Summary: The Council was at fault because it delayed issuing an education, health and care plan for a child, and because it delayed accepting a duty to arrange alternative educational provision for her while she was not attending school. The Council has agreed to apologise to the complainant, offer a financial remedy, and provide guidance to its staff on the Council’s duty to arrange alternative provision.

The complaint

1. I will refer to the complainant as Mrs J.
2. Mrs J complains the Council:

• missed the statutory deadline to issue an education, health and care (EHC) plan for daughter, N;
• did not make arrangements for N to receive alternative provision when she stopped attending school; and
• was generally poor in its communication with Mrs J.

3. Mrs J says that, as a result of these failings, N missed a significant period of education at a time when she should have been preparing for her GCSEs, and that this had a serious impact on her physical and mental health.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I reviewed Mrs J’s correspondence with the Council, N’s EHC plan, and sought the Council’s comments on several points.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. N has physical and mental health needs. After a period of irregular attendance at school, she stopped attending entirely in March 2022. In April 2022, Mrs J asked the Council to carry out an EHC needs assessment, which it agreed to do in June.
9. In March 2023, Mrs J submitted a stage 1 complaint to the Council. She complained:

• the Council had failed to provide support to N when it knew she was not attending school, and told Mrs J instead that it was for the school to provide support;
• the Council had delayed processing a referral to a specialist alternative school;
• N’s EHC needs assessment was still outstanding;
• N’s case officer had changed several times;
• that information the Council had received from professional third-party organisations about N’s needs, such as the Child and Adolescent Mental Health Service (CAMHS), was now out-of-date, but it had not sought updated information;
• council officers had repeatedly failed to respond to phone calls and emails;
• the Council had failed to inform Mrs J that its panel had reviewed N’s case in January 2023, and decided it needed more information;
• the Council had not arranged alternative provision for N;
• that N had fallen behind in her education at a critical time; and
• that the Council had named a mainstream school on N’s draft EHC plan, despite professional advice that she needed a specialist setting.

10. Mrs J asked the Council to find a suitable specialist placement for N, issue an EHC plan which accurately reflected her needs, arrange suitable alternative provision in the meantime, and to acknowledge the impact this had had on N.
11. The Council replied in May. It gave the following responses to Mrs J’s points of complaint:

• it was appropriate for the Council to tell Mrs J that it was for the school to support N, because it had not yet made a formal request for the Council to arrange alternative provision;
• the school had made a formal request for ‘medical provision’ on 14 March 2023. The Council had responded to the school on 30 March to explain no placements were available at that time, and received a further rejection from a particular school on 27 April. However, the Council had commissioned a tutor for N on 28 April. The Council did not agree it had taken an unreasonable amount of time to deal with the school’s request;
• it acknowledged the delay in producing N’s EHC plan, but explained this was in part due to a national shortage of educational psychologists (EPs);
• N’s case had been transferred from her original case officer due to a team restructure, and the new case officer had subsequently left the Council’s employment. It had now allocated a permanent replacement officer to N’s case;
• it apologised for failing to inform Mrs J of the panel’s decision in January. It noted Mrs J had provided the additional information it sought, and the panel had now decided to issue N’s EHC plan, and to consult with two specialist schools which Mrs J had named. One school had responded to say it could not meet N’s needs, and the other had not yet responded, but the Council said it understood this school may not have a place available;
• it acknowledged and apologised that Mrs J had frequently not received responses to her correspondence, which it explained was due to staffing pressures. The Council explained the steps it was taking to address this problem;
• it apologised for the impact on N of these delays, and said it would seek to complete her needs assessment as soon as possible; and
• its SEN panel had originally decided there was insufficient evidence to say N needed a specialist placement, although it had consulted on this basis anyway, but upon receiving further evidence had changed its view on this. It had now issued a final EHC plan stating that N should attend a specialist school, although it did not name a specific placement.

12. Mrs J then submitted a stage 2 complaint. She said:

• the Council had not monitored whether N’s school was implementing alternative provision for her, after telling Mrs J it was the school’s responsibility to do so until it made a formal request to the Council;
• the Council had yet only issued N’s EHC plan in draft form, despite the length of time which had passed. Mrs J acknowledged the shortage of EPs but pointed out N’s EP report had been completed in November 2022;
• important information had been missed when N’s case was handed over between case officers;
• the Council had failed to obtain up-to-date professional information about N, which was the reason the panel had originally decided her needs could be met in a mainstream school; and
• council officers had failed to respond to invitations to attend professionals meetings arranged by N’s school, and had also not responded to other contacts from professionals.

13. The Council responded in June. It largely reiterated its response to Mrs J’s stage 1 complaint, although it provided some more detail about the changes it had made to improve its timeliness and responsiveness. The Council also acknowledged and apologised for failing to obtain up-to-date information about N’s needs.
14. Mrs J referred her complaint to the Ombudsman in December 2023.

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Legislative background

EHC plans

15. A child or young person with special educational needs may have an 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 council can do this.
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:

• 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 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; and
• 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)). The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  

Alternative provision

18. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We call this the ‘s19 duty’.
19. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
20. 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)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

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Analysis

22. The law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. This is called the ‘permitted period’. Mrs J’s complaint concerns matters which began in March/April 2022, but she made her complaint to us in December 2023. This means anything which happened before December 2022 is late.
23. The law gives us the flexibility to disapply this rule where we consider it appropriate. To do so though, we must first be satisfied there was a good reason for the delay, and that it remains possible to robustly investigate the complaint.
24. In this case, I am conscious the Council’s stage 2 complaint response explicitly signposted Mrs J to us if she wished to pursue her complaint further. I also note there were no further significant developments relevant to the complaint after this date. Despite this, Mrs J did not complain to us for a further six months after the stage 2 response. This being so, I am not persuaded I can find there was a good reason for the delay, and I therefore do not have grounds to disapply the time limit.
25. As such, my investigation will not make substantive findings on any matter which occurred before December 2022, although I will refer to earlier events where necessary for context.
26. For ease, I will address each point of Mrs J’s complaint separately, as she listed them in her stage 1 complaint to the Council.

The Council failed to provide support to N when it knew she was not attending school

27. Mrs J says that, in June 2022, she spoke to an officer in the Council’s educational inclusion team about N’s absence from school. The officer said that, as the school had not made a formal request for the Council to arrange alternative provision, it remained for the school to provide support at that time. The Council maintained this advice was correct at both stages of its complaint response.
28. I cannot make any formal finding on this matter because it concerns an event from before December 2022. I have therefore discontinued my investigation of this element of Mrs J’s complaint.
29. Despite this, I will observe that this advice appears incorrect. The Council’s s19 duty applies as soon as it is aware a child is not attending school under the stated circumstances; there is no requirement for it to receive a formal request for alternative provision from a school before acting. Indeed, the statutory guidance notes that it applies equally for children who are not on the roll of a school. I will return to this point presently.

The Council delayed processing a referral to a specialist alternative school

30. The Council said it had received a request from N’s school for it to arrange “medical provision” on 14 March 2023. It said it had responded to the school on 30 March to explain there were no such places available; and that, on 27 April, “it was again communicated” that the other school named by Mrs J did not have a place available for N.
31. I consider there is some overlap between this point and the general s19 issue, which is again something I will address more fully at a later point in this decision. In the narrow sense, however, I do not consider there is any evidence of significant delay by the Council in dealing with the school’s referral. And I should note that, although the Council’s s19 duty applies as soon as it is aware a child is not attending school (and has already, or is likely to be absent for 15 days or more), there is no statutory deadline for it then to implement alternative provision.
32. Mrs J has told me, separately, that a place was available at this particular school in November 2022, but says the Council’s delay in acting on N’s situation meant the place had been taken by the time it consulted with the school.
33. However, I believe there is some conflation here between the Council’s duty to secure alternative provision under s19, and its duty to secure a placement for N as part of the EHC plan process. These are entirely separate considerations. This element of Mrs J’s complaint relates to the Council’s s19 duty, and although I will elaborate on my concerns about this later on in my decision, it stands to reason the Council would not have consulted with the school several months before it had accepted the s19 duty.
34. I find no fault in this element of Mrs J’s complaint.

Delay in producing N’s EHC plan

35. The law says the entire process of producing an EHC plan – from the initial request for an assessment, to the publication of the final version of the plan – should take a maximum of 20 weeks. I do not know the exact date Mrs J requested the Council assess N, but by my calculation, the Council should have issued her final plan by mid-September 2022 at the latest.
36. I should also note here there is some contradiction in the discussion about this during Mrs J’s complaint to the Council. In its stage 1 response in May 2023, the Council said it had now issued a final version of the EHC plan; but in Mrs J’s stage 2 complaint, she said it had issued only a draft version. In its stage 2 response in June, the Council again said it had issued the final plan, but noted it did not name a specific school. However, the version of N’s EHC plan which I have, which is dated July 2023, does name a specific school.
37. I cannot conclusively resolve this contradiction on the information I have, but it seems possible the Council’s reference to a final plan in the stage 1 response was simply a typing error. It also appears clear the Council reissued N’s EHC plan in July, after initially issuing it without a named placement.
38. Whatever the facts here though, it is not in dispute the Council missed the deadline to issue the EHC plan by a substantial margin of 9-10 months.
39. The Council has explained that a nationwide shortage of EPs contributed to the delay. We are aware of this shortage and the impact it is having on councils’ ability to meet their statutory EHC plan deadlines. I do not seek to dismiss the significance of this – but, as Mrs J has pointed out, N’s EP report was completed in November 2022; and so, even accepting this was late, it does not explain why it then took the Council a further 7-8 months to issue the EHC plan.
40. Either way, the delay in producing the plan is unarguably fault.
41. In terms of the injustice this has caused to Mrs J and to N, I must first note that a period of the delay falls outside the period I am able to make findings on, and thus remedy.
42. Second, and more generally, it is difficult to say precisely what material impact this delay had. I am mindful that, although Mrs N says a place at a particular school was available in November, it was inevitable there would be some further delay in producing the EHC plan after this, because the EP report had only just become available. I cannot say that, had the Council issued the plan in (for example) January, the place would definitely still have been available.
43. Added to this is the fact the Council originally decided N did not require a specialist school, albeit I am conscious Mrs J says this is because it had not sought up-to-date information about the deterioration in N’s needs. And, while the Council did then go on to accept N needed a specialist placement, and later issued a final plan naming a particular school, this placement was not due to start until September anyway.
44. Ultimately there are too many variable factors here for me to say, even on the balance of probabilities, what would have happened had been there less, or no, delay in issuing the EHC plan. I accept, though, that the delay caused significant frustration and distress to Mrs J and to N, which is an injustice in its own right. I will consider what the Council should do to remedy this later in this decision statement.
45. I find fault causing injustice in this element of Mrs J’s complaint.

N’s case officer changed several times

46. The Council has explained N’s case was reassigned from the original case officer due to a restructure of the team. The replacement officer (who was an agency worker) then left the Council’s employment, meaning it needed to be reassigned a second time.
47. This, clearly, is not ideal, and I acknowledge Mrs J’s point about the inconsistency this created. For its part, the Council also appears to recognise this.
48. I am not persuaded, however, I can reasonably criticise the Council for this. Staff turnover is inevitable in any organisation. It is unfortunate N’s officer needed to be replaced twice, but this does not mean it was the result of any administrative fault by the Council.
49. I find no fault by the Council in this element of Mrs J’s complaint.

The Council failed to obtain up-to-date information about N’s needs

50. Mrs J says that, due to the length of time N had been out of school, the information the Council had initially gathered as part of the assessment process no longer reflected her needs by the time it came to substantively consider it. She says this is the reason the Council originally decided N could manage in a mainstream educational setting, when professionals had advised against this.
51. The Council has also acknowledged this, and explained it had made some procedural changes to ensure parents and professionals could submit up-to-date information before the conclusion of the EHC needs assessment process.
52. The law says we should generally not investigate complaints where the substantive matter carries a statutory right of appeal to a tribunal. The courts have also agreed this restriction covers matters which are closely linked to an appealable matter.
53. The issue of a final EHC plan triggers a right of appeal on several matters, including the content and placement. I am conscious this issue was resolved before the Council came to issue N’s final EHC plan, and so this right of appeal was somewhat academic in this case; however, it remains the case that Mrs J would have been able to appeal to the SEND Tribunal on any disagreement she had about the Council’s decisions, arising from the out-of-date information. This being so, I consider this restriction on our jurisdiction applies here.
54. I have discontinued my investigation of this element of Mrs J’s complaint.

Council officers had repeatedly failed to respond to phone calls and emails

55. In its complaint responses, the Council accepted and apologised for the fact she had often found it difficult to contact officers, with emails and phone calls not receiving a response. It explained this was due to staffing pressures, and explained to Mrs J what steps it was taking to improve this aspect of its service.
56. Unfortunately I am not persuaded there is anything significant that further investigation by the Ombudsman can achieve in this respect. We are conscious many authorities are facing similar pressures as the Council has described here. I do not, in any way, seek to dismiss Mrs J’s complaint, and I acknowledge entirely the frustration this has caused her. But the Council has accepted there is a problem, apologised for it, and is taking proactive steps to improve matters. I do not consider we can reasonably ask more of the Council here, and for this reason, I have discontinued my investigation of this element of Mrs J’s complaint.

The Council failed to inform Mrs J that its panel had reviewed N’s case in January 2023, and decided it needed more information

57. Mrs J says she was unaware the panel had considered N’s case in January 2023, and that she only found about this when she spoke to an officer approximately one month later. She later submitted the additional information the panel had sought.
58. For similar reasons to those I have described previously, although I agree this was fault, it is difficult to identify a specific injustice arising from it, beyond general frustration on Mrs J’s part. I consider it an important distinction the fault was not that Mrs J was unable to submit the information before the panel met; simply that there was a delay in her finding about the panel had met, and what it had decided. There is no suggestion, therefore, the panel would have made a different decision in January if this fault had not occurred, which might be more significant.
59. I am also conscious, again, that this matter goes to the question of the content and placement named in N’s then prospective EHC plan. Had the Council issued a plan which Mrs J disagreed with, she would have been able to appeal against it.
60. Taking these points together, while I agree there is some injustice to Mrs J from this fault, in the frustration she suffered, it is not possible to define any wider impact. This being so, I consider the Council’s apology to be an adequate remedy here.
61. I find fault causing injustice, but which the Council has already remedied, in this element of Mrs J’s complaint.

The Council did not arrange alternative provision for N

62. I have noted already my concerns relating to the Council’s comments about its s19 duty. To reiterate, the Council’s duty applied as soon as it was aware N was not attending school, and had missed, or was likely to miss, at least 15 days. That the school did not ask the Council to intervene until March 2023 is not relevant.
63. Again, the date on which the Council should have accepted a s19 duty for N falls outside my jurisdiction because of our time restriction. But the Council’s duty remained unfulfilled in December 2022, and so I may still find fault for this reason.
64. I have also already noted that, when the Council finally did accept the s19 duty in March, I do not consider there was any notable delay in it making arrangements for a tutor, with this taking about six weeks.
65. However, Mrs J has told me this placement never actually started, because she could not agree a suitable location with the provider. I put this to the Council and asked for its comments.
66. The Council replied to confirm it had commissioned the tuition to take place “in a location agreed between the school, family and tutor”. It could not say whether the disagreement over location meant the Council agreed the tuition was not suitable for N, as it had not recorded making any such decision. But the Council noted it had then made arrangements for another provider, implying it had accepted N could not access the tuition with the first provider.
67. The Council went on to explain the new arrangement was a placement for N at a pupil referral unit (PRU). It had commissioned this on 3 May, and after Mrs J had attended an induction meeting with the PRU on 9 May, a starting date had been agreed for N on 17 May. This arrangement remained in place until 1 September, when N started at her new specialist school.
68. The Council did note from its records that N only attended the PRU two mornings each week, but confirmed it had commissioned a full-time placement for her there.
69. Taking these points together, I remain of the view that, once the Council had accepted the s19 duty, it took reasonable steps to arrange alternative provision for N, and without undue delay. It is unfortunate the original arrangement immediately fell through, but this was not due to fault by the Council; and it then moved quickly to make new arrangements.
70. This does not alter the fact the Council should have accepted the s19 duty earlier, and that it was fault it did not during the period December 2022 – March 2023. This means there was approximately one term when N should have been receiving alternative provision, and it is an injustice she was not. I will again consider what the Council should do to remedy this later in this decision statement.
71. I find fault causing injustice in this element of Mrs J’s complaint.

N fell behind in her education at a critical time

72. This element of Mrs J’s complaint is an example of the injustice N suffered because of the Council’s fault, rather than a fault in its own right. I have covered the injustice suffered by N in other sections of my decision, and I will consider what the Council should do to remedy in a later section. There is nothing separate, therefore, for me to investigate on this point.
73. I have discontinued my investigation of this element of Mrs J’s complaint.

The Council named a mainstream school on N’s draft EHC plan, despite professional advice that she needed a specialist setting

74. As I have explained previously, the educational placement named in an EHC plan carries a specific right of appeal to the SEND Tribunal. For this reason, we do not investigate complaints concerning a disagreement with the placement named on a plan.
75. In this instance, I am conscious Mrs J is complaining about N’s draft plan, which did not carry a right of appeal. However, it is a matter of professional judgement for council officers to decide what to include in an EHC plan, and I cannot find fault simply because they made a decision Mrs J disagreed with, even under the circumstances described here. Even if I could, this version of the plan was not ultimately implemented, and so I could not say there was any substantive injustice arising from the Council’s decision.
76. For this reason, I have discontinued my investigation of this element of Mrs J’s complaint.

Conclusions

77. I have found fault causing injustice on two points of Mrs J’s complaint: the Council’s delay in issuing N’s EHC plan, and its delay in accepting a s19 duty when it knew N was not attending school. The delay in issuing the plan caused distress and frustration to Mrs J, while the delay in accepting the s19 duty meant N did not receive alternative provision for approximately one term (for the period I am able to investigate).
78. Our guidance on remedies says:

“Our recommendation for a remedy [for distress] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

79. In this instance, the delay in producing the EHC plan (within the period I am investigating) is approximately seven months, which is extensive. I consider both Mrs J and N were affected by the delay, and I consider N’s significant physical and mental health conditions are a further aggravating factor. For this reason, I consider the Council should offer Mrs J and N each £300 as a remedy.
80. Our guidance also says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.”

81. In this respect, I again note N’s particular needs and the fact she was without education entirely during the period in question. Taking these factors together, I consider the Council should offer Mrs J a further £1500, to reflect N’s loss of education.
82. I also consider the Council should write a formal letter of apology to Mrs J, to acknowledge the faults in this case and the injustice they caused.
83. Separately, I also consider the Council should circulate guidance to all its relevant staff, to remind them that the Council’s s19 duty applies from the point it becomes aware a child is absent from education under the relevant circumstances, regardless of whether it has received a formal request from the child’s school for alternative provision.

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Agreed action

84. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs J, reflecting the faults and injustice I have identified in this case. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• offer to pay Mrs J and N £300 each, to reflect their distress and frustration at the delay in producing N’s EHC plan;
• offer to pay Mrs J £1500, to reflect N’s loss of provision during the period the Council should have accepted a s19 duty for her;
• circulate guidance to all relevant staff, to remind them that the Council’s s19 duty applies from the point it becomes aware a child is absent from education under the relevant circumstances, regardless of whether it has received a formal request from the child’s school for alternative provision.

85. The Council should provide us with evidence it has complied with the above actions.

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Final decision

86. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman