Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her child. She also complained and about a lack of support and poor communication during the assessment process. The Council was at fault for delay issuing the final Education, Health and Care Plan. It was also at fault for delay responding to Mrs X’s stage two complaint. It agreed to provide a remedy for the avoidable frustration and uncertainty Mrs X suffered. The Council was not at fault in its consideration of alternative provision for Y.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her child, who I will call Y. She also complained and about a lack of support and poor communication during the assessment process.
2. Mrs X said Y was on a reduced timetable at school, sometimes only attending for half an hour a day, but the Council did not put alternative provision in place. There was no support for the education Y was missing, and communication with the Council was non-existent. Y missed several years of education as a result, and was forced to attend a setting that could not meet their needs.
3. Mrs X said this affected Y’s self-esteem, and they are now behind academically and socially. It also impacted Mrs X’s career, her mental wellbeing, and the family’s finances. Mrs X had to give up work to look after Y.

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The Ombudsman’s role and powers

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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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. 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

Education, Health and Care Plans

10. 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. 
11. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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.

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

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

13. Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision

14. 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.
15. 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))
16. 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)
17. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
18. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

19. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
20. The Council received an EHC needs assessment request for Y on 30 January 2023. It acknowledged this on 2 February.
21. The Council confirmed it would carry out an EHC needs assessment for Y on 6 March.
22. Y’s mainstream school (the school) started a part-time timetable for Y in May 2023 as Y was at risk of permanent exclusion following behavioural incidents. This was to be reviewed with the Council. The school noted Y had been on a part-time timetable before with success, but once Y started full-time again their behaviour worsened.
23. The school reported Y was doing well in June and would stay on a part-time timetable until September. It would then increase Y’s time in school by 15-minute increments before another review.
24. The school contacted the Council on 19 July 2023, as the EHC Plan was due that week. It recognised there were delays but worried this would harmfully affect Y. Although the school planned to gradually increase Y’s part-time timetable over time, it asked the Council to fund some alternative provision (AP) for Y in September.
25. Mrs X complained to the Council about delays with the EHC needs assessment on 20 September 2023. She said it had been 28 weeks and Y still did not have an allocated EP. She also said Y had been on a reduced timetable in school since April and the Council was not meeting Y’s right to full-time education. The mainstream school could not provide the environment and resources Y needs.
26. The Council responded to Mrs X’s complaint about delays on 4 October. It recognised Mrs X’s concerns about Y’s difficulties in school and part-time timetable. It said there were delays, locally and nationally, with EP advice which was affecting EHC assessments. It said the service was aware of the concerns and working to complete assessments as soon as possible. It also said the Council was recruiting EPs and assistant EPs.
27. The Council said support with Y’s wellbeing in school was available from its Learning Behaviour and Advisory Team, Autism and Social Communication Service, Early Help professionals, and Early Years childcare advisors.
28. The Council received Y’s EP report on 19 October.
29. On 20 October, the school told the Council the gradual build up of Y’s part-time timetable was working, and Y was successfully building up to full-time.
30. However, on 27 November the school told the Council Y’s dysregulated behaviour increased as their time in school increased.
31. The school said it exhausted every avenue and had to reduce Y’s timetable (back to part-time). It tried to increase it, but Y’s recent behaviour was a safeguarding risk to staff and pupils again.
32. The Council issued Y’s draft EHC Plan on 7 December, naming the mainstream school. It was also consulting with several specialist schools.
33. Y’s mainstream school responded to the draft plan on 12 December, stating it could not meet Y’s needs.
34. Mrs X requested amendments to the draft EHC Plan.
35. At a review of Y’s part-time timetable on 1 February 2024, the school said Y was struggling. Y felt the school did not want them. They had been on taster days at other schools and feared rejection. This made Y angry. The Council therefore agreed to apply for additional funding for an organisation providing alternative education for children with additional needs who are out of school. I will refer to the organisation as ‘the AP provider’. This was for 10 hours a week in addition to Y’s time in school.
36. Y’s mainstream school excluded Y on 7 March 2024 due to increasing aggression. It reduced Y’s timetable to 30 minutes a day. It asked the Council for an update on funding for the AP provider.
37. The Council said it would complete Y’s EHC plan, naming the mainstream school while it searched for a suitable setting. It could then release funding for the AP provider.
38. The school told the Council Y returned following exclusion but had to go home as they hurt three adults. It asked to increase Y’s planned provision with the AP provider to 15 hours a week. The Council agreed.
39. Mrs X made a stage two complaint on 7 March 2024. She said Y was still waiting to receive support for full time education, in a setting that can meet their needs. She said Y had been on a reduced timetable for nearly a year, and the school did all it could to but Y needs specialist provision.
40. The Council issued Y’s final EHC Plan on 12 March 2024. It named Y’s mainstream school. However, it was still holding further consultations with special schools.
41. Y was invited to attend an assessment day at a specialist school on 27 March.
42. The specialist school confirmed it could meet Y’s needs and offered them a place on 30 April 2024. Y’s placement at the new school started on 13 May 2024.
43. The Council sent its stage two complaint response on 21 May 2024. It apologised for the delays with the EHC needs assessment and complaint process. It said it reviewed arrangements and was confident it is doing all it can to address the shortage in resources.
44. The Council said if the school felt unable to meet Y’s needs, it is their responsibility to refer the matter to the Council’s Fair Access Team to consider AP.

My investigation

45. Mrs X told me the school received advice from agencies like the Learning Behaviour and Advisory Team and Autism and Social Communication Service, and did all it reasonably could. The school set up strategies to help, such as play therapy and using a low demand approach.
46. Y’s attendance up to May 2024 varied. The school often had to reduce, then increase it. Y was not in school longer than a morning since April 2023. Y’s attendance between March and May 2024 was 30 minutes a day.
47. Y started at a specialist setting in May 2024. This was also on a reduced timetable, which gradually increased to three mornings and two whole days a week. Y is still settling in, but things are improving.
48. Mrs X said the last few years have impacted her financially, impacted her career, her mental wellbeing, and her relationship with friends and family. It also adversely affected her Y’s self-esteem, and their ability to socialise and learn acceptable social behaviour. Y also missed academic development.
49. The Council told me it found no examples of times the case officer did not respond to queries from Mrs X. However, there were delays in their assessment. Y’s EP report arrived later than statutory timescales. However, the Council said it told Mrs X about the delays and the impact this would have.
50. The Council confirmed there are long delays in allocating an assessment to an EP (which is due to a national shortage). It has an action plan to increase capacity and improve timelines, with targets to bring EP timelines back on track over the next 12 months. In terms of the specific steps, the Council has:
• Arranged EP assessments from external agencies and locums to increase capacity.
• Increased full time EPs.
• Reviewed pay and conditions to attract EPs.
• Undertaken recruitment campaigns.
• Increased numbers of trainee and assistant EPs to supplement the work.
• Reviewed service delivery to maximise efficiency.
51. The Council said it is mitigating the impact of delays by giving temporary funding to schools if it does not complete an EHC needs assessment within 20 weeks.
52. The Council said it did not force Y to attend school. Y was on roll when an assessment was requested. And, while the school had concerns about managing Y’s behaviour, they did consider what support and adjustments they could offer to enable Y to attend. Y was on a reduced timetable, in line with the provision they could manage. And staff consulted professionals to support Y. Y built up their time in school slowly. However, after some aggressive behaviour and exclusions, the school reduced Y’s timetable and could not increase it.
53. The Council said Y’s mainstream school was waiting for the AP provider to find a teacher for Y. They were due to start on 7 May, but the school then learned a special school could offer Y a place on 13 May. Mrs X decided to cancel the AP rather than overwhelm Y with changes.

Analysis

54. The Council should have issued Y’s final EHC plan by 19 June 2023. It did not do so until 12 March 2024. That is a delay of over eight months.
55. However, I found the delay was largely out of the Council’s control, as it was down to a shortage of EPs. I am satisfied the Council took suitable steps to address the shortages of EPs by looking into locums and EP assistants during the relevant time. I therefore consider this to be service failure, which is fault.
56. I am also satisfied the Council has taken suitable further steps to address EP shortages following Mrs X’s complaint, and has a plan in place to tackle the problem. I will not therefore make any service improvement recommendations.
57. The school asked the Council about AP starting in September 2023. I found the Council was aware of Y’s situation through regular reviews held as part of the pastoral support programme. The reviews showed Y made progress on a part-time timetable from September to October 2023. This stalled in November 2023 when the school tried to increase Y’s time in school. But Y still attended in the mornings.
58. The situation worsened in early 2024, with the school reporting Y was struggling in February. The Council then agreed to explore funding for the AP provider. It was not until March 2024 the school excluded Y again, and reduced Y’s timetable to 30 minutes a day. Then in April 2024, a specialist school offered Y a place, with a start date in May. Mrs X did not want to confuse Y by starting AP then.
59. I did not find fault in the Council’s consideration of AP. Education does not have to be full-time if it is not in the child’s best interests, which the school determined it was not in this case due to Y’s dysregulation and behaviour. And part-time timetables are permitted if they are not a long-term solution. Putting Y on a part-time timetable had been successful before, and the school had sought advice from the relevant support agencies, who had helped the school form an individual support plan. There were also regular reviews, and Y appeared to make progress at first. The situation did not worsen until 2024, and the Council agreed AP once the school reduced Y’s timetable to 30 minutes a day.
60. The Council’s website says it is committed to responding to complaints in a timely manner, and a service manager will respond within 20 working days.
61. Mrs X made a stage two complaint on 7 March. The Council responded on 21 May, 53 working days later. That was a delay of 33 working days and amounts to fault. The Council did apologise for this delay in its complaint response. However, it would have been good practice to keep Mrs X updated and let her know there was a delay once 20 working days elapsed.
62. Mrs X also complained about poor communication during the EHC needs assessment. I did not see evidence the Council ignored correspondence from Mrs X or the school during the assessment. However, I consider it would be good practice for the Council to keep in touch with people when deadlines are approaching or missed, particularly where the Council knows about delays.

Injustice

63. The Council’s delay issuing Y’s final EHC Plan caused the family considerable frustration and uncertainty. Y was struggling and unable to attend school full-time. This meant Mrs X had to be at home and could not work.
64. The Council should remedy things by providing a symbolic payment for each month over the statutory timescale, up to the point where Mrs X received a right of appeal. This is to recognise the frustration and uncertainty caused to the family. It is not to remedy any loss of SEN support during this time, as Y did not yet have an EHC Plan.
65. The Council’s delay responding to Mrs X’s stage two complaint caused added avoidable frustration at what was already a distressing time. The Council should provide a further symbolic payment in recognition of this.
66. The Council has already apologised and explained the reasons for the delays issuing Y’s final EHC Plan. It also apologised for the delay providing a stage two complaint response. I will therefore not recommend the Council makes any further apologies.

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Agreed action

67. Within four weeks of my final decision, the Council will pay Mrs X £900. That is made up of £800 in recognition of the frustration and uncertainty caused by the eight-month delay issuing Y’s final EHC Plan. And £100 for the avoidable additional frustration caused by delays in the Council’s complaint handling at what was already a distressing time.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I completed my investigation. The Council was at fault for delay issuing the final Education, Health and Care Plan. It was also at fault for delay responding to Mrs X’s stage two complaint. It agreed to provide a remedy for the avoidable frustration and uncertainty Mrs X suffered. The Council was not at fault in its consideration of alternative provision for Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman