Summary: Ms X complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment for her child, Y, failed to provide an appropriate education for Y between January 2023 and October 2024 and delayed in responding to her complaint. The Council was at fault for delay in completing an EHC needs assessment, failing to consider if it should provide alternative provision for Y and for poor complaint handling. The Council will apologise for the avoidable frustration, delay and uncertainty this caused Ms X and pay her a symbolic amount of £1,100 to recognise the same.

The complaint

1. Ms X complained the Council delayed in completing an Education, Health and Care (EHC) Plan needs assessment and in issuing an EHC Plan for her child, Y, between May 2023 and October 2024. Ms X also complained the Council failed to provide an appropriate education for Y between January 2023 and October 2024 and delayed in responding to her complaints about those matters. Ms X said Y missed education, become socially isolated and it affected their mental health. Ms X wanted the Council to name an appropriate school on Y’s EHC Plan, provide an appropriate education and improve its services.

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The Ombudsman’s role and powers

2. 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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. 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)
7. 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

8. 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)
9. I have investigated what happened in relation to Y’s education since January 2023 even though part of the complaint is late. What happened in 2023 is relevant to understand what happened in 2024, and is a matter of continuing injustice. In addition, Ms X was delayed in bringing the matter to us as the Council did not initially respond to her complaint. There are good reasons to investigate the matter now and the records were available in order to make a sound and robust decision.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care 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 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. 
13. 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.
• 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.

14. The EHC Plan is set out in sections which include information about the child or young person’s special educational needs, the special educational provision they need and the name and/or type of educational placement they should attend. 

Mediation and Tribunal

15. There is a right of appeal to the Tribunal against a number of decisions related to EHC Plans, These include a council’s decision not to carry out an EHC needs assessment, and the school or placement specified in an EHC Plan.
16. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
17. When a child or young person’s parent informs the council they wish to pursue mediation, the council must arrange mediation within 30 days of the request.
18. The SEND regulations set out that the council officer attending the mediation must have the authority to resolve the mediation issues (regulation 37). The mediation adviser must issue a mediation certificate within three working days of the conclusion of the mediation.
19. If during mediation a council agrees to complete an assessment, the council will notify the child's parent or the young person that it will carry out an assessment within two weeks of the mediation meeting. If it goes on to decide to issue an EHC Plan it must send the finalised Plan to the child’s parent or the young person within 14 weeks of the mediation meeting (regulation 42 and 44).

Alternative provision and part-time timetables

20. 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.
21. 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)
22. 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. 
23. 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.

Education Engagement Service

24. The Council has an Education Engagement Service (EES). It describes the role of the service as supporting schools and families to identify difficulties and causes of low school attendance. The EES provides advice on statutory legislation and guidance and help schools design an Attendance Improvement Plan (AIP) to support attendance, and to keep it under review to ensure all parties are engaging and actions are completed.

What happened

25. Y lives at home with their parent, Ms X, and sibling. At the time of these events they were on roll at School 1, a mainstream secondary school. Y has some special educational needs.
26. Y struggled to attend School 1 from the beginning of the 2022/23 academic year. In January 2023 the Council’s EES called an attendance improvement meeting. Ms X told the Council she was applying for an EHC needs assessment for Y, that they were waiting for a health appointment and an Occupational Therapist (OT) appointment for Y’s needs.
27. The AIP produced in February 2023 showed the Council, Ms X and School 1 attended the meeting. It recorded Y had 10% attendance and was not engaging with work at home. No evidence had been provided for any medical reason affecting Y’s attendance. The AIP set out actions the school was trying and that Y was on a part-time timetable of one session per day, but was not attending. The AIP recorded School 1 would have fortnightly meetings with Ms X with the intention to gradually increase Y’s timetable. A review was planned for the end of March.
28. Ms X asked the Council for an AIP review meeting in March. She provided an OT report and Educational Psychologist (EP) report which provided advice on how School 1 could support Y’s attendance including emotional literacy support and a sensory plan. Ms X asked for the recommendations to be implemented at School 1. The Council told School 1 to hold a meeting to discuss and it would review the AIP in a month. School 1 told the Council Y was attending for one period per day but agreed to increase it to two.
29. Ms X submitted a request for an EHC needs assessment in May 2023. The Council asked School 1 for an update on Y. The records do not show School 1 responded.
30. The Council told Ms X it decided not to complete and EHC needs assessment for Y, at the beginning of June. It provided Ms X’s appeal rights to the SEND Tribunal if she disagreed with the decision.
31. The EP provided a further report at the end of June following a review meeting with Ms X, Y and School 1. It said Y was receiving one hour tutoring a week, organised by Ms X. The part-time timetable had not been effective. School 1 actions were in place, but Y had not been able to attend to benefit and so there was insufficient progress. It identified actions for Ms X and Y, and further actions for School 1 to provide detailed plans and certain staff meeting Y.
32. In mid-July Ms X told the Council School 1 had mentioned prosecution if Y’s attendance did not improve but School 1 had not implemented the EP recommendations for Y. The Council told Ms X it would discuss it at the next AIP meeting. The Council contacted School 1 which said everything was in place but Y was not attending. The Council said it would consider prosecution if Y’s attendance did not improve in September.
33. The Council held an AIP review meeting in mid-September 2023. It recorded there had been no progress with Y’s attendance or education and so it would identify next steps at the next attendance improvement decision panel.
34. Ms X asked the Council for an update on the AIP at the end of October. She stated Y had been out of education for almost four terms. School 1 provided the Council with a comprehensive list of all the actions it had taken to support Y’s attendance, in line with the advice received from the EP.
35. The Council held on AIP review in November. It recorded no progress had been made and Y was unable to engage with school or a tutor Ms X had arranged. School 1 said it had nothing else to offer to the extensive list of the adjustments and provisions it had put in place. The Council said it would send the AIP to its legal team for advice on the next steps.
36. The EP provided a further report in December. It recorded Y had attended the first day of term and nothing further. The EP recommended ‘there needs to be a clear offer of education support available to [Y]. Consider SENIT, medical tuition or school providing tuition for [Y]’. (SENIT is the Council’s Special Educational Needs Integration Team which offers short term, interim support for children and young people in certain circumstances.)
37. Ms X submitted a further EHC needs assessment request for Y at the end of January 2024.
38. Ms X complained to the Council in February 2024. Ms X said Y had been without any education for 18 months, despite their engagement with the Council’s EES since January 2023 there had been no progress and it was the Council’s responsibility to provide education that was suited to Y’s needs.
39. The following week the Council issued its decision not to complete an EHC needs assessment for Y. It provided Ms X’s with appeal rights to the SEND Tribunal if she disagreed with the decision. Ms X request mediation on the Council’s decision immediately.
40. Ms X asked the Council to provide a response to her complaint at the beginning of March.
41. School 1 asked the Council to provide alternative provision for Y at the end of March 2024. It said it had tried all avenues to support Y but they were unable to attend. It said it was the Council’s duty to provide section 19 education. The Council told School 1 there was no current evidence Y’s health had been assessed, but if School 1 had evidence of a medical care plan it could request support under section 19.
42. The Council said it believed mediation took place at the end of March 2024. It did not provide any of the records of the mediation meeting, discussion or decision.
43. Internal correspondence shows the Council sought additional information from School 1 and the EP in relation to Y’s attendance, timetable, and provisions in place for Y since the 2022/23 academic year to date, and any reasonable adjustment in place. The EP provided additional information to the Council at the beginning of April.
44. At the end of May the Council issued a letter to Ms X which said it had agreed to complete an EHC needs assessment for Y.
45. Ms X brought her complaint to us at the beginning of June, as the Council had not responded. The Council told us it had not yet considered Ms X’s complaint and it would do so by the beginning of July.
46. At the end of July the Council told Ms X it would issue an EHC Plan for Y. It issued a draft EHC Plan for her comments in mid-August 2024, and consulted schools for a place for Y.
47. We asked the Council if it had issued a complaint response to Ms X and it confirmed at the end of August that it had not, but it would prioritise it.
48. The Council issued its stage one response to Ms X in early September. It apologised for the significant delay in responding to the complaint. It said the EHC Plan was now at draft which hopefully would address some of Ms X’s frustrations.
49. Ms X responded to the Council and said it had not responded to her complaint about the lack of education for Y and asked it to consider the matter further.
50. Ms X told the Council a month later she would raise her complaint with us, as it still had not responded. The Council told Ms X it would respond to her further complaint soon.
51. The Council issued a final EHC Plan for Y at the beginning of October. It stated Y should attend School 1. The Council told Ms X of her right of appeal to the SEND Tribunal if she disagreed with the content of the EHC Plan. Ms X appealed against the school named in the Plan.
52. At the end of October, Ms X brought her complaint to us again, having not received a response from the Council.

Further information

53. The Council stated the Officer Ms X’s complaint was originally assigned to no longer worked for the Council and so it had not been able to establish why the complaint was not responded to. It accepted there was a significant failing in the handling of the complaint and as a result it would remind Council officers dealing with complaints of the importance of opening and actioning any emails received via the complaints system. It said it did not have a record of Ms X request to escalate the complaint following its initial response.

My findings

EHC needs assessments and mediation

54. The Council issued its decision not to complete an EHC needs assessment for Y in June 2023 in line with the timescales set out in the Code. The Council provided Ms X with an appeal right to the SEND Tribunal. Ms X could have appealed if she disagreed with the Council’s decision. As Ms X had a right of appeal, and it was reasonable for her to use it, I have not considered that matter further as set out in paragraph five.
55. The Council issued its decision not to complete an EHC needs assessment for Y in February 2024, two weeks later than the timescales set out in the Code, which was fault, however I do not find the fault caused Ms X a significant injustice. The Council provided Ms X with an appeal right to the SEND Tribunal. Ms X requested mediation and the Council says it believes it completed mediation within 30 days in line with the regulations. However, the Council has not provided any documentary evidence of the mediation meeting, or the outcome. The failure to keep clear, complete and contemporaneous records is fault and it leaves uncertainty about what happened.
56. The records show the Council went on to complete an EHC needs assessment for Y, and so, on the balance of probabilities that was the outcome of the mediation. In line with the SEND regulations the Council should have notified Ms X it would complete an assessment within two weeks of the mediation (by mid-April) and issued the final EHC Plan within 14 weeks (by early July). The Council did not issue its decision until the end of May and Y’s final EHC Plan until the beginning of October. The delay of three months is fault and delayed Ms X’s appeal right to the SEND Tribunal.

Alternative provision

57. The Council knew from January 2023 that Y was not attending school and had a part-time timetable. Initially the Council worked with School 1 and Ms X through its AIP, which was appropriate action to take at the time. The Council should have kept Y’s part-time timetable under review monthly in line with its process. The Council did not review the AIP until September 2023. It reviewed it one more time in November before ending the intervention without explanation despite Y remaining out of school until October 2024 and Ms X and School 1 repeatedly saying no progress had been made from March 2023. There is no evidence the Council considered the matter at a panel meeting or by its legal team as it suggested it would. The failure to keep the part-time timetable under review was fault.
58. The Educational Psychologist recommended the Council consider alternative provision in December 2023, but there is no evidence the Council considered the matter. When alternative provision was requested the Council told School 1 there was no medical evidence Y could not attend due to a medical reason. The Council failed to consider if Y could not attend school for ‘other’ reasons. The Council’s failure to properly consider its alternative provision duty is fault.
59. The faults identified above caused Ms X uncertainty about what provision the Council may have offered Y had it properly considered the matter at any time between March 2023 and October 2024 when it issued Y’s EHC Plan. I cannot say if Y missed out on any educational provision during that time, as I cannot know what decision the Council would have reached, what provision it may have offered or if Y would have been able to engage with or access it.

Complaint handling

60. The Council’s complaint handling was poor. It did not respond to Ms X’s initial complaint for seven months, despite our requests to do so. When the Council did respond it did not consider Ms X’s complaint, provide a finding or any kind of outcome and instead relied on the fact the Council was intending to issue an EHC Plan. The Council did not provide a stage two response as it said it did not receive a request, despite responding to Ms X’s reminder stating it would respond soon. The complaint handling was fault and caused Ms X frustration and delay.

Previous recommendations and Council action

61. We have recently made recommendations to the Council to improve its consideration of its section 19 duty where children are out of school, and its complaint handling. The Council is undergoing a significant transformation programme and has developed a SEND action plan. The plan includes improvements for complaint handling and delay in EHC needs assessments. Therefore I have not made any further service improvements recommendation on those points. We will continue to monitor the Council’s improvements through our case work.

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Agreed action

62. Within one month of this decision the Council will:
• Write to Ms X and apologise for the frustration, delayed appeal rights and uncertainty Ms X was caused by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
• Pay Ms X a symbolic amount of £500 to recognise the delayed appeal rights and avoidable frustration caused by the poor complaint handling;
• Pay Ms X a symbolic amount of £600 to recognise the uncertainty caused to Ms X by the Council’s failure to consider if it owed Y a section 19 duty between March 2023 and October 2024; and
• Remind officers involved in mediation of the importance of keeping clear, complete and contemporaneous records of the mediation meeting and resulting outcome and to ensure a mediation certificate is issued.
63. The Council will provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice. The Council has agreed to my recommendations to the remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman