, is that the EHC Plan does not meet the child’s needs, which can be appealed, and because the Tribunal has wide powers to order reports be completed. This means the question of whether the Council should have requested a SALT assessment falls outside our jurisdiction, as set out in paragraph 7.

Alternative provision

48. Mrs B ended her complaint about alternative provision after it was provided in summer 2023. I have therefore made no findings on this element.

Complaint handling

49. The Council’s stage two complaint response was issued three weeks later than the deadline in its complaint policy. This is fault. The Council has already apologised for this which is an appropriate and proportionate remedy for the injustice caused.

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Agreed action

50. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs B for the frustration and uncertainty she experienced due to the delay in completing M’s EHC assessment.
• Pay Mrs B £100 for each month from the 14-week deadline of 20 June 2023 until it issues M’s final EHC plan (£700 so far). This is to acknowledge the continued injustice Mrs B is experiencing. The Council should make this payment within one month of the date it issues the final EHC Plan. This replaces the £150 already offered by the Council.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman