Summary: Mrs X complained about the Council’s delay completing her child, Y’s Education, Health and Care needs assessment, and failure to provide Y with suitable alternative provision while out of school. We find fault, causing injustice to Y. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council failed to complete her child, Y’s Education, Health and Care needs assessment and issue their Education Health and Care (EHC) Plan within the statutory timescales.
2. Mrs X also complained the Council failed to provide her child with suitable alternative provision between September 2023 and June 2024.
3. As a result, her child missed out on accessing education they should have received. This has also had an impact on her and her husband’s work commitments.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
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)
7. 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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What I have and have not investigated

8. 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.
9. In this case, Mrs X appealed to the SEND Tribunal against the placement named in the final EHC Plan issued in April 2024. So, for the reasons explained above, I have not investigated any part of Mrs X’s complaint from April 2024 onwards, when her right of appeal arose.
10. 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. I have investigated Mrs X’s complaint about the delays with the EHC needs assessment process and Y’s education provision from September 2023 to April 2024.

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How I considered this complaint

11. I considered the complaint and information Mrs X provided.
12. I made written enquires of the Council and considered its response along with relevant law and guidance.
13. I referred to the Ombudsman’s Guidance on Remedies, (a copy of which can be found on our website).
14. Mrs X 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

Timescales and process for EHC needs assessment 

15. 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. 
• 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).

Education, Health and Care Plan

16. A child or young person with special educational needs may have an EH) 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. 

Alternative provision

17. 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.

What happened

18. In May 2023, Mrs X requested a EHC needs assessment for her son, Y.
19. In July 2023, within the statutory timescale, the Council told Mrs X it agreed to carry out an assessment.
20. In September 2023, Mrs X complained to the Council about the delay in progressing with the EHC needs assessment, raising concerns that an Educational Psychologist was yet to approach the family.
21. In November 2024, the Council contacted Y’s school about his absence. It was told Y’s absence was due to anxiety relating to his Autism. The school said it had met with Y’s parents and made offers of education and reintegration into school, but these had not been taken up.
22. In January 2024, the Council responded to Mrs X’s complaint. It acknowledged and apologised for the delay in complaint handling. It also upheld her complaint explaining the delay in the assessment was due to a shortage of Educational Psychologists and outlined its plan to address the delays.
23. In February 2024, Mrs X raised a stage 2 complaint. The Council upheld her complaint but stated further investigation would not change the outcome. It directed her to the Ombudsman.
24. In March 2024, Mrs X brought her complaint to the Ombudsman.
25. In April 2024, Mrs X raised a further complaint with the Council about not receiving a final EHC Plan and the Council’s failure to consult with her preferred school. The Council issued Y’s final EHC Plan later that month.

My findings

26. The Council has accepted it did not complete the EHC needs assessment or issue the final EHC Plan within the statutory timescales.
27. Y’s EHC Plan should have been issued within 20 weeks of Mrs X’s request for assessment in May 2023, so in October 2023. It was not issued until April 2024, a delay of six months. This delay is fault.
28. The delay has impacted Y’s education. He has missed out on 6 months of the special educational needs provision set out in the final EHC Plan. It also delayed Mrs X’s right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty.
29. In November 2023, the Council learned Y was not attending school and had been absent for longer than 15 days due to his health. At this point, it should have investigated why Y was no longer attending school and considered arranging suitable alternative provision. It failed to do so. This is fault. Y remained out of school without receiving appropriate alternative provision.
30. The Council took 97 working days, instead of the 20 working days specified in its complaint’s procedure, to issue the stage 1 response. This delay caused Mrs X avoidable distress, uncertainty, and additional time and trouble pursuing the Council for a response. This delay is fault.

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Agreed action

31. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £2500, as a remedy for Y’s benefit, in recognition of the loss of educational support. I assessed this by applying the guidelines in our published Guidance on Remedies. I considered the specific circumstances and included from when the Council was aware of Y’s absence to when Mrs X’s right of appeal arose; and
• pay Mrs X £300 in recognition of the distress, uncertainty, and time and trouble bringing the complaint to the Council.
32. I have not recommended any action for the Council to take to improve its services. This is because in June 2024, the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team. The Council has also advised the delay in complaint handling was due to absences within the team at that time and increase in demand.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman