Summary: Mrs X complained about delays in the education, health and care plan process. She said the Council has failed to provide suitable alternative provision; delayed naming a suitable school for her son and said the communication has been poor. We find the Council was at fault. This caused significant stress to Mrs X and her son missed out on education. The Council has agreed to several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains about delays in the education, health and care plan process. She said:
• the Council has failed to provide suitable alternative provision;
• the Council has delayed naming a suitable school for her son; and
• the Council’s communication has been poor.
2. Mrs X said because of this, her son has missed out on education and his physical and mental health has deteriorated. She also said this has had a significant impact on the family.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I have investigated whether there was any fault in the Council’s actions between October 2022 and June 2023 when the final EHC Plan was issued.
10. I have not investigated the Council’s actions regarding failing to name a suitable school or provide suitable alternative provision after the plan was finalised in June 2023. The reasons for this are detailed in paragraphs 5, 18, 19 and 20. But I have investigated whether the Council was at fault for poor communication during this time.

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How I considered this complaint

11. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

13. 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. 

Alternative provision

14. 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.
15. 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)
16. 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)

Timescales and process for EHC assessment

17. 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 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; and
• the council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Law and guidance

18. 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)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
20. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Summary of the key events

21. The Council received a request for an EHC needs assessment for Mrs X’s son, B, on 26 October 2022. It agreed to assess B on the 29 November 2022.
22. Mrs X contacted the Council in January 2023. She said B was asked to leave his school as they could not meet his needs. But said he was now attending a different school.
23. On 22 February 2023, the Council confirmed its panel had decided to issue a draft EHC Plan for B. It was noted the outcome was for the Council to consult with mainstream settings as well as his current setting. It issued the draft EHC Plan on the 3 March 2023.
24. Mrs X asked the Council for a list of schools it would be consulting. But the Council said it had not started the consultation process. It asked Mrs X to provide details of what schools she would prefer.
25. Mrs X asked the Council to start the consultation process. She said it was likely B would be excluded from his current setting soon. She provided a list of schools she wanted the Council to consult. She asked what schools the Council intended to consult. Mrs X also sent the Council her comments on the draft plan.
26. Mrs X chased the Council for a response. She said B would be without a school place by the end of the week.
27. Towards the end of March 2023, Mrs X told the case officer another council officer had confirmed they would be providing alternative provision (AP) for B from next term.
28. The Council confirmed it had consulted with B’s current school. It asked Mrs X to confirm what schools she wanted consults sent to. It also said it would look into what schools would be suitable.
29. On the 29 March 2023, Mrs X confirmed to the Council that B’s school could not meet his needs and had asked him to leave. She asked what AP would be provided and sent in a further three school preferences.
30. The Council said it would need to discuss Mrs X’s preferences as the panel had previously agreed to a mainstream setting. It also said its panel would need to agree to AP before it could consult with AP providers.
31. The Council asked Mrs X to name mainstream settings. But Mrs X said she did not think mainstream was suitable for B. She said her and her husband would be returning to work on 17 April 2023. She said AP would therefore need to be in place.
32. Mrs X asked the Council what its arrangements were for AP. The Council said it was in the process of applying for an AP search to be carried out.
33. On 11 April 2023, the Council consulted with several schools.
34. Mrs X contacted the Council following a recent call. She said the officer had agreed to consult with school Y. But said school Y had confirmed it had not received any consultations.
35. Mrs X asked the Council for an update on the AP. She provided details for an AP provider and asked if the Council could consult with them.
36. Mrs X contacted the Council in May 2023. She said:
• her emails and calls were not responded to. The case worker had left and was yet to be allocated a new one;
• B was without a school place and was still waiting for AP;
• most AP providers could not provide a 25 hour package. So she said she had requested this be split across two different providers; and
• the Council had only contacted some AP providers.
37. The Council sent Mrs X the latest draft EHC Plan and Mrs X sent in her amendments. The Council said it had not yet had a response from its AP search.
38. Mrs X said she had visited school Y and asked if the Council could consult. But the Council said this would need to go to panel which was carried out monthly.
39. In May 2023, the Council’s panel agreed to name a specialist placement. It was noted that B currently had no provision until AP was found and a decision around a future placement was made. Mrs X confirmed her first choice was school Y.
40. The Council told Mrs X its initial search for AP was negative. It had agreed to request a search again for a more bespoke package.
41. On the 18 May 2023, Mrs X asked the Council to let her know the outcome from the panel decision about school Y. But the Council said the case would be put to the panel in June 2023.
42. The Council consulted with one school in May 2023 and one school said it could not meet B’s needs.
43. Mrs X asked the Council to confirm what schools/AP it was consulting.
44. Towards the end of May 2023, the Council said it had a response from an AP provider. It asked if Mrs X was happy for the Council’s panel to consider this which Mrs X agreed with. The Council also confirmed a school, school Q had offered B a place. But Mrs X said after visiting, this school could not meet B’s needs.
45. In June 2023, it was noted the panel decision about school Y was pushed back a week. Mrs X was unhappy with the delay and asked for the plan to be finalised naming a specialist school but leaving the school blank.
46. The Council finalised the EHC Plan on the 12 June 2023. Mrs X later appealed to the Tribunal regarding section I of the plan.
47. The Council confirmed the AP had been agreed. But it was noted school Y could not provide a place to B. This was because it said admission would be incompatible with the efficient education of others or the use of resources. The Council consulted with other schools.
48. Mrs X asked the Council for updates on the progress in July 2023. The Council met with school Y. But said there was nothing further they could offer. It said it was waiting for consult responses and consulting other schools. It also said it would discuss B’s case with management.
49. Towards the end of July 2023, the Council told Mrs X the AP provider would be in touch with the timetable. But Mrs X questioned this as she said the hours suggested were not full time.
50. In early August 2023, the Council told Mrs X it had received a negative response from one of the schools. This was because it said B was too academically able for the peer group.
51. The Council told Mrs X another AP provider could provide English and maths tutoring. Mrs X said she was happy for this to be in place alongside the other AP whilst the search for a school continued. But Mrs X later said the number of hours offered were not full time.
52. The Council contacted another AP provider in September 2023.
53. In October 2023 it was noted school Y had offered B a placement. But said he could not start until January 2024.
54. In October 2023 the Council’s panel agreed to a bespoke package to provide transition support to B to phase into school Y.
55. A consent order was issued in November 2023 ordering school Y to be named in the EHC Plan.

The Complaint to the Council

56. Mrs X complained to the Council in April 2023. She said:
• there had been delays in the case and were still only at the draft stage;
• the officer said they had consulted with three schools she had put forward. But Mrs X said when she spoke with these schools, they confirmed they had heard nothing;
• from December 2022 errors and miscommunication have led to insufficient evidence being collected and an inappropriate needs assessment;
• the communication has been poor; and
• she made the Council aware in March 2023 that B was likely to be excluded and would like an AP package in place.
57. The Council responded the following month. It said:
• the draft EHC Plan was issued on 6 March 2023 and Mrs X sent in amendments on 21 April 2023. It acknowledged this had not been progressed and apologised;
• the previous case officer had left. A new case officer was allocated and said communication had been better;
• the draft EHC Plan was issued on 12 May 2023;
• an independent special school search was initiated on 11 April 2023;
• the case officer left suddenly, so there was little time to contact everyone;
• apologised that AP had not been actioned prior to the easter holidays. It said the failure to identify and commission AP had left B without any provision; and
• the case officer had consulted with AP providers.
58. Mrs X responded and said there were factual inaccuracies in the Council’s response and said she sent in amendments on the 14 March 2023. She also said she had incurred considerable costs. This included paying for childcare, petrol and for sports coaching for B. She also said since the complaint, a number of further failings had become evident.
59. The Council responded and said:
• it agreed the date should have been the 14 March;
• it acknowledged Mrs X had to undertake repeated attempts to obtain a response from the SEN team;
• acknowledged consultations with B’s existing school did not occur and further consultations were delayed;
• Mrs X had provided a breakdown of costs incurred which amounted to £1898.75. The Council agreed to reimburse this cost to recognise the cost of education materials, transport and childcare provision; and
• through regular supervision with team, it would reduce the risk of failing to ensure that consultations are not delayed and that improved timeliness of communication and updates are provided to families.
60. Mrs X submitted a further complaint in August 2023. She said:
• B still had no plan for school and there was a failure to provide AP; and
• despite offering AP on 31 May 2023, the Council had failed to secure the correct 15 hours.
61. The Council responded the following month and said:
• conversations had been taking place throughout to secure a school place;
• steps were taken to secure AP for the summer term. But said mistakes were made which led to an incomplete offer;
• it had been in conversations with school Y to see if it could seek a solution; and
• 10 hours of tutoring had been secured with one AP. A further 15 hours should be made available from a second AP provider.
62. Mrs X complained in October 2023. She said:
• there was still no school placement;
• the AP was now at 23 hours. But said 15 of these were not providing an education;
• she was misled about the availability of a place at school Y;
• the communication was poor; and
• the Council rejected a place at a different school when it had no alternative place ready.
63. The Council responded and said:
• it wanted to make sure the placement was right. It was continuing discussions with school Y regarding its offer for B to start in January 2024;
• a transition programme will be put in place to achieve a successful start for B; and
• it had no evidence the Council had misled her about the availability at school Y.

Analysis- was there fault by the Council causing injustice?

Delays in the EHC process

64. Mrs X requested the needs assessment on the 26 October 2022 and the Council agreed to assess on the 29 November 2022. The first draft EHC Plan was issued on the 3 March 2023 and the final plan issued on the 12 June 2023. The guidance states 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. Therefore, there is delay. This is fault. This caused significant distress to Mrs X and frustrated her right of appeal.

Failure to provide suitable alternative provision

65. Mrs X made the Council aware in March 2023 that B would be excluded from his school. The Council agreed to explore AP options as a temporary measure. There is evidence Mrs X did repeatedly ask when the AP would be put in place.
66. An AP provider was agreed in June 2023. But this was not put in place until September 2023. The delay is fault. As stated in paragraph 10, I can only consider up until the final plan was issued in June 2023.
67. I acknowledge that the Council has reimbursed Mrs X for costs incurred during this time. This included petrol costs, childcare and activities for B. But this fault meant B missed out on education. This amounted to one school term.
68. In acknowledgement of missed education, we recommend a payment per term. I consider an appropriate figure in this case to be £2400. In determining this I have taken into account that B received no education.

Delay in naming a suitable school

69. The Council’s panel decided to issue a draft plan in February 2023. It was noted the outcome was to consult with mainstream settings. The Council asked Mrs X for her preferences which she sent in. But the Council later asked Mrs X to send in her preferences again.
70. The Council issued its first lot of consultations in April 2023 and consulted with one school in May 2023. We would expect the Council to consult schools promptly and concurrently. There is an unexplainable drift in this case. This is fault. This caused distress to Mrs X and uncertainty as to whether a school place could have been in place sooner.

Communication

71. The Councils response times and communication fell below our expected standards of service. There is evidence of Mrs X often chasing the Council for responses and some emails were not responded to. This is fault. This caused significant stress to Mrs X who spent unnecessary time and trouble in contacting the Council.

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Agreed action

72. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £750 for the avoidable distress, time and trouble cased by the Council’s actions; and
• pay Mrs X £2400 for the educational benefit of B, to recognise the impact of its failings on B’s education.
73. Within two months the Council should issue written reminders to relevant staff to ensure they are aware of:
• the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
• the statutory guidance that states 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; and
• the importance of responding in a timely manner.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman