Summary: Miss X complained about delays in the EHC Plan process and in issuing a final EHC plan which meant her son was unable to start school in September 2023. Miss X also complained her son is still not receiving an education or the provision specified in his EHC Plan. We find the delay in completing the EHC Needs Assessment and issuing a final Plan is fault. As was the failure to provide a full-time education. This fault has caused Miss X and her son an injustice.

The complaint

1. The complainant, Miss X complained about delays in the EHC Plan process and in issuing a final EHC plan which meant her son was unable to start school in September 2023, and is still not receiving an education or the provision specified in his EHC Plan.
2. Miss X also complains about poor communication from the Council and delays in responding to her complaints.

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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)
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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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X; and
• Miss X 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

Education, Health and Care Plan

9. 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 council can do this.
10. 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: 
• 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 carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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.

Alternative provision

11. 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.
12. 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. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened here

13. Miss X’s son, Y was in Reception class at a mainstream school, School 1. Miss X says he was on a reduced timetable and only attended three days a week. In January 2023 School 1 requested an EHC Needs Assessment. The Council’s chronology does not confirm when it agreed to carry out an assessment or when it agreed to issue an EHC Plan.
14. The Council referred Y’s case to its Provision and Placement Panel on 12 July 2023 for approval of a placement at a special school. The panel notes say Y will have to be on a reduced timetable for the safety of other children. They also note that Y was currently suspended from school. The panel agreed to a placement at a special school. The Council then issued a draft EHC Plan the same day. Miss X responded requesting amendments on 27 July 2023.
15. In late August 2023 School 1 contacted the Council to confirm whether Y had been allocated specialist provision from September 2023. School 1 told the Council that if Y did not have a place at specialist provision and was returning to School 1, it would need to reduce his timetable further. It noted this was not ideal for Y or his family. School 1 chased an update in early September 2023.
16. Miss X also made a formal complaint in early September 2023 about the Council’s failure to respond to her calls and emails and delays in the EHC Plan process. Miss X said she had been told by School 1 that as it had not received a response from the Council Y could not return to the school. As, in the absence of any guidance or support from the Council, School 1 had not prepared for Y’s return. This had meant Y was unable to start school with his siblings and friends.
17. Neither the Council’s case notes nor its chronology record when Y was able to return to School 1, but Miss X says Y missed the first week of term.
18. As Miss X was not satisfied with the Council’s rsponse she asked for her complaint to be considered further. She noted the case officer had contacted her on 14 September 2023 and confirmed nothing had been done to progress Y’s EHC Plan. Miss X complained that although the case officer had agreed to send her information on special schools and an amended draft EHC Plan, they had not done so. The case officer had also failed to contact her on 24 September 2023 with an update as agreed.
19. Miss X told the Council the delays and failings in communication were causing Y and herself significant distress. Y was missing out on education as he was receiving reduced schooling and this was impacting his health and behaviour.
20. The Council advised the case officer was not at work at present and apologised it had not contacted Miss X to cancel appointments. It noted Miss X had been in contact with a team manager and that work was ongoing to secure a specialist placement.
21. Miss X continued to chase the Council for an update on Y’s EHC Plan in October, November, and December 2023. In October 2023 Miss X also advised the Council Y had now received a diagnosis of Autism and asked for this to be added to the school consultations. Then in December 2023 she advised the Council Y had been suspended from School 1. She said the delay in the EHC Plan process was having a severe negative impact on Y’s well being at school and at home. I have not received a record of any response from the Council.
22. Miss X made a further complaint in January 2024. She felt it was imperative Y be given a suitable school placement with immediate effect. Miss X was unhappy with the delays in issuing a final decision and that her preferred school had not agreed to offer Y a place. She asserted the Council could name the school in Y’s final EHC plan schools consultation response did not meet the criteria for refusal.
23. The Council apologised for the difficulties in communication with the SEN team and the frustration this caused. It also acknowledged its response had fallen below the Council’s standard of care.
24. The Council issued a final EHC Plan on 26 January 2024. The Plan named the type of setting rather than a specific special school. Miss X has appealed to the SEND Tribunal.
25. In February 2024 Y was excluded from School 1. Miss X says that Y has been out of education since and the Council has not provided any alternative provision. On 13 March 2024 Miss X asked the Council for an update on her preferred school. She was unhappy Y was not receiving the provision set out in his EHC Plan and told the Council the delay in finding a school placement was having a detrimental effect on Y. Miss X also asked for an update on her request for a personal budget.
26. The Council told Miss X it was working to find a place for Y and an SEN manager would contact her to discuss Y’s educational provision and her request for a personal budget.
27. Ms X also contacted her MP for assistance, and they then contacted the Council on Miss X’s behalf. The Council responded to the MP on 26 March 2024 and confirmed Miss X was appealing to the SEND Tribunal regarding the school placement. It also said that following Y’s exclusion it offered its customary provision at Centre 1, but Miss X did not agree to this placement.
28. The Council said it was exploring individual tutoring as an alternative and would discuss his with Miss X. It noted Miss X’s favoured option following exclusion was a provision that is not OFSED registered. The Council said it could not place Y there or knowingly provide a personal budget for Miss X to place him there. The immediate options were for Miss X to agree a temporary placement at Centre 1 or a package of tutoring.
29. In May 2024 the Council informed Miss X that School 2 had offered Y a place from September 2024. It also confirmed it would refer Y to a tutoring service for the current term. Miss X agreed to the placement at School 2 and accepted the offer of tuition.
30. Miss X says tuition was in place for the last three weeks of the summer term. Y has received two hours tuition a day for two days a week.
31. In response to my enquiries the Council says staff absences caused the delays in the EHC Plan process and in responding to Miss X’s complaints.
32. The Council says Y attended School 1 for 15 hours a week between September 2023 and January 2024. It says School 1 was unable to meet Y’s needs and placed him on a reduced timetable while a specialist setting was found. School 1 felt there was a health and safety risk for Y, his peers, and adults on site.
33. Between September 2023 and January 2024 the Council consulted six specialist schools for a placement for Y.
34. Following Y’s exclusion from School 1 in February 2024 the Council says it offered provision at Centre 1. The Council has not confirmed when it offered this service or provided details of the nature or amount of provision offered. It says it considered Centre 1 was appropriate for Y’s needs but Miss X refused. The Council says that once it became clear Miss X would not send Y to Centre 1 it sought a compromise. The Council commissioned a tuition service in June 2024.
35. The Council says there was no delay in arranging tuition, however there was a delay in relaying the decision to the EHC plan officer.
36. Miss X has responded to the draft decision and asked that the Council pays her the equivalent of the cost of free school meals for Y. She says that while at School 1 Y received free school meals. However this stopped when he was excluded in February 2023. The free school meals were then reinstated at the end of the summer term when Y received tuition.
37. Miss X says Y’s siblings received free school meals and vouchers over the school holidays. She says the Council’s failure to provide free meals or vouchers for Y while he was out of school has caused her financial difficulties.
38. The Council has confirmed it will provide equivalent vouchers subject to confirmation Y is eligible for free school meals

Analysis

39. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
40. School 1 asked the Council for an EHC needs assessment on 17 January 2023. The Council had 20 weeks from this date to issue the EHCP, if it agreed to issue one. This meant the EHCP should have been issued by 6 June 2023. The Council issued a draft EHCP on 12 July 2023, and the final EHCP on 26 January 2024, a delay of over 33 weeks. Delays of this nature are clearly unacceptable and amount to fault.
41. Delays in the EHC Plan process and poor communication between the Council and Miss X and School 1 meant it was unclear whether Y would return to School 1 in September 2023 or what provision would be in place. Y missed the first week of term and then returned on a reduced timetable.
42. Government guidance is clear that all children of compulsory school age are entitled to a full-time education. The guidance acknowledges that a temporary part time timetable may be needed in very exceptional circumstances, where it is in the pupil’s best interest, to meet their individual needs. A part time timetable should not be used to manage a pupil’s behaviour.
43. There is no evidence to suggest Y could not cope with full time education or that it would not be in his best interest. Rather, a reduced timetable appears to have been put in place to assist School 1. The Provision and Placement Panel noted Y would need to be on a reduced timetable for the safety of other children. And when School 1 said it would need to reduce Y’s timetable further should he return in September 2023, it noted this was not ideal for Y or his family.
44. The failure to provide a full-time education is fault.
45. Miss X has exercised her right of appeal to the SEND Tribunal in relation to Y’s EHC Plan. 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).
46. However, 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;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal
47. Y was excluded from School 1 in February 2024. As this exclusion was unrelated to Miss X’s appeal to the SEND Tribunal we are able to consider the alternative education provided by the Council from February 2024.
48. Although there is no record of when the Council offered provision at Centre 1 it is clear this was offered. The Council’s further response to Miss X’s complaint says the provision was discussed at a mediation meeting in early February 2024. It notes Miss X did not want provision at Centre 1 as this would be a temporary arrangement. She wanted Y to start at an appropriate school so there would not be another transition, causing further disruption.
49. I consider the Council’s offer of alternative provision at Centre 1 was appropriate as was the subsequent offer of tuition. However I consider the referral for and commissioning of tuition took longer than it should have. Although the possibility of tuition was raised in March 2024, the Council did not make a referral until May 2024 and did not commission the service until over a month later.
50. Having identified fault I must consider whether this has caused Miss X and Y an injustice. The delay in the EHC Plan process caused Miss X distress and frustration. It also delayed her ability to exercise her right of appeal to the SEND tribunal in relation to the named setting and/ or content of the plan. I consider the Council should make a symbolic payment to recognise the frustration and distress Miss X has experienced.
51. The faults identified have also meant that Y missed out on a fuller education between September 2023 and January 2024 and on appropriate tuition between March and July 2024. When tuition was arranged Y only received four hours tuition a week, which would not equate to a full-time education. Y also missed out on the provision in his EHC Plan.
52. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education the transfer to secondary school or the period preparing for public exams.
53. Given Y’s age, the stage of his education, and the education he received, I consider a payment of £600 for the failure to provide a full-time education between September 2023 and January 2024 would be appropriate. An additional payment of £1200 would be appropriate in respect of the missed provision between March and July 2024.
54. The Council has also agreed, subject to confirmation of Y’s eligibility, to provide vouchers in respect of the free school meals Y missed while out of school following his exclusion in February 2024.

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Agreed action

55. The Council has agreed to:
• apologise to Miss X and Y for the delay in completing the EHC Needs Assessment of issuing a final Plan and for not providing a full-time education or arranging alternative education provision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Miss X £1,800 in recognition of Y’s missed provision between September 2023 and January 2024, and March to July 2024; and
• pay Miss X £250 to recognise the further distress and uncertainty the Council’s actions have caused her;
• provide vouchers in respect of the cost of the free school meals Y missed while out of school following his exclusion in February 2024, subject to confirmation of Y’s eligibility.
56. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

57. The delay in completing the EHC Needs Assessment and in issuing a final Plan is fault. As was the failure to provide a full-time education. This fault has caused Miss X and her son an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman