Summary: The Council took too long to issue the final Education Health and Care Plan for Mr D’s son. It did not include Mr D in the production of the Plan and did not consider his comments on the draft Plan. The child was only able to access part time tuition during this time. The Council did not respond to many of Mr D’s requests for help and took too long to deal with his complaint to it. The Council has offered to remedy the injustice to Mr D and his son, and this is in line with the Ombudsman’s Guidance on Remedies.

The complaint

1. Mr D complains that the Council failed to deal with his son’s special educational needs. In particular, Mr D says the Council:
• Failed to meet the legal timeframes for processing his son’s Education Health and Care (EHC) Plan.
• Failed to communicate properly with him to develop the Plan, to respond to contact, and address Mr D’s complaints and concerns.
• Failed to make sure that his son received a suitable educational provision, when the school could not fully meet his needs, and his attendance was severely restricted, despite Mr D requesting alternative provision a number of times.
• Gave misleading and confusing information when it first told Mr D the school place had broken down and it would seek approval for a different type of placement, and then named the same school in his son’s Plan, and failed to consult the schools Mr D had requested.
• Failed to include a clinical psychologist’s report in the process, so that the draft and final Plans did not reflect his son’s needs.
• Failed to reflect in the final EHC Plan, the comments Mr D had submitted in response to a draft of the Plan.
2. Mr D says the Council’s shortcomings caused him and his family distress, frustration and uncertainty, and that his son missed educational provision.

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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 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) 
5. 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)

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What I have and have not investigated

6. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
7. 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)
8. 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.
9. 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.
10. 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.  
11. Mr D appealed to the Tribunal about the school named, and that the Council had not taken into account the clinical psychologist’s report. This means that I cannot investigate these complaints.
12. I have investigated Mr D’s complaints about the Council’s delays, its poor communication and complaint handling, and the educational provision made available to Mr D’s son pending the EHC Plan and new placement.

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How I considered this complaint

13. I considered the information provided by Mr D. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account all comments received before issuing this final decision.
14. 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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What I found

The law and guidance

EHC Plan process

15. A child or young person with special educational needs may have an Education, 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. 
16. 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: 
• 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.

Alternative provision of education

17. 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.
18. 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)
19. 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)
20. 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
21. 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;
22. 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.
23. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
24. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

The EHC Plan process

25. Mr D’s son, J has special educational needs. His parents asked the Council to assess him for an EHC Plan on 8 November 2022. The Council agreed to the assessment on 30 November, and said it would notify Mr D whether it intended to issue a Plan or not by 22 January. If it decided to issue a Plan, then it must do so by 28 March. Mr D sent the Council all the relevant information. J’s school confirmed that he was at serious risk of permanent exclusion.
26. On 23 January, Mr D had not heard from the Council so he asked it for an update. He also made clear that J was only in school for 45 minutes per day. In January and February, the Council told Mr D that it was still waiting for an educational psychologist’s report and could not draft the EHC Plan without it. Mr D asked the Council what support his son could have in the meantime. The Council did not respond.
27. Mr D continued to chase the Council, but when he received few responses he made a formal complaint. The Council received the Educational Psychologist’s report at the beginning of March and it upheld Mr D’s complaints that it had not met the legal timeframe for the EHC Plan.
28. The Council issued the draft EHC Plan on 2 April and invited Mr D to comment and to suggest which schools it wanted the Council to consult. Mr D commented on the draft on 17 April, and suggested some special schools for consultation. Mr D also said the Council had not included any of the information from the clinical psychologist’s report.
29. At the beginning of May, the Council still had not issued the final Plan, but it told Mr D that it understood J’s school place had broken down. The Council said it would submit the case to its funding panel so that it could look at special schools. The Council asked Mr D whether he had a preference for any therapeutic schools. Mr D asked the Council about an expected timeframe as his son was still not in school. The Council did not respond.
30. Mr D chased the Council again and asked specific questions such as what schools the Council had consulted; when would the case be taken to the panel; and what provision could be made for his son while he was out of school. The Council did not reply to these questions.
31. The Council told Mr D that it would issue the final EHC Plan naming the current school, but that it would look for a place at other schools. Mr D questioned this because the school could not meet J’s needs and he asked why the Council would finalise the Plan when it was still consulting with special schools. The Council did not respond to Mr D’s concerns.
32. On 17 May, Mr D asks the Council again what alternative provision the Council will make for J pending him getting a place at a school that can meet his needs. The Council did not respond to this question but it did issue the final EHC Plan.
33. Mr D contacted the three schools he had suggested directly. All schools said that the Council had not consulted them on a place for J. Mr D visited these schools himself to see how they could meet J’s needs. Mr D complained again to the Council on 30 May.
34. The Council reissued the final EHC Plan in mid-August naming a new school for J.
35. The Council responded to Mr D’s complaint on 30 November 2023. The Council said:
• It agreed it had taken too long to issue the final EHC Plan.
• It agreed that it had not communicated properly with Mr D and kept him informed of what was happening. It also acknowledged that it had not involved Mr D in development of the EHC Plan.
• It had named a school where the placement had broken down and had not explained this to him. As it had issued the final EHC Plan, Mr D had the right to appeal to a tribunal about the school named on the Plan. But the Council acknowledged that it did not explain this to Mr D.
• It had failed to include the clinical report that Mr D had submitted in the EHC Plan and it did not consider any of Mr D’s comments on the draft Plan before it issued the final version.
• It had not consulted the schools when despite telling Mr D that it had done, and it should not have issued the final EHC Plan without first consulting the schools.
• It had not told Mr D that its panel had not agreed a special school for J.
• The Council apologise to Mr D and offered him £100 in recognition that it had taken too long to deal with his complaint.

J’s educational provision during this period

36. In November 2022, J’s school confirmed to the Council that J was at serious risk of exclusion from school. The Council arranged a team around the Family meeting to develop a plan. This started with J in school for 45 minutes per day supported by a parent, and an online lesson at home. The Council gave extra funding to the school to look at tutoring and positive play. From January 2023, J also received five hours per week tutoring and this ended in March 2023.
37. The Council says that its focus throughout this period was to make sure it properly assessed J’s needs so that his education would be suitable. However, it has acknowledged that J did not have access to a full-time suitable education between September 2022 and July 2023.

Analysis

38. The Council has acknowledged significant failings in its response to Mr J’s complaint to it. In summary, it should have issued the final EHC Plan by 28 March 2023 and instead it issued this on 17 May 2023. This was seven weeks late.
39. Although this is a moderate delay and gave Mr D a right of appeal, the Council failed to consider amendments to the draft EHC Plan, failed to consult schools for a new placement, and instead named a school that had said it could not meet J’s needs. The Council reissued a final EHC Plan in mid-August. This version took account of the amendments and named a school that had been consulted.
40. The delays in issuing the final EHC Plan caused Mr D distress and frustration, and delayed his appeal rights. In addition, the Council’s very poor communication compounded Mr D’s distress. Mr D asked the Council specific and relevant questions about what education his son would receive and what could be provided in the meantime. The Council did not address his concerns and, in the matter of consulting schools, led him to believe that it had taken action when it had not.
41. Most importantly, while the EHC Plan was progressing, Mr D’s son was not receiving a full-time education. The Council failed to tell Mr D how it would address this despite his requests. The lack of education meant that J missed out on his first full year of school, when he is already disadvantaged by his special educational needs. This also caused Mr D distress.
42. In response to my investigation, the Council has offered to remedy the injustice to Mr D and I have set this out below.
43. The Council told me, ‘The breakdown in communication underscores the critical importance of clear and consistent communication with families’. The Council says that it is committed to prioritising communication so that families are adequately informed and involved in decision-making relating to their child’s education and support. It has implemented a new casework platform that allows a more transparent and collaborative approach between professionals, the Council and families, and will improve communication, and handle the administrative aspects more effectively.
44. The Council has said it is committed to improving its service and is taking a proactive approach to learning from past mistakes and implementing the necessary changes to prevent similar issues arising in the future.
45. The Council has doubled its Special Educational Needs assessment team, and recruited locum Educational Psychologists to make sure it can process EHC Plan requests within the legal timeframes. The Council has also remodelled its service and recruited new staff and it says it has significantly reduced backlogs. It is monitoring the impact of the changes and has increased the administrative staff to support the service. The Council is delivering ongoing training to staff.
46. The Council took too long to deal with Mr D’s complaint at stage two of its process. It apologised to Mr D and offered him £100 in respect of the frustration this delay caused him.

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Agreed action

47. The Council has offered the following remedy and this is within the Ombudsman’s guidance on remedies. Within one month of the date of this decision, the Council will:
• Apologise to Mr D. 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 in my findings.
• Pay to Mr D a symbolic payment of £1,680 in respect of the impact on J of the missed education between September and December 2022, when J was only receiving 1.5 hours per day tuition.
• Pay to Mr D a symbolic payment of £1,920 in respect of the impact on J of the missed education between January and March 2023, when J was only receiving five hours per week tuition.
• Pay to Mr D a symbolic payment of £2,400 in respect of the impact on J of the missed education between April and July 2023, when J was not able to access any educational provision.
• Pay to Mr D a symbolic payment of £500 in respect of the distress the Council’s failings caused him.
• Pay to Mr D a symbolic payment of £500 in respect of the additional time and trouble the Council put him to.
48. Mr D can use the payments made in respect of missed education for the benefit of his son as he sees fit.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was fault by the Council causing Mr D and his son injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman