Summary: Mrs X complained the Council failed to finalise an Education, Health and Care Plan (EHC Plan) for her daughter, failed to name a placement and failed to provide a suitable education as well as a lack of communication and failure to adhere to the complaint procedure. The Council failed to issue the EHC Plan within the statutory timescale and failed to provide suitable alternative education. We also found fault in respect of the complaint procedure. A suitable remedy is agreed.

The complaint

1. Mrs X complains the Council failed to finalise the EHC Plan for her daughter, failed to name a placement and failed to provide a suitable education. She also complains about the lack of communication by the Council and failure to adhere to the complaint procedure.
2. Mrs X says the situation has caused distress to the whole family.

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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

EHC Plan 

7. 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. 

Timescales and process for EHC assessment 

8. 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: 

• 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.

Post-16 – review, provision and naming placement deadline  

9. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Inability to attend due to health needs

10. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
11. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
13. 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”.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Key facts

16. This section sets out the key facts in this case and is not intended to be a detailed chronology.
17. A request for a special education needs assessment was made on 31 January 2023. As explained above, the whole process to complete and issue an EHC Plan should take 20 weeks which was 20 June 2023. However, to date the EHC Plan has not been issued meaning a delay of a year. This is fault.
18. The Council says it has not issued the final plan because it is waiting for an assessment from the school Mrs X prefers. The Council emailed the school on 25 January 2024 asking it to do the assessment and then contacted the school again on 8 February seeking an update. There is nothing to suggest any significant action by the Council since that date to ensure the assessment is completed.
19. Mrs X’s daughter, Z, is due to move into post-16 education from September 2024. If the Council had issued the EHC Plan within the statutory 20-week timescale, then it would have been required to review and amend the EHC Plan setting out the post-16 provision and naming the institution by 31 March 2024. However, it did not do this because the continuing failure to issue the EHC Plan means there is no document to review. This is fault.
20. Z has not attended school since February 2023. The Council has been unable to say on what date it became aware Z had been out of school for more than 15 days. In response to my enquiries it provided information saying that Z is in receipt of medical tuition from Frome Learning Partnership which began on 11 September 2023. It provides two or three sessions a week at home. It says that due to her health condition it was determined that full time education would have a detrimental effect on Z’s health.
21. The Council has a duty to provide full time education for children unable to attend school for medical reasons. However, it can provide less than full time education if it determines it would not be in the child’s best interest. I am satisfied this is a judgement the Council has made from September 2023 to date in respect of However, I have not seen evidence to show the Council provided alternative education from February to September 2023. This is fault.
22. Mrs X has also complained about the way the Council communicated with her and also that it failed to deal with her complaints in accordance with its published complaint procedure. The information provided by the Council shows there has been some contact between the Council and Mrs X. However, I note that sometimes this was in response to queries and complaints from Mrs X. It appears Mrs X felt compelled to complaint due to the lack of action from the Council. Two complaints made by Mrs X were upheld in September 2023 but despite this, the outstanding issues have not been resolved. The Council has not provided evidence of any communication with Mrs X since February 2024.
23. The Council accepts it has not dealt with Mrs X’s complaints in accordance with the timescales set out in its published complaints procedure.
24. As I have found fault I have to consider the injustice this has caused to Z and Mrs X. The delay in issuing the final EHC Plan within the 20-week statutory timeframe means that Z has not been provided with an education that meets her needs. I note the Council is trying to meet Mrs X’s parental preference but the delay in this case is prolonged and the Council has not provided evidence to show it has taken effective action throughout the year of delay. Because a final EHC Plan has not been issued, Mrs X’s rights of appeal have not engaged and she cannot taken any action.
25. I consider a payment should be made to recognise the distress and frustration experienced by Mrs X in this case. The Ombudsman normally recommends a payment of up to £500 for distress but due to the prolonged timescale in this case I am recommending a higher payment.
26. While I accept the Council provided the level of alternative provision it considered appropriate from September 2023 onwards, no alternative provision was provided for almost two terms from February to September 2023. I have recommended a payment to recognise the lost education provision.

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Agreed action

27. To remedy the injustice caused to Mrs X and Z as a result of the fault identified in this case the Council, within one month of my final decision, will take the following action:
• Apologise to Mrs X and Z for the failings identified;
• Make Mrs X a symbolic payment of £1,000 to recognise the prolonged distress experienced;
• Make a payment of £4,000 to be used for the benefit of Z for the loss of education provision from February to September 2023; and
• Finalise and issue the EHC Plan which would then give Mrs X a right of appeal if she disagrees with the provision or named institution.
28. The Council should provide us with evidence it has complied with the above actions.
29. I have not recommended any service improvements as I am aware the Ombudsman has recently upheld several complaints on similar matters and made recommendations. These include asking the Council to provide a written report of changes to staffing arrangements in the SEN Team; asking it to provide an action plan on implementing improvements to the complaints procedure and completing staff training regarding the statutory 20-week timescale for issuing EHC Plans.

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Final decision

30. 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.

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Investigator's decision on behalf of the Ombudsman