Summary: Miss X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan in line with statutory timescales. Miss X also complained the Council failed to provide Y with suitable education while they could not attend school. The Council was at fault when it delayed issuing Y’s EHC Plan and caused uncertainty if Y received a suitable education between late February 2023 and November 2023. The Council will apologise, make a symbolic payment and carry out service improvements.

The complaint

1. Miss X complained the Council delayed issuing her child, Y’s EHC Plan in line with statutory timescales. She said this caused delay in Y getting the correct support and provision. Miss X also says the Council failed to provide Y with education between April 2022 and March 2024 when Y could not attend school for health reasons. Miss X said Y missed education to which they were entitled and she had to give up work to care for and provide learning opportunities for her child. Miss X said she wants a remedy for Y’s missed education and missed social interaction opportunities and for the impact on her.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. The law says 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)
10. Miss X complained to the Ombudsman in early December 2023 about events starting in April 2022. The complaint is late and there are no good reasons to exercise discretion to investigate events going back to April 2022 because Miss X could have complained to us sooner.
11. I have investigated between late 2022 when Y stopped attending school and November 2023 when the Council issued its stage 2 response and also issued Y’s final EHC Plan. After which Miss X had appeal rights to the SEND tribunal.

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How I considered this complaint

12. I considered:
• the information Miss X provided and spoke to her about the complaint on the telephone;
• the information the Council provided and its response to my enquiry letter;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
13. Miss 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

Relevant law and guidance

EHC Plans

14. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section B sets out the child’s special educational needs. Section F sets out the special educational provision needed by the child or young person. Section I is the name and/or type of school/college.
15. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
16. The courts have established that if someone has appealed to the SEND 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)
17. 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.
18. 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.

Timescales and process for EHC assessment

19. 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.
• a council should decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks of the request for an assessment.
• 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.
20. 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). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
21. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).

Section 19 duty

22. Council’s 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 provision.
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight?
24. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

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

What happened

26. Y lives with their family and has complex special educational needs, anxiety and school-based avoidance. Y was on roll at a mainstream secondary school, School 1 and in 2022 did not have an Education, Health and Care (EHC) Plan.
27. In late 2022 Miss X said Y stopped attending School 1 because their mental health declined. Miss X said an Educational Psychologist (EP) tried twice to organise a medical needs school placement for Y, but there was no placement available at that time.
28. Multi-agency reintegration meetings took place in early December 2022, mid-January 2023 and late February 2023. The meetings involved various agencies including, the Council and School 1. As part of a joint approach, it was agreed with Miss X, that Y would work from home using a digital online platform with help from the same member of staff from School 1 for one hour per school day in the morning.
29. Miss X said being at home improved Y’s mental health and Y had a positive change in behaviour. However, Miss X was concerned Y missed full-time, suitable and appropriate learning, in many subject areas and missed social activities. Alternative provision was also discussed in the multi-agency meetings. In late February 2023 Miss X asked the Council for advice on how to progress alternative provision for Y. The Council emailed Miss X and said the Council would not usually request funding through a SEND Panel for children without an EHC Plan and if alternative provision worked for children without EHC Plans it would be arranged with the school.
30. In March 2023 Y was referred to Children and Adolescent Mental Health Services (CAMHS) and it carried out an assessment of Y.
31. In late March 2023, Miss X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y. In response to my enquiries the Council said this is when it became aware Y was out of school. Miss X said the Council was aware Y was not attending School 1 in mid July 2022.
32. In early April 2023 the Council acknowledged Miss X’s EHC needs assessment request. In late April 2023 the Council agreed to complete Y’s EHC needs assessment. The same day the Council sent statutory letters to professionals including health, School 1, social care and the educational psychologist service asking for comments. By mid-June 2023 the Council had received the reports it had requested from the relevant professionals.
33. In late June 2023 the Council told Miss X it had decided it would issue Y with an EHC Plan.
34. In late July 2023 Miss X complained to the Council. She said she did not have Y’s draft EHC Plan and the Council was at risk of breaching its legal obligations under the Regulations.
35. The following week the Council issued Y’s draft EHC Plan.
36. In early August 2023 the Council issued its stage 1 complaint response to Miss X. It said it had not issued Y’s draft EHC Plan within the 16 week deadline. It said this meant it did not give Miss X the statutory 15 days in which to respond to the draft EHC Plan and accepted this risked the Council being unable to issue Y’s final Plan within the 20 week deadline. The Council apologised for the delay. It said it was because of capacity issues with its SEN service.
37. A day later Miss X asked the Council to consider alternative provision for Y and look at an independent special school and online mentoring.
38. In mid-August 2023 Miss X sent the Council her suggested changes to Y’s draft EHC Plan. Between September and October 2023 Y’s Council SEND officer, Miss X, an EP, and School 1 worked together to consider education other than at school (EOTAS) package for Y and discussed Miss X’s draft EHC Plan comments.
39. In early October 2023 the Council submitted a EOTAS package to the SEND Quality Assurance Panel. In mid-October 2023 the SEND Panel discussed Y’s EOTAS package, which it declined. The Panel suggested Y received alternative provision in partnership with School 1.
40. In late October 2023 Miss X escalated her complaint to stage 2 of the Councils complaint process. She said the Council failed to issue Y’s EHC Plan within 20 weeks of the EHC needs assessment request. She also said the Council had not considered Y’s individual circumstances and Y had not received suitable full-time education for 18 months. She asked the Council for Y’s final EHC Plan.
41. In early November 2023 the Council issued Y’s final EHC Plan naming School 1 in Section I. The Council also told Miss X about her appeal rights.
42. Two weeks later Miss X submitted an appeal to the SEND tribunal. She appealed Section B, F and I of Y’s final EHC Plan. The SEND tribunal hearing date has been arranged for November 2024.
43. In late November 2023 the Council sent Miss X its stage 2 response. It said it upheld Miss X’s complaint about the failure to issue Y’s final EHC Plan within 20 weeks and acknowledged the delay. It also said the SEND Panel declined the EOTAS package and suggested alternative provision should be explored with School 1 and elements of Section F of Y’s final EHC Plan could be delivered within School 1.
44. Miss X remained unhappy and contacted us.

Enquiries

45. In response to my enquiries the Council did not provide any records to show how it reviewed Y’s part-time online home learning education to ensure it was suitable, or how the Council monitored this provision while it completed the EHC needs assessment and issued an EHC Plan.

My findings

EHC Plan delays

46. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
47. The Council decided to carry out an EHC needs assessment for Y within six weeks of Miss X’s request. This was within the statutory timescale and was not fault.
48. In line with statutory timescales the Council should have decided within 16 weeks whether to issue Y with an EHC Plan, by mid-July 2023. The Council did not issue Y’s draft EHC Plan until late July 2023 and the Council did not issue Y’s final EHC Plan within 20 weeks of the EHC needs assessment request. The Council issued Y’s final EHC Plan in early November 2023 which was a delay of 3 months. That was fault and caused Miss X frustration and uncertainty, it also delayed her appeal rights.

Y’s education

49. The Council said in response to my enquiries it was made aware Y was not attending School 1 when Miss X requested an EHC needs assessment in late March 2023. However, reintegration meetings in late 2022 and early 2023 showed the Council was aware Y was not attending school earlier.
50. In early 2023 the Council and other multi-agencies jointly agreed Y should access a digital online platform at home with help from the same member of staff from School 1 for one hour per school day in the morning. At first this improved Y’s mental health and positive changes in behaviour. There is no fault in the Council not taking action at this point, as School 1 was working to reintegrate Y.
51. When Miss X contacted the Council enquiring about alternative provision in late February 2023, and submitted the EHC needs assessment in late March 2023, the Council was aware Y was not attending school. It should have considered whether it owed Y a duty under section 19. There are no records to show the Council fully considered whether an alternative provision package was appropriate until Autumn 2023 when a SEND Panel declined EOTAS in October 2023. There is no evidence or records of a continued reintegration plan or a review of the part-time arrangements. The Council has a duty to monitor the situation and record its consideration of a decision at the time. There is no evidence it has done that, this was fault. It caused Miss X uncertainty if Y received an appropriate amount of education between late February 2023 and November 2023 when Miss X had a right of appeal to the SEND tribunal on the placement and Y’s provision.
52. Miss X has appealed to the SEND tribunal about the provision and placement named in Y’s final EHC Plan. For the reasons set out in paragraph 5, I have not investigated what happened after Miss X appeal rights arose.

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Agreed action

53. Within one month of the final decision the Council will:
1. apologise and pay Miss X £300 to acknowledge the frustration and uncertainty caused to her and Y by the Council’s failure to issue the final EHC Plan in line with statutory timescales;
2. apologise and pay Miss X £500 to acknowledge the uncertainty caused if Y received appropriate education between late February 2023 and November 2023;
3. remind relevant SEND staff of the statutory timescales for issuing final EHC Plans;
4. remind relevant SEND staff to keep regular oversight and record any alternative provision or part-time arrangements it agrees with schools for children who are not attending school. This is to ensure the Council meets its legal duty to prevent gaps in a child’s education.

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Final decision

54. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman