Summary: Ms X complained the Council delayed issuing her child, Y with an Education, Health and Care Plan, failed to provide a suitable education from November 2022 until July 2023, and failed to provide the provision in their Plan from September 2023. The Council was at fault. It will apologise to Ms X, pay her £7,950 to recognise the injustice caused to her and Y and provide the missing provision.

The complaint

1. Ms X complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment and in issuing an Education, Health and Care (EHC) Plan for her child Y. Ms X also complains the Council failed to provide an education for Y since September 2022 when they were unable to attend school until July 2023, and failed to provide the provision specified in their EHC Plan since September 2023. Ms X said this caused Y to miss out on educational and specialist provision and has impacted both of their mental health.

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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. 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)
4. 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

5. I read the documents provided by Ms X.
6. I considered the documents the Council sent in response to my enquiries.
7. Ms 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

Relevant legislation and guidance

Alternative education - section 19 duty

8. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
9. 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))
10. 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)
11. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time in our focus report Out of school, out of sight? published July 2022
12. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

13. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Education, Health and Care 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.
15. The EHC Plan is set out in sections which include the special educational provision needed by the child or the young person (Section F) and the name and/or type of educational placement (Section I).
16. 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: 

• 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 agrees 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). 

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Maintaining the EHC Plan

18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Y lives at home with their mother, Ms X. In October 2022 Y was on roll at a mainstream school (school A). Y has neuro-differences that means they need additional support in education.
22. Ms X asked the Council to carry out an Education, Health and Care Plan needs assessment for Y in October 2022 to identify what support they needed at school.
23. Ms X asked the Council to provide alternative education for Y in November 2022. She said they were out of school for health reasons as they had anxiety and had not attended school A since September 2022. She said school A had tried strategies to support Y but they had not worked.
24. The Council agreed to complete a needs assessment on the 8 November 2022. It wrote to Ms X at the end of November and told her its decision. It also said that due to a national shortage of educational psychologists (EP) there was likely to be a delay during the assessment process.
25. The Council considered Ms X’s request for alternative provision at the beginning of November 2022. The Council decided it was school A’s responsibility to provide Y an education and it did not agree to provide any support. The Council has not provided any evidence of how it informed Ms X, or school A of that decision.
26. The Council said it received a medical referral for alternative provision for Y from school A in January 2023. It said it discussed the matter with school A and provided a robot to support Y to reintegrate with lessons as Ms X said it would be suitable for Y. It has not provided any evidence of how it made that decision. The robot would attend a lesson and livestream to Y’s computer at home, so they could virtually attend. Ms X stated she did not agree the robot would be suitable and the Council did not provide any other options.
27. The Council received the EP assessment for Y’s EHC needs assessment on 21 March 2023.
28. The Council agreed to issue an EHC Plan for Y on 21 June 2023 and issued a draft Plan to Ms X for her comments. Ms X provided her comments and told the Council her school preferences for Y.
29. The Council consulted five placements including school A for a place for Y. None could offer a place either because they had no space or because they could not meet Y’s needs, including School A.
30. The Council considered Y’s EHC Plan at the end of July. The record shows the Council agreed a specialist placement was appropriate for Y but it had not found a suitable placement. It decided it should issue Y’s Plan naming school A and provide funding to school A to set up tuition to support Y to re-engage with learning before it would consider a different placement.
31. The Council issued Y’s EHC Plan on 16 August 2023 and named school A. It told Ms X school A would provide alternative provision while the Council continued to try to secure a suitable setting. It told Ms X of her appeal right if she disagreed with the content of the Plan.
32. The EHC Plan stated Y was not able to access mainstream education and needed alternative provision to support their development in all areas. It set out the provision Y required to meet their needs which included:
• Consistent relationship with familiar key adults
• Specific programmes to develop emotional literacy and regulation
• Access to a broad and balanced curriculum
• Social communication intervention
33. The Council sent the EHC Plan to school A at the end of August 2023 and said it would provide funding for Y’s alternative provision once school A had arranged the provision and sent the costings to the Council.
34. Ms X contacted the Council at the beginning of October 2023. Ms X said Y was not receiving the provision in section F of their EHC Plan, and had missed a whole year of education due to delays in the EHC needs assessment process.
35. The Council responded a few days later and said:
• It apologised for the delay in the EHC needs assessment.
• It had made a backdated payment to school A to cover Y’s alternative provision.
• Ms X should speak to school A about the provision as it was responsible for arranging the alternative provision.
• It said it had made its inclusion and psychology teams aware of Ms X’s concerns and she could raise any further concerns with them.
36. Ms X responded and said she had already raised concerns with school A and it was the Council’s responsibility to provide the provision in the EHC Plan.
37. The Council said school A was responsible for putting the alternative provision in place. It said it was providing school A with funding for Y’s alternative provision and if school A required more it was aware of the process for requesting additional funding.
38. In October and November Ms X continued to contact the Council, telling it Y’s provision was not in place and school A said it had not received funding for Y.
39. School A sent a funding request to the Council at the beginning of November 2023. The provision was ten hours tuition, four hours of equine therapy and one hour of therapeutic provision per week. School A told the Council it could not provide the provision without the funding agreement. The Council agreed to provide additional funding. School A told the Council the funding it had agreed was not sufficient to cover the alternative provision.
40. In response to my enquiries the Council said Y received 70 sessions of education via the robot between March 2023 and March 2024. The sessions were 25 minutes long and so Y received 29 hours of education. Ms X told me the sessions were only ten minutes long and the robot was not available one day a week. She said the sessions were a staff member reading from a fiction book.
41. Ms X stated Y began to receive tuition in December 2023, and equine therapy in February 2024. She stated there was still no therapeutic provision in place for Y at the time of this decision.
42. The Council said the delays in the EHC needs assessment were caused by the shortage of EPs and significant pressure caused by an increase in the number of EHC needs assessment requests it had received. It said it had invested additional funding to recruit 46 new SEND officers to manage the increased workload.

My findings

EHC needs assessment delay

43. The Council agreed to complete an EHC needs assessment for Y on the 8 November 2022 and should therefore have decided whether it would issue an EHC Plan within 16 weeks, and by 6 March 2023. It should have gone on to issue the final EHC Plan within a further four weeks, and by 3 April 2023. The Council did not issue an EHC Plan for Y until 16 August 2023 which is a delay of 19 weeks. The delay was initially caused by a shortage of educational psychologists available to complete an assessment of Y’s needs which is service failure. However, the Council did not decide if it would issue a Plan for three months after it received the EP report, and took eight weeks to issue the final Plan after that. Therefore the delay was fault and caused Ms X frustration.
44. We have previously made recommendations to the Council to improve its SEN service and we are monitoring this through our case work. The Council has also taken action to recruit additional staff members to alleviate the delays in the assessment process and so I have not made any further service improvement recommendations on this point.

Alternative provision – section 19

45. Ms X contacted the Council about alternative provision for Y in November 2022 as she said Y was unable to attend school. I have seen no evidence the Council considered Ms X’s request properly or in line with our recommendations set out in paragraph 12. When School A requested alternative provision the Council provided School A with a robot. I have seen no evidence of how the Council considered this was appropriate for Y taking into account their individual circumstances. The Council and Ms X disagree on how much provision Y received via the robot. However, the evidence shows that Y received, on average, no more than 45 minutes a week of education via the robot. I have seen no evidence the Council considered how that was a suitable education for Y, or that it retained any oversight or control to ensure the Council’s duties were properly fulfilled. That was fault and meant Y did not receive a suitable education between November 2022 and July 2023.

Special educational provision – section 42

46. The Council issued an EHC Plan for Y in August 2023. From September 2023 it had a duty to ensure the special educational provision (SEP) in Y’s Plan was in place for them. It was aware the school named in the Plan could not meet Y’s need and would arrange alternative provision. The Council should have ensured the SEP was in place as the duty is non-delegable. Ms X consistently told the Council the provision was not in place through October and November. The Council incorrectly informed Ms X she should raise the issue with school A as it was responsible. The duty to secure the provision, and ensure it is in place, remains with the Council and goes beyond funding the provision. The Council’s failure to ensure the SEP was in place for Y was fault.
47. The fault caused Y to miss out on the provision specified in their EHC Plan. As the Council agreed to the alternative provision package School A suggested in November 2023, it accepts that was the provision Y needed to meet the SEP set out in their EHC Plan. Therefore:
• Between September and November 2023 Y did not receive any provision, other than no more than 45 minutes a week via the robot;
• Between December 2023 and January 2024 Y received ten hours tuition but did not receive the other elements of their provision; and
• Between March and May 2024 Y received the majority of the provision in their Plan, but did not receive the hour a week therapeutic provision.
48. The Council’s response to Ms X, and its inaction about the provision, meant that Ms X was caught in the middle between School A and the Council. Ms X was involved in discussions about funding that were not her responsibility. This caused Ms X frustration and put her to time and trouble in trying to resolve the issue herself.
49. In a separate investigation we recently made a recommendation to the Council to provide relevant staff with written guidance on the Council’s non-delegable responsibilities under Section 42 Children and Families Act, and what action staff should take when they become aware a child or young person is not receiving the provision in their EHC Plan. Therefore I have not repeated the recommendation here. We will continue to monitor the Council’s actions around its section 42 duty through our investigations.

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Agreed action

50. Within one month of this decision the Council will:
• Write to Ms X and apologise for the injustice caused to her and Y by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
• Pay Ms X a symbolic amount of £500 to recognise the frustration and time and trouble caused to her;
• Pay Ms X £5,500 to recognise the two and a half terms between November 2022 and July 2023 that Y did not receive a suitable education;
• Pay Ms X £2,450 to recognise the two and a half terms between September 2023 and the date of this decision where Y did not receive all, or some of the SEP in their EHC Plan. This amount is calculated in line with the injustice set out in paragraph 47, and with our guidance on remedies. Ms X should use the two payments recommend for Y’s benefit as she sees fit; and
• Ensure the one-hour therapeutic provision per week is in place for Y.
51. Within three months of this decision the Council will review how it considers requests for section 19 alternative provision from both parents and schools. It will consider how it records its decision making. The Council will identify any improvements it needs to make to that process to ensure it properly considers and responds to the requests. It will provide us with a copy of a timebound action plan to make any improvements it has identified.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I found fault casing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the fault reoccurring.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman