Summary: Mrs X complained about delays by the Council completing the Education, Health and Care needs assessment process for her child, Y. Mrs X also complained about the Council's handling of Y’s Education, Health and Care plan, including failure to deliver provision. We found there was fault causing injustice when Council delays led to periods of missed Special Educational Needs provision.

The complaint

1. Mrs X complained the Council failed to meet statutory deadlines for carrying out an Education, Health and Care (EHC) needs assessment and issuing the final EHC plan for her child, Y.
2. Mrs X also complained the Council failed to deliver provision in Y’s EHC plan, failed to consider parental feedback at an emergency review, removed support without agreement, and failed to respond to her complaint.
3. Mrs X said Y has been out of school much of the last two years with a lack of support. This has caused distress for the family.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
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 have and have not investigated

8. I considered the EHC needs assessment timeframe, and the Council’s subsequent management of Y’s SEN provision.
9. Mrs X was unhappy with Y attending a mainstream school. She used her right of appeal about Y’s placement, and it is not something I can consider.

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How I considered this complaint

10. As part of the investigation, I considered the complaint and the information Mrs X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. Mrs 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

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.
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. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
16. 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)  
17. 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. 

18. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
19. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.
20. 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)

What happened

21. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
22. Y’s school sought an EHC needs assessment in April 2022.
23. The Council agreed to issue an EHC plan. It issued the draft plan in October 2022. It considered Y’s needs could be met in mainstream school and proposed funding for 25 hours support each week.
24. After seeking amendments, Y’s parents agreed an updated draft plan on 6 November 2022. The Council issued Y’s final EHC plan on 17 November 2022.
25. The Council met Y’s parents on 29 November, as Y was not engaging with school. The Council suggested alternative provision to support Y’s engagement.
26. In December 2022, Y’s parents decided to appeal section I of the EHC plan. They considered Y’s needs could not be met in mainstream school and wanted Y to attend a specialist autism base.
27. In January 2023, Mrs X told the Council she considered a combination of one-to-one support, wellbeing, tuition and time in school would work well for Y. Mrs X also said they considered SEN learning and mentoring was the best option of the alternative provision discussed.
28. The Council held a discussion with Y’s parents and the school SEN coordinator in February 2023 to consider Y’s support. In March, the Council agreed to fund an SEN learning and mentoring package for six hours a week. The provider of this support delivers bespoke learning packages for people struggling to attend school. They have specialist teachers and education mentors to deliver learning plans.
29. Mrs X complained to the Council on 28 March 2023. She said the Council was not delivering most of the provision in Y’s EHC plan.
30. Y’s school SEN coordinator chased the Council about SEN learning and mentoring at the end of March 2023. They said Y was distressed about lack of provision.
31. Mrs X contacted the Council in April about an autism provider she wanted the Council to consider. The Council said the provider was not on its approved list. The Council confirmed it had approved funding for SEN learning and mentoring.
32. The Council held an early annual review of Y’s EHC plan in May 2023. That was because Y was still not able to attend school on a full timetable. The Council had offered Y a personalised tutoring programme, but their engagement was sporadic. Y was attending some lessons, including Art and English. Y had also been attending alternative provision at a local farm education centre. The Council noted Y had key adults in school available for support but did not always wish to accept support.
33. The Council recorded some outcomes from Y’s EHC plan were not being achieved. This was in terms of accessing learning tasks as part of a broad curriculum, and accessing a balance of larger and smaller group and one to one learning.
34. The Council was waiting for funding of the SEN learning and mentoring package, and the school was to match Y’s timetable with that of a friend.
35. The Council drew up a contract with the SEN learning and mentoring provider on 17 May 2023. Mrs X confirmed she signed and returned the provider’s paperwork on 23 May. That was after the provider carried out a home assessment.
36. Mrs X emailed Y’s school SEN coordinator on 27 June 2023. She said the SEN learning and mentoring provider cannot assign a staff member until they receive Y’s timetable for September. The SEN coordinator said timetables would not be ready until the end of term in July at the earliest.
37. Mrs X complained to the Council again on 27 August 2023. She said it did not respond to her original complaint. She also said the annual review did not include their parental feedback, and they did not accept the new final EHC plan. She said Y was largely out of school for the last two years and most provision from the EHC plan is not in place. She said by the time the Council agreed funding for SEN learning and mentoring there was not enough term time left for the provider to start support.
38. The Council wrote to Mrs X in September 2023. It apologised for the long delay responding to her complaint. It sent Mrs X’s complaint to a director of its children’s services, but they later left the Council, and the complaints team was unaware of the complaint until Mrs X complained again in August 2023.
39. The Council recognised delays in the EHC needs assessment process, but it said the case officer discussed alternative provision with Y’s school.
40. The Council said it was consulting other schools as part of the Tribunal process, but it worked with the current school to provide SEN learning and mentoring, and supported the school to make reasonable adjustments for Y. It also said the school gave Y a bespoke timetable including lessons they wished to attend.
41. In January 2024, the Council and Y’s parents reached an agreement over the Tribunal appeal. The agreement was for Y to have a bespoke package of mainstream school, tuition, and visits to a therapeutic farm.
42. The Council reviewed Y’s EHC plan again in March 2024. It noted Y’s attendance was still a concern. Y engaged with some lessons and can work independently and show understanding when they access lessons. Y is recorded being fully engaged with Maths, Chemistry, and English. However, Y cannot yet put strategies in place to reduce feelings of anxiety enough to enable them to attend lessons.
43. Y received SEN learning and mentoring, and attended a therapeutic farm. The Council considered Y would benefit from further support to help access lessons.

My investigation

44. Mrs X confirmed they were happy with the provision in Y’s plan, just not the placement.
45. Mrs X said the school made some effort to improve support for Y after the Council issued their EHC plan. This included a personal tutoring programme in January 2023, with a teacher providing work for Y to complete at home. Y also had a nominated safe space within school, and spent time at a local farm education centre. Mrs X said there was some improvement, with Y managing about five hours education a fortnight. However, Mrs X still considered there was a barrier to education and the Council was not delivering most of the provision in Y’s EHC plan.
46. Mrs X said Y made some progress since September 2023 and their attendance improved. Y attends school for part of most days and uses the library as a safe space. However, Mrs X considers the Council is still failing to deliver autism support outlined in Y’s EHC plan, and Y misses learning when they are distressed, because there is no support.
47. Mrs X told me, despite the Council agreeing SEN learning and mentoring in March 2023, this support did not start until January 2024.
48. The Council told me it accepts it failed in its statutory duty to issue the final EHC plan within 20 weeks. It experienced higher than expected EHC needs assessment requests during this time, and its team experienced capacity challenges through retention and recruitment difficulties.
49. The Council said it should have finalised Y’s EHC plan by 29 August 2022, and it would then have had to secure provision set out in section F from the start of term in September 2022. It said Y’s school retained responsibility for their education during the assessment process, and the onus is on schools to make a referral for any child not attending school. The school did not make a referral for Y and the Council did not receive a request for alternative provision during this time. The Council did not know Y was not attending school.
50. The Council said the school offered Y targeted communication and interaction sessions in November and December 2022, as well as a personal tutoring programme. The Council also agreed funding for SEN learning and mentoring in March 2023. However, the Council acknowledged this support did not start until January 2024. It said this was due to a significant delay on the part of the SEN provider recruiting a staff member to deliver the support. It said this was outside the Council’s control. In the meantime, the Council said the school adjusted Y’s timetable to engage them with a curriculum they preferred. But the Council recognised this did not replicate the SEN learning Y should have been receiving.
51. The Council said the school tried to engage with Y through alternative provision, but their attendance was impacted by health issues including emotionally based school avoidance and anxiety. Y’s attendance for the school year was 38.08%.
52. The Council recognised children not attending school should have equivalent provision, but said the hours of provision can be fewer where one-to-one tuition is provided. It also said education can be part time where it is in the child’s best interest.
53. The Council said the mediation decision, as part of the Tribunal process, supports the view that a mainstream school, with bespoke provision, is suitable and working. It also said the recent annual review suggests Y is engaging and making progress. However, the Council recognised it may be too early to say what impact the alternative provision will have.

Analysis

54. The Council accepted fault for delays in the EHC needs assessment process and that it should have finalised Y’s EHC plan by the end of August 2022, with provision starting from September 2022. The Council said the school started to offer provision in November 2022. That is a period of about two months when Y was without any of the targeted SEN provision needed.
55. Mrs X’s complaint is the Council failed to put most of the provision in Y’s EHC plan in place at all. It is noted the outcomes in Y’s plan were not being achieved, and Y was not consistently engaging with support or attending classes. However, that is not the same as a failure by the Council to secure the provision in Y’s plan. The Council did make provision available, but unfortunately it was not always working. I have not seen evidence the Council failed to put the relevant provision in place for Y.
56. The school is responsible for providing and overseeing Y’s day to day support, although the Council retains overall responsibility. However, we do not expect councils to keep a watching brief or constantly review provision. A support plan will initially need time and a chance to work.
57. When Mrs X raised concerns, I found the Council responded properly, and it agreed to an early review. It is clear from the review the Council considered alternative provision, which is what we would expect. And while I appreciate Mrs X was unhappy Y’s amended EHC plan did not include some parental feedback, I found the Council considered and acted on parental concerns as part of the review process. I did not see evidence the Council removed any provision arbitrarily.
58. The Council records agreeing funding for SEN learning and mentoring in March 2023, but it did not sign an agreement with a provider until 6 June 2023. I can therefore appreciate Mrs X’s frustration at this further delay, given the concerns raised about Y not engaging, we would expect the Council to act with greater urgency.
59. The SEN learning and mentoring did not start until January 2024 due to staffing issues with the provider, which is a significant delay. While I appreciate this was outside the Council’s control, the Council retains overall responsibility for services it commissions. This therefore amounts to service failure by the Council.

Injustice

60. The Council was responsible for a two-month delay issuing Y’s EHC plan. That meant a two-month delay starting Y’s SEN provision.
61. The Council was then responsible for a delay setting up Y’s SEN learning and mentoring. It took the Council nearly three months to do this.
62. After the Council set up SEN learning and mentoring there was a six-month delay which was outside the Council’s control. I appreciate the Council cannot influence the time taken for an education provider to employ staff. However, once the Council commissioned this education provision it became responsible for its delivery. That meant Y missed about three further months’ term-time provision which the Council was responsible for.
63. In total, I found Y missed out on two school terms’ worth of SEN provision they were entitled to. This impacted Y’s ability to engage with school, and also caused frustration and distress to both Y and Mrs X.
64. While I appreciate Y remained on roll at school during the relevant times, and did have access to some education and support, I have recommended the Council should provide a remedy, in line with the Ombudsman’s guidance, to recognise the impact of the missed SEN provision.

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Agreed action

65. Within four weeks of my final decision the Council will:
• Apologise to Mrs X and Y for its identified delays in carrying out Y’s EHC needs assessment and putting SEN provision in place.
• Pay £1,800 to recognise the SEN provision Y missed due to delays ensuring provision was in place, and for the impact this had on Y and the family.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I completed my investigation. There was fault causing injustice when Council delays led to periods of missed SEN provision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman