Summary: Mr X complained the Council delayed the issuing of his son’s EHC Plan, and that the alternative provision offered during the delay did not meet Y’s needs. We found fault causing injustice in relation to both matters complained about. The Council agreed to apologise to Mr X and make a payment to him, and another for Y’s benefit, to remedy the injustice caused.

The complaint

1. Mr X complained that his child’s EHC Plan should have been issued in late 2022 but was not issued until September 2023 (at the start of year 9 of his child’s education). He also complained that the Council has not provided a suitable education for his child, Y, since he was in year 5, which was the last time he was in full time education. He is now in year 10, and has attended a number of Pupil Referral Units and Alternative Provision settings in the intervening years. Y was permanently excluded in November 2023 from the Alternative Provision he had been attending. He has not been provided with any education since then.
2. Mr X wants the Council to provide a suitable education for his child from now onwards, and would like lessons to be learned for the benefit of others.

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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 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
6. 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)
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. 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)
11. 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

12. We cannot consider the Council’s January 2022 decision to refuse to assess Y for an EHC Plan. That is because Mr X could have appealed that decision to the SEND Tribunal.
13. We will not consider Mr X’s concerns about the provision offered to Y before June 2022. That is because these complaints are late. If Mr X had concerns about provision during earlier school years, he could have put these to the Council, and then to us if necessary, at the time. Because of this my investigation started at the point of the Council’s decision to assess Y in June 2022.
14. The end point of my investigation was late September 2023, when the EHC plan was issued. From this point, Mr X had a right of appeal to the SEND Tribunal about the provision specified and the setting named in the EHC Plan. He has submitted an appeal and the hearing is scheduled for October 2024. The right of appeal puts these aspects of his complaint beyond our jurisdiction, meaning we cannot investigate them.
15. My investigation therefore focused on the period between the Council agreeing to assess Y for an EHC Plan, in June 2022, and that plan being issued in late September 2023, equivalent to the 2022-2023 school year (Y’s year 8).

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How I considered this complaint

16. I have:
• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• I shared a draft of this statement with Mr X and the Council for their comments before making a final decision.

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What I found

Legal and administrative background

Education, health and care plan

17. 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. 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 First-tier Tribunal (Special Educational Needs and Disability) or council can do this.

Timescales and process for EHC assessment 

18. 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);  
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Content of an EHC plan

19. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement

Appeal rights

20. The First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) considers appeals against council decisions regarding special educational needs.
21. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

22. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. 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)
24. 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))
25. 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)
26. 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

27. Below is a summary of events that are either relevant to my investigation or are included to provide context. It is not an exhaustive chronology of every exchange between parties.

2022

28. Following mediation, the Council agreed to assess Y for an EHC Plan in June. In August, the Panel decided to issue a plan. In September, the Council sent a referral form to a potentially suitable setting.

2023

29. In January, it was agreed to undertake an out of area search for a suitable setting. In February, the out of area documentation was sent out. The draft plan was issued in May. The out of area documentation was re-issued in early September. The final plan was issued in September 2023, naming the mainstream school at which Y had previously been enrolled as the setting.

Mr X’s account

30. Mr X told us that the settings that Y had attended from year 6 to year 8 had not met his SEND needs. Y was permanently excluded in November 2023, and had not been provided with any education since then, so had missed the remainder of year 9. Mr X told us that he was uncertain whether it would be possible for Y to catch up on the learning that has been missed over the years.
31. Mr X said his own physical and mental health had been badly affected by the experience. Because of the absence of an appropriate educational setting, Mr X says Y has become vulnerable to exploitation and a child protection plan has been put in place. There has also been a financial impact as Mr X’s ability to work has been affected.

The Council’s account

32. The Council told us that between August 2022, when the decision to issue an EHC Plan was made, and May 2023, when the draft plan was issued, the Council’s SEN team was trying to obtain higher quality information about Y’s strengths and needs, and what outcomes should be included in the draft. The Council said this was challenging as the expert advice submitted to inform the plan was limited by Y’s lack of engagement with professionals, and low attendance at the settings at which he was on roll.
33. The Council said that, once the draft plan had been issued, the final plan was delayed because the Council had problems finding a setting that would both be suitable for Y’s needs, and would agree to offer him a place.
34. The Council told us that alternative provision was offered to Y, at a variety of settings, during the EHC Plan process. During the first half of the academic year, Y was attending an alternative provision setting, but this placement broke down due to several behavioural incidents. The Council’s SEN team provided home tuition for Y during the second half of the academic year. This was described by the Council as being met with “varying levels of engagement from [Y] and there had to be a change of tutor mid-way through”.

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Analysis

Delay

35. The Council did not issue the draft plan within 20 weeks of the June 2022 decision to assess (with reference to the statutory timescales set out at paragraph 18).
36. It took the Council 68 weeks from the June 2022 decision for it to issue Y’s final EHC Plan. There was significant avoidable delay by the Council in finalising Y’s EHC Plan, which was fault. The Council’s explanations for the delay are not sufficient to justify it: if it was not possible to secure a place for Y at a specific setting, the Council should have finalised the plan by naming the type of setting that would be suitable. In the event, the Council named the mainstream school at which Y had previously been on roll.
37. I find the avoidable delay was frustrating for Mr X, put him to avoidable time and trouble in chasing an outcome and pursuing a complaint, and delayed his ability to appeal the final plan. The delay also caused ongoing uncertainty and distress for both Mr X and Y. So, I find the fault caused them injustice.

Provision

38. I have seen clear evidence that significant alternative provision was arranged during the EHC planning period. It appears that the Council kept the provision under review, and responded quickly when the alternative provision setting excluded Y in February 2023, providing new provision, in the form of home tuition, that it put in place for the spring term. The evidence therefore suggests the Council took account of its Section 19 duties (as set out at paragraphs 22-26) in the 2022/23 academic year, by arranging provision, keeping it under review, and responding promptly to events as they arose.
39. Despite this, I am persuaded by the account given by Mr X that the range of provision attended by Y during the 2022-23 school year did not meet his needs. This was because it was not based upon an EHC Plan, that would have included consideration of all Y’s needs: sensory, physical, social and emotional, as well as educational. This was fault on the Council’s part. This fault impacted on Y’s educational attainment and social and emotional development. This was a significant injustice, which could have been avoided or reduced if the Council had issued an EHC Plan, giving Mr X the right to appeal that plan, within the statutory timescales (I have already found that the Council’s failure to do so was fault).

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Agreed action

40. To remedy the injustice caused by the identified faults, the Council has agreed to, within four weeks of my final decision:
• Apologise to Mr X and to Y for the faults identified above;
• Make a payment to Mr X of £1000 for the impact caused by the failure to adhere to statutory timescales when finalising the EHC Plan for Y; and
• Make a payment of £500 to Mr X, for Y’s benefit, for the impact of the unsatisfactory provision during the academic year September 2022 to July 2023.
41. These payments are symbolic amounts in line with our published guidance on remedies.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have found fault by the Council which caused Mr X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman