Summary: There was fault by the Council. It took too long to deal with Mrs B’s complaints to it. It was entitled to decide that it did not have a duty to provide alternative educational provision when her son could not attend school, but it should have reviewed its decision and arranged the provision sooner when it received new information. There was no fault when the Council took two weeks longer than usually allowed to issue a final Education Health and Care Plan. The Council’s shortcomings caused distress and frustration, and meant that Mrs B’s child missed out on educational provision. The Council has agreed to apologise to Mrs B, make symbolic payments, and review its policy on alternative educational provision to make it clearer.

The complaint

1. Mrs B complains about how the Council has dealt with her child’s Education Health and Care (EHC) Plan. In particular she says the Council:
• failed to provide alternative educational provision from February 2023, when her son could not attend school;
• took too long to issue the final EHC Plan; and
• did not investigate her complaint to it properly and did not address the issues she put to it.
2. Mrs B says that as a result of these shortcomings her child did not receive a suitable education from February to June 2023 and the Council caused the family distress, frustration and uncertainty. Mrs B also says that the Council’s failings caused her to incur legal fees and the costs of getting private assessments to show that her son’s needs were not being met.
3. Mrs B also complains that:
• the Council wrongly refused to issue an EHC Plan in August 2023 and made mistakes with her appeal against that decision.
• She did not agree with the contents of EHC Plan.
• There were problems with the assessments, reports and communication around the appeal and the mediation process.
• A Council officer acted inappropriately in a meeting
• The Council made inappropriate safeguarding referrals.
4. I have not investigated these complaints and explained why not below.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)

Back to top

What I have and have not investigated

Complaints I have not investigated because they are related to an appeal

7. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
8. 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)
9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

12. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
13. Mrs B’s right to appeal against the Council’s decision not to issue an EHC Plan arose in March 2022, and she had the right to appeal against any parts of the final EHC Plan she did not agree with when the Council issued this in September 2023. This means that I cannot investigate Mrs B’s complaints that:
• the Council wrongly refused to issue an EHC Plan in September 2023 and made mistakes with her appeal against that decision;
• She did not agree with the contents of EHC Plan;
• There were problems with the assessments, reports and communication around the appeal and the mediation process; and
• Problems with her son’s educational provision after the final EHC Plan where this relates to the disputed contents of the Plan.

Complaints I have used my discretion not to investigate

14. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating; or any fault has not caused significant injustice to the person who complained.
15. I have not investigated Mrs B’s complaints that a Council officer acted inappropriately in meetings because I am unlikely to be able to decide that an officer was negative or patronising.
16. I also have not investigated whether the Council made inappropriate safeguarding referrals. Mrs B may not have agreed with the Council’s approach, but I am unlikely to criticise a council for making safeguarding referrals as these are designed to protect children from harm.

Back to top

How I considered this complaint

17. I considered the information provided by Mrs B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken their comments into account before issuing this final decision.
18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

The law and guidance

EHC Plan process

19. 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. 
20. 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 the following: 

• Where the 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 the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

21. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
22. The SEN Regulations set out what happens if a council concedes an appeal. Where the appeal was against the Council’s decision not to issue an EHC Plan and the council concedes the appeal, it must issue the draft Plan within five weeks, and the final Plan within 11 weeks of the Tribunal’s consent order.

Alternative provision of education

23. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for 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. (Education Act 1996, section 19(1)). I have referred to this as alternative educational provision.
24. 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)
25. 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)
26. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
27. The statutory guidance in place at the time of these events said that the council should ensure that alternative provision is arranged as quickly as possible. It should make every effort to minimise disruption to a child’s education. For example, where specific medical evidence such as by a medical consultant, is not quickly available, the council should consider liaising with other professionals, such as the child’s GP, and should consider looking at other evidence to ensure minima delay.
28. 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])
29. The Council’s policy for access to education for children with medical needs in place at the time said that to be eligible for alternative educational provision, a pupil will need to be referred by the school, and have information including evidence that they cannot attend school from a medical consultant.

What happened

Background

30. Mrs B’s child, K, has special educational needs. Mrs B asked the Council to complete an EHC needs assessment in March 2022. The Council assessed K but refused to issue an EHC Plan. Mrs B started the mediation process and then appealed to the tribunal against this decision.
31. In September 2022, K started at secondary school. In January 2023, there was an incident with K at school. This led to intense distress for K and he was then unable to wear clothes, he started to restrict his eating, and he was self-harming.
32. K remained on the school roll and in January the school said he could come to a special learning support unit there. However, Mrs B says that he twice went to the unit only to find that it was full and so he had to go home. On 21 February 2023, K’s GP said he was unfit for school. By this time, K had stopped attending school altogether.

Alternative provision

33. Mrs B says she had requested alternative provision during February and on 7 March 2023, Mrs B again requested that the Council make alternative educational provision for K as he was too ill to attend school. The Council arranged for an educational psychologist (EP) to assess K. The Council considered the information from the school, the GP and the EP. It decided that K could be supported by the school using measures the EP had recommended. The Council told the school to work with other professionals, including the GP and the EP, to develop an individual health care plan for K with the aim of him coming back to school.
34. In a letter to Mrs B, the Council explained that its policy says that medical evidence usually has to be endorsed by a consultant, and the school would need to make the referral for alternative provision. The Council said that it was in line with the statutory guidance.
35. Mrs B arranged and paid for a consultant child psychiatrist to assess K, and their report is dated 6 April. Mrs B sent the Council the consultant’s report which described the significant problems that K was having getting to school. Mrs B’s solicitor wrote to the Council and said Mrs B would start court action to challenge the Council’s decision not to make alternative provision.
36. On 17 May 2023, the Council agreed to provide alternative educational provision for K including home tuition. This started on 12 June 2023.
37. The provision stopped with very little notice in September 2023. This was due to a miscommunication about funding. The provision was reinstated and continued until K moved to a new school under the EHC Plan.
38. Mrs B’s complaints to the Council that it did not arrange alternative provision in good time and cancelled this in September 2023, were considered as part of the stage two investigation mentioned below.
39. The independent investigator found that the Council had decided that K did not meet the criteria for alternative provision because there was no evidence from a consultant to say he could not attend school. It upheld the complaint that the Council should have arranged alternative provision sooner.
40. The independent investigator’s report also upheld that the Council should not have stopped tuition without notice in September 2023. The report said the funding and provision were quickly reinstated but the Council should review what happened to make sure that funding is not removed like this again.
41. The Council considered the investigation report but concluded that it had arranged provision as soon as it could and its original decision not to make alternative provision was properly taken.
42. I have looked at the Council’s correspondence, mainly with Mrs B, the EP, the GP, and the school. It is for the Council to consider and weigh up the evidence it has; to decide if it needs to get more evidence; and to ultimately decide whether K’s medical needs mean he cannot go to school and he needs alternative educational provision.
43. K’s GP provided information, but the Council’s view was that this recommended measures the school could take and so it sought further information from the EP. Mrs B has raised concerns that the EP made a decision that K should return to school. However, I am satisfied that the Council has shown how it considered all the information it had, in line with its statutory duty, and the EP did not dictate to the Council what should happen.
44. As part of a later subject access request Mrs B discovered that the EP had commented in an email that they were not sure their assessment report made sense. Mrs B took this to mean that the EP had not properly assessed K and their report was not credible. I appreciate that Mrs B does not agree with the EP’s assessment, but I cannot say that the EP’s comments mean the assessment is not credible. There is no clear fault in how the assessment was conducted, and the EP was more likely to be referring to grammatical errors and not their fundamental conclusions.
45. The EP had also contacted the school to make sure it could deliver the recommendations the EP’s report was making for provision in school. Mrs B has raised concerns that this means that the report was written to return K to school and the EP was making sure that the recommendations would achieve that aim, rather than assess whether K was truly able to access the mainstream school. However, I am not persuaded that the EP checking their recommendations are achievable means they did not properly assess K. Had the school said it could not deliver the proposed recommendations, the EP may have recommended a different provision altogether.
46. The Council also arranged for an SEN advisor to assess K. Mrs B is concerned that this assessment was not accurate because the advisor did not meet K and did not have all the information. I have looked at the advisor’s report. This is clear that they did not meet K. This was partly because there were concerns that K had been masking his dysregulation in school, so that he presented better than he truly was. However, K could not get to school to meet with the SEN advisor. The advisor’s report is clear they have relied on information from the school and the EP.
47. Although ideally, the SEN advisor would have met with K, it is clear that the Council considered a range of information when it initially decided that it was possible for K to return to school with support. It considered the GP’s letters and asked the GP to be involved in K’s reintegration plan. The Council also considered the information from the school, the EP and K’s parents. It is for the Council to weigh up this information. There was no fault in how the Council did this and so I cannot question its decision that it did not, at that time have a duty to provide alternative education outside of school.
48. The Council’s policy at that time read as though it needed evidence from a medical consultant to approve alternative provision. The Council told Mrs B it would ‘usually’ need evidence from a medical consultant. Both these do not accurately reflect the statutory guidance which is clear that a council does not need evidence from a medical consultant and can use other evidence. The Council has also said in its interview with the independent investigator and in its response to me that the statutory guidance and its policy stated that a child needs a consultant letter to qualify for alternative provision. This is not accurate. This lack of clear information is fault by the Council.
49. I am also concerned that the Council has more than once told Mrs B that the school should make the referral for alternative provision. It suggested that a complaint about lack of provision should be directed at the school. There is nothing to stop the Council making provision in response to a parent’s request. It is not a requirement of the law or guidance that the school should make the request and it is the Council that has the legal duty to consider and arrange alternative provision.
50. Mrs B provided the consultant evidence by arranging and paying for a private consultant psychiatrist report. However, I am not persuaded that the Council misled Mrs B or that she had to do this in order for the Council to reconsider its decision. The Council may have reviewed whether the school’s plan to support K to return to school was working and this may have caused the Council to make alternative provision. I appreciate that Mrs B had an urgent need to move the situation on, but I cannot say that the Council put her in a situation where she had to commission a private report. I have no basis to recommend the Council reimburse the cost of the report.
51. Central to this view, is that despite the Council not being clear that a consultant’s report was not needed, it did properly consider the information from the GP. It decided it needed more information and so asked the EP to assess K. It properly considered the EP’s report and decided that K could be educated at school with individualised support developed in consultation with the school, the family and the medical professionals. The Council, having properly considered all the information, was entitled to reach this decision.
52. Having received the private report, the Council took one month to decide that it would make alternative provision and a further month to arrange this. It already had detailed information about K’s needs and so it should have started the provision sooner.
53. To be clear, my finding is that the Council was entitled to consider the GP’s letters and then to seek further evidence. Having considered all the evidence, the Council was entitled to decide that K could return to school with support. However, when it received the private consultant’s report, it should have reviewed its decision more quickly, and arranged the provision without delay.
54. In all, it is likely that K missed out on around six academic weeks alternative provision.
55. It was also fault when the Council terminated the provision in September 2023 at very short notice. This caused distress to Mrs B and K.

The EHC Process

56. In June 2023, the Council conceded Mrs B’s appeal against its decision not to issue the EHC Plan. In line with the SEND regulations, the final EHC Plan was due on 29 August.
57. The Council sent a draft EHC Plan to Mrs B on 30 June and consulted 11 schools for a place for K. On 13 July, Mrs B’s solicitors asked the Council to consider some privately obtained assessments and reports and significant amendments to the draft EHC Plan. The Council said this coincided with the school holidays which meant that the Council could not get all the information it needed (eg, from tutors and the EP). It also needed a meeting with key professionals to decide on what amendments it should make.
58. The Council issued the final EHC Plan on 15 September 2023. Mrs B did not agree with the school named. Mrs B asked the Council to reissue the final Plan naming a different school. During the EHC Plan process that school had told the Council it could not admit K as it was full. However, the school decided it now could admit K, and so the Council reissued the final EHC Plan on 20 September naming Mrs B’s preferred school.
59. The regulations say that the Council may take longer to issue the Plan if a further meeting is needed. In the event the Council took around two weeks longer that the legal limit to issue the Plan, but there was no unnecessary delay and it needed to consider Mrs B’s request for amendments. There was no fault by the Council in the time it took to issue the EHC Plan after the tribunal order.

The complaints process

60. In August 2023, Mrs B had complained to the Council about how it had handled a number of issues, including the EHC Plan process and her request for alternative provision while her son could not go to school. The Council decided that as the issues were complex, it would consider her complaint at stage two of its process without completing stage one. At stage two, the Council appoints an independent investigator to consider the complaint. The investigator produces a report with findings and recommendations, and the Council then considers the report and decides whether it accepts the findings and what action it will take.
61. The Council first clarified the details of Mrs B’s complaint with her and then appointed the independent investigator. This stage took from 10 August to 24 September 2023. The investigator met with Mrs B. There was some difficulty agreeing the heads of complaint, and eventually on 20 December the investigator decided to move ahead with the complaint despite that not all parts of the complaint had been agreed. The investigator wrote to Mrs B at that stage setting out what they would investigate, and why they would not investigate other matters (largely because these were considered by the tribunal).
62. The Council’s complaints policy says that it should complete a stage two investigation and write to the complainant with its final decision within 12 weeks. In this case, the Council’s final response was due on 7 March 2024. The investigator completed their report on 9 March. They upheld parts of Mrs B’s complaint (as set out above), and recommended the Councill take action. The Council did not send its final decision setting out which of the investigator’s findings and recommendations it accepted, until 9 May 2024.
63. The Council says that it took longer than usual to respond to the independent investigator’s report because there was also an ongoing tribunal and the complaint was complex. The Council did not accept all of the investigator’s findings and recommendations.
64. Mrs B complained that the Council (and the investigator it appointed) did not address all the complaints put to it. However, the Council spent some time clarifying Mrs B’s complaint with her and explained why it would not investigate some matters. The Council did address those parts of her complaint that are within the scope of my investigation (ie delays in the EHC Plan process and alternative provision).
65. I can see that the Council needed to take time to clarify the complaint. However, it should not have taken from August to December to do so. The Council also took too long to respond to the independent investigator’s report. This was fault by the Council. I can see from the correspondence that Mrs B often chased the Council and throughout this time, she was very worried about her child. The Council’s delay caused Mrs B uncertainty and frustration, and put her to unnecessary time and trouble.
66. Mrs B instructed solicitors to deal with the Council when it was taking too long to start the alternative provision, and in the latter stages of the EHC Plan process. Mrs B has asked that the Council reimburse these fees.
67. We do sometimes recommend that a council reimburse someone’s legal costs but this is usually where it was reasonable for a complainant to engage legal help, particularly where the matter was complex, and where there was fault in the Council’s decisions that caused them to take legal action.
68. I understand why Mrs B sought legal help, but I cannot say that fault or significant delay by the Council put her in a position that she had to engage solicitors. Mrs B did so at her own expense and I have not asked the Council to reimburse the cost of this.

Back to top

Agreed action

69. The Council will within one month of the date of this decision:
• Apologise to Mrs B for the fault identified. It should also apologise to K, if Mrs B thinks this is appropriate. 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 to Mrs B £250 in recognition of the time and trouble she was put to by delays in the Council's complaints process.
• Pay to Mrs B £720 in recognition that the Councill should have arranged alternative provision sooner and it is likely that K missed out on educational provision as a result.
• Share this decision with relevant staff. Remind staff that complaints should be addressed within the timescales set out in the Council’s policy. Remind staff that a child does not necessarily need evidence from a medical consultant to qualify for alternative educational provision.
70. Within three months of the date of this decision, the Council will review its policy on arranging alternative educational provision for children who cannot attend school due to health needs to make sure it is clear that a child does not necessarily need evidence from a medical consultant to qualify for alternative educational provision, and that it reflects the law and statutory guidance.
71. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

72. I have completed my investigation. There was fault by the Council causing injustice to Mrs B and K.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman