Summary: Miss F complained the Council delayed issuing an Education, Health and Care Plan for her daughter and failed to provide her with a suitable full-time education when she was unable to attend school due to ill health. There was delay in issuing the plan. The Council should make a payment to Miss F to remedy the uncertainty and distress that caused. There was no fault in the provision of alternative education.

The complaint

1. Miss F complains the Council delayed issuing an Education, Health and Care Plan for her daughter and failed to provide her with a suitable full-time education when she was unable to attend school due to ill health.
2. She says this has left her daughter socially isolated and has contributed to a decline in her mental health. Miss F says she has been unable to work and her own mental health has suffered. She has been forced to fund provision for her daughter. Miss F wants the Council to provide a suitable education, assessments and compensation.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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 in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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)
10. 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

11. I spoke to Miss F about her complaint and considered the information she sent and the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
12. Miss F and the Council 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

Special educational needs

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
15. If the council concedes to the appeal without making a response to the Tribunal, it must issue a final EHC plan within 14 weeks of the date it notified the SEND Tribunal of the uncontested appeal. (SEND Regulations 2014, Regulation 45)
16. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. This advice must normally be provided within six weeks of the request. (SEND Regulations 2014, Regulation 6(1))
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Alternative provision

19. 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 than at school, for those children of compulsory school age who, by reason of illness, exclusion from school, or otherwise, may not for any period receive suitable education unless such arrangements are made for them.
20. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
21. 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))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

24. I have summarised the key events; this is not meant to detail everything that happened.
25. Miss F’s daughter, J, has special educational needs and is a child in need due to disability. She had been on the roll of a primary school since February 2023 but had been struggling to attend due to anxiety and trauma. The school had reduced her timetable to one hour a day.
26. Miss F requested an EHC needs assessment on 25 April 2023. The Council issued a decision that it was refusing to assess on 6 June. At this point Miss F could appeal to the SEND Tribunal.
27. The school told the Council on 10 July that J was no longer attending due to illness. The Council asked the school to make a referral for alternative provision under Section 19.
28. Blended learning provision arranged by the Council’s alternative provision college, started on 23 July. This consisted of one-to-one tuition at home for five hours a week. It was also meant to include online and “self-directed learning”.
29. The Council met with Miss F and reconsidered her request for an EHC needs assessment. On 25 July it wrote agreeing to carry out an assessment. The Council therefore had to assess and either decide an EHC plan was not needed by 3 October or issue a final EHC plan by 31 October 2023.
30. The Council sought information and advice from an educational psychologist (EP), occupational therapist (OT) and speech and language therapist (SALT). Their advice was due by 5 September but was delayed. The SALT report was received on 26 October, the OT report was received on 1 March 2024 and the EP report was not received until 17 April 2024 due to the national shortage of EPs.
31. The alternative provision college produced a plan for the blended learning on 16 September. This said Miss F was funding equine therapy and that J had two mentoring sessions a week [with Springboard]. It was noted that J had to be physically active when she was dysregulated. The plan was that the additional independent learning would start when or if appropriate.
32. Miss F emailed the Council on 19 September as she was concerned with the alternative provision being made. She said J was only accessing five hours tuition a week and was unable to access the online or independent learning. Miss F was funding additional sessions for J at a farm and at gymnastics. The Council replied that the blended learning was a full-time offer but as Miss F considered it was not meeting J’s needs, it would explore other options.
33. On 21 October Miss F complained to the Council that the EP had not yet been in touch, there was no OT appointment made and a further SALT assessment was necessary.
34. The Council sent a stage one response to Miss F’s complaint on 1 November. It apologised that the EHC plan had not yet been issued. This was due to the EP shortage causing a delay as final EHC plans could not be issued without EP advice. Miss F asked for her complaint to be escalated.
35. There was a meeting on 8 November to discuss J’s educational options. It was noted that blended learning was not designed for J’s needs. Additional play therapy was then commissioned. The Council also agreed to look for different alternative provision. The Council says it considered all the information attached to the new referral (CAMHS reports, doctor’s letter, school records of attempted support/intervention, ADHD screening and assessment attendance data, CARM report, EP report, social care screening information, OT referral, SALT letter, observation logs and provision map). A new tuition provider was found and Miss F also requested the Council fund additional activities for J.
36. The Council sent its stage two complaint response on 12 January 2024. It said it could not expedite J’s EP assessment or recommend commissioning private therapy assessments, but recognised there was uncertainty about when the EHC needs assessment would be completed and offered Miss F £100 to acknowledge this.
37. On 19 January the Council emailed Miss F that the new alternative provision to be provided would not include the additional activities she had requested. It would be 13 hours a week of one-to-one tuition and two hours a week of one-to-one therapy. The Council considered that reduced hours were appropriate given the intensity of the offer and taking into account the impact on J’s stamina and wellbeing.
38. Miss F came to Ombudsman in March as there was still no final EHC plan. She said J required at least two hours of PE per week, support for her mental health through therapeutic settings and an assessment by a suitably qualified private speech and language therapist.
39. The Council issued a draft EHC plan on 24 April after it received the EP report. A final EHC plan has not yet been issued.
40. A child in need review in April 2024 found J was struggling to attend the new alternative provision. The placement broke down and new alternative provision started on 24 June 2024, which was 10 hours per week tuition.

My findings

Delay issuing the EHC plan

41. Following the Council’s decision to assess J’s EHC needs it should have issued the final EHC plan by 31 October 2023. It has not yet done so.
42. The delay until 17 April 2024 was caused by delay in receiving the EP report due to the national shortage of EPs. I accept that EHC plans cannot be issued without EP advice, but this delay is service failure. There has then been further delay in issuing the final plan, which is fault.
43. The Council has previously told us it has a long-term plan for accessing or recruiting more EPs and provided us with the details of its improvement plan in relation to the EHC needs assessments backlog. I therefore do not make any service improvement recommendations about this.
44. This delay causes distress, frustration and delay to appeal rights to Miss F. It also causes uncertainty as she does not know what SEN provision may have been made for J if the plan had been issued on time. Our guidance is that a symbolic, moderate payment of £100 per month is appropriate to remedy this distress and uncertainty. This would be from when the final plan should have been issued to when it is issued. This is not intended to remedy loss of special education support to J as she does not yet have an EHC plan.
45. Miss F was unhappy with the SALT assessment that was done. She says a differently qualified therapist is needed to carry out the assessment. The law says we cannot look at anything which happened before the EHC plan appeal right started which could be considered by the SEND Tribunal. This includes the assessment process, such as which reports the council obtained. This is for two reasons. Firstly, the injustice caused by any poor reports is that the EHC plan may not meet the child’s needs, which would be the subject of the appeal. Secondly, because the SEND Tribunal has wide powers to order reports be completed.
46. I therefore consider it would be reasonable for Miss F to appeal the final EHC plan if she is unhappy with the provision made due to the SALT assessment. This puts this issue out of the Ombudsman’s jurisdiction, as set out in paragraph 8 above.

Alternative provision

47. The Council became aware that J was out of school for health reasons on 10 July. Alternative provision under section 19 of blended learning, including five hours a week tuition, was put in place from 23 July to 4 February 2024.
48. Miss F says this was insufficient. It is for the Council, not Ombudsman, to determine what is a suitable education. As set out in paragraph 4 above, if there is no fault in how the Council made its decision, I cannot question the outcome.
49. Suitable education does not need to be full-time. The Council must consider the individual circumstances of each child and may determine that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. Five hours tuition per week was in line with the amount of education J was managing whilst at school. The Council’s email to Miss F of 19 January 2024 says it had considered J’s needs when it put the alternative provision in place. I note that it was later acknowledged that blended learning was not designed for J’s needs, but I have not seen any evidence of fault in the way the Council asked the school to make a referral for alternative provision, or in the way it decided blended learning would be suitable. There was no fault by the Council therefore when it put blended learning alternative provision in place.
50. After Miss F raised her concerns about the blended learning, new alternative provision was provided from February to May 2024. The Council says it considered all relevant information attached to the new referral (CAMHS reports, doctor’s letter, school records of attempted support/intervention, ADHD screening and assessment attendance data, CARM report, EP report, social care screening information, OT referral, SALT Letter, observation logs and provision map). I have therefore not seen any evidence of fault in the way the Council decided the new provision would be suitable.
51. There was therefore no fault by the Council when it put alternative provision in place. I find it has met its section 19 duty.
52. Miss F says she has been unable to work due to J being out of school. We do not normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between any fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts. In addition, I have not found fault in the provision of alternative education, so I cannot say that J was out of school due to fault.

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Agreed action

53. Within a month of my final decision, the Council has agreed to apologise to Miss F for the delay in issuing the final EHC plan.
54. Once the final EHC plan is issued, it will pay her £100 per month for every month from 31 October 2023.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman