Summary: Miss X complained the Council failed to meet the statutory timescale when issuing an Education, Health and Care Plan and failed to provide her son with a suitable education for over a year causing distress. The Council accepts it did not issue the final plan within the statutory timescales. We have seen no evidence that it provided a suitable education that was available and accessible from January 2023 to September 2023. A suitable remedy is agreed.

The complaint

1. Miss X complains the Council failed to meet the statutory timescale when issuing an education health and care plan and failed to provide her son with suitable education for over a year.
2. Miss X says her son has lost a year of education and the whole family has suffered distress as a result of him being out of school for so long.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Timescales and process for EHC assessment 

7. 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 the following: 
8.  

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Advice and Information for EHC needs assessments

9. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 
10.  

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. Those consulted have a maximum of six weeks to provide the advice. 

12. 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: 
13.  

• 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.  

14. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

General section 19 duty

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.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. 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)

2.4.2 Educational provision – available and accessible

17. 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)
18. 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
19. 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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;

20. 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

Key facts in respect of the Education, Health and Care Plan assessment

21. Miss X’s son, B, started having problems with school in October 2022 and his attendance fell. The Council received a request for an EHC needs assessment on 28 December 2022. As part of that request, information was provided to the Council about B’s attendance record. The Council made the decision to proceed to an assessment and notified Miss X within the six week statutory timescale.
22. During an EHC needs assessment, councils must seek mandatory evidence and consider other relevant evidence. The Council made its first requests for information on 25 January 2023 but did not request health information until 4 April even though medical advice and information from a health care professional must be sought as part of the needs assessment. Most of the information requested was provided by the required date of 8 March. However, the response from the Education Psychologist (EP) was not provided until 3 May.
23. After Miss X contacted the Council numerous times for an update, the Council wrote to her on 4 April saying it was due to make the decision on whether to issue an EHC Plan on 9 April. However, an EP had not been allocated to the case until 17 March and they had six weeks to complete their report. It said, at the latest, a decision could be made on 28 April and accepted this would be three weeks behind the statutory deadline.
24. On 4 May Miss X wrote to the Council noting that it now had all necessary responses and requested help to ensure it went to the next panel. The Council took the decision to issue an EHC Plan on 11 May. On 18 May Miss X wrote to the Council saying that she would be supplying a Speech and Language Therapy (SALT) report. Miss X sent the council an Occupational Therapy (OT) report on 19 May and the SALT report on 28 June. On 6 July the Council sent Miss X the draft EHC Plan for her comments.
25. Miss X says that she made requests on 7 and 20 July, 6 and 14 September to meet with the Council to discuss the draft EHC Plan but it failed to do this. She wrote requesting amendments on 20 July and 24 August as well as other email communication seeking clarification and reasoning because a meeting was not agreed. The Council issued a second version of the EHC Plan on 11 August. On 6 September Miss X asked the Council to pause publishing the final plan until a meeting had taken place. The Council notified Miss X it would be issuing the final EHC Plan and did so on 14 September 2023.
26. Miss X was unhappy with the content of the EHC Plan. Her rights of appeal engaged on 14 September. Miss X submitted an appeal in November 2023 and to date the tribunal has not heard Miss X’s appeal.

Key facts in respect of the provision of a suitable education

27. Miss X says that B stopped attending school full time in October 2022. She says she tried to keep B in school for at least an hour a day but his anxiety was so extreme he started running away and said he wished he was dead. His GP then provided a sick note.
28. In October 2022, B’s school made a referral to the Council’s Gateway to Alternative Provision Panel seeking support for B. The Council wrote to the school on 12 October saying it agreed to provide outreach support. A report from the outreach support service says that it worked with B and the school to put in place significant adaptations to try to alleviate his anxiety around being in school. It said that despite introducing exceptional levels of support and adaptations, the impact on B was minimal. It says it was clear B needed a specific environment to meet his needs and that despite continued support his attendance dropped.
29. In December 2022, when the request for an EHC Plan was received by the Council, it became aware that B was not attending full time. The information submitted should have led the Council to consider whether it was meeting its section 19 duty to provide a full time education that was available and accessible. The Council has not provided evidence to show it did this.
30. In her formal complaint to the Council, Miss X raised several issues the first being that the Council was not meeting its legal obligation to provide her son with a full time education. In its response the Council said B had been on-roll at a local primary school since 1 September 2019 and it agreed to carry out a needs assessment on 25 January 2023. This complaint response is dated September 2023 and makes no reference to any action taken by the Council once it became aware of B’s poor attendance.
31. I made enquiries to the Council and asked it to provide evidence to show it had considered whether it should provide alternative provision for B or if it considered a suitable full-time education was available and accessible for B. It said it had made efforts to find an alternative setting for B but all responses stated the institution could not meet his needs. It said that as an interim measure a high banding of funding was issued to support B’s placement at his primary school “to ensure he could access an education setting.” It said that during a telephone conversation between the Council and Miss X she accepted that B would be returning to the primary school for the start of the academic year in September 2023.

Analysis

32. The process for completing an EHC needs assessment and issuing the plan should not take longer than 20 weeks in total. The information provided indicates the Council accepted the request for an assessment on 28 December 2022 and issued the final EHC Plan on 14 September 2023, almost nine months later. This is clearly outside the statutory timescale of 20 weeks and therefore fault.
33. However, I am not persuaded the delay in this case was solely as a result of fault by the Council. Miss X presented information late, requested further time to submit amendments and then asked the Council to delay issuing the final statement. While I can appreciate the Council wanted to work with Miss X and ensure she was able to submit her views about her son’s education, the statutory duty sits with the Council and it should ensure EHC Plans are issued within 20 weeks. I note there was a two month delay in the assessment stage due to the case not being allocated to an EP. As a consequence the Council would never have met the 20 week statutory timescale.
34. Miss X exercised her right of appeal after the final EHC Plan was issued in September 2023. The appeal was made in relation to the named institution, the SEN provision and health care provision. As a result of Miss X using her right of appeal I cannot investigate whether B received a suitable education from the date the appeal right engaged to the date of the tribunal decision. This is because Miss X has used an alternative legal remedy to challenge the Council’s decision. I can, however, look at whether a suitable education was provided before the appeal rights engaged.
35. I am satisfied the Council was alerted to B’s poor attendance at the end of December 2022. While there was input from the Council’s outreach service, its report makes reference to B’s limited attendance and that this limited the help it could provide as it worked only in the school setting. I have not seen any evidence which persuades me the Council properly considered whether it was meeting its Section 19 duty to provide a full time education that was available and accessible. The Council has provided evidence to show that from September 2023 it provided a high level of funding to enable B to access the school. If the funding was required to enable B to access school, it follows that he was therefore not accessing the school before the funding was provided. The failure to provide a full time education, available and accessible to B from January to September 2023 is fault.

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Agreed action

36. To remedy the injustice as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Miss X and B;
• Make Miss X a symbolic payment of £200 to recognise her distress as a result of the delay in finalising the EHC Plan;
• Make Miss X a payment of £3,300 for the benefit of B in respect of two terms of lost education provision from January to September 2023;
37. The Council should provide us with evidence it has complied with the above actions.
38. I am not recommending any service improvements in this case as the Council has recently taken action in respect of another Ombudsman decision. It reminded all relevant staff in its education teams of the duty to provide suitable alternative education for children out of school.

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Final decision

39. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman