Summary: Mrs X complained the Council failed to issue an Education, Health and Care (EHC) Plan for her son Y, in line with the statutory timescales, and failed to provide an education to him since February 2023. The Council delayed in issuing an EHC Plan for Y and failed to provide appropriate education from May 2023. The Council agreed to apologise to Mrs X for the avoidable distress caused and pay her £4,800 to recognise the two terms of education Y missed.

The complaint

1. Mrs X complains the Council failed to issue an Education, Health and Care (EHC) Plan for her son Y, in line with the statutory timescales, and failed to provide an education to him since February 2023. Mrs X said this caused Y to miss education and impacted his mental health and affected other family members. Mrs X wanted the Council to issue an EHC Plan for Y and to provide a suitable education.

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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 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)
3. 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.
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. I read the documents Mrs X provided and discussed the complaint with her on the phone.
7. I considered the documents the Council sent in response to my enquiries.
8. 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

Relevant legislation and guidance

Education, Health and Care Plans

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. 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: 

• 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.

11. The Code states the timelines above apply except where specific exemptions apply. The exemptions are:

• Where the child has missed an appointment with a professional the council has requested information from (such as an educational psychologist);
• the child or young person is absent from the area for a period of at least 4 weeks;
• exceptional personal circumstances affecting the child or their parent; and
• the educational institution is closed for at least 4 weeks, which may delay the submission of information from the school or other institution.

Alternative provision (section 19)

12. 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.
13. 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
14. 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

15. 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 their duties are properly fulfilled.

The Council’s alternative provision

16. The Council has a home and continuing education service (HCES). It provides short term education for children who are unable to access their school because of their medical or mental health needs.

What happened

17. Mrs X contacted the Council on 14 February 2023 and asked it to complete an EHC needs assessment for her son Y. Mrs X said Y was on roll at school A (a mainstream secondary school) but had not attended for two weeks. She said Y had a condition that affects behaviour, and anxiety and could not cope with a large mainstream secondary school and being at school A was affecting his physical and mental health.
18. The Council agreed to complete an assessment on 31 March 2023. It should therefore have issued its decision to issue a Plan or not by the 6 June 2023, and a final EHC Plan by 4 July 2023.
19. The Council said it spoke with school A in March 2023 and asked about the provision it was offering Y. School A said it had arranged tuition which Y was engaging with. It intended to see how the tutoring went and then refer to the HCES if necessary.
20. Mrs X stated the school offered Y two hours a week online tuition which he could not access and did not engage with.
21. The Council received a report from the education psychologists (EP) on 8 July 2023 and updated advice on 28 July 2023 for Y’s EHC needs assessment.
22. Mrs X complained to the Council in September. She said Y had not received an education since February 2023 and the Council had not issued the EHC Plan in line with the statutory timescales. Mrs X said Y’s paediatrician was writing a letter in support of home education.
23. The Council upheld Mrs X’s complaint and said:
• It apologised for the delays which had been caused by an increase of requests for EHC needs assessments and a national shortage of EPs to get advice from.
• It had taken steps to reduce the waiting times during the statutory assessment period.
• It had received the EP report for Y’s assessment and was now waiting for the EHC Plan to be written.
24. The Council told Mrs X if her complaint remained unresolved she could request the Council consider the matter at stage two.
25. Mrs X asked the Council to consider her complaint at stage two. She said the issued remained, the Council had not offered a sufficient remedy and Y still did not have an EHC Plan or an education.
26. The Council told Mrs X it would not consider her complaint any further as it had upheld it and it could achieve nothing further. It said once it had issued the EHC Plan it would review the matter to ensure an appropriate remedy for any injustice caused by the delay.
27. Dissatisfied with the Council’s response, Mrs X complained to us.

Matters since Mrs X’s complaint

28. The Council issued a draft EHC Plan for Y on 2 October 2023.
29. The Council states it consulted with two school that were Mrs X’s preferences in October. Both schools said they could not meet Y’s needs. The Council updated the draft Plan with additional information about Y’s needs and consulted the same schools again in November and December 2023 with Mrs X’s agreement.
30. Both schools confirmed that they could not meet Y’s needs in December 2023. The Council said it intended to issue the EHC Plan naming school A, to provide Mrs X’s appeal rights. However, it says in a phone call in January 2024 Mrs X asked it to consult her preferences about a placement from September 2024 before finalising the Plan.

Response to my enquiries

31. In response to my enquiries the Council said it was not aware Y had disengaged from the support offered by school A. It said Y had now been referred to the HCES which is yet to be considered. It said it recognised Y had missed educational provision for several months.
32. It said it had taken action to mitigate the impact of the shortage of EPs which included ongoing recruitment and retention, commissioning private EPs to complete assessments, supporting schools to commission EPs directly and accepting private reports previously paid for by families where it is appropriate.
33. In response to the increased requests for needs assessments the Council said it has an ongoing recruitment campaign, has offered posts on secondment opportunities to existing staff members, is restructuring the SEND team and investigating how to pay external services to complete elements of the assessment process to better meet statutory timescales.

My findings

Education, Health and Care Plan

34. The Council agreed to complete a EHC needs assessment for Y in February 2023. In line with the timescales in the statutory guidance, it should have provided its decision to issue a Plan or not by June and issued the final Plan by July. It had not issued the final EHC Plan by the beginning of February 2024. That was a delay of 30 weeks.
35. The Council said the delay was initially caused by a shortage of EPs and subsequently by insufficient resources to meet increased demand in its own SEND department. That was service failure and was fault. The Council has taken appropriate actions to improve its service in these areas and so I did not make any further service recommendations on those points.
36. The Council said it did not finalise the draft Plan in December 2023 because Mrs X asked it not to. The guidance is clear that there are limited exemptions to the statutory timescales and parental request to delay is not a recognised exemption. Therefore the delay from December 2023 to February 2024 was also fault.
37. The overall delay caused Mrs X frustration and uncertainty. It also delayed her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan or named school. However, I considered that Mrs X’s request to delay the final Plan and consult a school for a third time contributed to the delay from December onwards and mitigated some of the injustice caused to her in December 2023 and January 2024. This is reflected in the recommendation I made below.

Alternative provision (section 19)

38. The Council was aware Y was not attending school in February 2023. It discussed the matter with school A and was satisfied the school was taking appropriate action at the time and Y was receiving limited tuition out of school. The school stated it would review the tuition and refer to HCES if necessary. There was no fault in the Council allowing time to see if the tuition was successful.
39. However, the Council should have retained oversight and control of Y’s educational provision in line with our Out of school, out of sight guidance. The Council failed to do so which was fault. It has since referred Y to the HCES and said it recognised Y missed months of educational provision. On the balance of probabilities, had the Council acted without fault it would have considered its section 19 duty to Y in May 2023 and would have provided a section 19 alternative provision sooner. Y remained without alternative provision at the date of this decision and he had therefore missed two terms of education, from May 2023 to February 2024.

Complaint handling

40. When Mrs X complained to the Council she raised the delay in the EHC needs assessment process, and the lack of education for Y. The Council responded to the complaint about delay but did not respond to the complaint about education. When Mrs X pointed that out and asked for a further consideration the Council decided nothing further could be achieved, and still did not respond to the complaint about education. That was fault and caused Mrs X frustration and the avoidable time and trouble in escalating her complaint.

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Agreed action

41. Within one month of the final decision the Council will:
1. write to Mrs X and apologise for the avoidable frustration, uncertainty and time and trouble caused to her by the Council’s faults and pay her a symbolic amount of £500 to recognise the same;
2. pay Mrs X £4,800 to recognise the two terms of education Y missed because of the Council’s faults. This is calculated at £2,400 per term and is in line with our Guidance on Remedies. Mrs X should use this for Y’s benefit as she sees fit; and
3. issue Y’s final EHC Plan and provide Mrs X her appeal rights to the SEND tribunal if she disagrees with the content of the Plan.
42. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
43. Within one month of this decision the Council will make the following service improvements:
1. remind relevant staff of the limited exemptions to the statutory timescales set out in the Code of Practice during the needs assessment;
2. ensure all relevant staff are aware they must act if they identify a child or young person who is not attending school during a needs assessment, so the Council can properly consider if it owes a duty under section 19 in a timely way; and
3. remind relevant staff who deal with complaints that all areas of a complaint should be considered and addressed, and share our Guidance on Effective Complaint Handling with them.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. I found fault casing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same faults occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman