Summary: Miss F complains the Council failed to issue an EHC plan for her daughter within the statutory timescales. There was fault which has caused injustice. The Council has agreed to apologise and make a payment to remedy this.

The complaint

1. Miss F complains the Council failed to issue an EHC plan for her daughter within the statutory timescales.
2. As a result, her daughter waited over a year for a plan, and she had to pay for a private educational psychology report and school fees, had to care for her daughter affecting her employment, and her appeal rights have been frustrated. This has caused significant distress affecting her mental health.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

11. I spoke to Miss F about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
12. Miss F 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

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
15. If the council concedes to the appeal, the SEND Tribunal will issue a consent order. The Regulations say the council must start the EHC needs assessment within two weeks of the decision. If the council decides as a result of the assessment to issue an EHC Plan, it must issue the final EHC Plan “as soon as practicable” and in any event within 14 weeks of the consent order. (SEND Regulations 2014, Regulation 44(2)(b)(ii))
16. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Alternative provision

19. 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 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).
20. 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, and whatever type of school they attend. (Statutory guidance ‘Alternative Provision’, January 2013)
21. 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)
22. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The test is therefore whether the child is too unwell to attend any school, not just the school where they are on roll.
23. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
24. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
25. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that there may be cases where the child can still attend school with some support, or the school has arranged to deliver suitable education. The guidance states that: “We would not expect the local authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. This might be the case where, for example, the child can attend school but only intermittently.”
26. The guidance also 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”.

The Council’s complaints procedure

27. The Council has a two stage complaints procedure. At the first stage it aims to respond within ten working days. At stage two it aims to respond within twenty working days.

What happened

28. Miss F’s daughter, J, has autism and other special educational needs. She was struggling to attend School X. Miss F requested an EHC needs assessment in August 2022. The Council refused to assess on 28 September and Miss F appealed to the SEND Tribunal.
29. Miss F says J’s mental health deteriorated and she had stopped attending School X completely by 14 November. She advised the Council of this. J’s GP told the Council in December that J had anxiety and would benefit from attending a specialist school.
30. In January 2023, the Council conceded the appeal and the Tribunal issued a consent order on 18 January. The Council therefore had to start the assessment and either decide an EHC plan was not needed by 29 March or issue a final EHC plan by 26 April.
31. The Council sought information and advice from an educational psychologist but there were delays in this process caused by a national shortage of EPs.
32. Miss F therefore paid privately for an EP to assess J. The cost of this was £1,260. The EP’s report was submitted to the Council on 2 May. On 22 May the Council told Miss F it had decided to issue an EHC plan.
33. Miss F paid for J to attend an independent special school (School Y) part-time for eight weeks in the summer term. She also funded eleven private speech and language therapy (SALT) sessions.
34. Miss F complained on 4 July that the final EHC plan had not yet been issued. A draft plan was then issued and the Council responded to the complaint on 11 July. It apologised for the delay which it said had been caused by the shortage of EPs. The Council said it was recruiting psychologists and working with organisations who could supply further EPs. It said assessments were undertaken in chronological order from the date the request was made.
35. Miss F remained dissatisfied and asked for her complaint to be escalated.
36. J continued to attend School Y in autumn 2023, but the Council could not fund this as the final EHC plan had not yet been issued. Miss F therefore paid for the first half term. Miss F told the Council that she was having to home-school J two days a week and she was at School Y three afternoons a week. Miss F says it was verbally agreed with the Council that it would fund the placement at School Y for four days a week and it started doing so after half term.
37. The Council’s final complaint response was issued on 5 October. It apologised the final EHC plan had not yet been issued and accepted this was not solely due to the delay in EP assessments, as the private one had been received. Delays were being caused by a lack of resources. The Council had commissioned EHC plan writing services and reviewed its processes to try to complete plans as quickly as possible. It had also taken steps to support children with SEN, including recruiting staff in specialist teacher teams to improve the offer made in schools. The Council refused to refund Miss F for the cost of the private EP assessment as it said it had been her choice to pay for this.
38. J’s final EHC plan was issued on 13 December 2023, about two terms after the 14-week deadline in the Regulations. The plan says J should have education other than at school (EOTAS), weekly SALT, occupational and play therapy, as well as other strategies and interventions.
39. In relation to the educational psychology issues, the Council has told us it has:
• A SEND improvement plan which includes working with the EP service to increase capacity and prioritise cases.
• Recruited EPs, engaging with outside partners to undertake assessments and had produced a document for parents about the delays.
• Reviewed pay and conditions to attract EPs.
• Reviewed service delivery to maximise efficiency of the current workforce.
• Put in place a measure so that if an EHC needs assessment remains incomplete, temporary funding will be paid to the school so that additional and sustainable support can be made available.
• Introduced prioritisation of EHC needs assessments.

My findings

EHC plan delays

40. 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. Following the Tribunal’s consent order, the Council had to progress the assessment so it could issue J’s final EHC plan within 14 weeks of the order, i.e. by 26 April 2023. EHC plans must include advice from an EP, so it could not be issued until after the private EP report was received on 2 May. There was then further delay, until December, due to resource pressures on the Council.
41. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, and there were resource pressures, J’s EHC plan was issued seven months late, which is service failure.
42. This delay caused Miss F uncertainty and distress and delayed her appeal rights. It also meant she had to fund private SALT sessions costing £1,078 plus petrol costs.
43. As the final EHC plan did not name School Y, my view is that it was Miss F’s choice to send J to School Y and the Council is not under a duty to refund this. Miss F says the Council was wrong to refuse to name School Y. It is not for us to take a view on which school was suitable for J or whether she required EOTAS. This is for the SEND Tribunal and Miss F has exercised her right to appeal. This puts it out of our jurisdiction, as set out in paragraph 7, and we cannot remedy loss of education when it relates to a disagreement about an EHC plan that is being appealed.
44. The delay in issuing the final plan caused J to miss out on the provision set out in Section F for about two school terms. This is her injustice.
45. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress or uncertainty caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. We can recommend reimbursement if we consider there has been quantifiable financial loss. For loss of SEN provision, such as SALT and occupational therapy, our guidance recommends moderate, symbolic payments for each term missed.
46. The Council refused to refund the cost of the private EP assessment. Our view is that if the council uses the complainant’s EP report in the EHC plan, instead of obtaining its own, it should reimburse the cost.
47. I welcome the efforts the Council is making to resolve the issue of delays caused by the EP shortage and resource pressures, as set out in paragraphs 37 and 39. I have therefore not made any service recommendations.

Alternative provision

48. The law is clear that councils must intervene and provide education under Section 19 if no suitable educational provision has been made by their school, for a child who is missing education through exclusion, illness or otherwise.
49. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. In doing so it should consider any medical evidence and determine whether education offered is “reasonably available and accessible” to the child. The test is whether the child could access any school.
50. On the evidence seen, the Council became aware in December 2022 that J had stopped attending School X by 14 November. I have seen no evidence that it considered whether alternative provision should be made. This is fault.
51. The lack of clear decision-making causes uncertainty about whether alternative provision would have been made. J was able to attend School Y and the GP letter said she should attend a specialist school, not that no school was accessible to her. But when the final EHC plan was issued, it recommended education other than at school. So I do not consider I can say, even on balance, whether the Council would have determined that alternative provision should be made. This uncertainty is an injustice to Miss F.

Complaint handling

52. The Council’s stage two complaint response was issued about six weeks later than the deadline in its complaint policy. This is fault which caused time and trouble to Miss F.

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Agreed action

53. Within a month of my final decision, the Council has agreed to apologise to J and to Miss F and pay her a total of £4,298. This comprises:
• £1,078 for eleven sessions of SALT that Miss F funded.
• £160 for petrol to those SALT sessions.
• £1,260 for the private EP assessment.
• £800 to remedy the injustice to J of missing out on other SEN provision for two terms (£400 per term).
• £500 to remedy the uncertainty caused by a failure to properly consider whether alternative provision should be made.
• £300 for the distress and uncertainty caused to Miss F by delay in issuing the EHC plan.
• £200 to remedy the seven-month delay to Miss F’s appeal rights.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman