Summary: Miss X complained the Council delayed competing the Education Health and Care Plan for her son and failed to provide him with a suitable education. The EHC Plan should have been issued within 20 weeks but after 22 months the Council has still not issued the final version. It also failed to take appropriate action when provided with information that Miss X’s son was not attending school. This is fault and a suitable remedy is agreed.

The complaint

1. Miss X complains the Council delayed completing the EHC Plan for her son, Z, and failed to provide him with a suitable education.
2. Miss X says this has been distressing for the whole family and has left Z isolated from his peers and with no hope for the future.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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)
6. 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

7. Miss X says Z stopped attending school approximately four years ago, but she did not raise this issue with the Ombudsman until May 2024. This is therefore a late complaint as explained at paragraph three above. While I appreciate Miss X had many issues in 2021 and 2022 that prevented her from raising the lack of education provision for Z then, I consider Miss X could have raised this issue sooner than she actually did. As the Council began the SEN assessment in January 2023, I consider this is an appropriate starting point to consider the lack of a suitable education and will not investigate this back to September 2020.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• contacted Miss X to seek further information;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

9. 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 tribunal or the council can do this. 

Timescales and process for EHC assessment 

10. 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);  

General section 19 duty

11. 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.
12. 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)

Educational provision – available and accessible

13. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. 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)
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. 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)

Inability to attend due to health needs

15. 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, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. Councils must “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))
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. 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))
20. 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)
21. 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’)

Key facts

22. This section sets out the key events in this case and is not intended to be a detailed chronology.
23. The Council agreed to start the EHC Plan process for Z om 10 January 2023. This is a statutory process and should be completed within 20 weeks with the final EHC Plan being issued. The EHC Plan would set out Z’s needs, the provision required to meet those needs and the name of the educational institution. Once the final EHC Plan is issued, appeal rights engage. This means that if Miss X disagreed with the provision or the institution named, she would be able to appeal to an independent tribunal.
24. An Educational Psychologist produced a report on 28 March 2023 as part of the assessment process. This document stated that Z had not attended school since September 2020 even though he remained on roll at a local school. I am therefore satisfied the Council was aware on this date that Z was not at school and not receiving any education.
25. The Council produced a draft EHC Plan and shared it with Miss X on 26 April 2023. The Council is required to give Miss X 15 working days to comment on the draft. Miss X says she requested EOTAS (education other than at school) but the Council has failed to finalise the EHC Plan and Z remains out of education. The final EHC Plan should have been issued within 20 weeks of the process starting which would have been 30 May 2023. The Council has still not issued the final EHC Plan and so it is now over 17 months late.
26. In response to my enquiries it says it recognises the delay in issuing the final EHC Plan and that it intends to arrange a meeting to discuss the way forward. It also says it has no medical evidence to understand why Z is unable to leave his room and so will be requesting this. There is no explanation of why this action has not been taken in the preceding 17 months before the Ombudsman was involved.
27. Miss X made a formal complaint to the Council on 7 February 2024 about the delay in finalising the EHC Plan. It responded on 27 February noting the process started in January 2023 but was not yet concluded. It also acknowledged that Z had been out of provision for a number of years and that Miss X had expressed a preference for EOTAS. It said that it was felt an online course through a learning centre would be a better fit for Z. The Council apologised for the lack of action and lack of communication and said it hoped that things would move forward to find a suitable placement to meet Z’s need and that a final EHC Plan would be issued.
28. Miss X contacted the Council on 28 March 2024 requesting it to escalate her complaint to stage two of the formal complaint process. She said that despite her complaint being upheld nothing had changed and the Council was continuing to ignore the urgency of Z’s situation. The Council acknowledged receipt of Miss X’s request on 10 April. On 1 May 2024, Miss X contacted the Ombudsman saying she had heard nothing further from the Council. In response to our enquiries the Council provided a copy of its stage two response dated 7 June 2024. It said it had emailed Miss X on 30 April asking if she had taken action in response to an offer it had made. It said while it was aware Miss X was unhappy with the offer, it was unable to progress the case unless she communicated with it. It acknowledged it had exceeded the statutory timescales and that the case officer had not been in regular contact with her. It said this was a regretful situation being experienced by a number of families as the requests for EHC Plans increased and the case officers try to mange ever increasing workloads. It upheld Miss X’s complaint and said the case officer had been asked to contact her to discuss the situation.

Analysis

29. A council is required to complete the EHC Plan assessment and produce a final plan within 20 weeks. As explained above, the Council has failed to meet this statutory timescale. In fact, the EHC Plan has still not been issued and it is now over 17 months late. This is fault. The failure to provide the finalised EHC Plan means Z is not getting the SEN provision he has been assessed as needing. It also means Miss X’s appeal rights have been frustrated and she has suffered prolonged uncertainty and frustration.
30. I am recommending a payment is made to Miss X to recognise her injustice for the delay. The Ombudsman usually recommends a payment of up to £500. However, due to the prolonged delay in this case I will recommend a higher payment.
31. Miss X also complains that Z has not attended school or received a suitable full-time education. As explained above, I am looking at this lack of provision from January 2023.
32. I made enquiries to the Council asking it when it first knew Z was not attending school and what action it had taken to provide a suitable education. The Council said it could find no evidence it was aware of Z’s absences or evidence of taking any action. It is not clear to me why the Council has answered in this way as I have seen evidence it was aware of Z’s absence. The Educational Psychologist mentioned it in her report dated March 2023. There was reference to Z’s absence from school in the stage one complaint response dated February 2024.
33. While there may not have been any specific report from either the school or Miss X about Z’s absence, I am satisfied information was provided to its Education Department. Once it was aware, the Council should have taken action to investigate this and determine the reasons for the absence. The Council has provided no evidence to suggest it took any action in respect of providing Z with a suitable full time education from January 2023.
34. The Council has a duty under section 19 of The Education Act 1996 to make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion or who are ‘otherwise’ unable to attend school. Once it is clear a child will be away from school for 15 days or more because of illness, the council should liaise with medical professionals. Where a child is unwell due to anxiety, the Council would need to decide whether the child is too unwell to attend any school, not just the school where they are on roll. The concept of being ‘otherwise’ unable to attend school in any situation is not defined in legislation or statutory guidance.
35. Miss X says Z was unable to attend school due to anxiety and therefore the Council should have sought medical information. There is nothing to suggest the Council has done this at any time from January 2023 onwards. This is fault.
36. The Council had a duty to provide a full time education that was reasonably available and accessible. I have seen nothing to suggest the Council has done this. In response to my enquiries it simply said there was no evidence on several points. The Council cannot evidence that it ever properly considered Z’s circumstances, the reasons for his continued absence from school or whether the education at the school where he was on roll was available and accessible. This is fault.
37. The Section 19 duty applies to compulsory school age children. Z turned 16 in April 2023 and so the Section 19 duty applies until the end of June 2023. I am therefore recommending a remedy for this loss of suitable education for two terms.
38. As the Council has not issued the final EHC Plan, it is not under any duty to provide the SEN provision. I cannot therefore consider a remedy for any loss of education provision from July 2023, post compulsory school age, to the date the final EHC Plan is issued. I am recommending the Council issue the plan within one month of my final decision. Once the final EHC Plan is issued, the Council should offer Miss X a remedy a remedy, in line with our Guidance on Remedies, for any provision Z would have received sooner but for the delay. If the Council does not offer a suitable payment, it is open to Miss X to make a complaint and then bring this back to the Ombudsman.

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Agreed action

39. To remedy the injustice caused to Miss X and Z as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Miss X and Z;
• Make Miss X a symbolic payment of £1,500 to recognise her prolonged distress as result of the failure to finalise the EHC Plan;
• Issue the final version of Z’s EHC Plan and notify Miss X of her appeal rights if she disagrees with the content. Once the final EHC Plan is issued the Council should offer a remedy, in line with our Guidance on Remedies, for any provision Z would have had but for the delay; and
• Make a payment of £4,800 to be used for the benefit of Z, to recognise the loss of education provision since January 2023. As Z’s EHC Plan should have been finalised by May 2023, I have calculated this figure at the upper end of the Ombudsman’s recommended scale. This figure is equivalent to two terms of lost education provision.
40. The Council should provide us with evidence it has complied with the above actions.
41. I have not made any service improvement recommendations. This is because the Ombudsman has recently found fault in many other cases and recommended service improvements which cover the areas this complaint concerns. This includes providing us with an action plan to show how it will address delays in the EHC Plan process and ensure it takes action to provide alternative provision. We have also recommended that a report is provided to the relevant overview and scrutiny committee and the Lead Member for Children, Families and Education.

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Final decision

42. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman