Summary: Ms X complained about the Council’s delay when issuing an Education, Health and Care (EHC) Plan, and failure to provide her child with an education when she was unable to attend school due to extreme anxiety. We found fault because the Council took long to issue the EHC Plan. There was also poor communication and complaint handling. To remedy the injustice to Ms X, the Council has agreed to apologise and make a payment to her. We did not find the Council failed to provide an education because Ms X made alternative arrangements herself.

The complaint

1. Ms X complains about the Council’s:
1. delay in the EHC Plan process;
2. failure to provide alternative education when her daughter was unable to attend school for health reasons from January 2023; and
3. Poor communication and complaint handling.
2. She says this has caused significant distress and frustration. It has also had a significant financial impact because Ms X had to fund on-line learning herself. She would like the Council to refund these expenses.

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The Ombudsman’s role and powers

3. 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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

11. I have investigated what happened between January 2023, when Y stopped attending school, and February 2024, when the Council issued the final EHC plan. I will not investigate what happened afterwards because the main issue, that being the name of placement, was the subject of an appeal to the SEND Tribunal. We have no jurisdiction to consider this issue, even when the appeal is later withdrawn.

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How I considered this complaint

12. As part of the investigation, I have:

• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and took account of their comments in reaching my final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

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. Section I specifies the name and type of educational provision. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 
14. 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.
• 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).

15. As part of the EHC assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.

Children out of school

16. 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.
17. 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)
18. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

The Council’s policy for children out of school

19. Where it is clear a child will be away from school for 15 days for health reasons (including mental health), it is the responsibility of the school to make a referral to the Council’s Alternative Tuition Services.
20. Where a child is absent for other reasons, it is the responsibility of the school to make a referral to notify the Council’s Education Welfare Service.

The Council’s complaints procedure

21. Stage one - the Council aims to respond to complaints within 10 working days.
22. Stage two - the Council aims to respond to complaints within 20 working days.
23. The complainant will be kept informed if there is any delay.

What happened

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
25. Ms X’s daughter, whom I shall refer to as Y, started secondary school (School P) in September 2022. Prior to this she had been struggling with anxiety whilst at primary school. Y found the transition to a larger school overwhelming and found attendance difficult. School P put various measures in place during the autumn term, including extra support and a part time timetable, but they did not help. Ms X was desperately worried about the impact school was having on Y’s declining mental health. Y did not return to School P for the spring term 2023. Instead, Ms X sourced and funded a place for Y at an online school (School Q). She says this suited Y better and did not want Y to return to School P. Y remained on the roll of School P.
26. Mrs X believed Y needed additional support for her special educational needs.
27. In April 2023, Ms X requested an EHC needs assessment. Within a month the Council told her Y did not meet the criteria.
28. Shortly afterwards, information was submitted by School P stating Y had had received minimal education and Ms X had sourced online education at School Q. Based on this, the Council agreed to carry out an assessment. A draft EHC plan was issued in October 2023. The delay was caused by the late return of an EP report. This named School P in section I.
29. Ms X asked the Council to review this decision because she wanted Y to continue at School Q. Around this time, School P advised the Council it was unable to meet Y’s needs.
30. The final EHC plan was issued on 2 February 2024. This still named School P in Section I. Ms X appealed this decision and was reconsidered by the Council as part of the standard, pre-tribunal mediation process. The Council agreed to fund Y’s place at School Q through a personal budget paid to Ms X. This was backdated to September 2023. This was to recognise the delay in the EHCP process. An amended final EHC plan was issued in March 2024 confirming this arrangement.
31. Mrs X says the personal budget should have been backdated to January 2023, this being the time when Y was unable to attend School P. She says the Council had a duty under section 19 to do so. This, together with the delays in the EHC plan process, formed the basis of her complaint to the Council and then the Ombudsman.

The Council’s position

32. In response to Mrs X’s complaint and the Ombudsman’s enquiries, the Council made the following points.

• It was not asked to consider alternative provision by School P when Y stopped attending. This is because Mrs X made the arrangement herself without involving School P. For this reason, it did not consider its section 19 duty was owed to Y.
• It was only when the EP report was received that the Council was aware that Y was not attending School P at all. The intention at that time was still for Y to reintegrate back to School P.
• It accepted Mrs X was incorrectly informed it would not carry out an EHC needs assessment because there was a “glitch in the system”.
• It accepted there has been delays in the EHC plan process, partly due to the EP report being late.
• It accepted some of Ms X’s emails were not responded to.

Analysis

EHC plan process

33. The Code states that councils must give their decision in response to any request for an EHC needs assessment within a maximum of six weeks from when the request was received, and that 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.
34. In this case, the Council has already accepted it incorrectly issued a negative decision in the first instance caused by, what it has described as, “a glitch in the system”. This strongly suggest there a lack of proper oversight as to what information was being sent out. This was fault.
35. This in turn led to the decision to assess being approximately two weeks late.
36. There was further delay in issuing the first draft EHC plan caused by the late submission of the EP report. Because of this the draft EHC plan was issued approximately 11 weeks late.
37. The Ombudsman expects councils to adhere to statutory timeframes. I acknowledge the delay was caused by the EP report being provided late and that there is a national shortage of educational psychologists which is outside the control of the Council. However, I have concluded that it was still a service failure which caused Ms X distress and inconvenience.
38. What followed was a period of negotiation between Ms X and the Council because, amongst other things, she was unhappy about Y being expected to return to School P.
39. This caused a further considerable delay of approximately five months. While I acknowledge the Council did this to try and seek a consensus, it is not what the law says should happen.
40. In the event of a disagreement over the content of the EHC plan, the law expects Council’s to issue a final plan and allow the appeal process to start. Because the Council failed to do this, Ms X’s opportunity to appeal was significantly delayed. This was fault.
41. Had the EHC plan been issued on time, based on what happened later, it is reasonable to assume the Council would have agreed to support Y’s education at School Q much earlier. However, the Council has already remedied part of the injustice to Ms X by backdating the personal budget to September 2023. For this reason, the injustice that still requires a remedy is limited to Ms X’s distress and frustration caused by the long delay. I have set out recommendations below to address this.

Section 19 duty

42. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself (I refer to this as the Council’s Section 19 duty). The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
43. However, just because a child does attend school does not necessarily mean the Council has to make alternative arrangements.
44. The Ombudsman takes the view it would be unreasonable to expect councils to intervene if it is unaware of the child’s circumstances. Relevant guidance also makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. In this case, Ms Y, not School P made the arrangements.
45. I have seen no evidence the Council was made aware of Y’s situation at all until April 2023, when Ms X requested an EHC needs assessment. During the EHC plan process, the Council was told Y continued to receive an education at School Q, with the option of returning to School P if this became possible. The Council was not asked to consider its section 19 duty until Ms X raised it in her formal complaint in October 2023.
46. At this point, the case worker contacted School P directly to ask why Y was not attending school. The Council was told it was Ms X’s decision to withdraw Y and the school had no role in this.
47. Based on the information available, the Council took the view Y could return to School P, with appropriate support. This was a decision the Council was entitled to make. This position remained until 2024 when Mrs X sought to challenge the naming of School P in the EHC plan in Section I. At that point the Council agreed to fund School Q from September 2023. The Council says it decided to backdate finding to acknowledge the delay in the EHCP process.
48. In response to Ms X’s complaint, Council said its section 19 duty did not arise because Y was attending School Q. Ms X says she only did so because she felt no other option due to severity of Y’s anxiety around December 2022.
49. I appreciate Mrs X felt she had no choice but find an immediate solution in January 2023, but by doing so this prevented the expected process to be allowed to continue. This would have been for School P to notify the Council of Y’s attendance difficulties and make a request for alternative provision. The Council would then have had the opportunity to make enquiries about the reason for Y’s non-attendance and whether action could be taken to facilitate her return.
50. I cannot hold the Council responsible for not having the opportunity to follow the expected procedure because it was not aware any of circumstances that would have prompted it to do so.
51. For this reason, I do not find the Council to have acted with fault.

Communication and complaint handling

52. The case records show communication with Ms X was poor throughout the EHC plan process. I have seen several emails from Ms X asking for updates because deadlines had been missed but she received no response. She also had to escalate her complaint to senior officer and her local councillor.
53. There was further fault with the Council’s complaint handling. Both stage one and stage two responses took longer than the Council’s procedure expects. Ms X send several chasing letters.
54. It is clear these avoidable faults caused additional distress and frustration to Ms X that requires a remedy (below).

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Agreed action

55. To remedy the injustice caused by the identified faults, the Council has agreed to take the following action, within four weeks of the final decision on this complaint.
1. Apologise to Ms X. We publish guidance on remedies which sets out our expectations for how councils should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Ms X £750 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to complete the EHC needs assessment and issue the final EHC plan in line with statutory timescales. It is also intended to acknowledge the impact this delay had on her ability to make an appeal to the SEND Tribunal. This is in line with the Ombudsman’s guidance on remedies.
3. Pay Ms X £250 to recognise her frustration time and trouble involved in the complaint process and caused by the Council’s poor communication.
56. The Council should provide us with evidence it has complied with the above actions.

Service improvements

57. Over the last few years, we have issued multiple decisions highlighting failings by the Council’s SEN Service. Since April 2023, we issued decisions where the Council agreed the following recommendations to:

• ensure its reforms improve adherence to statutory timescales for producing new EHC plans; and
• ensure its reforms improve adherence to statutory timescales for producing new EHC plans. 

58. Those recommendations are relevant to this case and there seems little benefit in repeating them here. The Council also commissioned an independent review in 2021 to address issues with its SEND services and is monitoring progress against the actions identified within this. However, this case does represent a repetition of the fault with have found in several other cases and the Council must continue to implement the recommended actions to ensure it complies with its statutory duties going forward.

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Final decision

59. I have found the Council to have acted with fault it has agreed with my recommendations to remedy the injustice to Ms X. On this basis, 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