Summary: We upheld a complaint the Council delayed in completing an education, health and care assessment of Mr E’s child. We also found fault in its failure to ensure the child had access to a full-time education for two terms while it completed its assessment. These faults caused injustice as a loss of education provision and distress. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy Mr E’s injustice and make service improvements.

The complaint

1. Mr E complained at the delay in the Council issuing his child, F, with an Education, Health and Care (EHC) plan. He also complained that while the Council assessed F’s need for a plan, they were without access to a full-time education.
2. Mr E said F was without access to a full-time education far longer than they should have been. This negatively impacted F’s mental health. F’s absence from school also put Mr E and his wife (Mrs E) under pressure. They had to change work patterns to be at home with F. They also had to take F to an alternative education provider one day a week. This required a 60-mile round journey completed twice each time they attended (i.e., 120 miles travel each day).

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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)
9. Under an 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

10. Before issuing this decision statement I considered:

• Mr E’s complaint to the Ombudsman and any supporting information he provided;
• complaint correspondence exchanged between Mr E and the Council pre-dating our investigation;
• information provided by the Council in reply to my written enquiries;
• any relevant law, Government guidance or Council policy referred to in this statement;
• any relevant guidance published by this office referred to in this statement.

11. I also gave Mr E and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they provided before finalising the statement.

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What I found

Legal and Administrative Considerations

Special Educational Needs and EHC Plans

12. 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 the arrangements needed 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 SEND Tribunal or the council can do this. 
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out how councils should carry out EHC assessments and produce EHC Plans. The guidance follows law set out in the Children and Families Act 2014 and 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 council should assess needs and develop the EHC Plan “in a timely manner” with steps completing as soon as practicable. Where it carries out an assessment, a council must decide whether to issue or refuse to issue an EHC Plan within 16 weeks;
• if a council decides to issue an EHC Plan, it should do so within 20 weeks of when it received the request to undertake an assessment (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. Councils must consult with the parent or young person’s preferred educational placement.

14. As part of an assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes from: 

• the child’s educational placement; and
• psychological advice and information from an Educational Psychologist (EP).

15. Those consulted have a maximum of six weeks to provide the advice.
16. There is a right of appeal to the SEND Tribunal against:

• how the plan describes a child or young person’s SEN;
• the special educational provision specified;
• the school or placement named (or if the Plan names no school or specified placement).

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 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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on a school roll. (Statutory guidance ‘Alternative Provision’ January 2013)
19. The Council told me it does not currently have a ‘Section 19’ policy, although it was drafting a protocol. It has a dedicated casework team supporting children not on a school roll. This can commission education provision for them. It also has a medical education service and specialist centres to support children permanently excluded from education.
20. It also has a medical education service policy. The Council says this service provides support for pupils with mental or physical health needs who have missed more than 15 days of education. Schools refer to the service, and if it agrees, the service will provide support including drawing up education and reintegration plans. The service may also offer some one-to-one, group tuition or access to online provision.
21. For the service to help the child or young person, they must receive support from a “recognised health professional”. That professional must complete part of the referral giving a view on what education the child or young person can access.

Key facts

22. F is a child of secondary school age who began Year 7 of their education, at a mainstream school, in September 2023.
23. During the Autumn term F found it harder to attend school, because of anxiety. They stopped attending after the half-term break.
24. In December 2023 Mr E asked the Council to assess F’s education, health and care needs. At first, the Council declined. But it met with Mr E in early January 2024, within six weeks of his request. It learnt more about F’s needs from that meeting and then agreed to an assessment. At that point it referred F’s case to an education psychologist for advice.
25. Mr E said F’s school was slow to offer support. But from January 2024 F began receiving around eleven hours a week of online provision. They also began attending an alternative provision one day a week, around 30 miles from their home. The school arranged these services, but F’s attendance at the alternative provision relied on Mr E driving F to and from the provision.
26. Mr E told me that because F became absent from school both he and Mrs E had to change their working patterns. It led to some loss of income.
27. In both February and March 2024, the Council apologised to Mr E for a delay in securing educational psychology advice. But later in March 2024 he made a complaint, as 14 weeks had passed since he requested the needs assessment. In its reply, sent around one month later, the Council apologised for the continuing delay. It said this was because of delays in securing advice from an Educational Psychologist. The Council said it had a shortage of Educational Psychologists, part of a wider national shortage. It said it had a programme in place to address this and provided some details. It promised to ‘backdate’ any funding it identified F needed to support their education.
28. As part of its assessment of F’s needs, the Council repeatedly contacted their school for information, which it did not provide until April 2024. When it did respond, the school confirmed F’s absence during the spring term. But it advised it had now set up a small unit within the school F could attend. Mr E told me F went on during the summer term to attend this unit four days a week, for around nine hours a week. F also continued to attend the alternative provision one day a week.
29. Mr E told me F engaged well with all the education provided for him, not having any absence from either the alternative provision or the school’s unit.
30. In its comments to the Council in April 2024, the school also said would seek more advice from its SEN Hub. It referred to having spoken to the Hub before. Mr E also told me the school approached the Council’s medical education service for advice. There was no record of these contacts in the reply to my enquiries I received from the Council, although I asked it for all records connected to F’s case.
31. Mr E had contact from the SEN Hub in June 2024. It did not put him in touch with any services to support F’s education but provided links to support organisations which Mr E was already familiar with.
32. During the summer term 2024, Mr E continued to pursue his complaint with the Council. It provided two further responses, saying it could not add to its first reply to his complaint.
33. In July 2024 the Council received advice from an Education Psychologist on F’s case. Next, it referred F’s case to a panel to decide if it should provide them with an EHC Plan. The Panel met in the middle of the month and agreed to issue an EHC Plan. It identified mainstream education as appropriate. It said it would backdate any funding a school received for F’s education to April 2024, twenty weeks after Mr E requested the needs assessment.
34. In mid-August 2024, around four weeks after the panel meeting, the Council issued a draft EHC Plan. Mr E made comments on this and asked the Council to consult with several schools, including some specialist providers.
35. During September 2024 Mr E contacted us to advise that while the Council had consulted the schools asked for, it only did so around two weeks into the school term. The Council told him any delay was because it was the start of term and a backlog of consultations had built up. This was because the Council could not consult schools during the summer holidays.
36. Mr E said F’s mainstream school responded to the consultation saying it could not meet F’s needs. However, the Council told me it had “indicated” it could support F “in a limited offer”. The Council went on to issue F with an EHC Plan naming their mainstream school in mid-September 2024. Mr E was unhappy it did not allow more time for a specialist school to assess F’s needs and did not name that F needed a specialist placement.
37. Mr E told me F continued to attend the unit set up by the school in the 2024 summer term. This provided around 11 hours a week education. Mr E also made requests to both the Council and the school, for F to resume attendance at the alternative provision. F’s GP also wrote a letter supporting this. But at the date of this decision, this was not agreed.
38. As part of my enquiries, I asked the Council about others potentially affected by delays in receiving advice from education psychologists. The Council said between September 2023 and August 2024 average waiting times between requesting and receiving such advice was between 16 and 17 weeks.
39. The Council asked me to note there was a nationwide shortage of education psychologists. It said it recognised the impact this had on producing timely EHC Plans and that it had sought to address this matter as follows, that it:

• had recruited a ‘lead’ Education Psychologist in charge of recruitment;
• expected to have additional Education Psychologists in place “for each area in North Yorkshire” by September 2024;
• had two contracts with recruitment agencies, including one to help clear its backlog of cases;
• offered support from its SEN Hubs for children waiting for assessments.

40. The Council told me by November 2024 it had eradicated the backlog, allocating requests for education psychology advice without delay.

My findings

41. My investigation focused on three matters. First, the question of delay in issuing F with an EHC Plan. Second, the impact of F of any delay and whether the Council should have done more to support F’s education while it completed its assessment. Third, to consider any wider implications from this case.

Findings on delay

42. I found fault in the time taken by the Council to issue F with an EHC Plan. To comply with the statutory timescales, it should have issued F with a final EHC Plan before the end of April 2024. But it did not do so until September 2024, 21 weeks late.
43. I found the main cause of the delay was, as the Council said, because of delay in receiving advice from an education psychologist. We recognise there is a national shortage of education psychologists. However, even where delay results from a matter partly or wholly outside the Council’s control, we still consider this a service failing. This is because the statutory timescales are hard targets and not aspirational timescales the Council must make best endeavours to meet.
44. But I had three other concerns about delay in this case. First, how long it took F’s school to respond to consultation. This did not negatively impact F, as the Council was waiting on the education psychologist advice at the same time. The Council also chased the school several times, which was good practice. But the Council should share my concern here. We would expect it to be willing to intervene at a senior level if it identifies schools with a pattern of delaying assessments.
45. Second, I noted some delay between the Council receiving the education psychology advice and issuing a draft EHC Plan. While it took the case to its relevant decision-making panel promptly, it took a further three weeks after that to issue the draft plan. I noted F had a change of caseworker around this time, which may have contributed to this. However, in circumstances where a case has already experienced delay the Council should aim to ensure no further drift.
46. Third, I noted Mr E’s comments about delay in consulting his preferred schools once he received the draft EHC Plan. I recognise the Council will not want to delay issue of a final plan once it has reached draft stage. But it must still allow parents to express a preference for a school and weigh those preferences before issue. Delaying consultation undermines that process.
47. However, on this last point I had to also take account that Mr E had appeal rights. He could pursue any disagreement about the school named in F’s EHC Plan, or with any other of the content of the Plan, by making an appeal. For reasons explained in paragraphs 5 and 6, the school named on F’s EHC Plan is not something I could investigate.
48. I set out below my considerations on the injustice caused to Mr and Mrs E and F, because of the fault identified.

Findings on alternative provision

49. I found F was absent from school from midway through the autumn term of the 2023 / 24 academic year and throughout the spring term. While F did return to the school campus in the summer term, this was limited, as they attended the small unit the school set up. In addition, F received some online tuition and for two terms attended an alternative provision setting for one day a week. But combined, these provisions fell short of a full-time education. I estimated they comprised between a half and two thirds of a full-time education provision.
50. The Council knew of F’s absences. It either did not record or provide me with details, of whatever conversations its SEN Hub had with Mr E or the school before April 2024. But it met with Mr E in January 2024. I considered those contacts alerted the Council to F’s absence from school. In addition, in April 2024, the school provided specific information showing that F was not receiving, nor about to receive, education in a full-time setting.
51. I noted above the Section 19 duty the Council has towards ensuring all pupils in its area receive a full-time education unless it is not in the child’s interest for them to receive this. This does not mean that every time the Council learns of a pupil’s absence it must intervene. It may decide the child’s school is doing all it can to meet needs. The Courts have held the Section 19 duty applies where there is no suitable education available which is “reasonably practicable” for the child to access. So, 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)
52. What this means in practice is that we expect councils to scrutinise and make considered decisions on what support a child needs, when it becomes aware of their absence from school. We highlighted this in a focus report we published in 2022 - Out of school, out of sight? Ensuring children out of school get a good education.
53. There is no evidence the Council took such a role in scrutinising F’s case, despite knowing of their absence from full-time education. It was at fault for that.
54. I considered this fault likely indicative or a wider failing, as the Council has no Section 19 policy. It has policies that will help some pupils absent from school with medical needs and those permanently excluded. But its medical education service restricts consideration to those children actively receiving support from a medical professional. There will be many other children and young people absent from school, for reasons such as F, who can fall through the cracks while they wait for an assessment of need or diagnosis.
55. I welcome the Council’s advice it is drafting a protocol. Any policy or protocol can keep the primary burden on schools to seek to ensure pupils have access to a suitable education. But it can also answer practical questions about what such support might look like and the role of alternative provision, as well as questions about who pays for transport to attend such provision.

The injustice caused to Mr and Mrs E and F

56. I found as a result of the faults identified above the following injustice:

• because of delay, Mr E and F experienced distress, in the form of uncertainty. They did not know when the Council would complete its assessment of F’s needs and what the outcome of that would be;
• because of both delay and the failure to consider the adequacy of F’s education provision, they experienced an avoidable loss of education. F engaged well with whatever education support they received. This suggested their needs did not mean they could not cope with the demands of full-time education;
• because of delay, Mr and Mrs E also experienced a greater impact on their day-to-day lives. I cannot say that but for the fault there would have been no impact on them because F could not attend school for a time. So, F’s absence would always have impacted on their working lives. But the impact was greater, the longer the absence and less time F spent in education. I considered this a further source of distress;
• because of the failure to consider the adequacy of F’s education provision, Mr E’s concern at the cost of transporting F to and from their alternative provision received no consideration. I cannot say if such consideration would have resulted in Mr E receiving some support, but I consider there is a possibility it would. So, this was a further source of uncertainty.

57. Below, I set out action agreed by the Council to remedy this injustice.

Wider implications

58. I was concerned F would be only one of many children or young people in the Council’s area who experienced unacceptable delay in waiting for the outcome of an education, health and care needs assessment. I did not have a complete picture of how delayed those decisions had become. But I decided I could reach a decision without knowing more because:

• first, the Council had recognised the problem with waiting times for education psychology assessments and the impact this had;
• second, it had then put in place several steps to address the shortage of education psychologists. The Council’s statement it had now cleared its backlog suggested these steps had succeeded.

59. Another concern I had flowed from my comments above on the absence of a Section 19 policy. I identified several cases in the past 12 months where we had drawn attention to failings by the Council in making alternative provision for children out of school in various circumstances. These included failings in both its record keeping and decision making. The failings in this case highlighted the need for the Council to improve its practice in this area.

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Agreed action

60. The Council has accepted the findings set out above and agreed actions to remedy Mr and Mrs E, and F’s, injustice. It has also agreed to make service improvements. I set out the details of these agreed actions as follows.

Personal remedy

61. Within 20 working days of a decision on this complaint, the Council:
1. provide a written apology to Mr E, taking account of guidance we produce on apologies, set out at section 3.2 of our published guidance on remedies: Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Mr E of £2600. I set out the calculation for this amount below;
3. set up a meeting with Mr E and the school, to discuss any ongoing alternative provision F may need until his education needs are settled. I explain why I recommended this, notwithstanding Mr E’s right of appeal to the SEND Tribunal, below.
62. I arrived at the calculation of the symbolic payment at 61b) as follows:

• for the loss of education provision for F I recommended £2000. Our published guidance on remedies suggests up to £2400 per term as a top figure for this injustice. I based my award of £1000 per term, taking account of F’s age when the Council received knowledge of their absence from school and the access to education they had during the spring and summer terms 2024. I noted the Council had committed to backdate some funding to F’s school to take account that it should have finalised the EHC Plan in April. While I welcomed this, I did not consider it enough to remedy the impact of the loss of provision at the time needed.
• for the distress and uncertainty caused to Mr and Mrs E I recommended £600. This took account the distress was over several months and from multiple causes.

63. I recommended the meeting at 61c) as while F now has a final EHC Plan, the comments of the Council and Mr E suggested their education remained far from settled. I understand there is no current plan for F to return to classroom teaching, but they attend the unit on the school campus for 11 hours a week. They are also no longer attending the alternative provision they attended during the spring and summer terms. Given the Council’s past failure to engage with F’s absence from full-time education I considered it right in this case it facilitate a meeting to understand what, if any, transition plan existed to return F to full-time education. If it is not envisaged F can return to their school full-time then a meeting could also consider how any shortfall in their education could be addressed – for example, through alternative provision. But it need not cover matters appropriate for an appeal, such as enrolling F in a different school or the specific content of the EHC Plan.

Service improvements

64. Within three months of a decision on this complaint the Council has agreed to:

• ensure it has a Section 19 protocol, policy or procedure that explains how it will consider the needs of children and young people it knows to be out of education for reasons of illness, exclusion or other reasons. It must show how the Council will seek to ensure access to suitable education for children out of school because of exclusion, illness or for other reasons, in line with the law and Government guidance.

65. The Council will provide us with evidence it has complied with all the actions agreed in paragraphs 61 and 64.

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Final decision

66. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr E and F. The Council accepted this finding and agreed action that I considered would remedy that injustice and improve its service. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman