Summary: Ms N complained about the time taken by the Council to issue an Education, Health and Care Plan for her son. She also said the Council failed to ensure X received suitable education when he could not attend his school. We found fault in the Council’s actions which caused injustice to X and Ms N. The Council has agreed to make a symbolic payment to her and review its processes.

The complaint

1. Ms N complains the Council delayed in issuing an Education, Health and Care (EHC) Plan and failed to keep Ms N updated or respond to her throughout the twelve month process. Ms N says her son (“X”) has had very little education since 2020. She says he is suffering from emotionally based school avoidance, depression and social anxiety.
2. Ms N wants the Council to provide her son with educational provision and a financial remedy for the impact on him.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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.
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)
6. 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)
7. 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.
8. 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)
9. 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

10. Ms N says she found out in 2019 that the Council had ended an EHC plan which was previously in place for X, without telling her. This issue could have been appealed at the time and there are no good reasons to exercise our discretion. Although Ms N did not know about the Council’s decision at the time, she could have appealed once she found out about it.
11. Ms N asked the Council to issue a new plan in June 2022. It is reasonable for her to have waited until the Council issued the plan before complaining about the time it took to do so. Although this goes beyond 12 months from Ms N’s contact with this office, we will exercise our discretion to look at the delay from the point of the request in June 2022.
12. I have not investigated anything that happened after issuing X’s final EHC plan in June 2023. If Ms N considered the Council failed to comply with its duties after it had issued X’s EHC plan, she should raise it first with the Council.

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How I considered this complaint

13. I have considered information provided by the Council and Ms N, alongside the relevant law and guidance.
14. Ms N and the Council have had the chance to comment on a draft decision before this final decision was made.

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Law and guidance

EHC Plan process

15. If a Council intends to conduct an EHC needs assessment, it MUST ensure the child’s parent, or the young person is fully included from the start and made aware of opportunities to offer views and information.
16. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, MUST take no more than 20 weeks.

Alternative provision

17. 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.] We refer to this as section 19 or alternative education provision.
18. 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)
19. 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)
20. 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’)
21. 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.

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What I found

What happened

22. X has been on the roll for a local secondary school since May 2020. His attendance declined from 100% to 0% since then due to emotionally based school avoidance (EBSA).
23. In March 2022 Ms N told the Council about X’s refusal to attend school due to his increasing anxiety. Ms N was unhappy about the Council’s decision to stop maintaining X’s statement of special educational needs, which happened a few years earlier.
24. The school requested an EHC needs assessment for X in June 2022, mentioning his difficulties with accessing the school and engaging with learning. The Council acknowledged the request a month later but took no further action. The Council were therefore aware from June 2022 at the latest, that X was struggling with school attendance.
25. In September 2022, the Council made a decision to carry out the assessment and contacted the school for more information.
26. At the beginning of October 2022 X’s school asked the Council for details of the specialist provision and alternative provision which could be available to X. The Council replied it could not offer any suggestions for an appropriate special school for X as it had not received all professional reports.
27. From July 2022 to September 2023, the school implemented EBSA intervention measures which included a planned part-time timetable to increase his attendance at school. Unfortunately, this was unsuccessful. Virtual tuition has also been attempted but this was unsuccessful as X did not like to use the camera or interact verbally.
28. Ms N chased the Council for an update in December 2022. An educational psychologist’s assessment took place, and a report was issued the same month. There were mistakes in the report, so an amended report was issued in January 2023.
29. The Council issued a draft EHC plan in January 2023. Ms N disagreed with the content. The Council, Ms N and the school X was on the roll for, met to discuss the draft plan in February 2023. The Council agreed it would amend the draft plan before issuing a final plan. The Council also said it would send Ms N information about special educational needs (SEN) schools as the school he was at could not meet his needs.
30. In February the school told X’s SEN case officer that X’s attendance was very low. A few days later a meeting to discuss X’s difficulties with school attendance was held, during which the Council suggested to the school to explore provision from a specific teaching and advisory service.
31. In April 2023, the Council contacted Ms N to ask which school she would like it to name in her son’s plan. Ms N asked the Council to call her to discuss as she had not received the information about SEN schools. When the Council did not call, Ms N emailed to ask the Council not to finalise the plan without sending an updated draft plan to her.
32. Also in April 2023, the Council agreed to increase its financial provision to help the school X was attending to better meet his needs.
33. In June 2023, Ms N chased the Council for an updated draft plan. She did not receive any response to this, but the Council issued a final EHC plan around a week later. The final plan did not include any of the amendments which had been agreed. The Council included information about Ms N’s right to appeal the plan.
34. Ms N complained to the Council, and it accepted it had failed to respond or delayed in its responses to Ms N and that this meant her views were not considered in producing the final plan.

Analysis and Findings

35. It is accepted that Ms N applied for an EHC plan in June 2022. The Council should have issued a final plan by November 2022. This was not done until June 2023, so there was a seven month delay here. This is fault which caused Ms N prolonged worry and distress. The Council’s failings also delayed Ms N’s appeal rights.
36. The Council’s failings also caused injustice to X. Had the EHC plan been issued in accordance with statutory timescales, X would have had access to suitable educational provision seven months sooner.
37. Part of the Council’s delay was service failure rather than maladministration as it was caused by the difficulties in securing an educational psychologist’s advice. We are aware this is a nationwide issue, and the Council has an action plan for addressing this.
38. The Council is required to consider Ms N’s comments about the draft plan before issuing the final plan. This was not done and is therefore fault.
39. It is not possible, even on the balance of probabilities, to decide on the extent of Ms N’s and X’s injustice caused by the Council’s fault to consider Ms N’s comments. The Council does not have to follow parental comments and if not happy with the content of the EHC Plan parents can appeal even if the Council had considered Ms N’s comments to her son’s draft EHC Plan, it might have decided not to include them in the document.
40. There is no evidence the Council considered whether it should be delivering alternative provision to X between March 2022, when it learnt of X’s difficulties with attending his school, and when the EHC plan was issued. As X was not able to access school education, his school attendance in 2022/2023 was 14%. Taking the Council’s explanation into account, on the balance of probabilities, I consider that if the Council had considered X’s educational situation, it would have accepted its duty to make arrangements for alternative provision for him. Failure to do this is fault.
41. It is concerning that at no point between March 2022 and June 2023 the Council took responsibility for ensuring X received suitable education. It is councils who are responsible for arranging 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 Council seemed to rely on X’s school even though from March 2022 it had known about X’s difficulties with accessing education.
42. The Council’s fault caused injustice to X and Ms N. X lost much education and regressed academically. Even when attending school X, found it difficult to engage with learning. Ms N was frustrated by the Council’s lack of support with X’s education.
43. The Council has confirmed it has taken steps to address the delays in obtaining educational psychologist’s reports and is currently providing these within six weeks of request. I have not therefore recommended that any further service improvement is required in this regard.
44. In our decision reference number 23 004 861 issued in February 2024, we have recommended the Council write to SEND officers involved in the EHC plan process and remind them of the importance of maintaining communication with parents/carers regarding any progress or delays. We will monitor the effectiveness of any actions taken by the Council through our casework.

Remedy

45. On the balance of probabilities, we think that if the Council had made a decision on its section 19 duty when it first became aware that X was not attending school, it would have made arrangements for additional support for him.
46. Where provision has been missed as a result of a fault, we recommend financial remedies based on the impact on the child per each term of missed provision.
47. I am recommending £1,500 for Summer and Autumn terms of 2022, as X was accessing some provision during this time, £2,000 for Spring 2023 as X was not attending school at all at this point. The EHC plan was issued during Summer term 2023, so a reduced sum of £1,000 for the missed provision up until this was done that term.

Agreed action

48. Within one month of the decision:

• the Council will make a payment of £6,000 in recognition of the missed educational provision between April 2022 and June 2023.
• the Council will make a payment of £700 in recognition of the delay;
• the Council will make a payment of £500 in recognition of the additional uncertainty and frustration caused by the identified faults.

The total the Council will pay Ms N is £7,200.

49. Through our casework we will monitor the effectiveness of the Council’s service improvements agreed in the complaint 23 004 861 to improve SEND case officers’ communication with parents/carers.

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Final decision

50. We found the Council is at fault and caused an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman