Summary: We upheld Ms X’s complaint about a Council’s delay in completing the Education Health and Care (EHC) Needs Assessment and Plan process and failure to consider whether to arrange alternative educational provision for Y. This caused avoidable distress, uncertainty, frustration and a delay in appeal rights. The Council will issue Y’s final EHC Plan, apologise, make a payment of £1000 and provide evidence of the steps taken to increase caseworker capacity.

The complaint

1. Ms X complained the Council delayed finalising her child Y’s Education, Health and Care Plan and did not arrange alternative educational provision for him when he was unable to attend school.
2. Ms X said this has caused her and Y avoidable distress and Y’s mental health has suffered through being out of education.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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)

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What I have and have not investigated

7. Ms X complained to us in February 2024. So, matters before February 2023 are late. I have exercised discretion to investigate from September 2022 to February 2024 as the Council’s complaint correspondence indicate delay in completing its complaint procedure. This is a good reason for Ms X not complaining to us within 12 months.

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How I considered this complaint

8. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement. I discussed the complaint with Ms X.
9. Ms X and the organisation 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

Relevant law and guidance

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. There is a right of appeal against the content of an EHC Plan including the special educational provision (SEP) in Section F and the placement named in Section I. Appeal rights only arise in respect of a final Plan (not a draft Plan).
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 the following:
1. 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.
2. 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.
3. 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);
4. 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.
5. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). The EP has a maximum of six weeks to provide the advice. 

13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act 2014.)

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. (Section 19 Education Act 1996). We refer to this as alternative provision (AP)

What happened

Background (pre-LGSCO investigation)

15. Y transferred to Year 7 of a mainstream secondary school in September 2021 (School A). He has Attention Deficit Hyperactivity Disorder (ADHD) and an anxiety disorder.
16. Ms X told me Y did not find the move to secondary school easy and his behaviour changed. She said he was bullied and School A did not deal with the bully effectively. Y became increasingly anxious after the illness and then death of a close relative in June 2022 and his school attendance declined. Ms X said his behaviour also deteriorated at school and school told her they could not cope with him. Y had brief overnight admissions to hospital because of concerns about his mental health.

September to December 2022

17. Y went into Year 8 in September. There is no evidence the Council was aware of any concerns about Y’s education and attendance between September and December 2022.

2023

18. School A requested an EHC needs assessment on 12 January 2023. School A sent a document called a SEND Report review to the Council to accompany the request for a needs assessment. The report said Y started secondary school well and engaged in classroom learning with little adult intervention needed from adults. The report went on to say that Y was not able to go near a classroom for most of 2022 due to mental health issues and only went to PE lessons and so School A tried a range of supportive measures.
19. The report said Y’s attendance was under 20%.
20. The Council wrote to Ms X on 15 February saying it agreed to carry out an EHC needs assessment.
21. The EP issued their advice on 28 March.
22. The Council issued a draft EHC Plan for Y on 10 May. This described Y’s mental health problems in detail. Section F set out the following SEP:
• Daily check-ins with a key adult for 10 minutes
• Emotional Literacy Support Assistant one-to-one support for 20 minutes each week
• In a mainstream setting, small group learning (10 students)
• Half a day of alternative provision a week for practical learning opportunities
• 60 minutes a week of one to one catch up tuition in literacy and numeracy
• Social skills individual and then group intervention 30 minutes a week
• 20 minutes a week of individual support around keeping safe and taking risks.
23. The Council consulted with seven schools in May, June and September, including Ms X’s preferred placement. But they all declined to offer Y a place.
24. Ms X complained to the Council in September 2023. The Council replied the same month. It upheld her complaint about delay in the EHC process and said it would provide Ms X with an update by 13 October.
25. Ms X was unhappy with the above response and escalated her complaint in the middle of October.
26. In November, School A sent the Council a costed provision map for AP for Y for January to July 2024. It suggested:
• Two hours a week of tuition
• One hour a week of mentoring
• Two days a week of outdoor education with a specialist provider.
27. School A went ahead and organised AP including mentoring and one day a week of outdoor education. The Council told me it repaid the costs to School A.

2024

28. The Council responded in January 2024 saying:
• It was sorry for the delay in its response.
• Y was on the waiting list for an updated EP report. Once received, this would be included in an updated draft EHC Plan.
29. In January there was a second EP advice. The purpose was to ‘update and review the needs and provision in the draft EHC Plan.’ The EP’s advice gave additional recommendations for the SEP Y needed around his social, emotional and mental health and for communication skills.

Comments from Ms X

30. Ms X told me:
• Since September 2023 Y attended School A for 4 hours over 2 days each week
• Y was attending AP (since the end of January 2024) funded by his mainstream school where he is still on the roll. He had one day a week from January 2024 and two days a week from May.
• The Council sent a revised draft EHC Plan in April 2024 which contained errors.

Comments from the Council

31. The Council told me:
• It had not yet issued a final EHC Plan for Y. It accepted there were significant delays and was sorry.
• It was re-sending consultations with schools and once it had responses, it would issue a final Plan.
• Y’s case officer was on sick-leave and there was a delay re-allocating the case due to staffing capacity.
• It was aware in January 2024 (through the EP’s report) that Y was not consistently attending school despite a reduced timetable.
• As School A was authorising absence, it is suggestive that the school was seeking to provide appropriate support via a graduated response.
• It could not comment if the Section 19 duty applied in this case as there had been no request for support from the school prior or during the EHC assessment.  Its Education Engagement Service had not been asked to attend any meetings to understand what the underlying issue was.

Was there fault?

32. There is fault by the Council:
• It should have issued Y’s final EHC Plan within 20 weeks of the request for an EHC needs assessment - so by 1 June 2023. It has not yet issued Y’s final Plan. This is a delay of 15 months which is continuing at the time of writing.
• It issued a draft Plan in May 2023. There is no good or obvious reason for the delay from May 2023. A final Plan should have been issued within six weeks of the draft. The draft contained the EP’s recommendations for Y’s SEP in Section F. A school placement should have been identified in order to issue the final Plan on time. This could potentially have been achieved by naming the existing school.
• There appears to be a dispute about the SEP Y requires and updated EP advice in January 2024 made different recommendations about SEP from those in the advice of March 2023. This is a dispute for the SEND Tribunal to resolve once Y’s final Plan is issued and not for the LGSCO. The failure to issue the final Plan on time has delayed Ms X’s right of appeal to the Tribunal if she wishes to dispute the provision and/or placement.
• The Council has a duty to arrange AP for children who are unable to attend school for health or other reasons if they would not receive suitable education without such arrangements. Between September 2022 and January 2023, there is no evidence the Council had any awareness of Y’s case and so I do not consider there was any requirement to consider putting AP in place. In January 2023, School A made the Council aware through the EHC needs assessment request that Y wasn’t attending school regularly due to poor mental health. The Council should have considered the information it had received from School A in January 2023 at that time to decide if the Section 19 duty applied and if so, whether the arrangements School A had made (summarised in paragraph 18) were suitable and if not, whether it needed to step in and arrange AP. The law does not require schools or parents to cite Section 19 when they ask a council for input. Nor do schools have to request a meeting with the Council’s Education Engagement Service to trigger Section 19.
33. The delay in this case is not down to a delay in EP advice as the first report was provided within the six-week timescale required by the SEND Code of Practice. The delay in issuing the final EHC Plan is due to a lack of staffing capacity in the SEND case work team. Having insufficient staff so that cases cannot be dealt with within the 20-week statutory timescale is fault (service failure).

Did the fault cause injustice requiring a remedy?

34. I do not conclude on balance that the Council would have arranged AP under the Section 19 duty had it considered the information in the report from School A in January 2023. This is because the Council has said that it appeared the school was implementing a graduated approach to increasing Y’s attendance and reintegrating him. But there is uncertainty for Ms X and Y which is a form of injustice.
35. If the Council had finalised the draft Plan within the statutory timeframe, it is likely Y would have been entitled to the SEP in Section F of the draft Plan of May 2023. But there is uncertainty about whether Y would have been able to engage with this SEP because of his mental health at the time.
36. Y has had tailored support from School A as I have summarised in paragraph 18 and part time educational provision including some time at school, mentoring and outdoor education. Because of Y’s mental health and the fact that he isn’t attending full-time education in school currently, I cannot say on balance that he would have been able to engage in any more education than was offered and arranged. So I do not consider he has a loss of educational provision.
37. Ms X has had a loss of appeal rights and avoidable frustration, uncertainty, distress and inconvenience because of the delays.

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Agreed action

38. Within one month of my final decision, the Council will:
• Apologise. 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.
• Issue Y’s final EHC Plan without delay
• Make a payment of £1000 to reflect avoidable distress, frustration, uncertainty and delay in appeal rights.
• Provide a written report summarising the steps it has taken since the events of this complaint to address staffing capacity in the EHC team.
• Ensure staff are made aware (though a team briefing or other channel) that where the Council receives information a child is not attending school when a request for an EHC needs assessment is received, that it must consider whether there is a duty to arrange AP under Section 19 of the Education Act 1996.
39. The Council should provide us with evidence it has complied with the actions in paragraph 38.

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Final decision

40. We upheld Ms X’s complaint about a council’s delay in the Education Health and Care Needs Assessment and Plan process and a failure by the council to consider whether to arrange alternative educational provision for Y. This caused avoidable distress, uncertainty, frustration and a delay in appeal rights. The Council will issue Y’s final Plan, apologise, make a payment of £1000 and provide evidence of the steps taken to increase caseworker capacity.
41. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman