Summary: Miss B complained about the Council’s failure to issue an Education, Health and Care Plan for her son within legal timeframes and he had been left without education for several months. We found the Council at fault for significant delays in the needs assessment process and for not properly considering its duties to arrange alternative provision. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Miss B complains about the Council's delay and failure to complete an Education, Health, and Care (“EHC”) needs assessment for her son within legal time frames. She also says the Council did not provide education for her son when he was not in school throughout this. This has impacted on her son's wellbeing and progression, and caused the family significant distress, uncertainty, and frustration.

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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. 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.
4. 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)
5. 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comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
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. In Miss B’s complaint to us, she referred to the Council’s decision in a previous EHC needs assessment request she made in 2021 along with a lack of education for Y. I have not exercised discretion to consider this far back as she could have complained to us about this sooner. Additionally, the Council’s refusal to assess decision carried appeal rights to the SEND Tribunal and it was open to her to use these.
9. She has since made a second EHC needs assessment request in June 2022 and complained to the Council about the process and Y missing out on education during this. Therefore, I have investigated matters from June 2022 to July 2023.
10. I have not investigated the period from July 2023 onwards as Miss B appealed to the SEND Tribunal about the named placement in the final EHC plan. This point to October 2023 (when the Council formally conceded the appeal) is outside of our jurisdiction to consider or investigate. Paragraphs 3 to 5 refer to the reasons for this. If Miss B is dissatisfied with the Council’s actions since, these are new matters outside the scope of this investigation, and she is entitled to make a new complaint directly to it.

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How I considered this complaint

11. I discussed the complaint with Miss B and considered her views.
12. I made enquiries of the Council and considered its written responses and information it provided.
13. Miss B 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

14. 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.
15. 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 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);  

16. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
17. 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.

Alternative provision

18. 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.
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
20. We issued a focus report “Out of school, out of sight?" in July 2022. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children receive suitable full-time education.

Background

21. Miss B’s son (“Y”) has special educational needs and Attention Deficit Hyperactivity Disorder (“ADHD”), with difficulty regulating his emotions.

What happened – summary of key relevant events

22. In early June 2022, the Council received an EHC needs assessment request from Y’s School.
23. During this time, Y was on the roll of the School and attended an alternative provision placement (“the Placement”).
24. In September 2022, Miss B said Y completed the first term at the Placement.
25. In December 2022, Miss B said Y stopped attending after being excluded from the Placement and he returned to the School, but this broke down.
26. At the end of January 2023, the Council sent a draft EHC plan to Miss B and asked for her school preference for Y.
27. At the start February 2023, the Council sent an internal email about Miss B’s concern that Y had not been in any form of education since before Christmas. It noted a conversation with Miss B about next steps.
28. Around April 2023, Miss B said she spoke to the School, and it agreed Y could attend for less than two hours per day.
29. Between March and July 2023, the Council sent out several school consultations, with no positive offers.
30. In late April 2023, the Council received the School’s amendments to Y’s draft EHC plan. The School said Y had not been accessing full time education after an exclusion from the Placement and he was starting afternoon sessions at the School. It noted he would not be able to cope with the demands of a mainstream school and large volumes of people.
31. In late May 2023, Miss B formally complained to the Council. She said she had still not received a final EHC plan for Y, after it had sent a draft in January. She had concerns that no setting would be suitable for Y and wanted to discuss an Education Otherwise Than At School (“EOTAS”) package. Y was currently attending the School for less than two hours each day.
32. In late July 2023, the Council issued a final EHC plan naming the School for Y, saying his needs would be met by a mainstream secondary school. It appeared by this point Y had stopped attending the School part-time.
33. The next day, Miss B appealed Section I. She said he needed a bespoke package of education, and a mainstream or specialist provision was inappropriate for him.
34. At the start of August 2023, the Council formally responded to Miss B’s complaint at Stage One. It apologised for the delay in its response. It accepted it did not issue a final EHC plan within legal timeframes. It recognised the timing of this at the end of the academic year left her with many uncertainties for Y going into Year 11. It upheld her complaint. It said it had drafted a provisional off-site educational package which the School would be expected to oversee after a meeting at the start of term. At the end of August 2023, Miss B escalated her complaint.
35. Between August and September 2023, there were various communications between the School and the Council about suitable provision for Y as the School said it could not meet his needs. The Council made further enquiries to work towards a personal package for Y, and later agreed with Miss B that EOTAS was the way forward.
36. In late September 2023, the Council responded to Miss B’s complaint at Stage Two. It acknowledged some poor communication and misunderstanding around ongoing provision for Y. It apologised for the frustration caused. It acknowledged her request for EOTAS had been agreed with a further meeting to finalise the package. It hoped things would move forward for Y but accepted the situation had affected her family for a substantial amount of time.
37. At the end of September 2023, the Council issued a second final EHC plan removing the School from Section I, replacing it with an EOTAS package with a personal budget.
38. At the end of October 2023, Miss B and the Council agreed to formally withdraw the appeal as they had reached agreement on Section I.
39. In response to my enquiries, the Council said the initial delay in the EHC needs assessment was due to an increase in demand and workforce shortages, including of Educational Psychologists (“EPs”). It had taken steps to improve the situation, including the recruitment of EPs. It said the later delay was due to trying to find a suitable placement to meet Y’s needs. It accepted it should have finalised his plan earlier naming the School to allow Miss B to appeal sooner.

Analysis

Education, Health and Care Needs Assessment

40. The Council received the School’s EHC needs assessment request for Y in June 2022. It should have issued a final EHC plan within 20 weeks of the request. In this case, by the end of October 2022.
41. The Council did not issue the final EHC plan until late July 2023. This is a delay of nearly nine months outside the legal timescales. This excessive delay is fault. This caused frustration and uncertainty to Miss B as she had to wait notably longer than necessary to receive the final EHC plan. It also significantly delayed her statutory right of appeal, which she could have used sooner if it had not been for the delay.

Alternative provision

42. Councils have a section 19 duty to make suitable education arrangements when a child of compulsory school age who because of exclusion, illness, or otherwise may not receive a suitable education unless the council arranges it for them.
43. The Council’s response to my enquiries about Y’s educational provision and associated records is patchy with many gaps. In July 2022, the School said Y continued to attend the Placement. Later down the line, Y was excluded from this, and Miss B said to me he had not been in education at all between December 2022 and April 2023.
44. I have not seen documentary evidence the Council were informed, by either the School or Miss B, when Y stopped attending the Placement. If it was not aware, I cannot find the Council at fault for failing to provide education between December 2022 and February 2023.
45. This is because the first written record I can see about Y’s nonattendance is an email by the Council at the start of February 2023. From this point, the Council has not provided evidence it made enquiries with the School about the situation or took steps to make alternative provision arrangements for Y. I cannot see evidence if the Council considered or concluded if Y was unable to have education at all or records properly assessing or considering what alternative provision could be provided. This is fault.
46. In April 2023, Miss B said she took action herself by contacting the School directly and Y then attended under two hours a day. The Council says it was aware of this from the School’s amendments in the draft EHC plan in April which refers to these sessions. While it appears the School decided these hours, for the reason that he would be unable to cope with much more, I cannot see the Council made its own assessment on the suitability of what was being provided. I cannot see the Council actively followed up on this, how it monitored this, or whether it considered a plan to gradually increase hours in the future with the School. This is fault.
47. Communication between the Council and the School during this period focused on the progress of the EHC plan to get agreement about the provision to be finalised and I note the Council’s efforts at trying to find a school placement for Y during the EHC needs assessment process. However, this is separate to its section 19 duty, and I cannot see it put its mind to what it could arrange in the interim for him as he was not in education.
48. Overall, I am not satisfied the Council properly considered its duty to consider arranging suitable alternative provision for Y from between February 2023 (when it was aware Y stopped attending) and July 2023 (when it issued the final EHC plan). The lack of robust action from a section 19 perspective is fault. This caused injustice to Y with missed education provision throughout this period, although I have taken into account he received some limited hours of education between April and July 2023. It also caused Miss B distress and uncertainty at trying to manage the situation.

Complaint handling

49. The Council’s complaint policy says, for both stages of its process, a full response will be sent within 15 working days.
50. Miss B formally complained at the end of May 2023 and the Council sent its Stage One response nearly 50 days later. The Council’s sent its Stage Two response to Miss B’s escalation request around 24 days later. This is outside the timescales within its policy, most notably at Stage One. This is fault causing injustice with additional frustration. I note there is some mitigation as it sent updates to Miss B about its progress and apologised for its delay in its responses.

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Agreed action

51. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Miss B and Y in writing for the injustice caused by the faults identified above;
• Pay Miss B a symbolic payment of £500 to recognise the frustration caused by the significant delay with the EHC needs assessment process from June 2022, which also delayed her statutory appeal rights;
• Pay Miss B a symbolic payment of £200 to recognise her distress, including with the Council’s poor communication and its complaint handling; and
• Pay Miss B a symbolic payment of £2,600 to recognise the injustice for the lack of education or alternative provision for Y between February and July 2023. This can be used for Y’s educational benefit.
52. The Council should provide us with evidence it has complied with the above actions.
53. In recent similar decisions since Miss B’s complaint, we have highlighted issues with the Council’s failure to fully consider its section 19 duties for children missing education in other cases and significant delay with the EHC needs assessment process. We recommended service improvements to reviews its practices and take action. It has already done this since Miss B’s complaint to us. Therefore, I have not considered it necessary to repeat the same service improvements in this case.

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Final decision

54. I found fault with the Council which caused injustice to Miss B and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman