Summary: Ms X complained the Council delayed carrying out an Education, Health and Care needs assessment for her daughter and did not put in place education when she stopped attending school. Ms X said this has caused her daughter to fall behind in her education. We have found the Council at fault. The Council agreed to apologise, make a payment to recognise the loss of education and distress caused and carry out a service improvement.

The complaint

1. Ms X complains the Council:
• Refused three times to carry out an Education, Health and Care needs assessment for her daughter before agreeing to.
• Delayed completing an assessment of her daughter’s Education, Health and Care needs and issuing a final Education, Health and Care plan.
• Did not put in place suitable education for her daughter when she could no longer attend school from November 2022.
2. Ms X said her daughter has fallen behind her peers as she has missed education. Ms X said she has had to reduce her time at work as her daughter has been at home. Ms X also said her daughter should have had an Education, Health and Care plan in place much sooner.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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)

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What I have and have not investigated

7. I have not investigated Ms X’s complaint that the Council refused to carry out an Educational, Health and Care needs assessment before agreeing to do so. This is because Ms X had appeal rights at the SEND Tribunal which she exercised.

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How I considered this complaint

8. As part of this investigation I considered the information provide by Ms X and the Council. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
9. 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

Alternative provision

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. 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)
13. 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”.
14. 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”.
15. 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))
16. 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)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Education, Health and Care needs assessment

18. 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.
19. 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.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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 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).

What happened

20. In Autumn 2022, Ms X made several requests to the Council to carry out an EHC needs assessment for her daughter as she believed she needed specialist provision at school. The Council refused to assess Y each time.
21. In September 2022, Ms X’s daughter Y, started at a new school. From November 2022, Y stopped attending school because of anxiety.
22. On 3 November 2023, the Council received a further request for an EHC needs assessment for Y. The Council declined this in early December 2022.
23. In December 2022, Ms X appealed to the SEND Tribunal to challenge the Council’s decision not to assess Y. The Tribunal sent the Council a copy of the appeal on 13 December 2022. It was at this point the Council became aware Y was not attending school.
24. The Council said Y’s absence in school was part of its decision to decide to carry out an assessment of Y’s needs after receiving a copy of Ms X’s appeal.
25. On 20 December 2022, the Council told Ms X it would agree to carry out an EHC assessment of Y’s needs. The Council said the deadline for professionals to respond with their advice was 3 February 2023.
26. The Council made a referral for an Engagement Facilitator to work with Y to help her reintegrate into school. In early February 2023, Ms X met with the Engagement Facilitator.
27. Ms X complained to the Council in early February 2023 about the difficulties she faced getting an EHC needs assessment for Y. Ms X also complained the Council had not assigned an Educational Psychologist (EP) to assess Y as part of the needs assessment. Ms X asked the Council to get an independent EP report as the deadline to get this had passed. Ms X suggested the Council use an EP who had assessed Y in the past.
28. In mid-February 2023, the Council responded to Ms X’s complaint. The Council said it had explained the steps it was taking to find an EP. The Council also offered Ms X a virtual EP appointment.
29. On 19 February 2023, Ms X made a further complaint to the Council about the EP shortage and time taken to complete the EHC needs assessment. Ms X complained the Council was not providing any education for Y while she was out of school.
30. The Council responded to Ms X’s complaint in early March 2023. The Council said:
• Due to the large number of EHC needs assessments and limited staffing it could not assign EP’s to assessments within the statutory timeframe. The Council said it had now assigned an EP to Y’s case.
• It believed Ms X was working with an Engagement Facilitator to support Y into school. The Council said the Engagement Facilitator had made a referral to the Education Access Team and was linking with another school to enable Y to take small steps back into education.
31. The Council received the EP report for Y in April 2023 and sent Ms X a draft EHC plan for Y on 16 May 2023.
32. In late April 2023, the Council offered Ms X an AV1 robot for Y. This would allow Y to attend her school class via video link. Ms X declined this as she did not think it was suitable for Y. At this time Y was also attending an alternative school one afternoon per week and receiving three therapeutic sessions per week.
33. In mid-May 2023, the Council agreed to assign a registration tutor to Y following an Education Access meeting. Ms X declined this offer as it would be difficult for Y to build up a relationship with someone for a short time until school finished in the summer.
34. On 23 June 2023, the Council issued Y’s final EHC plan. Y has since started a new school placement in September 2023.

Analysis

Y’s EHC needs assessment

35. After receiving a request to carry out an EHC needs assessment for Y, the Council should have issued Y with a final EHC plan by early May 2023. Failure to do so was fault.
36. The delays in carrying out the assessment were due to difficulties getting an EP report. While Council did offer Ms X a virtual EP assessment, Ms X explained she did not think this would be suitable for Y due to her medical diagnosis. From the records, I cannot see the Council made efforts to approach another local authority or an independent EP.
37. Where delays to EHC needs assessments have occurred because of shortages of EPs our guidance recommends a payment of £100 per month for each month of delay outside the statutory timescale, until a final EHC plan is issued. In this case the Council delayed issuing Y’s final EHC plan by just under two months.
38. I also considered recommending a service improvement to the Council to address the delays caused by EP shortages. However we are aware from previous investigations that the Council has started to put in place an action plan to address this. Therefore it is right to allow the Council time to put in place its action plan to address these issues.

Alternative provision

39. Y stopped attending school in November 2022. The Council became aware of this in mid-December 2022. At this stage the Council referred Y to have support from an Engagement Facilitator to help her reintegrate into school. The Council did not take steps to put alternative provision in place for Y after it became aware she was not attending or satisfy itself Y’s school was putting in place suitable education. This was fault.
40. It was not until late April 2023, the Council offered Y means to access education via a AV1 robot. After Ms X declined this it offered further support from a learning mentor which Ms X also declined.
41. As I have found fault I need to consider what injustice this has caused. Y has not received the education she otherwise would have received had the Council put in place alternative provision from December 2022. This is an injustice to Y. Ms X also had to spend time at home supporting Y. Had the Council put in place alternative education, Y could have received suitable education out of school and would not be as reliant on Ms X. This is an injustice to Ms X.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 a term to recognise the impact of that loss. When coming to a figure for this case I considered there was effectively no education from December 2022 until April 2023. This was just over one term of school. After April 2023, the Council offered provision which Ms X declined, so Y could have received education at this point.

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Agreed action

43. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Ms X for the delays in carrying out Y’s EHC needs assessment and for not initially offering alternative education when she stopped attending school.
• Pay Ms X £200 to recognise the delays in completing Y’s EHC needs assessment.
• Pay Ms X £1,800 for the benefit of Y’s education for not putting in place educational provision between December 2022 and April 2023. I have calculated this as being £1,500 a terms plus a few more weeks.
• Pay Ms X £200 to recognise the distress she experienced as a result of Y not having suitable education in place.
44. Within three months of my final decision the Council agreed to:
• Review its out of school procedures to ensure it meets its duties to secure alternative provision.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation and found there was fault by the Council which caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman