Summary: Mrs X complained about the Council’s delays with completing her children’s Education, Health and Care needs assessments, its delays with issuing their final Plans and with its complaint handling. Mrs X also complained the Council did not provide her children with alternative provision. There were some faults by the Council which caused injustice to Y, Z and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s:
1. delays with completing her children’s (Y and Z) Education, Health and Care needs assessments within the statutory timescales
2. delays with issuing Y and Z’s final Education, Health and Care Plans
3. failure to provide Y and Z with suitable education / alternative provision from January 2023 to July 2024
4. complaint handling.
2. Mrs X said as a result, Y and Z lost out on education over a significant period, their mental health was affected and led to a breakdown of their school placement. Mrs X said the matter also caused her distress, affected her mental health and she had to stop working so she could support Y and Z.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

10. I have not exercised discretion to investigate matters before June 2023. These are late complaints, and I consider it reasonable for Mrs X to have complained about these matters earlier, there is no good reason to investigate them now.
11. I have investigated matters from June 2023 to June 2024. This covers 12 months from when Mrs X made a complaint to the Ombudsman in June 2024.

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How I considered this complaint

12. I discussed the complaint with Mrs X. I also considered the information Mrs X and the Council provided about this complaint.
13. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Education, Health and Care Plans

14. 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.
15. Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment. 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.
16. 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).
17. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
18. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Alternative Provision

19. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
20. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make.
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.
22. 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)

Background

23. Mrs X’s children, Y and Z, have some health conditions and special educational needs (SEN). They attended the same mainstream school.
24. In March 2023, Education, Health and Care needs assessments (EHCNA) were requested for Y and Z.

Key events

2023

25. In July, Mrs X made a formal complaint to the Council for its delays with the EHCNA process.
26. The Council issued its stage 1 response to Mrs X’s complaint the same month. It accepted and apologised for its delays which it said was due to the shortage of educational psychologists (EPs). The Council said it hoped to allocate an EP to complete Y and Z’s assessment by October 2023. The Council advised Mrs X if she remained dissatisfied, that she could either contact its complaints team within 20 working days of receiving its response or she could contact the Ombudsman.
27. In December, the Council issued Y and Z’s final EHC Plans with their mainstream school as the named setting.

2024

28. In January, Mrs X stopped sending Y and Z to school. She said this was because their mainstream school was unsuitable to meet their needs and that they both struggled to cope at the school. Mrs X raised concerns with the Council about Y and Z’s lack of access to full-time education for over a year, the suitability of their school placement and she requested an emergency review of Y and Z’s EHC Plans.
29. In February, the Council responded to Mrs X. It said it had considered and found Y and Z’s mainstream school was suitable and available to them. The Council confirmed emergency reviews of Y and Z’s EHC Plans were held in January and Mrs X’s request for special schools for her children had been submitted to the panel to consider. The Council advised Mrs X if she remained dissatisfied, that she could either contact its complaints team within 20 working days of receiving its response or contact the Ombudsman.
30. From January to March, Y and Z’s absences were recorded as “unauthorised” and from April to July, the absences were recorded as “illness”.
31. In June, the Council amended and issued the final EHC Plans for Y and Z. The children’s mainstream school remained the named setting in their respective Plans and then from July, a specialist placement was named.
32. At the end of June, Mrs X made a complaint to the Ombudsman. Mrs X said the Council delayed with Y and Z’s EHCNA process and with issuing their final Plans in 2023. She also complained about its poor communication with her and how it had dealt with her complaint.
33. The Council issued its final response to Mrs X after the Ombudsman got involved. In its response, the Council:
1. apologised for its delays with completing the EHNCA process and with issuing Y and Z’s 2023 final Plans. It offered Mrs X a financial payment of £800 in recognition of the distress caused by its delays.
2. said the school provided Y and Z with adult support, professionals’ advice, reasonable adjustments and provisions tailored to meet their needs in 2023 and 2024. These included part-time timetables, personalized learning environment, teaching assistant support, 1:1 in a separate room with reduced stimulation (Y) and nurture group support.
3. said reviews were conducted (between June and November 2023) and positive progress were recorded for Z but not as much for Y. It considered and referred Y’s case for a multi-agency discussion in late June 2023 as to what additional support it could provide to increase Y’s time in school.
4. said the multiagency met in mid-September 2023 and recommended the Council and the school explore and jointly fund a short-term alternative provision for Y. It said the school could not fund the alternative provision, so it provided Y with a bespoke curriculum supported by two teaching assistants which improved his education and socialization.
5. said it issued Y and Z’s final EHC Plans in December 2023 with specified provisions for their individual SENs.
6. said the mainstream school was named in the children’s final EHC Plans issued in December 2023. The Council said it considered the mainstream school was available and suitable for Y and Z, but that they did not attend school from January 2024. It said their absences from school in the 2024 Spring Term was recorded as “unauthorized”, so, the Council did not offer any remedy for this term.
7. offered a £2,400 financial payment to Y and Z (£1,200 each) for the loss of education during the 2024 Summer Term. The Council accepted it failed to provide Y and Z with the provisions specified in their EHC Plans and/or with suitable education under Section 19 of the Act when they were both absent from school due to illness.
34. Mrs X remained dissatisfied with the Council’s final response. Mrs X told the Ombudsman that the Council did not properly address its failure to provide Y and Z with suitable education / alternative provision from January 2023 to the Spring Term of 2024. She said the Council failed to regularly review Y and Z’s part-time timetables. Mrs X said as a result Y and Z were unable to access core subjects and that they had minimal or no peer interaction.
35. Mrs X confirmed the Council had made the £800 and £2,400 payments to her, Y and Z.
36. Mrs X confirmed since Y and Z started attending the named specialist setting, they had both made significant progress.

Analysis

2023

37. June to December
38. Statutory guidance states councils must issue the final EHC Plan no longer than 20 weeks from the needs assessment request date. In this case, the Council delayed with completing Y and Z’s EHCNAs and with issuing their final EHC Plans due to the shortage of EPs. There was a delay of approximately four months. This amounts to service failure and it was fault. The Council has accepted its failings.
39. The Council’s delays caused Mrs X uncertainty, distress and it delayed her right of appeal to the Tribunal if she disagreed with the content of the Plans. I note the Council had apologised and made a financial payment of £800 to Mrs X to acknowledge the distress caused by its delays with Y and Z’s EHCNA process and with issuing their final EHC Plans. This is proportionate and in line with our guidance on remedies.
40. As the delay was due to the lack of EPs, I find the Council was unable to progress the EHCNA process without an EP advice. Therefore, we cannot remedy any loss of special education support to Y and Z during the delay period. This is because they did not yet have EHC Plans setting out their SENs and the provisions needed to meet them. We cannot say their EHCNAs would have reached the same conclusions had it taken place within the statutory timescale. Also, we would expect the provisions in their December 2023 final EHC Plans to have reflected Y and Z’s needs and taken into account any impact on their SEN provisions during the delay period.
41. We have recently made service improvement recommendations to the Council to provide an action plan to address the shortage of EPs in its borough. So, for this reason, I have not made any service improvement recommendation in this case about the widespread service failure. The issue is already being addressed through other cases we have investigated.
42. Mrs X also complained about the Council’s failure to provide Y and Z with suitable education and/or alternative provision during this period as they were both placed on part-time timetables.
43. While I note Mrs X’s concerns, the Ombudsman’s role is to consider whether there was fault in the way the Council made its decision in providing Y and Z with part-time timetables. If there was no fault in the decision making, we cannot question the outcome.
44. The Council considered both Y and Z’s individual SENs before it decided to place them on reduced timetables. It also put in place a variety of provisions tailored to their individual needs. Also, through reviews with other professionals during this period, the Council kept Y and Z’s cases of reduced education under review with a view to increasing the timetables if each of their capacities to learn increased. The Council recorded positive progress for Z and not for Y and as a result additional support were put in place to support Y until the final EHC Plans were issued in December. These were not faults.
45. However, there was no evidence to show the Council always informed/updated Mrs X about the reviews it held in relation to Y and Z’s part-time timetables during this period. This was fault. It caused Mrs X uncertainty in not knowing at the time whether Y and Z’s reduced timetables were being regularly reviewed and the agreed outcomes.

2024

46. As regards Section 19 of the Act, our approach relating to alternative provision has been updated in line with evolving caselaw. Where councils can demonstrate it has considered and it is satisfied that a child’s school placement is ‘reasonably available and accessible’ for the child, then councils do not have a duty to arrange alternative provision.

Spring Term

47. Mrs X stopped sending Y and Z to school from January 2024. Y and Z were absent from school during this period (January to March) and their absences were recorded as “unauthorised”.
48. Mrs X said she stopped sending Y and Z to school because the mainstream school named in their December 2023 final EHC Plans was not suitable to meet their needs. She said Y and Z struggled to cope at school, they were both on part-time timetables for a significant period which affected their behaviours and mental health. Mrs X said the Council failed to provide Y and Z with suitable education and support and it should have provided them with alternative provision when they were absent from school.
49. The Council considered and was satisfied the mainstream school named in their final Plans was suitable and could meet both Y and Z’s needs. The Council maintained the school was available and accessible to Y and Z during this period. I therefore find the Council had discharged its duty to provide education to Y and Z at their school and as a result, it had no duty to provide alternative education under section 19. This was not fault.
50. I note Mrs X’s concerns about Y and Z’s needs being met at the mainstream school. But I find if Mrs X remained dissatisfied with the children’s mainstream school and/or the SEN provisions as contained in their December 2023 final Plans, she could have exercised her right of appeal to the Tribunal.

Summer Term

51. The Council already accepted it failed to provide Y and Z with the provisions specified in their EHC Plans and/or with alternative provision when they were absent from school during this period. I find the Council lost sight of its responsibility under Section 19 of the Act to provide Y and Z with suitable education / alternative provision when they could not attend school due to their illnesses. This was fault which caused injustice to Y and Z. They both lost out on education and support as contained in their respective final EHC Plans.
52. I note the Council offered and made a financial payment of £1,200 each to Y and Z to remedy the injustice caused to them during this period. I consider the remedies are proportionate and are in line with our guidance on remedies.

Complaint Handling

53. Mrs X made a complaint to the Council in July 2023 and evidence shows the Council promptly issued its stage 1 response the same month. Similarly, in January 2024, Mrs X raised further concerns with the Council and evidence shows it responded to her in February 2024. These were not faults.
54. The response letters the Council issued to Mrs X in 2023 and 2024 set out its escalation route if she remained dissatisfied with its responses and should Mrs X wished to progress her complaints. There was no evidence to show Mrs X requested for her complaint to be escalated to stage 2 of the Council’s complaint process within the 20 working days timescale of receiving the stage 1 responses in July 2023 and February 2024. Therefore, I find no fault by the Council in how it handled Mrs X’s complaints.

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Agreed action

55. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X and make her a symbolic payment of £100. This is to acknowledge the injustice caused to her by the Council’s failure to regularly inform her about its reviews of Y and Z reduced education between June and December 2023. The apology should be in accordance with our guidance, Making an effective apology
• by training or other means remind relevant staff to always inform/update parents or guardians about the Council’s reviews and outcomes on its plans whether to increase a child’s part-time education.

56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman