Summary: Ms X complains the Council failed to deliver her son’s Education, Health and Care Plan in line with statutory timescales. We find fault with the Council for delay and have agreed a payment for the distress and frustration caused.

The complaint

1. Ms X complains the Council:
1. twice refused to agree her request for an Education, Health and Care needs assessment;
2. was at fault during her appeal to the SEND Tribunal;
3. failed to issue an Education, Health and Care Plan (EHC Plan) which meets her son’s needs;
4. failed to meet the statutory timescale for issuing the EHC Plan;
5. failed to provide alternative provision from January 2023; and
6. failed to communicate with her properly.
2. As a result, her son’s education needs have not been met. This has caused distress and uncertainty to Ms X.

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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 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.
5. 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)
6. 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)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

10. I am not investigating complaints a, b and c as they have a right of appeal for Mrs X to use (see paragraphs five and six). I have investigated complaints d, e and f.

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How I considered this complaint

11. I spoke with Ms X and considered the information she provided.
12. I made enquiries with the Council and considered the information it provided.
13. Ms 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

Education, Health and Care Plan

14. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.

EHC Plan timescales

15. 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

16. Councils have a duty to arrange 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. (Section 19 of the Education Act 1996)
17. 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)
18. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Appeal right

19. 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.

EOTAS

20. Education other than at school (EOTAS) is a package of education which is council-funded and is detailed in section F of the EHC Plan.

Summary of key events

21. Ms X’s son Y has a medical condition which prevented him attending school from February 2023.
22. The Council declined Ms X’s request for an Education, Health and Care (EHC) needs assessment in July 2021 and August 2022. Ms X appealed to the SEND Tribunal which decided in January 2023 the Council should carry out an EHC needs assessment.

Complaint d – EHC Plan

23. After the appeal the EHC Plan should have been issued on the 16 May 2023. The final EHC Plan was issued on 12 October.
24. The Council said there were delays in getting medical reports to support the EHC Plan. The Council received the Consultant Paediatrician report and Educational Psychology (EP) report in August.
25. The SEND sought further advice from the EP, which it received on 14 September with the draft EHC Plan being issued on 26 September.
26. Ms X complained to the Council in September. In the complaint response the Council apologised for the delay and said the service was experiencing an unprecedented demand.
27. The Council said it has announced an extra £5million investment to improve the delivery of SEND by:
• Recruiting up to 80 new frontline staff;
• Reducing case loads by 30%;
• Improving the quality of EHC Plans;
• Develop a strong and consistent approach to decision making about EHC Plans; and
• Develop trusted relationships with families and improve communication.
28. Ms X appealed to the SEND tribunal as she did not agree to the school named in the EHC Plan. Y’s EHC Plan is currently under appeal with an EOTIS package being agreed.

Complaint e – alternative provision

29. Y’s school referred him to Educational Support for Medical Absence (ESMA) at the Council in December 2022 because of recurring absences due to ill health.
30. ESMA organised planning meetings, monitoring and reviews with Y’s school. The Council say Y could not engage in full time education as he was experiencing an illness, medically documented and recorded by his school and supported by ESMA.
31. Y stopped attending school in January 2023. ESMA provided online support to Y from March to July 2023. The package offered in September Ms X says was inappropriate for Y’s needs, as she says the online tutoring was sporadic and inconsistent.
32. Ms X had to wait until the EHC Plan was issued in October to appeal the provision she did not think suitable for Y.
33. In the complaint response to Ms X the Council say there is no evidence Y missed any education. In the response to the Ombudsman the Council sent evidence of two meetings in November 2023 and January 2024 which discussed the online support and Ms X, the Council and the school agreed it was working out well for Y. The provision is continuing while the consent order is being agreed.

Complaint f – failure to communicate

34. Ms X complains the Council failed to communicate with her adequately. The Council failed to return her calls, keep her updated, and missed appointments.
35. The complaint response from the Council apologised for this and said further ongoing staff training highlighted the need for positive communication across all teams and to outline the impact of poor communication. This remains a work in progress.

Analysis

Complaint d – EHC Plan

36. The EHC Plan should have been finalised by May but was delayed for five months. This is fault by the Council causing distress and frustration to Ms X.
37. There is a shortage of EP’s which delayed Y’s EHC Plan. We accept the delays caused by the shortage of EP’s was beyond the Council’s control. But the Council’s failure to issue Y’s EHC Plan within the statutory timescales is service failure and fault even though it was partly caused by external reasons.
38. This also delayed Ms X’s appeal rights. This is fault by the Council causing loss of opportunity to Y, however there is limited injustice as Y is still accessing the same online provision, only the provider changed by mutual agreement in January 2024.
39. Y has had access to some online education from September 2023 which is continuing to date. I cannot find fault with the Council for missed provision as Y is still continuing with the provision which Ms X agreed was working well for him.
40. As there has been an investment to improve delivery of SEND services I have not made a service improvement recommendation as we will monitor this through our complaints.

Complaint e – alternative provision

41. Y was under care of ESMA and the school, providing online provision for Y when he could not attend due to illness. On the evidence provided I consider the Council fulfilled its’ Section 19 duty (See paragraphs 16-18).

Complaint f – failure to communicate

42. The Council have apologised for the interactions Ms X had with the SEND team. As there is continuing training to staff regrading communication I have not made a service improvement recommendation as we will check this through our complaints.

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Agreed action

43. Within one month of the final decision the Council should:
• Send a written apology to Ms X for the distress and frustration caused by the faults identified above. 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 in my findings.
• Pay Ms X £250 for distress, frustration and loss of opportunity to Y.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I find fault with the Council for delay in issuing Y’s EHC Plan. I have recommended a symbolic payment to Ms X for the distress and frustration caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman