Summary: Mrs X complained the Council failed to complete a needs assessment and issue an Education, Health and Care plan for her child, Y, within the statutory timeframe. Mrs X says this has impacted her mental health, caused stress and anxiety for Y and has had a significant financial impact on the family. We have found the Council at fault. The Council has agreed to apologise and provide a financial remedy to Mrs X and Y to recognise the distress and frustration caused by the faults identified.

The complaint

1. Mrs X complained the Council failed to complete an Education, Health and Care (EHC) needs assessment and issue an EHC Plan for her child, Y, within the statutory timeframe. Mrs X also complained Y has missed educational provision, including occupational therapy sessions, and the Council’s communication has been poor throughout the process. Mrs X says the delays have impacted her own mental health, caused stress and anxiety for Y, and have had a significant impact on the family. Mrs X would like the Council to provide:
• An increased symbolic remedy.
• Reimbursement of Occupational Therapy costs.
• A financial remedy in recognition of the time and trouble caused by the delays.
• Reimbursement of school fees.

Back to top

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 an injustice, 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. 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)
5. 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.

Back to top

How I considered this complaint

6. I discussed the complaint with Mrs X and considered the evidence she provided.
7. I made enquiries of the Council and considered its response.
8. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

Back to top

What I found

Relevant Law and Guidance

EHC Plans

9. Children with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
10. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

Access to suitable, full-time education

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
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. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should arrange suitable alternative provision for a child as soon as it is clear that they will be away from school for 15 days or more because of their health needs.
17. All pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020)
18. 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.
19. 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;
20. 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

EHC Needs Assessment and Plan

21. In March 2023 Mrs X submitted a parental request for an assessment of Y’s education, health and care needs. The Council responded to this request 6 weeks later, refusing to carry out an assessment.
22. In June 2023 further information was shared to detail Y’s needs prior to a planned mediation meeting. In response to this information the Council overturned its decision and agreed to carry out the assessment. Based on the statutory timeframe the Council should have completed the assessment and issued a final Education, Health and Care Plan by August 2023.
23. Due to the national shortage of educational psychologists, the Council did not complete Y’s EHC needs assessment within the statutory timeframe. The Council has advised it has a recovery plan in place to minimise the impact of the educational psychologist shortage. This plan includes:
• Offering an enhanced pay scale to become an employer of choice;
• Additional funding to source external educational psychologists; and
• Recruiting assistant psychologists.
24. Y was assessed by an educational psychologist in November 2023. Following this assessment, the Council agreed to issue an EHC Plan for Y. The Council issued a draft EHC Plan in January 2024 and a final EHC Plan in March 2024. This was a delay of approximately 7 months. In its complaint response dated 19 October 2023, the Council advised Mrs X the SEN service was providing families with progress updates every three weeks. Between July 2023 and March 2024, Mrs X repeatedly had to chase the Council to provide progress updates.

Access to suitable, full-time education

25. Y attended a primary school but started to struggle to attend in February 2023 due to anxiety and low mood related to their special educational needs. It is detailed within the March 2023 parental request for a needs assessment that Y was experiencing emotionally based school avoidance and their attendance for the term was 50%.
26. Y’s school approached the Council in April 2023. The school explained Y’s attendance was around 71% as they could not attend school due to anxiety.
27. The Council says that, when the school made contact in April, Y had missed 13 ½ days of school because of illness.
28. In May 2023 Y’s doctor provided medical evidence to detail Y’s medical needs in relation to her school attendance and confirmed Y was likely to be unable to attend school beyond the pre-agreed reduced timetable. This evidence was shared with the Council in June 2023.
29. Y stopped accessing full-time education in February 2023. Due to being unable to access education, Y’s parents made the decision to remove them from school. Y began a new placement at an independent school in September 2023.
30. Following Mrs X submitting a complaint to the Council, the Council’s inclusion officer contacted Y’s first school in September 2023 to request an update on their access to education. Y’s attendance at this point was 24%. The Council has not provided any evidence it took steps beyond this to consider its section 19 duty and ensure Y had access to suitable, full-time education. This meant Y was unable to access suitable, full-time education for approximately 7 months.

My Findings

31. The Council failed to complete Y’s EHC needs assessment and issue a final EHC Plan within the statutory timeframe. This is service failure which caused distress, uncertainty and frustration for Y and Mrs X.
32. The Council did not have a duty to provide the special educational provision set out in the assessment reports or draft EHC Plan until the final plan was issued in March 2024. There is therefore no fault in the Council not providing occupational therapy sessions prior to March 2024.
33. The Council failed to provide Mrs X with 3 weekly updates as advised in its stage two complaint response. This caused Y and Mrs X frustration and uncertainty.
34. In April 2023 the Council was made aware that Y was not accessing full-time education (as she was on a part-time timetable), and that this may have been because of health needs (her anxiety). It was also aware that – because of the part-time timetable – Y would soon have missed 15 days of school.
35. Despite this, the Council failed to take action to consider its section 19 duty and ensure Y had access to suitable, full-time education. This was fault by the Council.
36. The Council’s failure to consider its section 19 duty means I have seen no reasonable explanation why – despite medical evidence which said they could not attend school full-time – Y did not receive alternative educational provision.
37. In the absence of such an explanation, Mrs X and Y suffered distress, uncertainty and frustration.
38. The Council has an action plan in place to train its staff on section 19 duties, therefore I have not recommended any further service improvements in this area.
39. Y’s parents were entitled to make the decision to move her to an independent school however it is not the duty of the Council to fund an independent placement unless the placement is named on an EHC Plan. Therefore, we cannot recommend the Council reimburse any placement fees.

Back to top

Agreed action

40. Within one month of the final decision the Council will:
• Provide an apology to Mrs X for the faults identified.
• Pay Mrs X £700 to recognise the injustice caused by the delay in completing Y’s EHC needs assessment and issuing the final EHC Plan. This is calculated at £100 per month of delay, in line with our guidance on remedies.
• Pay Mrs X £900 to recognise the injustice caused by the Council’s failure to consider its section 19 duty. This is calculated at approximately £900 for the term Y was unable to access full time education between February 2023 and June 2023.
41. The Council should provide us with evidence it has complied with the above actions.

Back to top

Investigator's decision on behalf of the Ombudsman