Summary: The complainant (Miss X) said the Council failed when carrying out Education Health and Care Plan process for her son (Y) and failed to provide suitable education for Y when he could not attend his school. We found fault with the Council in its delays to issue Y’s Education Health and Care Plan and to provide Y with suitable alternative provision. We also found fault with the way the Council communicated with Miss X and handled her complaint. The Council’s fault caused injustice to Y and Miss X. The Council has recognised its failings and apologised. The Council has agreed to make payments to recognise Y’s loss of education and Miss X’s distress. The Council has also agreed to issue Y’s final Education Health and Care Plan within the statutory timescales following its review.

The complaint

1. Miss X says the Council failed to:
• Arrange full-time alternative provision for Y from September 2022;
• Carry out an adequate EHC needs assessment for Y;
• Adhere to the statutory timescales when issuing EHC Plan for Y;
• Adequately communicate with Miss X;
• Respond to Miss X’s complaint within the required timescales;
• Respond to Miss X’s freedom of information request.
2. Miss X says the Council’s failings meant Y missed over a year of education and his mental health worsened. She says these failings had a big impact on her and her partner’s mental health and well-being, their work and they affected their whole family.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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.
9. 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)
10. 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

11. I have not investigated the quality of Y’s EHC needs assessment carried out by the Council. The extent and quality of the advice received would impact the content of Y’s EHC Plan. Once Y’s final EHC Plan is issued, following the review of this plan in April 2024, the content can be appealed to the SEND Tribunal. As explained in paragraph four of this decision we would not normally look at anything that can be appealed.
12. I have not investigated whether the Council responded to Miss X’s freedom of information request. The Information Commissioner's Office is better placed to consider complaints about freedom of information.

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How I considered this complaint

13. I spoke with Miss X and considered the information she provided.
14. I made enquiries with the Council and considered the information it provided.
15. I reviewed the Council’s Corporate complaints procedure and referred to our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” issued in July 2022.
16. Miss 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

Legal and administrative framework

EHC Plan timescales

17. 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:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Alternative provision

18. 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.
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
20. 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)
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’)

Communication

22. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

23. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

Complaint handling

24. The Council’s corporate complaint procedure says:
• Complainants will be listened to and reassured that their issue is being taken seriously. Appropriate action should be taken to try and resolve any issues and misunderstanding speedily and effectively or to investigate the circumstances in more detail.
• Where the complaint is not resolved at the time or within three working days of receipt an acknowledgement will be sent including the expected date for the response.
• A full response should be made within no later than 28 calendar days.
• The complainant will be informed of any extensions and provided with a new target date. Only in exceptional circumstances it may be identified that a final response is not possible within 90 calendar days. The complainant should be informed at the earliest possible point, provided with an interim response and timescales for the remaining actions.

What happened

Background

25. In September 2022 Y moved to a secondary school (the School).
26. At the beginning of October the School held a team around family meeting. Y’s high anxiety and distressed behaviours were discussed. The School introduced a part-time timetable and told the Council.

EHC Plan process

27. Miss X asked for an EHC needs assessment for Y in April 2023. At the time the School stated Y was only attending Maths lessons in smaller groups and with support from a Teaching Assistant. He was academically significantly behind his peers.
28. At the end of May the Council agreed to carry out an EHC needs assessment and told Miss X Y’s draft EHC Plan would be issued by the second week of August.
29. An Educational Psychologist assessed Y and prepared her advice in mid-July 2023.
30. In mid-August Miss X asked for an update for Y. The Council told her it could not provide any updates. A week later Miss X asked for a generalised update on the average length of the delays within EHC Plan processes. Having no response Miss X filed freedom of information request.
31. Following Miss X’s complaints and chasing up correspondence, in the second week of December the Council issued a draft EHC Plan for Y. Miss X was not happy with the content and asked for a meeting to discuss her concerns.
32. Miss X met with the Council a few days later. She did not consider Y’s assessment was satisfactory and thus Section B did not correctly describe Y’s needs. As a result Y’s EHC Plan did not include all provision Y needed. In Mrs X’s view the delays within the EHC Plan process meant the assessment results were not accurate anymore.
33. The Council issued Y’s final EHC Plan in mid-February 2024. It noted Y’s anxiety generalising to other situations such as out of school tuition. Y was described as having superior cognitive abilities.
34. The Council carried out an emergency review of Y’s EHC Plan in mid-April 2024.

Y’s education from September 2022

35. After his move to the School Y struggled to attend. The School tried various strategies and put the part-time timetable in place for Y. In January 2023 the School referred Y to the Council’s service providing education to the children who are out of school (OOST). At the time of the referral Y was attending school only for Maths lessons.
36. In February Y started receiving individual tutoring from OOST. OOST offered up to three sessions of individual tutoring per week of 1 hour 40 minutes each. The School was providing teaching materials to Y’s tutor. Y found it difficult to engage with individual tutoring, despite his tutor applying multiple strategies and trying different settings. Some tutoring sessions did not take place.
37. Y was often too anxious to attend the School and even when he attended he would not engage in any work. Addressing Miss X’s concerns about Y’s difficulties to engage with learning at school, the School stated it did not have resources to individually support Y during his Maths lessons and to offer him support at the beginning of the school day.
38. At the end of January 2024 Miss X told OOST Y did not want to engage any further with the service. The last session took place at the beginning of February 2024.
39. In response to our early enquiries the Council said it had not received a request for alternative provision. It also explained: “In Y’s EHC Plan the School was named, so it was the School’s responsibility to implement the interventions. The Council have not received any request for additional funding and the school have not submitted a provision map”. I have anonymised the Council’s quote.

Complaint

40. Miss X complained to the Council at the end of September 2023. She raised the delays with the EHC Plan process, failings within the Council’s communication with her, inadequacy of Y’s assessments and the lack of education for Y for over a year.
41. The Council said it would respond to Miss X’s complaint within 20 working days through its corporate complaint process.
42. At the end of October Miss X asked for an update on her complaint. The Council apologised for the delays.
43. Miss X asked the Council to escalate her complaint about the lack of support for Y. She explained the negative impact on him and the whole family of the Council’s failings raised in her complaint.
44. The Council said it would respond to Miss X’s stage one complaint by mid-November 2023. If she did not wish to wait for the stage one response her complaint would be escalated to stage two but a corporate final response could take up to 90 calendar days to complete.
45. A day later the Council sent Miss X’s its response to her complaint. The Council upheld it stating that it was aware Miss X had not yet received information about the status of Y’s needs assessment. The Council’s complaint officer said the delays within the EHC Plan process were caused by the unprecedented staffing issues since the COVID pandemic, including a national shortage of Educational Psychologists (EP). Miss X’s distress and a negative impact of the Council’s delays on Y’s education and well-being was recognised.
46. Miss X asked the Council to proceed to stage two at the beginning of December 2023.
47. The Council issued its final response to Miss X’s complaint at the end of December 2023. The Council apologised for its failings and acknowledged it had failed to:
• Comply with the statutory timescales within an EHC Plan process. It corrected its stage one statement on the reasons for its delays. It explained these delays had not been caused by the shortage of EPs as, in fact, the EP sent her advice only two days after it was due.
• Provide satisfactory level of communication.
• Investigate Miss X’s complaint robustly at stage one.
48. Within its response to Miss X’s complaint the Council stated it had undertaken some actions to restructure its Special Educational Needs and Disability (SEND) assessment service such as:
• Increasing staff in the SEND team;
• Commissioning extra EP support in the short term and in the long term growing the number of EPs and using assistant EPs;
• Investing extra money to increase EP capacity and SEND assessment service;
• Introducing a new system to track reports;
• Introducing a new SEND Strategic Board with all key partners;
• Offering free SEND advice to all schools to help to improve early intervention.

Analysis

EHC Plan timescales

49. The Council received an EHC needs assessment request at the end of April 2023. It should have issued a draft of Y’s EHC Plan by mid-August and the final EHC Plan by mid-September 2023. This happened in mid-February 2024, so five months after the due date.
50. The delay of five months is fault. It caused injustice to Y and Miss X which was more significant due to Y’s circumstances. Y was at the time out of school and receiving limited education. Miss X was not happy with the proposed content of Y’s EHC Plan, including the school the Council named for Y in Section I, and wanted to appeal it. Because of the Council’s delays her appeal rights were delayed. Following the emergency review of Y’s EHC Plan and the mediation meeting the Council agreed Y needs a specialist provision. On the balance of probabilities I consider that if the Council issued Y’s EHC Plan without delays, this decision would have been made at least five months sooner.
51. The Council recognised its failings within the process of issuing Y’s EHC Plan and apologised. Considering the impact of the delays on Y and Miss X I do not think an apology is enough.

Alternative provision

52. As explained in paragraph 18 of this decision councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons. The Council seemed to have accepted this duty after the School’s referral to its OOST services in January 2023. Y started receiving individual tutoring from the beginning of March 2023.
53. At this stage there was no failing on the Council’s part. Allowing the School to use various strategies, including a part-time timetable for the first term of Y’s secondary education, was legitimate. Following the School’s referral it took a few weeks to start individual tutoring for Y. We would normally allow councils a few weeks to arrange alternative provision.
54. The OOST educational support continued until the end of January 2024. Miss X consistently reported Y’s difficulties in engaging with tutoring and his need for different support.
55. Alternative provision arranged by councils for the children who are out of school should generally be full-time unless it is not in the child’s interest. 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.
56. In our Focus Report mentioned in paragraph 15 of this decision we said: ‘Full-time education ranges from 21 hours per week at Key Stage 1 to 25 hours a week at Key Stage 4. If councils provide one-to-one tuition, the number of face-to-face hours could be fewer because the provision is more concentrated. But children are still entitled to a full-time education. Education provision must be based on an assessment of the individual child’s needs. The council should be able to demonstrate how it considered the child’s needs and decided what provision to make.’ We expect councils to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• 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.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.
57. The Council should have known about Y’s difficulties to engage with education both at school and delivered through individual tutoring. This is because OOST provided monthly tutoring reports and the quarterly reviews were held with Y’s tutor, the School and Miss X. They all reflected extremely limited educational benefit of the provision offered.
58. The Council expressed its position on Y’s alternative provision in the email to us of 22 February 2024. I quoted it in paragraph 39 of this decision. Because Y was on the School’s roll and the School was later named in Section I of Y’s EHC Plan, the Council considered the School was responsible for making educational arrangements for him even if he could not attend. This is fault. As explained in our Focus Report ultimately it is councils’ responsibility to ensure a child, who cannot attend school for certain reasons including exclusion, illness or other reasons, receives suitable education. This is the case for every child of compulsory school age, whether they have an EHC Plan or not.
59. Despite the evidence and Miss X’s correspondence claiming its unsuitability, the Council failed to review the education offered and provided to Y. This is fault. As a result for many months Y received limited education and kept falling academically behind his peers. All the evidence suggests Y is cognitively able so the lack of suitable education would have been particularly detrimental to him. This situation caused Miss X significant frustration and upset. She spent much time contacting the Council and seeking support to ensure Y received suitable educational provision.
60. On the balance of probabilities I consider that if the Council had reviewed Y’s educational provision, it would have at least put some extra support in place to facilitate Y’s access to the School. The evidence shows the School claimed inadequate resources to secure suitable support for Y when he was attending. The Council should have explored this issue and supported the School, if necessary.
61. I consider it would be reasonable to expect the Council to review Y’s educational provision from September 2023. I cannot say, even on the balance of probabilities, how much would Y educationally benefit from the Council’s involvement. His complex special educational and health needs might have prevented him from accessing what the Council might have offered. The uncertainty of what might have been arranged if the Council had complied with its duties, is part of Y’s and Miss X’s injustice.
62. In its response sent to us on 17 May 2024 the Council changed its position on its duties towards Y’s alternative provision. It recognised that Y’s OOST provision ended at the end of February 2024 and Y could not access the Council’s proposed placement since then. It also recognised that even before issuing Y’s final EHC Plan the Council failed to consider alternative education options for Y apart from OOST. The Council offered a payment of £2,400 per term for missed educational provision for Y from the time his EHC Plan was issued in February 2024. From the beginning of March until the end of July 2024 the Council offered £3,200. It also offered Miss X £500 for distress caused by the Council’s delays within the EHC Plan process and £500 for her time and trouble spent on complaining.
63. The Council’s acknowledgement of its failings is commendable and welcome. I accept the remedies offered for the Council’s failings in relation to Y’s alternative provision from March 2024. I do, however, consider that Y’s injustice of missing education at least from September 2023 until February 2024 should be remedied financially. As explained in paragraph 60. I cannot decide on the extent of Y’s injustice caused by the Council’s failings to review its educational offer for Y but it is likely he would have been able to engage with more. Because of this uncertainty I recommend the remedy of £900 per term.

Communication and complaint handling

64. In its response to my enquiries the Council accepted its failings within communication with Miss X and its complaint handling. It apologised and offered financial remedies.
65. The Council’s position is encouraging and bodes well for the future. In view, however, of the extent of the Council’s failings with delays in the EHC Plan process and communication and the length of time they lasted the payment for Miss X’s distress should be beyond what we would normally recommend.

Service improvements

66. From the beginning of June 2023 we have issued ten decisions for education complaints against the Council, where we recommended service improvements which would be relevant to this complaint. These were: 22 012 010, 22 009 089, 22 014 257, 22 016 575, 22015 056, 23 001 615, 23 004 019, 23 004 892, 23 000 833, 23 008 346.
67. From October 2023 during our investigations we learnt the Council was introducing changes to its services to address the failings within EHC needs assessments and the EHC Plan process. These included:
• Developing a new model of EP service delivery;
• Remodelling of the SEND assessment service;
• Securing more staff available for drafting EHC Plans.
68. The Council explained its plan of improvement should be effective from March 2024.
69. The Council’s plan of improvement seems to focus on addressing failings within the EHC needs assessments and the EHC Plan issuing process. Within the last year we have also recommended service improvements for the Council’s failings within alternative provision and complaint handling.
70. I recognise the events described in this complaint happened before any improvements of the Council’s services could take effect. We will be monitoring through our casework the effectiveness of the Council’s actions following our service improvement recommendations in the complaints listed in paragraph 66 and following implementing the improvement plan.

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Agreed action

71. To remedy the injustice caused by the faults identified we recommend the Council complete within four weeks of the final decision:
• Pay Miss X £1,350 to recognise the injustice caused to Y by the Council’s failure to review Y’s alternative provision from September 2023 until February 2024;
• Pay Miss X £3,200 to recognise the injustice caused to Y by the lack of alternative provision from March 2024 until the end of July 2024. This remedy has been offered by the Council in its letter to us dated 16 May 2024;
• Pay Miss X £1,000 to recognise her distress caused by the Council’s failings. The offered payment of £500 has been increased to £1,000 due to the extent of the Council’s failings and the length of time they have lasted;
• Pay Miss X £500 to recognise time and trouble spent on complaining because of the Council’s failings within handling of her complaint. This remedy has been offered by the Council in its letter to us dated 16 May 2024.

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

72. We also recommend the Council issue Y’s final EHC Plan following the emergency review by 12 July 2024. The Council will provide us with a copy of Y’s final EHC Plan.
73. We will be monitoring through our casework the effectiveness of the Council’s actions following our service improvement recommendations in the complaints listed in paragraph 66 of this decision and following the implementation of the improvement plan.

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Final decision

74. I uphold the part of this complaint I have investigated. For the reasons explained in the Analysis section I found fault with the Council in its delays to issue Y’s EHC Plan and to provide Y with suitable alternative provision. I also found fault with the way the Council communicated with Miss X and handled her complaint. The Council’s fault caused injustice to Y and Miss X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman