Summary: the Council took too long to issue Mrs M’s son B’s Education, Health and Care (EHC) Plan and failed to arrange alternative education for B when it was needed. We have recommended a remedy for the injustice this caused.

The complaint

1. Mrs M complains about delay by the Council undertaking an Education, Health and Care (EHC) needs assessment for her son, B.
2. Mrs M says B was unable to attend school from 21 November 2023 and complains the Council did not arrange alternative education.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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 have considered information provided by Mrs M and the Council. I have invited Mrs M and the Council to comment on my draft decision.

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What I found

7. Mrs M asked the Council to undertake an Education, Health and Care (EHC) needs assessment for her son, B, on 24 May 2023. The Council refused. Mrs M appealed. Following mediation, the Council changed its mind. On 17 October 2023, the Council agreed to undertake the assessment.
8. B started secondary school in September 2023. Mrs M says he was unable to attend school from 21 November 2023.
9. Mrs M complained to the Council at both stages of its complaints procedure.
10. The Council acknowledged there had been delays in the EHC needs assessment which it said were due to a significant increase in demand for educational psychology assessments. The Council said it had recruited as many locum educational psychologists as possible to increase capacity. The Council apologised for the delay. The Council said the school should ensure B had suitable alternative provision and Mrs M should discuss arrangements directly with the school.
11. In April 2024, Mrs M told us the Council had been unable to allocate an Educational Psychologist to carry out the assessment so she had commissioned an independent assessment, which the Council used, and asked the Council to pay. The Council refused. Mrs M said B remained out of education and the school was unwilling to fund alternative provision. She said she had paid for support herself [MindJam] and wanted the Council to refund the cost.
12. The Council issued a draft EHC Plan on 12 June 2024 and a final Plan on 9 August 2024. Mrs M is unhappy with the Plan and has appealed to the SEND Tribunal.

Complaint 1: delay assessing B’s EHC needs

13. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
14. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
15. When a Council agrees to undertake an assessment following mediation and then decides to issue an EHC Plan, it must issue a final Plan within 14 weeks of the mediation agreement.
16. The Council agreed to undertake the assessment on 17 October 2023. It should have issued a final Plan by 29 January 2024. The Council issued the final Plan on 9 August 2024. The Plan was 27 weeks late.
17. The Council did not comply with the timescales set out in the regulations. This is fault. Where we find fault, we consider the impact on the complainant. Delay issuing the Plan delayed Mrs M’s right of appeal. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council. My recommendations are at the end of this statement.

Complaint 2: alternative education

18. B stopped attending school on 21 November 2023.
19. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
20. The Education Act 1996 says every council shall “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.” (Education Act 1996, section 19(1))
21. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
22. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
23. Records provided by the Council suggest there was something wrong with the Council’s approach to its duty to arrange alternative provision for children who would not otherwise receive suitable education at the time.
24. The Council appears to have acted only in an ‘advisory’ role, and then only to the school. It does not appear to have had any direct contact with Mrs M or B as far as B’s lack of education was concerned. The Council appears to have relied entirely on the school to identify B’s needs and make suitable arrangements.
25. The Council does not appear to have considered its duty to make arrangements for B’s education if he would not otherwise receive suitable education. It does not appear the Council had systems or procedures in place to enable it to perform this statutory function at the time.
26. Taken together, these are serious faults. B had been without education for four months when the Council’s records end. It appears he did not receive alternative education despite the efforts of his school.
27. In these circumstances, the only conclusion I can draw is that the Council should have made alternative arrangements. The Council’s failure to make alternative arrangements is fault.
28. The education B missed is an injustice. Mrs M described the toll events took on her whole family. My recommendations to remedy this injustice are at the end of this statement.
29. We can also make recommendations to ensure similar faults do not happen in the future.
30. Since Mrs M’s complaint, the Council has appointed new senior leaders and implemented new systems and processes to ensure it can fulfil its duties. These include live school attendance data systems and a team of officers to consider alternative provision requests. These changes satisfy me the Council has addressed the problems which led to Mrs M’s complaint. I will not, therefore, make further recommendations.

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Agreed action

31. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
32. I recommended that within six weeks of my final decision the Council:
1. apologises for the faults I have identified;
2. offers a symbolic payment of £700 for the delay issuing B’s EHC Plan. If the Council has not already done so, it should refund the cost of the educational psychologist’s report;
3. offers a symbolic payment of £3,000 to acknowledge the impact of its failure to consider making alternative arrangements for B’s education. The Council should also refund the cost of Mindjam sessions Mrs M paid for.
33. The Council accepted my recommendations.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman