Summary: Mrs B complained the Council failed to comply with the statutory timeframes for completing an Education, Health and Care needs assessment for her child, X. Mrs B says this has impacted X’s access to education. We have found the Council at fault. The Council has agreed to apologise, pay a financial remedy to Mrs B and X and complete service improvements to remedy the injustice caused by the faults identified.

The complaint

1. Mrs B complained the Council failed to comply with the statutory timeframes for completing an Education, Health and Care (EHC) needs assessment for her child, X. Mrs B says this has impacted X’s access to education and the lack of educational provision is impacting the family’s mental health. Mrs B would like the final plan to be issued and she would like support to navigate their current situation.

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

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How I considered this complaint

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

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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. The Department for Education (DfE) non-statutory guidance states 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)
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.
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

EHC Needs Assessment and Plan

20. Mrs B submitted a parental request for an assessment of X’s education, health and care needs in September 2023. The Council responded to this request in October 2023 and agreed to carry out an assessment. In accordance with the statutory timeframes for completing the EHC needs assessment process, the Council’s deadline for issuing X’s final EHC Plan was 29 January 2024.
21. Due to the national shortage of educational psychologists, the Council did not complete X’s EHC needs assessment until May 2024. It issued a draft EHC Plan in June 2024 and a final EHC Plan was issued in early August 2024.
22. In response to previous enquiries the Council has advised it has a recovery plan to minimise the impact of the educational psychologist shortage. This plan includes:
• Increasing the number of substantive Educational Psychology posts.
• Using locum Educational Psychologists.
• Undertaking virtual assessments where appropriate.
• Regularly reviewing the number of EHC needs assessment requests and increasing capacity across the service to support statutory EHC needs assessments.

Access to suitable, full-time education

23. As part of the EHC needs assessment process the Council were made aware X was unable to access education through her school placement. A report was provided by X’s private counsellor which detailed X was unable to attend school due to medical reasons. A report from the Special Education Services detailed X’s attendance for the year 2022 – 2023 was 19% and for the year 2023 – 2024 X’s attendance was 0%.
24. The Council has not provided any evidence it considered its section 19 duty when it became aware X was unable to access full-time education.
25. The Council told us a section 19 referral to the alternative tuition service was completed however X was unable to engage with the service so the provision was withdrawn.
26. The Council has told us X’s school made the following alternative provision available to X, however it has not provided evidence X accessed any of these provisions:
• Alternative tuition service
• Specialist Education Service Communication and Interaction Support
• Access to the inclusive learning room time with support from an Emotional Literacy Support Assistant
• 1-1 support
• Part time timetable
• Education Welfare Support
27. It appears this alternative provision was offered within the school setting.

My Findings

28. The Council failed to complete X’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 Mrs B and X.
29. The Council was aware X may not have been able to go to school from September 2023 but it failed to take action to consider its section 19 duty.
30. This means I have seen no explanation why – despite medical and educational evidence which shows X was unable to attend school – X did not receive alternative educational provision.
31. Although it appears X’s school made some provision available in the school setting, it is not clear how she could access this if, as suggested in the medical evidence, she could not attend. Again, the Council’s failure to consider its section 19 duty means it is unclear whether X had any accessible education available to her at all.
32. In the absence of such a consideration, I have found fault with the Council. And it appears that this contributed to a significant loss of education for X, who missed her entire GCSE year. Mrs B and X also suffered distress, uncertainty and frustration.

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Agreed action

33. Within one month of the final decision the Council will:
• Provide an apology to X and Mrs B for the failure to properly consider and record how it satisfied itself X was receiving suitable education while unable to attend school, and for the delay in the EHC plan assessment process and in issuing a final EHC Plan. 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 Mrs B £800 to recognise the distress and frustration caused by the delay in issuing the final EHC Plan. This is calculated at approximately £100 for every month of delay after the statutory deadline of 29 January 2024 until the date the final EHC Plan was issued in August 2024.
• Pay X £4,500 to recognise the loss of education caused by the Council’s failure to consider its section 19 duty, and its failure to provide access to suitable full-time education, between September 2023 and June 2024.
• Pay Mrs B £200 to recognise the distress caused by the Council’s failure to consider its section 19 duty between September 2023 and June 2024.
• Provide an action plan which sets out how it intends to support X to access education or training from September 2024.
34. Within three months of the final decision the Council will:
• Review its procedure for considering and recording section 19 decisions to ensure it is correctly and accurately recording all section 19 decisions.
• Circulate guidance to its SEN and inclusion officers about the Council’s duty under section 19 of the Education Act 1996 to consider alternative provision from the point it becomes aware a child is out of school and record its decision making on this.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman