Summary: Ms X complained the Council delayed issuing her son, F’s Education, Health and Care (EHC) Plan and failed to ensure he received a suitable full-time education between 2021 and 2023 when he spent periods of time on a part time timetable. The Council was at fault. It failed to decide whether to issue F with an EHC Plan within the statutory timescale, caused by a delay in obtaining Educational Psychologist advice. It then further delayed issuing F’s final Plan. It also failed to maintain proper oversight of F’s time spent on a part time timetable between January and July 2023. The Council agreed to make payments to Ms X to recognise the injustice caused and carry out a service improvement.

The complaint

1. Ms X complained the Council delayed completing her son, F’s Education, Health and Care (EHC) needs assessment within statutory timescales which caused a delay in it issuing F with an EHC Plan.
2. She also complained the Council has failed to ensure F received a suitable education since 2021 after his school kept putting him on a part time timetable following various exclusions.
3. Ms X said the delays have caused distress and uncertainty.

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The Ombudsman’s role and powers

4. 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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)
7. 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 have and have not investigated

8. I have investigated the delays with F’s EHC needs assessment and his education since September 2022.
9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). It was reasonable for Ms X to complain to both us and the Council about concerns with F’s education during the 2021/22 academic year much earlier. The records also show F’s attendance at school during this year was over 77% and he attended consistently between January and July 2022. Therefore, I have not investigated F’s education during the 2021/22 academic year because that period is both late and I am also unlikely to find fault given F’s attendance was high.

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How I considered this complaint

10. I spoke to Ms X about her complaint and considered information she provided.
11. I considered the Council’s response to my enquiry letter.
12. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plans

13. Children with special educational needs may have an Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to secure special educational provision in an EHC Plan. (Children and Families Act 2014, Section 42)
14. 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; and
• 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.

15. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
16. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.

Alternative provision and part time timetables

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. 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. A part-time timetable must not be treated as a long-term solution.
19. 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.

The Council’s policy on part time timetables

20. The Council’s website outlines that it (the Council) has the overarching responsibility for the education of children in its area. It says that the use of part time timetables (PTT) should be kept to a minimum and used only as an exceptional measure, for the shortest time possible and for no longer than six weeks. The Council said its clear that a PTT cannot be implemented without meeting certain requirements including:
• Written agreement from a parent/carer
• An assessment of need to ensure the PTT will benefit the pupil
• Multi-disciplinary input for pupils who do not have an EHC Plan
• A risk assessment and relevant plan in place.
21. The Council’s website outlines that schools must complete an ‘annexe r’ form when notifying it about an intention to put a pupil on a PTT. The Council’s Education Welfare Officer (EWO) will discuss pupils on a PTT and will monitor their use providing relevant advice and support to schools.

What happened

22. Ms X has a son, F who in 2022 attended a mainstream primary school, School 1. Prior to the 2022/23 academic year F had displayed occasions of aggression and disruptive behaviour at school which had led to fixed term exclusions at the end of 2021 and in mid 2022. School 1 managed his return using a PTT. Despite these exclusions, his attendance was good.
23. In July 2022 Ms X asked the Council to carry out an EHC needs assessment for F which it agreed to do in August 2022. In line with statutory timescales this means the Council should have decided whether to issue F with an EHC Plan by 11 November 2022. That being the case the Council should have then issued F’s final EHC Plan by 9 December 2022.
24. F’s attendance at School 1 between September and December 2022 was good. He was excluded for a short period in October and then again at the end of November. His attendance record shows he moved onto a PTT in December 2022 and this continued into January 2023. The PTT consisted of time spent in school during a morning with short periods of class learning, finishing school at around 11.30am.
25. Ms X contacted the Council at the end of January 2023 about the delay in progressing F's EHC needs assessment. She did not receive a response.
26. The Council obtained EP advice as part of F’s EHC needs assessment in mid April 2023. It agreed to issue F with an EHC Plan a few days later.
27. Records show F remained on a PTT for much of the time between January and July 2023 with two periods of short-term exclusions. A meeting took place at School 1 in January 2023 to discuss F’s education. School 1 indicated it could not meet F’s needs and advised Ms X to look at special schools. There is no evidence showing F’s PTT was reviewed or considered further until a Team Around the Family (TAF) meeting which took place in June 2023. Records of this meeting show Ms X raised concerns about how long F had been on a PTT.
28. Ms X complained to the Council in June 2023. She said she had not received a response to the concerns she raised in January about the delays completing F’s needs assessment. Ms X said F still did not have an EHC Plan which should have been completed in November 2022.
29. A few weeks later Ms X raised a further complaint about F’s PTT. She said F’s School was submitting annexe r forms without her consent since 2021. Ms X asked the Council how it had considered these forms and why F was still on a PTT and not receiving a full-time education.
30. The Council issued F’s draft EHC Plan in July 2023 and then issued his final EHC Plan at the end of July 2023 naming School 1 as his placement in section I.
31. The Council issued its final complaint response to Ms X in July 2023. It apologised for the delays in completing the EHC needs assessment which it put down to its SEND team having a significantly larger caseload than expected. It did not respond to Ms X’s complaint about F’s PTT. The Council said this was due to an administrative oversight.
32. Ms X remained unhappy and complained to us. Since complaining to us Ms X told us she is appealing the content and named placement in F’s EHC Plan to the SEND tribunal.
33. In response to my enquiries, and in other similar cases we have investigated, the Council has explained the action it is taking to recruit EPs and reduce the EHC needs assessment backlog. This includes a national recruitment campaign and measures to ensure it retains EPs going forward.
34. With regards to F’s PTT the Council said the use of a PTT is reviewed frequently. It said annexe r forms are monitored through TAF meetings in reviews with the school. However, the Council has not provided evidence of regular reviews during the 2022/23 academic year and it has not provided copies of any annexe r forms.

My findings

EHC needs assessment delays

35. 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.
36. Following Ms X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by the start of November 2022 and then subsequently issued the final Plan by 9 December 2022.
37. The EP report should have been available to the Council by mid-October 2022 in order for it to have met the November deadline. The EP report was not complete until April 2023 which was a delay of 26 weeks and fault. It caused a delay in the Council deciding whether to issue F with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases. This in turn had a knock-on effect which meant the Council did not issue the final EHC Plan until 28 July 2023. This was a delay of 33 weeks.
38. In total the Council took a year to assess F and issue his final EHC Plan instead of the 20 weeks statutory timescales.
39. I cannot say whether the delay that occurred before the EP gave their advice in April 2023 meant F lost out on special educational provision. This is because the EP advice reflected F’s needs as they were in April 2023, not necessarily as they would have been but for the delay.
40. However, after the EP gave their advice, the Council took too long to finalise F’s EHC Plan. With EP advice in hand, it should have issued the final Plan by the end of May 2023. It did not do so until the end of July which is a delay of nine weeks which was fault. This fault meant F lost the opportunity to receive the specialist provision in his final Plan earlier. It also delayed Ms X’s right of appeal to the SEND tribunal which she has now used.

F’s education and part time timetable

41. The evidence shows that F was on a PTT between January and July 2023. Although School 1 used a PTT prior to this, the attendance records show this was only following periods of exclusion and other than that F’s attendance was good. There is no evidence the Council kept F’s PTT under any sort of review between January and July 2023 and there is no evidence of any oversight. Although Ms X complained about the matter the Council did not respond to it. It meant F stayed on a PTT for too long which is not in line with government guidance and its own policies. All of this is fault.
42. The Council does not appear to have a proper system in place to monitor and review the use of PTTs. The Council has not provided copies of any annexe r forms and there are no consistent records of reviews. In line with its own policies I would expect to see detailed review records with explanations of why a PTT is being used for more than six weeks. The poor record keeping is fault.

Injustice

43. The lack of oversight around F’s PTT means on balance, that he was kept on a PTT for longer than necessary and longer than the six week period outlined in its own guidance. It leaves uncertainty around if earlier intervention from the Council could have prevented the use of the PTT and reintegrated F back into school full-time.
44. F’s lack of full-time education was compounded by the faults identified during the EHC needs assessment process and the subsequent delay in issuing the final EHC Plan. The delay in obtaining EP advice caused distress and uncertainty. The continued delays meant F lost the opportunity to receive the SEN provision outlined in the Plan between May and July 2023 which may have helped him reintegrate back into school and access more education.
45. In line with our guidance and taking into consideration F’s individual circumstances I have made a recommendation for the Council to make a payment to acknowledge F’s loss of full time education between January and July 2023.
46. The Council has explained what action it is taking to meet demands in its SEND service and to reduce the backlog in the EHC needs assessment process. I have made a recommendation to ensure the Council puts a system in place to make sure it has proper oversight of children on a PTT.

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Agreed action

47. Within one month of the final decision the Council should take the following action:
1. Apologise to Ms X for the frustration caused to her when it failed to respond to her complaint about F’s part time timetable.
2. Pay Ms X £950 to recognise F’s loss of full-time education between January and July 2023. This figure also accounts for F’s loss of SEN provision between May and July 2023.
3. Pay Ms X £650 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue F with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
48. Within two months of the final decision the Council agreed to review how it manages and provides oversight of pupils on part time timetables. The Council should ensure it has a system in place so pupils are not left on part time timetables for longer than necessary. The Council should consider how it can keep clear and consistent records of its oversight and decision-making for pupils on a part time timetable.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman