• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: We have found the Council at fault for the way it handled Mrs X’s daughter’s (Y’s) Education Health and Care (EHC) Plan process and for failing to deliver alternative provision when Y stopped attending school. The fault caused the EHC Plan to be delayed and Y to miss education for a year causing the family avoidable distress. The Council agreed to take action to remedy Mrs X’s injustice.

The complaint

1. Mrs X complained the Council did not finalise her daughter’s (Y’s) Education Health and Care (EHC) Plan and would not agree to name the preferred school that offered her a place. She said the Council did not deliver alternative provision for Y who stopped attending school in March 2023 due to a safeguarding concern.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

4. I considered Mrs X’s complaint and spoke to her about it.
5. I also considered the Council’s response to Mrs X and to my enquiries.
6. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
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 found

The law and guidance

EHC Plan

8. 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.

Timescales and process for EHC assessment

9. 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 whole EHC Plan process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.

Appeal rights

10. There is a right of appeal to the Tribunal against:
    • a decision not to carry out an EHC needs assessment or reassessment;
    • the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

General section 19 duty

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

13. Mrs X’s daughter, Y struggles with communication, interaction and learning. Y attended a mainstream school (School A) and was retained a year due to concerns that she was not making academic progress. She received several suspensions for disruption and anti-social behaviour. She struggled with attendance and would frequently play truant.
14. In early March 2023, Mrs X removed Y from School A due to safeguarding concerns. She said the school did not do enough when Y went missing from school.
15. In March 2023, the Council issued a draft EHC Plan. The Council began its consultation with potential schools for Y. In April Mrs X put forward her preferred school (School B) to the Council. She contacted the Council in June for an update.
16. In August, the Council confirmed it was holding a meeting to discuss Y’s placement. It agreed to recommend School B at Panel the following week and update Mrs X afterwards. Mrs X contacted the Council as she did not hear anything about the Panel outcome. The Council responded to inform Mrs X that Y’s allocated caseworker was unwell, the Panel had been deferred and someone would be in touch.
17. By the start of the Autumn term, the Council had not contacted Mrs X regarding a placement for Y.
18. Mrs X contacted the Council following the outcome of a Freedom of Information request. She said this showed that all the schools consulted by the Council rejected Y except School B. However, after a 4 month delay and the postponement of the Panel hearing, School B had withdrawn its offer. She said Y’s original caseworker nor their replacement had communicated anything to her.
19. Mrs X raised a formal complaint with the Council.
20. At the end of September, the Council met with Mrs X. The Councils actions from the meeting included:
    • speak with School A about a package of alternative provision (AP) for Y while a long term placement is secured,
    • explore the consultations and move it forward to consider School B plus two other specialist schools,
    • allocate Y an Assessment Review Officer,
    • gain Y’s views around AP,
    • make referral to Children and Adolescent Mental Health Service (CAMHS), and
    • escalate the concerns raised by Mrs X with senior leadership.
21. Over the coming months, the Council said it actioned the points above. However, by November 2023, Y remained out of education. The Council explored potential tutors and agreed to consider funding horse-based therapy that Y was already attending, and Mrs X was paying for.
22. By the end of November, the Council (via School A) had secured a tutoring service for Y to begin after Christmas. However, it did not confirm funding or a start date with Mrs X.
23. The Council issued its final response to Mrs X’s complaint in December. It upheld her complaint recognising:
    • Delays with Y’s EHC Plan and missing statutory deadlines.
    • Delays with Y’s case due to a lack of an allocated review officer and not being heard at Panel between August and November 2023
    • Y had been out of school from March 2023 with no AP despite being on roll at School A
24. The Council apologised. Mrs X brought her complaint to the Ombudsman.

Update

25. Mrs X met with School A in early January to complete all the paperwork for the tutor. School A did not then contact her again to confirm sessions or a start date. At the end of January, School A said this was due to the unavailability of a venue.
26. Y began one hour a week of tuition at the end of February 2024. She also attends one day a week at an equine college.
27. At the end of February, School B confirmed a long-term placement for Y starting in the summer term. The Council agreed the funding for this placement.
28. In March, the Council issued Y’s Final EHC Plan naming School A as Y’s current setting and School B from May 2024.

My findings

EHC Plan delays

29. The Council issued Y’s draft EHC Plan in March 2023, and her final Plan in March 2024. The law says the Council should complete the whole process in 20 weeks. This was fault. The delay caused Mrs X and Y uncertainty and distress. It also delayed Mrs X’s appeal rights.
30. During my investigation, the Council issued Y’s final EHC Plan. This is a positive outcome, albeit significantly delayed. The Council has agreed to pay Mrs X a £250 symbolic payment in recognition of the distress the delays caused the whole family.

Alternative provision

31. The Council knew that Y was not attending school in March 2023. It said that because Y was on roll at School A, it was the school’s responsibility to provide alternative provision. This was fault. The Council should have worked with School A, and Mrs X and Y from March 2023 to assess what alternative provision Y needed and could cope with.
32. Y was without education from March 2023 until the end of February 2024. Given that Y was already struggling with learning and had been retained a year at school, a year out of education had a significant impact on her academic progress. It also negatively affected her social, communication and interaction skills that were already a problem.
33. In line with our guidance on remedies, the Council has agreed to pay Mrs X £2000 per term (£6000 total) to acknowledge the impact of Y’s missed education. This at the higher end of our scale to recognise the impact on Y’s academic progress, social and communication skills and SEN.

Poor communication

34. The Council was very poor at communicating with Mrs X. It failed to:
    • contact her when it had arranged to,
    • update her on the progress with potential schools (Mrs X made an FOI request to find out the consultation outcomes)’
    • update her on the outcome of meetings about Y’s case,
    • respond to Mrs X’s calls and emails, and
    • have a consistent caseworker for Mrs X to contact.
35. The poor communication caused frustration and distress. It also contributed to the delays Mrs X experienced with the EHC Plan process and delivery of alternative provision.
36. The Council recognised the avoidable distress the Council caused Mrs X by its poor communication and has agreed to pay Mrs X £250.

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Agreed action

37. Within 4 weeks of my decision, the Council has agreed to:
    • 1. Apologise to Mrs X for the EHC Plan delays, failing to deliver alternative provision and for its poor communication.
      2. Pay Mrs X £6000 in recognition of the impact that the missed educational provision had on Y.
      3. Pay Mrs X £500 in recognition of the avoidable distress Mrs X and her family suffered as a result of the EHC Plan delays and poor communication from the Council.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I have found fault with the Council for causing delays in the EHC Plan process, failing to deliver alternative education provision for Y and for its poor communication with Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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