Summary: Miss X complained the Council delayed completing her child Y’s Education, Health and Care (EHC) needs assessment and failed to ensure she received appropriate provision in the meantime. The Council was at fault for delay in issuing Y’s EHC Plan and for failing to consider whether it had a duty to arrange alternative provision for Y. The Council has agreed to apologise to Miss X and make payments to acknowledge the distress, frustration and uncertainty this caused.

The complaint

1. Miss X complained the Council delayed completing her child Y’s assessment for an Education, Health and Care (EHC) Plan and failed to ensure she received appropriate provision in the meantime. This caused her distress and frustration and meant Y missed out on education.

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

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How I considered this complaint

8. I considered information provided by Miss X and discussed the complaint with her on the phone. I have considered information provided by the Council in response to our initial enquiries.
9. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Education, Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’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. 
11. 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 decide whether to agree to the assessment and send its decision to the parent of the child or 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. 
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes psychological advice and information from an Educational Psychologist (EP). The Code of Practice states the EP should normally be employed or commissioned by the local authority. Those consulted have a maximum of six weeks to provide the advice;
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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 (unless certain specific circumstances apply).  
12. There is a right of appeal to the SEND Tribunal about the special educational provision and school or placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.
13. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10). 

Alternative Provision

14. 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.
15. 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)
16. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
17. 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? published July 2022
18. 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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.

19. 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

20. In April 2023 Miss X requested an EHC needs assessment for her child Y and she commissioned a private EP report in May 2023 which she provided to the Council. In mid-May the Council wrote to Miss X to advise it had agreed to assess Y for an EHC Plan.
21. Y was due to start at a mainstream secondary school in September 2023 but did not attend as Miss X says this would have had a negative impact upon them. Miss X says she spoke with the secondary school, and it considered it could not meet Y’s needs.
22. In late October 2023 the Council received its own EP report. In early November 2023 the Council agreed to issue Y with an EHC Plan.
23. The Council consulted Y’s mainstream secondary school and a special school Miss X had requested. The mainstream secondary school said it could not meet Y’s needs. It said it could not meet some of the provisions in section F. The special school considered it could meet Y’s needs.
24. Miss X complained to the Council about the delays and asked why it commissioned its own EP report and why it had not used the EP report she commissioned. In late November 2023 the Council responded to Miss X’s complaint. It said it was not able to accept Miss X’s privately commissioned EP report as it did not meet its requirements to fulfil the needs assessment. It apologised that this was not clearly explained to Miss X. It apologised for the delay in the process and said the Council was working hard to reduce the delay in obtaining EP reports and had increased the size of the team.
25. The Council issued Y’s final EHC Plan in January 2024, naming the mainstream secondary school. It set out that Y should receive 20 hours of support per week whilst attending the setting, and individual or small group work of no more than 10 students, dependent on need. It set out specific targeted support for Y.
26. Miss X remained unhappy and asked to go to the next stage of the complaints’ procedure. She said the final EHC Plan was five months late. Y had not been in school since July 2023 and the Council had deprived Y of any education. Miss X appealed to Tribunal against the school named in the Plan.
27. The Council responded at the final stage of its complaints procedure in May 2024. It apologised for the delay in completing the EHC needs assessment. It said it had appointed 10 additional psychologists and had extended its associate EP Team. In relation to alternative provision, it said until the statutory assessment was complete, additional provision could not be made. It said there remained a duty on Y’s school to deploy special educational needs resources and to implement the graduated approach to SEND in line with the SEND Code of Practice.
28. In July 2024 the Tribunal issued a consent order naming the special school. Later that same month the Council issued Y’s amended Plan naming the special school.

Findings

29. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council should have issued Y’s final EHC Plan within 20 weeks from the date Miss X requested a needs assessment.
30. There is a national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Y’s wait to be seen by an EP meant their EHC needs assessment took longer than the statutory timescales allow for. Y’s EHC Plan was four and a half months overdue by the time it was issued in January 2024. This delay was fault.
31. I cannot say what the EP advice would have been or what the Council would have taken from that advice for inclusion in Y’s EHC plan. If Miss X disagreed with the content of the Plan, or the content of the EP report as it was used in the plan, it was open to her to raise this at the appeal. However, the delays in the EHC needs assessment process caused Miss X distress and frustration and delayed her right of appeal.
32. In the complaint response, and in response to another case we investigated earlier this year, the Council explained the action it has taken to reduce the delays and to increase its EP provision. Because the Council has already taken suitable steps to reduce the delays, I have not made a further recommendation. However, we will continue to monitor the effectiveness of these actions through our casework.

Missed education

33. Miss X disagreed with the school named in Y’s plan and Y did not attend school at all in the 2023/24 school year. Miss X had a right of appeal to the SEND Tribunal over the school named in the Plan and used that right. Whether the school named in the Plan was a suitable school which Y could attend was a decision for the Tribunal. We cannot investigate a decision where it has been appealed to tribunal and cannot consider the consequences of that decision. Y’s absence from school and their lack of education was not separable from Miss X’s appeal. This means I cannot look at the Council’s decision to name the secondary school in the plan or whether Y should have been provided with alternative provision during the appeal period.
34. However, I can consider the period from when the Council was aware Y was out of school until it issued the final EHC Plan, when Miss X got her appeal right. Y did not start secondary school in September 2023. Miss X says she emailed the Council regularly to request support for Y and specifically requested alternative provision. In its complaint response to Miss X the Council set out that it was the school’s duty to meet Y’s special educational needs. It did not acknowledge that Y was not attending school. The Council was aware Y was not attending and so should have considered at the time whether it owed Y a section 19 duty. It was for the Council to decide whether the school place was available and if Y could attend. However, I have seen no evidence the Council properly considered this or took any action to establish what education and support Y was receiving, if any, from the school. The failure to properly consider the section 19 duty is fault.
35. I cannot know, even on balance, whether the Council would have accepted a section 19 duty and made alternative provision available for Y. I also could not establish now the extent to which Y would have engaged in any provision. However, the Council’s failure to properly consider this leaves Miss X with a sense of uncertainty over whether Y should have received more support from the Council between September 2023 and January 2024.

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Agreed action

36. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X and pay her £450 to acknowledge the frustration and distress and delayed right of appeal caused by the delay in its EHC needs assessment process. 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.
2. Pay Miss X £400 to acknowledge the uncertainty caused by its failure to properly consider its section 19 duty.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman