Summary: Mrs X complained the Council failed to properly deal with a request for an assessment for an Education Health and Care Plan (EHC Plan) for her daughter. She complained when it agreed to provide an EHC Plan, there was a delay in issuing the plan and Y was not provided with an education while out of school. We found there was delay in issuing an EHC Plan following a Tribunal Order and that Y was not provided with a suitable education. We recommended an apology and a payment to reflect the impact. We did not investigate the Council’s decision not to assess Y. This is because it occurred too long ago and was subject to an appeal.

The complaint

1. Mrs X complained the Council failed to deal with her request for an Education Health and Care Plan (EHC Plan) for her daughter, Y, in an appropriate timescale. She also complains the Council initially declined to provide an EHC Plan and while the appeal was being arranged, Y received no education.
2. Mrs X also complained that the Council failed to provide an Education Health and Care Plan (EHC Plan) in the required timescales following the appeal hearing in October 2022 and that Y did not receive a suitable education for some time following the appeal hearing.
3. Mrs X complained that the failure to meet Y’s needs affected Y’s mental health and affected her education.

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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. 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

7. We are investigating the events of Miss X’s complaint from October 22 when a Tribunal made a decision that Y should receive an EHC Plan. We will not investigate the earlier events due to the length of time that has passed, and because the decision not to grant an EHC Plan was subject to an appeal to a Tribunal. We cannot consider a complaint about a lack of education while an appeal was being heard. This is because 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).

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How I considered this complaint

8. I spoke to Mrs X and considered her complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
9. 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

The Special Educational Needs and Disability Regulations 2014

10. SEND Regulation 44 states that when a Tribunal directs a local authority to provide an EHC Plan, a draft EHC Plan should be issued within 5 weeks of the Tribunal Order and a final EHC Plan should be issued within 11 weeks.

Section 19 Education Act 1996

11. 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.
12. 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).

Background

13. In 2021 Mrs X requested an Education Health and Care needs assessment. This was initially declined. The Council changed its view in September 2021 and agreed to carry out an assessment.
14. Following the assessment, the Council decided in November 2021 not to issue an Education Health and Care Plan (EHC Plan). Mrs X appealed against this decision and an appeal hearing took place in October 2022. The Tribunal ordered that the Council must secure an EHC Plan for Y.

Issuing the Education Health and Care Plan (EHC Plan)

15. Mrs X complained that following the Tribunal hearing in October she heard nothing from the Council. To meet the SEN Regulations in Y’s case, a draft EHC Plan should have been issued by 29 November 2022 and a final EHC Plan should have been issued by 10 January 2023.
16. Mrs X chased the Council in February 2023. In response, the Council apologised for the delay in taking action. It stated the delay occurred because the staff member assigned to do the work was on long-term sickness leave. The Council stated the delay was also due to staff shortages and a considerable increase in the volume of EHC Plans being requested.
17. The Council issued a draft EHC Plan on 27 February and consulted schools in March. The Council issued a final EHC Plan naming a school in April 2023, 25 weeks after the Tribunal Order.

Educational & Special Education Need Provision

18. The Council told us, as at October 2022 when Mrs X’s appeal was decided, Y was on roll at School A. She remained so until 8 January 2023.
19. Evidence within the Tribunal papers states that Y attended School A for two days per week in the summer of 2022, but between 1 September and mid-October 2022 she had only attended for four hours. The school reported that due to Y’s anxiety, she had been unable to attend lessons. It stated it could not meet her needs and Y needed something more specialist with fewer students. Y’s previous school also stated Y needed a much smaller setting and a bespoke teaching arrangement.
20. Based on the evidence provided by the Council, it does not appear that Y was receiving a suitable education at School A between October 2022 and January 2023.
21. The Council stated it referred Y to a tutoring company and they arranged a tuition session in January 2023. There is evidence that Mrs X cancelled this because Y was not feeling able to engage. While there was an attempt to provide tuition, there is no evidence to conclude that any meaningful tutoring was provided.
22. The Council accepted that Y was not receiving the special education provision that was specified in her EHC Plan between January 2023 when the EHC Plan was due, and April 2023 when it was issued. Once the EHC plan was issued in April 2022, this named a new school for Y to attend and set out the provision that this school should provide.

Mrs X’s Complaint

23. Mrs X made a complaint to the Council about the situation in early March 2023. The Council acknowledged the complaint but it did not provide a response or a further update due to a backlog of complaints it has. We are aware of work the Council is doing to address the backlog from other investigations we have carried out. In Mrs X’s case this meant she received no response to her complaint until she approached the Ombudsman.

Was there fault by the Council

24. There was fault by the Council.
25. The Council failed to meet its statutory duty to issue Y’s EHC Plan within the timescales set out in the SEND Regulations. This was fault. It meant that Y could not receive the support she needed to attend school between January 2023 (when the EHC Plan should have been issued) and April 2023 when it was issued.
26. Section 19 of the Education Act places a duty on councils to 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. This provision generally should be full-time unless it is not in the child’s interests.
27. The available evidence indicates that Y was not attending school as at October 2022 and although some steps were taken to arrange tuition in January 2023, Y did not receive a full-time education at school or via tutoring between October 2022 and April 2023 (when the EHC Plan was issued). This was one and a half terms.
28. The Council acknowledged the delay in providing the EHC Plan meant that Y did not receive the required EHC Plan support between January and April 2023. This was one full term.
29. The lack of provision was fault. The delay in issuing the EHC Plan and the failure to respond to her complaint caused distress and additional time and trouble for Mrs X. The delay and the failure to provide an education while Y was out of school also had a detrimental impact to Y’s education.
30. 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. The figure should be based on the impact on the child and take account of factors such as the child’s special educational needs and any provision that was made.
31. As Y had special educational needs and missed out on both education and EHC provision, I recommended a payment in the middle of the range our guidance sets out. I recommended a payment of £2250 in Y’s case, based on £1500 per term.
32. We have made a number of recommendations to the Council this year to ask it to review procedures and remind staff of the importance of adhering to statutory timescales for issuing EHC Plans. As a result, I have not made a similar recommendation in this case.

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Agreed action

33. Within four weeks of my final decision:
34. The Council should apologise to Mrs X and to Y for the delays in issuing the Education Health and Care Plan and for the failure to provide a suitable education from October 2022 to April 2023. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
35. The Council should make a payment to Mrs X, for Y of £2250 to recognise the lack of educational provision between October 2022 and April 2023.
36. The Council should make a payment to Mrs X of £500 to recognise the additional stress, time and trouble she was put to in pursuing the matter.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council that caused injustice.

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Investigator's decision on behalf of the Ombudsman